2007 Winter Leadership Conference Program:
“The Month Before: The People and Technology You Need to Get Your Case Filed”
ABI’s Technology and Telecommunications Committee is presenting a can’t-miss program at the Winter Leadership Conference, at the Westin Hills Resort & Spa Rancho Mirage, Calif., on Saturday Dec. 8, from 9:30 - 11:00 a.m. The Saturday morning presentation, entitled “The Month Before: The People and Technology You Need to Get Your Case Filed,” will focus on the practical and practice side of bankruptcy planning (as opposed to venue selection, DIP financing, first day motions, etc.). As every bankruptcy professional knows, it is critical that the proper people and systems are put into place during the 30 days prior to the filing of a chapter 11 case to provide the smoothest possible entry in the bankruptcy arena. Advance planning can be essential to the management of the case and the eventual exit from the reorganization/liquidation proceedings.
The program will feature a faculty of experienced practitioners that each play a different, yet integral role in the process:
• Moderator – H. Jason Gold, Wiley Rein LLP, Washington, D.C.
• Debtor’s Counsel – Ray C. Schrock, Kirkland & Ellis LLP, Chicago
• Noticing/Claims Agent – Jeff Pirrung, Administar Services Group LLC, Jacksonville, Fla.
• Management Advisor – Neil Gilmour III, Executive Sounding Board Associates Inc., Wilmington, Del.
• Financial Advisor – Guy A. Davis, Protiviti Inc., Richmond, Va.
For more information regarding the program, please contact the committee co-chairs:
William Snyder at wsnyder@crpllc.net or
Jason Gold at jgold@wileyrein.com
Providing Utility Services Post-Petition and Post-BAPCPA
by Brian G. Rich
Berger Singerman, PA; Tallahassee & Fort Lauderdale, Fla.
and by Douglas A. Bates
Berger Singerman, PA; Miami
There can be little doubt that utility companies rank among the most successful constituencies in terms of new rights received under the Bankruptcy Abuse Prevention Consumer Protection Act of 2005 (BAPCPA). Much maligned for its “devastating effects” on average consumer bankruptcy filings, BAPCPA’s amendments to 11 U.S.C. §366 established a new and sometimes nonsensical battleground early in chapter 11 business bankruptcy cases. Unfortunately for business debtors, BAPCPA appears to have provided utility companies significant powers that can be exercised within extremely limited time frames. However, to take advantage of BAPCPA’s broad grant of authority related to these new provisions, a company must meet the definition of “utility.”
Of course, telecommunications providers wish to be defined as a “utility” so that they might take advantage of the broad protections available in §366. These protections include, among other things, adequate assurance from the debtor in a form that is “satisfactory to the utility.” Based on the plain language of §366, the amount and type of adequate assurance that must be provided by the debtor is left entirely to the whim of the utility. The shortened time frame in which the debtor must provide the adequate assurance, and the rather short list of ways that a debtor can do so, gives debtors good reason to put up a fight and dispute the assertion by a telecommunication provider that it is in fact a “utility.”
Post-BAPCPA Approaches To §366 Adequate Assurance Motions
by Jeremy W. Ryan
Saul Ewing LLP; Wilmington, Del.
Motions to determine that utilities are adequately assured of payment pursuant to §366 of the Bankruptcy Code, 11 U.S.C. §366, are common “first day” motions. Section 366 of the Bankruptcy Code prevents utilities from discontinuing services to a debtor as long as the utilities have received adequate assurance of payment for post-petition services. This article examines the approaches to adequate assurance following the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).
Pre-BAPCPA Practice
Prior to the enactment of BAPCPA, utilities were prohibited from terminating services post-petition to a debtor on the basis that a debtor had filed for bankruptcy protection or that pre-petition services were not paid when due. In order to qualify for the statutory injunction, a debtor was only required to furnish adequate “assurance of payment” within 20 days of the filing of the bankruptcy case to qualify for the statutory injunction. The Bankruptcy Code did not define “assurance of payment.”