American Bankruptcy Institute Update

February 24, 2005

In This Issue

Highlights

Legislation Update

Senate to Focus on Bankruptcy Bill Before Easter Recess

Although Republicans are confident they have enough votes to pass the bankruptcy reform bill this time around, its complexity and controversial nature likely will sharply limit the Senate’s ability to consider other important legislation before the beginning of the spring recess in three weeks, CongressDaily reported. GOP sources said the FY06 budget resolution will be the only other measure to see significant floor time prior to the break, although Majority Leader Bill Frist (R–Tenn.) could bring up legislation to increase fines for incidents of broadcast indecency.

Specter Resisting Cut to Asbestos Claims Fund

Shrugging off concerns about his health, U.S. Senate Judiciary Committee Chairman Arlen Specter (R–Pa.) said Thursday he plans to bring asbestos injury legislation before his committee on March 3, the Wall Street Journal reported. Specter indicated that he is resisting Republican attempts to reduce the size of a proposed $140 billion fund to compensate asbestos victims, and will meet next Tuesday with Senate Majority Leader Bill Frist and other Republicans to try to resolve differences over his asbestos proposal, Reuters reported. He has tried for months to reach agreement on the asbestos bill. But last week Specter announced he had been diagnosed with stage IVB Hodgkins disease and would be receiving chemotherapy treatment every two weeks for the next six to eight months. “I have a lot of stamina,” Specter told reporters at a Capitol Hill press conference to lay out his agenda for the next session of Congress. That agenda includes moving the asbestos legislation, leading the Senate debate on bankruptcy reform legislation and negotiating an agreement on consideration of President George W. Bush’s judicial nominations.

Majority Leader Frist Supports Further Efforts to Curb Lawsuits

Senate Majority Leader Bill Frist (R–Tenn.) said this week that he will keep pushing for measures to limit “predatory lawyers” from pursuing frivolous lawsuits, excessive fees and unlimited punitive damages against U.S. businesses and health care providers, Knight-Ridder reported. “U.S. businesses are at a huge disadvantage,” Frist said. “We have a class-action litigation system that is out of balance and not serving the interests of consumers or the country as a whole.” Three days after President Bush signed the biggest change in tort reform laws in more than a decade, Frist vowed to work for more measures to help limit consumer bankruptcies, control the costs of asbestos and gun litigation and cap medical malpractice judgments. “The window of opportunity to act is limited,” said Frist, who plans to retire from the U.S. Senate at the end of next year.

Jobless Claims Rise More Than Expected

The number of new claims for U.S. jobless benefits climbed more than expected to 312,000 last week, government data showed on Thursday, while a more reliable job market gauge fell to its lowest level in more than four years, Reuters reported. Initial claims for state unemployment insurance rose by 9,000 in the week ended Feb. 19, from an upwardly revised 303,000 the prior week, the Labor Department said. The number of claims came in well above the 305,000 Wall Street economists had forecast. A Labor Department analyst said there were no special factors behind the rise in fresh claims. The overall health of the economy will be a key element in next week’s debate on the bankruptcy bill.

Bush Administration Pushes for Greater Transparency in Pension Plans

An article in today’s Wall Street Journal highlights efforts by the Bush administration to push for greater transparency and tougher disclosure rules in the nation’s pension system. The article notes that bankrupt Bethlehem Steel Co., which cost the Pension Benefit Guaranty Corp. (PBGC) $3.7 billion, is being cited by the administration as a prime example of why federal laws requiring companies to disclose pension-plan funding shortfalls need to be beefed up. According to the article, Bethlehem Steel told the Internal Revenue Service that its pension plan had enough money to cover 84 percent of future benefits, but when the PBGC took control of the steelmaker’s pension plan in 2002, assets actually stood at 45 percent of its liabilities.

Weak disclosure rules, critics say, allow companies to paint a sometimes distorted picture that can keep employees, investors and regulators in the dark until it is too late, the Journal reported. The administration wants more information made public. It also wants to prevent companies, in measuring the size of obligations, from using assumptions—now permitted—that exaggerate their plans’ assets and play down their liabilities, PBGC Executive Director Bradley Belt says, the newspaper reported. To simplify the rules, companies in their IRS filings would be required to use an interest-rate formula that the administration believes would give a more accurate snapshot on a given date of each pension plan’s funding level—and remove the ability of companies to fudge numbers. In addition, the administration wants companies to be required to report to authorities the costs of terminating their pension plans. Terminating a plan drives up its costs because it involves immediately buying annuities in the private market to pay out all the accumulated benefits. Read the full article at www.wsj.com (subscription required).

Register for ABI’s Annual Spring Meeting by Tomorrow and Save $70!

Join ABI for the 23rd Annual Spring Meeting , to be held April 28–May 1, 2005 in Washington, D.C. Register by tomorrow, Feb. 25 and save $70 off the regular registration rate. Join top faculty, prominent judges and practitioners from around the nation for four days of networking, CLE/CPE programming and top notch entertainment. The program is well timed to report on the newest developments on bankruptcy law reform. This year’s program also features the Ninth Annual Great Debates and workshops on suppliers to distressed industries, dealing with state regulators in utility industry bankruptcies, pre– and post-confirmation issues in consumer conversions between chapters 13 and 7, consumer credit issues, asset sales, mass torts litigation in chapter 11, secured property in chapter 7, churches and nonprofits in chapter 11, new commercial lending vehicles, legislative and case law developments, professional fees, a judges’ roundtable on hot bankruptcy issues and more. Register online today!

ABI Mediation Guide Available in ABI Online Bookstore

ABI’s latest publication, the ABI Guide to Bankruptcy Mediation: A Guide for Attorneys and Clients Concerning the Use of Mediation to Resolve Disputes Arising in Bankruptcy Cases, is now available in the ABI online bookstore to ABI members at the reduced rate of $7. The publication was written by ADR Committee Co-chairs Erwin I. Katz (Erwin I. Katz Ltd., Chicago), Lisa Hill Fenning (Dewey Ballantine LLP, Los Angeles) and Jacob Aaron Esher (JAMS, Boston, Riley & Esher LLP, Cambridge, Mass.). The Guide explains why, when and how mediation can be used in bankruptcy cases. It can be used as a comprehensive and accessible client handout. For attorneys, it also provides “how to” guidance with respect to the most common kinds of mediation issues that arise in bankruptcy cases. Suggested procedures adapted to the particular requirements of bankruptcy cases, as well as convenient checklists and cross-references to other bankruptcy-related mediation resources, are also included. Order your copy online today!

LoPucki to Respond to Critics at ABI’s New York Conference

The Seventh Annual New York City Bankruptcy Conference—to be held May 9 at the Millennium Broadway in New York—will bring together a faculty of bankruptcy judges from the Southern and Eastern Districts of New York and practitioners from the top national insolvency firms. The format is designed to appeal to both experienced and new practitioners. One of this year’s highlights is Prof. Lynn LoPucki, who will respond to critics of his controversial new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts.

The popular stand-alone primer course, “Bankruptcy Fundamentals: Nuts and Bolts for New and Young Practitioners,” will be offered again this year on May 6 at the Alexander Hamilton Custom House. At this special program an outstanding faculty of judges, academics and practitioners will explain the fundamentals of bankruptcy. Register online today.

Quick Poll

Members are encouraged to participate in the online Quick Poll, which can be found at the bottom center of ABI World.

The current question is: Congress should amend §365(c)(1)(A) to permit a debtor/licensee to assume a non-exclusive patent license without the licensor’s consent.

The responses to last week’s question (Chapter 11 provides an appropriate vehicle for liquidating assets in administratively insolvent cases.) were:

  1. Agree Strongly (22) — 25%
  2. Agree Somewhat (23) — 26%
  3. Disagree Somewhat (13) — 15%
  4. Disagree Strongly (23) — 26%
  5. Don’t Know / No Opinion (7) — 8%

Latest Job Postings at ABI Career Center

Check out the ABI Career Center. The Center is a one-stop site for job seekers and employers in the insolvency community. Career Center resources are available free to both employers and job seekers. New positions are featured daily. The latest listings include: