Newsletter of the ABA Business Law Section Business Bankruptcy Committee
The World's Largest Organization of Bankruptcy Restructuring Lawyers
  Business Bankruptcy Newsletter
Patricia A. Redmond
Chair, Committee on Business Bankruptcy
Join the Committee Online
FEATURED ARTICLES
  Deconstructing Preference Claims in Bankruptcy: The Maine Bankruptcy Court Sheds Light on a Subcontractor's Preference Exposure When the Contractor Files for Bankruptcy
  Legislative Update

Coming Up At The ABA Annual Meeting, August 9-11, 2013, San Francisco, California

Watch Business Bankruptcy Webinars

Materials from the Business Bankruptcy Section 2013 Spring Meeting

Submit Articles for the Business Bankruptcy Newsletter

Editorial Board:
Marvin C. Ruth
    Editor-in-Chief
    Lewis and Roca LLP
    mruth@lrlaw.com
Natalie B. Daghbandan
    Editor
    Bryan Cave LLP
    natalie.daghbandan@bryancave.com


WANT TO...



   

BEST PRACTICES REPORT ON ELECTRONIC DISCOVERY (ESI) ISSUES IN BANKRUPTCY CASES IS NOW AVAILABLE

Electronic discovery is a current hot topic in the litigation world, but surprisingly little has been written about it from a bankruptcy perspective in both the caselaw and commentary. An ABA Working Group, comprised of attorneys, judges and academics from across the country, was formed by the Bankruptcy Court Structure and Insolvency Process Committee of the Business Law Section of the ABA to study and prepare a report on electronic discovery and electronically stored information (ESI) issues in bankruptcy cases. The Working Group has prepared a Best Practices Report, which you can view here. It is anticipated that the final draft of this report, expected to be in substantially the form attached subject to final editing, will be published in the August issue of The Business Lawyer.

The Best Practices Report covers both debtor and creditor obligations to preserve electronically stored information (ESI) not only in connection with adversary proceedings, but also contested matters and the bankruptcy case itself. The Report is divided into six sections. The first three sections discuss ESI principles and guidelines in large chapter 11 cases, middle market and smaller chapter 11 cases, and chapter 7 and chapter 13 cases. Those sections are followed by sections discussing ESI issues in connection with filing proofs of claim and objections to claims, creditors' obligations in connection with electronically stored information, and rules and procedures applicable to ESI in adversary proceedings and contested matters in bankruptcy cases.

It is the hope of the Working Group that the Report will be a helpful resource guide for attorneys and judges in considering and addressing electronic discovery and ESI issues in bankruptcy cases.
View a copy of the report here.

ESI Working Group:
Chair, Richard L. Wasserman, Venable LLP, Baltimore, Maryland
Paul M. Basta, Kirkland & Ellis LLP, New York, New York; Honorable Stuart M. Bernstein, United States Bankruptcy Judge, Southern District of New York; Lee R. Bogdanoff, Klee, Tuchin, Bogdanoff & Stern LLP, Los Angeles, California; Honorable Philip H. Brandt, United States Bankruptcy Judge, Western District of Washington; William E. Brewer, Jr., The Brewer Law Firm, Raleigh, North Carolina; Jonathan D. Brightbill, Kirkland & Ellis LLP, Washington, D.C.; Gillian N. Brown, Pachulski Stang Ziehl & Jones LLP, Los Angeles, California; Honorable Samuel L. Bufford, The Dickinson School of Law, Pennsylvania State University, University Park, Pennsylvania; Timothy J. Chorvat, Jenner & Block LLP, Chicago, Illinois; Mark D. Collins, Richards Layont & Finger, P.A., Wilmington, Delaware; Dennis J. Connolly, Alston & Bird LLP, Atlanta, Georgia; John P. Gustafson, Standing Chapter 13 Trustee, Toledo, Ohio; Scott A. Kane, Squire Sanders LLP, Cincinnati, Ohio; Christopher R. Kaup, Tiffany & Bosco P.A., Phoenix, Arizona; Stephen D. Lerner, Squire Sanders LLP, Cincinnati, Ohio; David P. Leibowitz, Lakelaw, Waukegan, Illinois; Judith Greenstone Miller, Jaffe Raitt Heuer & Weiss, P.C., Southfield, Michigan; Robert B. Millner, SNR Denton US LLP, Chicago, Illinois; Professor Jeffrey W. Morris, University of Dayton School of Law, Dayton, Ohio; Salvatore A. Romanello, Weil Gotshal & Manges LLP, New York, New York; Camisha Simmons, Fulbright & Jaworski L.L.P., Dallas, Texas; Jeffrey L. Solomon, The Law Firm of Jeffrey L. Solomon, PLLC, Woodbury, New York; Marc S. Stern; The Law Office of Mark S. Stern, Seattle, Washington; Clifford J. White, III, Executive Office for United States Trustees, Washington, D.C.



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Featured Articles

Deconstructing Preference Claims in Bankruptcy: The Maine Bankruptcy Court Sheds Light on a Subcontractor's Preference Exposure When the Contractor Files for Bankruptcy
By Fred W. Bopp, III and Shawn K. Leyden, Perkins Thompson, P.A., Portland, Maine

The world of bankruptcy is often referred to as the land of broken promises. For the uninitiated and even the non-bankruptcy practitioner, bankruptcy practice can be counterintuitive. One of the most difficult concepts for creditors to understand is that they may have to return a payment to the bankruptcy trustee when the business that paid them files for bankruptcy. The creditor often grapples with why, after being paid for work performed, its payment is deemed a preference and must be returned. This seemingly curious result is compounded when multiples players are involved, which is typically the case in commercial construction projects, where there are often subcontractors, contractors, project owners, and real estate owners. A recent Maine Bankruptcy Court decision shines some much-needed light on these issues and is important reading for anyone involved in commercial construction projects going forward.
More...



Legislative Update
By Judith Greenstone Miller, Jaffe Raitt Heuer & Weiss, P.C., Southfield, Michigan; My Chi To, Debevoise & Plimpton LLP, New York, New York

The most recent legislative update was prepared by Lynn Hinson, Contributing Editor from Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., on H.R. 982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013, introduced by Representative Blake Farenthold (R-TX)on March 6, 2013. The Bill requires public disclosure by trusts created under 11 U.S.C. §524(g) of quarterly reports containing detailed information regarding the receipt and disposition of claims for injuries based on exposure to asbestos. The Bill was co-sponsored by Representative Jim Matheson (D-UT).

To view a copy of the update, please click here.

This legislative update, along with prior updates and postings of recently proposed and enacted legislation prepared by the Legislation Subcommittee on the ABA Business Bankruptcy Committee, has also been posted to the ABA Business Bankruptcy Committee web page, under the heading "Legislative News."



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Coming Up At The ABA Annual Meeting, August 9-11, 2013, San Francisco, California

Programs Sponsored by the Business Bankruptcy Committee

August 9, 8:00 - 10:00 AM
Program: All That You Can't Leave Behind: Law Firm Insolvencies, the Unfinished Business Rule and its Impact on Business Lawyers
Sponsored by the LLCs, Partnerships and Unincorporated Entities Sub-Committee of the Business Bankruptcy Committee
Co-chairs: Jessica D. Gabel, Georgia State University School of Law, Atlanta, Georgia and Paul R. Hage, Jaffe Raitt Heuer & Weiss, P.C., Detroit, Michigan

August 10, 10:30 AM - 12:30 PM
Program: IP in the World of IOUs: Intellectual Property Licenses in Domestic and Cross-Border Insolvency Proceedings
Sponsored by the Intellectual Property Subcommittee of the Business Bankruptcy Committee
Co-chairs: Christopher Combest, Quarles & Brady LLP, Chicago, Illinois and David Fournier, Pepper Hamilton LLP, Wilmington, Delaware

Programs Co-Sponsored by the Business Bankruptcy Committee

August 9, 10:30 AM - 12:30 PM
Program: How Law Firms Can Better Serve Their Corporate Clients - and Get and Keep Their Business
Sponsored by the Corporate Counsel Committee; Co-sponsored by the Business Bankruptcy Committee

August 9, 2:30 PM - 4:30 PM
Program: Venture Lending: I've Got "the Next Big Thing," Can Somebody Loan Me a Dime?
Sponsored by the Commercial Finance Committee; Co-sponsored by the Business Bankruptcy, Business Financing, Middle Market and Small Business, Private Equity and Venture Capital, and Uniform Commercial Code Committees

August 10, 8:00 AM - 10:00 AM
Program: The 1-2-3's of Valuation
Sponsored by the Business Law Education Committee; Co-Sponsored by the Business Bankruptcy, Business and Corporate, Litigation, Business Financing, Corporate Counsel, and Private Equity and Venture Capital Committees

August 10, 8:30 AM - 10:00 AM
Program: The Basics of Individual Chapter 11's: What you need to know and the differences/nuances in dealing with and/or representing individuals in Chapter 11. Statutory and case law updates that apply to individuals in Chapter 11
Sponsored by the General Practice Division; Co-Sponsored by the Business Bankruptcy Committee

August 10, 2:30 PM - 4:30 PM
Program: Keeping Cool when Betting the Company: the Ethical Counsel in Corporate Litigation
Sponsored by the Business and Corporate Litigation Committee; Co-sponsored by the Business Bankruptcy, Corporate Governance, and Government Affairs Practice Committees

August 10, 3:45 p.m. to 5:15 p.m.
Program: Emergency Manager Laws as an Alternative to Bankruptcy in Local Government
Sponsored by the State and Local Government Law Committee; Co-sponsored by the Business Bankruptcy Committee



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Watch Recent Business Bankruptcy Committee Webinars

The Business Bankruptcy Committee has presented multiple webinars available for viewing online. Below is a link to the full webinars and to the slide show presentations.
Business Bankruptcy Committee Webinars



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Materials from the Business Bankruptcy Section 2013 Spring Meeting

At the Spring Meeting of the ABA Section of Business Law Business Bankruptcy Committee in Washington D.C., members of the Committee presented a number of informative and interesting programs. Below is a link to all of the materials provided at these programs. (Access to some of the articles requires your ABA password.)
Materials from the Business Bankruptcy Section 2013 Spring Meeting



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Submit Articles for the Business Bankruptcy Committee Newsletter

The Business Bankruptcy Committee invites you to submit articles for possible publication in future issues. The articles do not need to be long or in-depth, and it is a great way to get involved in the Business Bankruptcy Committee. Articles can survey the law nationally or locally, discuss particular business bankruptcy issues, or examine a specific case. If you are interested in submitting an article, please contact Newsletter Editor-in-Chief Marvin Ruth at mruth@lrlaw.com or Editor Natalie Daghbandan at natalie.daghbandan@bryancave.com.



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