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
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FEATURED ARTICLES
  Programs Sponsored by the Business Bankruptcy Committee at the 2013 Fall Section Meeting in Atlanta, Georgia

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Editorial Board:
Marvin C. Ruth
    Editor-in-Chief
    Lewis Roca Rothgerber LLP
    mruth@lrlaw.com
Mariaelena Gayo-Guitian
    Editor
    Genovese Joblove & Battista, P.A.
    mguitian@gjb-law.com


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FEATURED ARTICLES

COMING UP AT THE FALL MEETING
OCTOBER 30 - NOVEMBER 2, 2013
ATLANTA, GEORGIA

Programs sponsored by the Business Bankruptcy Committee in conjunction with the 2013 National Conference of Bankruptcy Judges in Atlanta, Georgia

PROGRAM: (Almost) Everything You Wanted to Know About Evidence
Wednesday, October 30, 2013, 3:00 - 5:00 PM

Sponsored by the Membership Subcommittee: Co-Chair Lisa Sumner, lsumner@poynerspruill.com, Co-Chair Mark E. Leipold, mleipold@gouldratner.com, Vice-Chair Taryn Darling Hill, taryn@impactlawgroup.com, Vice-Chair Joseph Bodoff, jbodoff@bodofflaw.com

Program Chairs: Mark Leipold, Partner, Gould & Ratner LLP, Chicago, IL
Judith W. Ross, Shareholder, Law Offices of Judith W. Ross, Dallas, TX
Moderator: Judith W. Ross, Shareholder, Law Offices of Judith W. Ross, Dallas, TX
Speakers: Shira Adler Crittendon, Partner, Freeman Mathis & Gary, LLP, Atlanta, GA
Jessica D. Gabel, Assistant Professor, Georgia State University College of Law, Atlanta, GA
Toby L. Gerber, Partner, Norton Rose Fulbright, Fulbright & Jaworski LLP, Dallas, TX
Nicholas A. Foley, Partner, Neligan Foley LLP, Dallas, TX

The panel will discuss recent case law affecting introduction of evidence, along with practical tips on how to admit certain types of evidence. In particular, the panel will focus on valuation evidence and electronic data.

PROGRAM: A Retrospective Look at Pro Bono Models: Then, Now and the Future
Wednesday, October 30, 2013, 3:00 - 5:00 PM

Sponsored by the Pro Bono Services Subcommittee: Chair Hon. Elizabeth S. Stong, Elizabeth_stong@nyeb.uscourts.gov; Vice-Chair Grace Robson, grobson@mrthlaw.com

Moderator: Honorable Elizabeth S. Stong, U.S. Bankruptcy Court Eastern District of New York
Speakers: James A. Baillie, Attorney, Fredrikson & Byron, P.A., Minneapolis, MN
Honorable Joan N. Feeney, Judge, U.S. Bankruptcy Court District of Massachusetts, Boston, MA
Nancy B. Rapoport, Gordon Silver Professor of Law, William s. Boyd School of Law, University of Las Vegas, Las Vegas, NV
Patricia A. Redmond, Shareholder, Stearns, Weaver, Miller, Weissler, Alhadell & Sitterson, P.A., Miami, FL

This program will present a look back at pro bono programs over the past 20 years, how they have evolved over time, and what organizers of pro bono programs have learned and now use as models for how they provide pro bono services. In addition, the panel will discuss: (a) the evolution of pro bono services, (b) case studies of individual and business pro bono cases; (c) growth of law school clinics and other pro bono models developed to employ recent law school graduates; (d) ethical issues associated with providing or procuring pro bono legal services (including for law students, recent graduates, practicing attorneys and judges).

PROGRAM: Disclosures, Deficiencies and Diligence: A Smorgasbord of Risks and Rewards
Thursday, October 31, 2013, 7:30 - 8:45 AM

Sponsored by the Abuses of Bankruptcy Process, Legislation, Rules, Trustees/Examiners Subcommittee: Co-Chair Hon. John K. Olson, john_k_olson@flsb.uscourts.gov; Co-Chair Richard M. Meth, Rmeth@foxrothschild.com

Program Chair: Regan Kreitzer La Testa, Attorney, DLA Piper LLP, Baltimore, MD
Moderator: Honorable Joan N. Feeney, Judge, U.S. Bankruptcy Court for the District of Massachusetts, Boston, MA
Speakers: Dennis J. Connolly, Partner, Alston & Bird LLP, Atlanta, GA
Melissa M. Hinds, Partner, Jenner & Block, Chicago, IL
Robbin L. Itkin, Partner, Steptoe & Johnson LLP, Los Angeles, CA

This joint subcommittee program will discuss recent examples of abuses of the requirements of the Bankruptcy Rules and processes by attorneys and debtors and/or the principals of debtors. In addition, the program will address the amendments to the new Guidelines of the Office of the United States Trustee, including reactions and responses to, and potential pitfalls likely to arise from, their implementation. Lastly, the program will discuss proposed amendments to the Bankruptcy Rules, including Rule 2014, and recent cases that address how making full and proper disclosures can help attorneys remain as counsel in a case. In addressing these matters, the program will also focus upon the ethical implications associated therewith.

PROGRAM: HEIDT AWARD and CHAPTER 11 LUNCHEON & CLE PROGRAM: Wall Street, Main Street and the Restructuring of American Business: Can It Be a Win Win?
Thursday, October 31, 2013, 12:15 - 2:30 PM

Sponsored by the Chapter 11 Subcommittee: Co-Chair Corinne Ball, cball@jonesday.com; Co-Chair Sheryl E. Seigel, sheryl.seigel@mcmillan.ca

Moderator: Corinne Ball, Partner, Jones Day, New York, NY
Speakers: Ron A. Bloom, Vice Chairman of U.S. Investment Banking and Managing Director, Lazard, New York, NY
Norma C. Corio, Co-President and Managing Director, Miller Buckfire & Co., a Stifel Company, New York, NY
Honorable Mary Grace Diehl, Judge, U.S. Bankruptcy Court Northern District of Georgia, Atlanta, GA
Larry H. Hattig, President, Mesirow Financial Consulting LLC, Dallas, TX
Kimberly Neureiter, Attorney, Pension Benefit Guaranty Corporation, Washington, DC

This panel will address how legacy, pension and supplier obligations can be reconciled with funded debt obligations in the current environment.

PROGRAM: Priority of Payment Issues in chapter 9 Cases: Who Gets Paid First?
Thursday, October 31, 2013, 2:30 - 4:30 PM

Sponsored by the Chapter 9 Subcommittee: Chair Gary E. Klausner,gklausner@stutman.com; Vice-Chair Hon. Christopher M. Klein, Christopher_klein@caeb.uscourts.gov

Moderator: Gary E. Klausner, Shareholder, Stutman Triester & Glatt, Los Angeles, CA
Speakers: Honorable Frank J. Bailey, Judge, U.S. Bankruptcy Court District of Massachusetts, Boston, MA
Jeffrey B. Ellman, Partner, Jones Day, Atlanta, GA
Michael J. Gearin, Partner, K&L Gates, Washington, DC
Kevyn Orr, Emergency Financial Manager for the City of Detroit
Kenneth N. Klee, Partner, Klee, Tuchin, Bogdanoff & Stern, LLP, Los Angeles, CA

The panel will discuss competition for the municipality's funds between pension obligations and Capital Market Creditors.

PROGRAM: What Will the Future Insolvency Reform Work of UNCITRAL Be and Major Changes by UNCITRAL to the Guide to Enactment as to COMI Determination
Thursday, October 31, 2013, 2:30 - 4:30 PM

Sponsored by the International Bankruptcies Subcommittee: Co-Chair Professor Charles D. Booth, cbooth@hawaii.edu; Co-Chair Steven T. Kargman, skargman@kargmanassociates.com; Vice-Chair Susan Power Johnston, sjohnston@cov.com and
UNCITRAL Task Force Subcommittee: Chair Christopher J. Redmond, christopher.redmond@huschblackwell.com

Moderator: Christopher J. Redmond, Partner, Husch Blackwell LLP, Kansas City, MO
Speakers: Carren Shulman, Partner, Sheppard Mullin Richter & Hampton LLP, New York, NY
Debra Grassgreen, Partner, Pachulski, Stang, Ziehl & Jones, LLP, San Francisco, CA

The program will center on the work that UNCITRAL has recently completed involving revisions to the Guide to Enactment in determining the Centre of Main Interest (COMI) of a debtor and in addition to the legislative guide, setting forth the standards of directors in the twilight period leading up to insolvency proceedings. The second aspect will be a discussion of future work topics on insolvency that will be addressed by UNCITRAL Working Group V (Insolvency) at a colloquium to be held December 16- 20, 2013 at the United Nations facility in Vienna, Austria. The audience will be encouraged and invited to set forth their views on which of the topics being considered by UNCITRAL should be undertaken and developed, along with background information as to which international organizations are proposing future work. The moderator and panelists have all been involved with the work of UNCITRAL in regard to insolvency and will provide background and insight, both as to the work completed and the consideration involving future work.

PROGRAM: "J A R G O N Y" Insurance Basics for Bankruptcy Lawyers
Friday, November 1, 2013, 7:30 - 8:45 AM

Sponsored by the Insurance Subcommittee: Chair Margaret M. Anderson, panderson@fslc.com; Vice-Chair Kami E. Quinn, quinnk@gotofirm.com and
and Mass Torts Subcommittee: Chair Robert B. Millner, robert.millner@snrdenton.com; Vice-Chair Leslie A. Davis, ldavis@crowell.com

Program Chair: Robert B. Millner, Partner, Dentons US LLP, Chicago, IL
Moderator: Margaret M. Anderson, Partner, Fox, Swibel, Levin & Carroll, LLP, Chicago
Speakers: Peter J. Benvenutti, Partner, Jones Day, San Francisco, CA
Mary C. Duffy Boardman, Senior Counsel, Corporate Litigation, Travelers, Hartford, CT
Leslie A. Davis, Counsel, Crowell & Moring LLP, Washington, DC
Jeffrey A. Liesemer, Member, Caplin & Drysdale Chartered, Washington, DC
Paul M. Singer, Partner, Reed Smith, Pittsburgh, PA

"I will have Property of the Estate for $400." Match your wits with our panelists as they explore the basic, and the not so basic, insurance issues every bankruptcy lawyer should be able to identify. Be prepared to root for your favorite panelist, while you learn a lot about the interplay of insurance and bankruptcy. Topics include:

  • What is the difference between a "claims made" and "occurrence" policy, between "first party" coverage and "third party" coverage?
  • What is a "tail," and when does a Debtor need one?
  • When is a policy "loss-sensitive" and why should you care if it is?
  • When can an insurer cancel a policy, or refuse to extend one?
  • Does the stay stop all actions to collect insurance? Does the Debtor's discharge stop such actions?
  • When are insurance policies executory contracts and what difference does it make?
  • When are insurance proceeds property of the estate?
  • What is a policy buyback? How can it be effectuated in a bankruptcy case?
  • How do mass tort bankruptcies differ from other cases in the treatment of insurers and insured claims?

PROGRAM: Financing the Individual Chapter 11 Case
Friday, November 1, 2013, 7:30 - 8:45 AM

Sponsored by the Individual Chapter 11 Subcommittee:
Program Co-chairs: William L. Norton III, Partner, Bradley Arant Boult Cummings LLP, Nashville, TN
Henry C. Kevane, Managing Partner, Pachulski Stang Ziehl & Jones LLP, San Francisco, CA
Moderator: Honorable Philip H. Brandt, U.S. Bankruptcy Court for the Western District of Washington, Seattle, WA
Speakers: David A. Greer, Law Offices of David A. Greer PLC, Norfolk, VA
Eric R. Perkins, Partner, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Ridgewood, NJ
Grace E. Robson, Partner, Markowitz Ringel Trusty & Hartog, Fort Lauderdale, FL

The ongoing debate and conflicting decisions about the survival of the "absolute priority" rule in an individual Chapter 11 case have obscured some of the more mundane changes to the daily conduct of these cases. The passage of the 2005 BAPCPA amendments resulted in the expansion of property of the estate to include the individual debtor's post-petition earnings and after-acquired property. This expansion has triggered issues and doubts regarding the debtor's ability to freely use property of the estate during the case. Section 363 of the Bankruptcy Code limits a debtor's use of property without court approval to those expenditures made in the "ordinary course of business." Squaring that standard with the personal living expenses of the individual debtor has proved troublesome for debtor and creditor attorneys alike. Is the individual debtor's pre-bankruptcy lifestyle entitled to treatment as an "ordinary" cost, or should creditors be entitled to seek lifestyle compromises? Are creditors within their rights to demand that the individual debtor adhere to a budget before and after confirmation to maximize the assets distributable under a plan? What about compensation to the debtor's attorney for services that arguably do not benefit the estate? This program will discuss the nuts and bolts of financing the individual Chapter 11 case and focus on the statutory inconsistencies that have bedeviled courts and practitioners. The panelists will review recent developments on estate administration, use of estate property and post-petition earnings, and the formulation and confirmation of a plan of reorganization.

PROGRAM: SECURED CREDITORS LUNCH / CLE PROGRAM: Valuation: Challenging Legal and Factual Issues
Friday, November 1, 2013, 12:45 - 2:30 PM

Sponsored by the Secured Creditors Subcommittee: Co-Chair Susan M. Freeman, sfreeman@lrrlaw.com; Co-Chair Michael H. Reed, reedm@pepperlaw.com; Vice-Chair Ryan Works, rworks@mcdonaldcarano.com

Moderator: Susan M. Freeman, Partner, Lewis Roca Rothgerber LLP, Phoenix, AZ
Michael Reed, Partner, Pepper Hamilton LLP, Philadelphia, PA
Speakers: Ronald F. Greenspan, Senior Managing Director, FTI Consulting, Los Angeles, CA
Frank Lorincz, Executive Director, EnviroFinance Group, New York, NY
Hon. Bruce A. Markell, Retired U.S. Bankruptcy Judge, Jeffrey A. Stoops Professor of Law, Florida State University College of Law, Tallahassee, FL

The panelists will discuss recent case law affecting valuation of collateral and discuss valuation of particularly challenging collateral, including low-income housing developments, causes of action, securitized mortgages and brownfields

PROGRAM: Current Developments
Friday, November 1, 2013, 2:30 - 4:00 PM

Sponsored by the Current Developments Subcommittee: Chair Martin Bienenstock, mbienenstock@proskauer.com; Vice-Chair Judith Ross, judith.ross@bakerbotts.com

Speakers: Martin J. Bienenstock, Partner, Proskauer Rose LLP, New York, NY
Christopher Combest, Partner, Quarles & Brady LLP, Chicago, IL
Michael R. Enright, Partner, Robinson & Cole LLP, Hartford, CT
Monique D. Hayes, Associate, Genovese, Joblove & Battista, P.A., Miami, FL
Robert B. Millner, Partner, Dentons US LLP, Chicago, IL

Martin Bienenstock's popular program will update the audience on new case law developments. In particular Mr. Bienenstock will discuss new developments in the City of Detroit bankruptcy and the panel will present an update regarding new cases relating to the insolvency practice.

PROGRAM: More Fallout from Stern v. Marshall: Ninth Circuit v. Sixth Circuit
Friday, November 1, 2013, 3:00 - 5:00 PM

Sponsored by Avoiding Powers Subcommittees: Chair Bruce J. Borrus, bborrus@riddellwilliams.com; Vice-Chair Linda M. Leali, lleali@alderman-leali.com; Vice-Chair Roger G. Schwartz, roger.schwartz@lw.com

Moderator: Linda Leali, Shareholder, Linda Leali, P.A., Miami, FL
Speakers: G. Eric Brunstad, Jr., Partner, Dechert LLP, Hartford, CT
Jessica D. Gabel, Assistant Professor, Georgia State University College of Law, Atlanta, GA
Craig Goldblatt, Partner, WilmerHale, Washington, DC

The Supreme Court will be hearing argument this Term in Executive Benefits Insurance Agency v. Arkison (In re Bellingham Insurance Agency). The Court's resolution of this case promises to resolve several of the most significant issues left open after Stern v. Marshall. The case presents the questions: (1) whether litigants may consent to adjudication of a constitutionally non-core matter before a bankruptcy court; (2) whether a bankruptcy court has the authority to issue proposed findings of fact and conclusions of law for consideration by the district court in a case that cannot (under Article III) be treated as "core." While outside the scope of the question presented, the Supreme Court's consideration of the questions presented is predicated on the correctness of the Ninth Circuit's holding that a fraudulent conveyance matter cannot constitutionally be treated as a "core" matter - a proposition that a number of bankruptcy courts have rejected. This panel will discuss the upcoming Supreme Court arguments and will address other issues arising in the lower courts in the wake of Stern v. Marshall.



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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@lrrlaw.com or Editor Mariaelena Gayo-Guitian at mguitian@gjb-law.com.



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