February 4, 2016

ABA PROGRAMS AND COMMITTEE MEETINGS

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2016 Business Bankruptcy Committee Fall Meeting
In Conjunction with the National Conference of Bankruptcy Judges
October 26-29, 2016
Marriott Marquis, San Francisco

Wednesday, October 26, 2016

3:00 – 5:00 p.m.
Location: Yerba Buena 11-12, Lower Level B2
CLE Program: Almost Everything You Wanted to Know About… The Nuts and Bolts of DIP Financing
Presented by: Business Bankruptcy Committee

This panel will present the nuts and bolts of DIP financing using illustrative provisions from actual DIP orders coupled with practical, background commentary. It has become prevalent in recent years for DIP financing to establish the tempo and goals of a Chapter 11 case. Many DIP loan transactions are often accompanied by the establishment of detailed targets and deadlines for the conduct of the case, the terms of a plan of reorganization and even the governance of the debtor. DIP orders, thus, often stray from the straightforward approval of credit and granting of liens. The panel will explore the usual points of contention among debtors, committees, U.S. Trustees and lenders, and discuss the “behind-the-scenes” negotiations that often culminate in consensual financing terms. The program will examine what Chapter 11 practitioners need to know about the process and procedure for approval of DIP financing, review recent developments under Section 364 of the Bankruptcy Code, and examine issues related to cross-collateralization, “roll-ups,” and third-party “challenge” rights and reservations.

Moderator:
Hon. Robert Gerber (Retired) United States Bankruptcy Court for the Southern District of New York, New York, NY

Speakers:
Shana A. Elberg, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY
Robert J. Feinstein, Pachulski Stang Ziehl & Jones LLP, New York, NY
Donald E. Rothman, Riemer Braunstein LLP, Boston, MA

William K. Harrington, United States Trustee Regions 1 & 2, Office of The United States Trustee, Boston, MA Donald E. Rothman, Riemer Braunstein LLP, Boston, MA

3:00 – 5:00 p.m.
Location: Yerba Buena 13-14, Lower Level B2
CLE Program: Multi-Disciplinary Pro Bono Professional Collaboration on Financially Distressed Companies In and Out of the Courtroom
Presented by: Business Bankruptcy Committee

Explore and discuss opportunities and pro bono services for nonprofit Chapter 11’s and small and middle- market Chapter 11’s that may need, but can’t bear the cost of, financial advisors.

This panel of experienced attorneys and financial advisors will discuss:

  • Need for pro bono services for entities that are not for profit and small to mid-size chapter 11 debtors
  • How not for profits and small to mid-size companies find their pro bono professionals
  • How professionals approach pro bono representation (with clients and their firm management)
  • Advice and stories “from the trenches”

This program is in memoriam to Judge Nancy Dreher who served as a U.S. Bankruptcy Judge in the District of Minnesota for many years and who wrote and spoke on the importance of pro bono services.

Moderator:
Honorable Elizabeth S. Stong, U.S. Bankruptcy Court, E.D.N.Y, Brooklyn, NY

Speakers:
Robert Smith, SSG Capital Advisors LLC, West Conshohocken, PA Susan Smith. GlassRatner, Tampa, FL
Susan Smith. GlassRatner Advisory & Capital Group LLC, Tampa, FL
Yvette Austin Smith, The Brattle Group, New York, NY

4:00 – 6:00 p.m.
Location: Yerba Buena 7, Lower Level B2
Chairs & Vice Chairs Committee Meeting
Presented by: Business Bankruptcy Committee

Thursday, October 27, 2016

7:30 – 8:30 a.m.
Location: Pacific B, Fourth Floor
Administration and Courts Subcommittee
Presented by: Business Bankruptcy Committee

7:30 – 8:30 a.m.
Location: Pacific I, Fourth Floor
International Bankruptcy Subcommittee
Presented by:  Business Bankruptcy Committee

7:30 – 8:30 a.m.
Location: Pacific J, Fourth Floor
Small Business Subcommittee Meeting: When Cases Collide:  Issues Arising When Chapter 11 Businesses and Individual Owners Both Seek Bankruptcy Protection
Presented by:  Business Bankruptcy Committee

The panel will discuss some recent cases highlighting issues that arise when individual owners and businesses file bankruptcy.

Speakers:
Janel E. Bostwick, Janet E. Bostwick, PC, Boston, MA
Ronald A. Clifford, Blakely LLP, Irvine, CA
Steven R. Kinsella, Frederickson & Byron, PA, Minneapolis, MN

7:30 – 8:45 a.m.
Location: Pacific A, Fourth Floor
Claims & Priorities/Insurance/Mass Torts Subcommittee Meeting
Presented by:  Business Bankruptcy Committee

Discharging “Unknown” Claims
As is highlighted in recent decisions in the General Motors bankruptcy case and in the bankruptcy cases filed by various dioceses, there are a number of unanswered questions relating to the discharge of certain claims in Chapter 11 cases, including the following questions:

•    What claims can be discharged in a chapter 11 case?
•    What are the due process limitations on discharging claims?
•    How do you determine if a claim is “known,” so that the claimant is entitled to actual notice, or “unknown,” so that notice by publication suffices?
•    What is the proper remedy if a claimant failed to receive actual notice?

Moderator:
Paul Hage, Jaffe Raitt Heuer & Weiss, P.C., Southfield, MI

Speakers:
Debra A. Dandeneau, Baker & McKenzie, New York, NY
Wendy M. Simkulak, Duane Morris LP, Philadelphia, PA
Christopher D. Soper, Dentons and University of Minnesota Law School, Minneapolis, MN

7:30 – 9:00 a.m.
Location: Golden Gate C1 & C2, Level B2
E-Newsletter Subcommittee Meeting
Presented by: Business Bankruptcy Committee

8:30 – 9:30 a.m.
Location: Pacific B, Fourth Floor
Electronic Discovery (ESI) in Bankruptcy Cases Subcommittee Meeting
Presented by: Bankruptcy Court Structure and Insolvency Process

9:30 – 10:30 a.m.
Location: Pacific B, Fourth Floor
Monetization Subcommittee Meeting
Presented by: Bankruptcy Court Structure and Insolvency Process

1:00 – 3:00 p.m.
Location: Golden Gate B, Level B2
Chapter 11 Luncheon, Heidt Award Presentation and CLE Program: The State of Play: Managing State AG Hot Button Issues in Chapter 11 Cases
Presented by: Business Bankruptcy Committee
Ticketed Event, Tickets $90, Available at ABA Registration Desk

A panel of experts will explore how to effectively deal with current hot button issues for state Attorneys General in chapter 11 cases, including consumer protection concerns in retail cases (treatment of gift cards, sale of personally identifiable information, store closing sales, etc.) and patient protection and records issues arising in healthcare cases.

The panel will discuss:

  • Consumer protection issues arising in chapter 11 cases, particularly retail cases, and strategies for resolving concerns commonly expressed by State attorneys general
  • Circumstances necessitating appointment of a Consumer Privacy Ombudsman, and issues surrounding the same
  • State concerns in hospital, nursing home, hospice and other healthcare cases
  • Circumstances necessitating appointment of a Patient Care Ombudsman, and issues surrounding the same
  • Other “hot button” chapter 11 issues for the States, from the perspective of debtor’s counsel, committee counsel and Attorneys General

Moderator:
Judith W. Ross, Law Offices of Judith W. Ross, Dallas, TX

Speakers:
Marc Carmel, Paul Hastings LLP, Chicago, IL Paul M. Green, Jones Day, Houston, TX
Paul M. Green, Jones Day, Houston, TX
Samuel R. Maizel, Dentons US LLP, Los Angeles, CA
Hal F. Morris, Assistant Attorney General, Managing Attorney Bankruptcy Regulatory Section, Bankruptcy and Collection Division, Office of The Texas Attorney General

3:00 – 5:00 pm
Location: Yerba Buena 7, Lower Level B2
ABLJ – ABA Symposium: The NCBJ at 90: The Evolution, Role and Impact of Bankruptcy Courts from 1926 to 2016
Presented by: The American Bankruptcy Law Journal and ABA Business Bankruptcy Committee

The Annual Symposium features a series of presentations by distinguished bankruptcy academics.  This year’s program focuses on changes in various aspects of bankruptcy practice over the 90 year history of the NCBJ

Moderator:
Hon. Colleen Brown (Bankr. D. Vt.) Burlington, VT

Presentations:
The Keepers of the Code: Evolution of the Bankruptcy Community, 1926 to 2016
Prof. Karen Gebbia, Golden Gate University School of Law, San Francisco, CA
The Rise and Fall of Bankruptcy Courts’ Equitable Powers Over the Past 90 Years
Prof. John A. E. Pottow, University of Michigan Law School, Ann Arbor, MI
Municipal Bankruptcies and Bankruptcy Courts: Then and Now
Prof. Melissa Jacoby, University of North Carolina School of Law, Chapel, Hill, NC
History of Valuation Techniques in the Bankruptcy Court, 1926-2016
Prof. Michael Simkovic, Seton Hall University School of Law, New York, NY

3:15 – 5:00 p.m.
Location: Yerba Buena 11-12, Lower Level B2
CLE Program: Bankruptcy Appeals: Does The Bench Matter?
Presented by: Business Bankruptcy Committee

Bankruptcy appeals are argued to either a district judge or, in certain circuits, to a Bankruptcy Appellate Panel. In circuits with a BAP, an appeal defaults to the BAP. The approach taken in briefing and arguing a bankruptcy matter to a district judge is likely very different than the approach taken with a BAP. The program will explore those differences using the case of Czyzeski v. Jevic Holding Corporation.  The BAP consists of three “bankruptcy experts;” the district judge is a generalist who addresses many areas of civil and criminal law.  Moreover, the district judge sits as an appellate judge only rarely and serves in that capacity alone rather than in a panel. The purpose of this program will be to watch as experienced bankruptcy appellate lawyers prepare for and argue the same legal issue to a BAP panel and to a district judge. The attendees will observe as the advocate tailors the argument to the “audience.” The moderator and panelists will then comment on the approach taken by the advocates and provide their thoughts on effective appellate advocacy in different forums.

Moderator:
Hon. Bernice Donald, United States Court of Appeals for the Sixth Circuit

Panelists:
Hon. Frank J. Bailey, United States Bankruptcy Judge, District of Massachusetts, Boston, MA
Hon. Philip H. Brandt, United States Bankruptcy Judge, Eastern District of California, Sacramento, CA
Hon. William Lafferty, United States Bankruptcy Judge, Northern District of California, Oakland, CA
Hon. John Mendez, United States District Judge, Sacramento, CA
Susan M. Freeman, Lewis Roca Rothgerber, Phoenix, AZ Danielle Spinelli, WilmerHale, Washington, DC

3:15 – 4:15 p.m.
Location: Yerba Buena 13-14, Lower Level B2
Bankruptcy Court Structure and Insolvency Process Committee Meeting
Presented by: Business Court Structure and Insolvency Process

4:15 – 5:15 p.m.
Location: Yerba Buena 13-14, Lower Level B2
Trustees and Examiners Working Meeting
Presented by: Business Bankruptcy Committee

Friday, October 28, 2016

7:30 – 8:30 a.m.
Location: Pacific H, Fourth Floor
Rules Subcommittee & Trading Claims Subcommittee Meeting
Presented by: Business Bankruptcy Committee

7:30 – 8:30 a.m.
Location: Pacific B, Fourth Floor
Publications Working Meeting
Presented by: Business Bankruptcy Committee

7:30 – 8:45 a.m.
Location: Pacific J, Fourth Floor
Bankruptcy Committees and Professional Ethics Meeting
Presented by: Business Bankruptcy Committee

The Trading Claims Sub-Committee and Rules Sub-Committee of the ABA Business Bankruptcy    Committee are sponsoring a debate on the controversial topic:

RESOLVED: Trading claims in chapter 11 has created a large, unregulated securities market that should be regulated to protect creditors and debtors.

Doug Wolfe, General Counsel, ASM Capital, Woodbury, NY
Justine Block, Special Counsel to Hahn & Hessen, New York, NY
Ashley M. McDow, Partner, Baker Hostetler, Los Angeles, CA

Moderator:
Sandra E. Mayerson, Law Offices of Sandra Mayerson, New York, NY and Chair of the Trading Claims Sub-Committee.

Attendees will hear experts in this area opine and argue about such matters as:

  • The mechanics of trading claims
  • Is Rule 2019 working? What is good and bad about it?
  • What about trading claims is similar and dissimilar to securities markets? Is it a fair comparison?
  • Does claims trading provide needed liquidity for small creditors or allow them to be picked off for a low price early in the case?
  • Does an active market in its claims stabilize or de-stabilize a debtor?
  • Is the claims trading market self-regulating?  How? Is it sufficient?
  • Should creditor committees be required to provide information as to the market for the debtor’s claims as part of their responsibility to keep creditors informed?
  • Are there any problems in the marketplace today which can only be addressed by further regulation? Who benefits from regulation? Who is hurt if there is no regulation?
  • What standing or right does a debtor or creditor have to take action against alleged claims trading on inside information? Why should a debtor or creditor care?
  • Is a regulatory scheme necessary or desirable? Are there some simple tweaks to existing rules which would better serve the goal of promoting a smooth, efficient, fair bankruptcy process?

Learn this and more at THE GREAT DEBATE!
Following the debate, a straw poll will be taken to determine which side wins.

7:30 – 8:45 a.m.
Location: Pacific J, Fourth Floor
Bankruptcy Committee Subcommittee and Professional Ethics Subcommittee Meeting Presented by: Business Bankruptcy Committee
Committee Formation: Process, Ethics and How it Gets Done in the Real World
Panelists:
W
illiam K. Harrington, United States Trustee for Regions 1 and 2, New York, New York
Eve H. Karasik, Partner, Levene, Neale, Bender, Yoo and Brill L.L.P., Los Angeles, CA

8:30 – 9:30 a.m.
Location: Pacific B, Fourth Floor
Publications – Reorganizing Failing Businesses Book Project Working Meeting
Presented by: Business Bankruptcy Committee

9:00 – 10:00 a.m.
Location: Pacific I, Fourth Floor
Model Code Project Business Subcommittee Meeting
Presented by: Business Court Structure and Insolvency Process

9:00 – 10:00 a.m.
Location: Pacific J, Fourth Floor
IP & Technology Subcommittee Meeting
Presented by: Business Bankruptcy Committee

Your New Robotic Associate – Artificial Intelligence and Bankruptcy Research

Panelists:
T
homas Hamilton, VP Strategic Partnerships, Ross Intelligence, San Francisco, CA
Randall “Randy” Crocker, Managing Partner, von Breisen & Roper, Milwaukee, WI
John R. Knapp, Jr., Partner, Miller Nash Graham & Dunn LLP

10:00 – 11:00 a.m.
Location: Pacific I, Fourth Floor
Model Code Project Consumer Subcommittee Meeting
Presented by: Business Court Structure and Insolvency Process

11:00 – 12:00 p.m.
Location: Pacific I, Fourth Floor
Ethics of Law Firm Dissolution and Bankruptcy Subcommittee Meeting
Presented by: Business Court Structure and Insolvency Process

12:00 – 1:00 p.m.
Location: Pacific I, Fourth Floor
Individual Chapter 11 Subcommittee Meeting
Presented by: Business Bankruptcy Committee

1:00 – 3:00 p.m.
Location: Yerba Buena 7, Lower Level B2
Secured Creditor Luncheon and CLE Program: Unique Issues That Arise In Taking A Security Interest in Intellectual Property
Ticketed Event, Tickets $90, Available at ABA Registration Desk

Intellectual property (“IP”) can act as collateral to be pledged to secure an extension of credit. For example, a company that borrows money from a bank can pledge its patents as collateral for the loan. The bank will of course want to make sure that its security interest in the IP can be enforced against the borrower if the borrower defaults on the loan. However, issues can arise regarding perfecting a security interest in different types of IP, including copyrights, trademarks, and patents. Also, lenders who seek IP licenses as collateral for their loans also must be acutely aware of the implications of a bankruptcy filing, particularly the leverage licensors may hold over a licensee’s ability to transfer IP assets freely in a bankruptcy proceeding. For example, a licensee of intellectual property must meet certain criteria before assuming and/or assigning its license to a third-party user. Most importantly, the licensor – depending upon in which jurisdiction the bankruptcy is filed – may have the right to prevent either the assumption or the assignment of the license to a third-party, or both. This panel will address all these issues and more.

Moderator:
Warren E. Agin, Swiggart & Agin, Boston MA

Panelists:
Leianne S. Crittenden, Oracle Financing, Redwood Shores, CA
Robert Eisenbach, Cooley LLP, San Francisco, CA
John G. Loughnane, Nutter McClennen & Fish LLP, Boston, MA

3:00 – 4:00 p.m.
Location: Pacific B, Fourth Floor
Financial Institute Insolvency Legislation (Too Big to Fail) Subcommittee Meeting
Presented by: Bankruptcy Court Structure and Insolvency Process

3:00 – 4:00 p.m.
Location: Pacific I, Fourth Floor
Programs Subcommittee
Presented by: Business Bankruptcy Committee

4:00 – 5:30 p.m.
Location: Yerba Buena 7, Lower Level B2
Current Developments Task Force Meeting CLE Program
Presented by: Business Bankruptcy Committee