Co-Chair Corner: Year in Review
2020 has been a challenging year for many reasons, and ABI’s Business Reorganization Committee has proven to be a helpful tool for restructuring practitioners around the world in light of these challenges. Committee members can take advantage of the many benefits afforded to them by virtue of their membership. For example, in addition to the newsletter and educational programs, members participated in the listserv, where they shared restructuring market and industry trends, including discussions about the effects of new regulations such as subchapter V and the federal Paycheck Protection Program. We thank our committee members and leadership for their support and continued participation throughout the year. While the world went virtual, the members’ involvement continued to thrive.
We are looking forward to providing the community with new content and resources in 2021. The committee is always looking for contributions to the newsletter, suggestions for presentation topics and help producing webinar content. If you are interested in contributing, please reach out to any of the committee leaders. Their contact information can be found on the Business Reorganization Committee’s web page.
Below are a few highlights from the committee’s activities over the last year.
Committee Educational Sessions
We hope you were able to participate virtually in the 2020 Winter Leadership Conference and attend the Business Reorganization Committee and Business Litigation Committee’s joint panel, “Bankruptcy Time Travel: Can Debtors Obtain Nunc Pro Tunc Relief and Delay Post-Petition Rent Payment into the Future (Pending the Pandemic and Beyond)?” The panelists were Joshua Sussberg (Kirkland & Ellis LLP), Hon. Michael A. Fagone (U.S. Bankruptcy Court (D. Me.)), Ivan Gold (Allen Matkins Leck Gamble Mallory & Nastis LLP), Jennifer McLemore (Williams Mullen) and Felice Yudkin (Cole Schotz P.C.), and the session focused on two important issues that have arisen during the COVID-19 pandemic: the availability of nunc pro tunc orders in the wake of Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, __ S. Ct. __, No. 18-921, 2020 WL 878715 (Feb. 24, 2020), and the battle between landlords and debtors across the country regarding the deferral of rent pending the pandemic and beyond the period authorized by the Bankruptcy Code. The panelists provided insightful discussions, and we thank all of them for their time and contributions to the successful committee education session.
The Business Reorganization Committee also hosted a webinar, “Paycheck Protection Program: Access to PPP Loans for Chapter 11 Debtors.” The panelists, Morgan Nighan (Nixon Peabody LLP), Justin A. Kesselman (Arent Fox LLP) and Brian K. Ryniker (Ryniker Consultants LLC), discussed an overview of the key elements of the Paycheck Protection Program (PPP) and current legal landscape regarding the eligibility of companies in bankruptcy to receive PPP loans. The webinar also included an overview and discussion of the U.S. Small Business Administration’s guidance on PPP loans for debtors and the resulting split among the courts addressing such guidance.
Newsletter
With contributions from our committee members, we published nine original newsletter articles in 2020. These articles were helpful to, and well received by, our members, and we thank everyone who submitted articles. We are always looking for articles that provide up-to-date analysis of the emerging hot topics in the restructuring world, and we welcome your submissions. The Business Reorganization Committee’s newsletters can be found on the Business Reorganization Committee’s web page.
Planning for 2021
The Business Reorganization Committee is already at work planning for 2021. We hope that you will attend the educational panels planned.
On January 7, 2021, the Business Reorganization Committee hosted a webinar entitled “Rejection of Midstream Service Contracts in Bankruptcy.” The panelists included Nicolas Baker (Simpson Thacher & Bartlett, LLP); Dan Geoghan (Cole Schotz P.C.) and Bruce Kramer (McGinnis Lochridge), who provided an overview of foundational law regarding contract rejection in bankruptcy; an explanation of the central issue to midstream contract rejection (i.e., whether or not a midstream contract creates a covenant that “runs with the land”), the elements required to establish such covenant, and relevant seminal cases; a walkthrough of Judge Sontchi’s recent decisions in Extraction Oil & Gas; and discussion regarding potential implications of the recent decision and predictions/guidance to assist parties in navigating these issues in the future.
The Business Reorganization Committee is currently planning its panel for the 2021 Annual Spring Meeting.
Over the course of the coming year, we will continue to identify ways for committee members to get involved. Newsletter articles are a great way to become involved, so please contact the Newsletter Editor, Krista Kulpa, with your ideas and submissions. We also invite you to share with us any other questions or thoughts that you may have regarding the Business Reorganization Committee or ABI in general.
We look forward to meeting and working with more of you in the future. If we can be of help to you, please do not hesitate to reach out to us.