The Commercial and Regulatory Committee produced a variety of programs, articles and materials throughout 2023. Set forth below is a short summary of highlights from the past year; full details of committee activity (including links to program materials and newsletter articles) are available on the committee’s website at https://www.abi.org/membership/committees/commercial-and-regulatory-law.
Conference Programs
The committee’s Education Directors organized what is certain to be an excellent program for the 2023 Winter Leadership Conference. The session, presented in conjunction with the Bankruptcy Litigation Committee, is “The Importance of Corporate Controls: Failed Business Organizations.” The focus of this panel is the failure of a variety of types of business organizations due to a lack of corporate controls. The panel looks at examples ranging from law firms and small family-owned businesses to large corporations.
The panel is intended to help bankruptcy practitioners understand and identify what constitutes corporate controls, including a discussion of what they might look like in different types of organizations (small companies, large companies, law firms, other professional organizations, investment firms, etc.); help bankruptcy practitioners understand and identify the connecting points between the lack of corporate controls and the financial failure (i.e., how those failures led to financial distress and bankruptcy); educate bankruptcy practitioners on steps that can be taken through the utilization of corporate controls in order to prevent financial distress in the first place; and educate bankruptcy practitioners on steps that can be taken post-petition in the reorganization process to help ensure a successful exit from bankruptcy.
The speakers for this panel are Eric Danner of CohnReznick LLP (New York), Heidi Sorvino of White and Williams LLP (New York), Marc Sullivan of Infinity Engineered Products (Mableton, Ga.) and April Wimberg of Dentons (Louisville, Ky.)
Webinars
The committee’s Special Projects Chair organized a fantastic webinar this year, “UCC Article 12: Controllable Electronic Records (CER).” This two-hour webinar thoroughly discussed new Article 12 of the Uniform Commercial Code (UCC) — Controllable Electronic Records (CERs) — and the new rules that apply, such as how to perfect sales and security interests in CERs and the negotiability of CERs, as well as how certain payment rights evidenced by CERs are treated under Articles 9 and 12. The webinar also analyzed UCC Article 12 through real-world applications and hypothetical transactions, and emphasized why these amendments to the UCC are important for bankruptcy practitioners.
The speakers for this webinar were Hon. Mindy A. Mora of the U.S. Bankruptcy Court for the Southern District of Florida (Palm Beach), Adam M. Back of Stoll Keenon Ogden PLLC (Lexington, Ky.), Laura Goforth of Dorsey & Whitney LLP (Minneapolis) and Edwin Smith of Morgan Lewis & Bockius (Boston).
Newsletter
The committee published a newsletter in January 2023 that included two articles: “Federal Income Tax and the Financially Troubled Corporation, written by Richard Liebman of BDO LLP, and “Crypto as Kryptonite: The Great Meltdown of 2022,” written by Thomas J. Salerno of Stinson LLP. The committee also published a newsletter in August 2023 that featured “Modifying Terms of Loans Can Have Unexpected Tax Consequences,” written by Richard Liebman of BDO LLP.
The committee looks forward to producing additional newsletters in 2024 and welcomes suggestions and submissions.
Listserv
The committee periodically discusses current events and various relevant topics of interest on its listserv, and looks forward to continuing to do so in 2024. An example of August’s topic is below:
Reuters reported that the International Brotherhood of Teamsters called for changes to the U.S. Bankruptcy Code after trucking company Yellow Corp. filed for bankruptcy. The Teamsters Union said that the trucking company’s filing could mean that several of its members would not receive bargained-for retirement benefits or severance pay. Accordingly, the union asserted that the U.S. Bankruptcy Code should be reformed to protect collective bargaining agreements and retirement plans, which could be terminated in a bankruptcy. The union pointed to previously proposed legislation called the Protecting Employees and Retirees in Business Bankruptcies Act as an acceptable example. The Act would have prioritized payment for certain employee wage and retirement claims and made it more difficult for employers to terminate pension plans and collective bargaining agreements in a bankruptcy. A counterpoint is whether forcing debtors to honor existing collective bargaining agreements would conflict with the general goals of bankruptcy, which include giving debtors a fresh start and ensuring that losses are shared by similar creditors.
What are your thoughts on the union’s proposed changes to the Bankruptcy Code regarding collective bargaining agreements and retirement claims?
Membership Activities
The committee welcomes new members and encourages involvement in the committee’s various initiatives. There are ample opportunities for committee members — particularly younger members — to speak, write and organize events of interest focused on commercial and regulatory matters in the insolvency realm. The committee is also hosting a happy hour at the Winter Leadership Conference with its panel co-sponsor, and it intends to do so again at the 2024 Annual Spring Meeting.
The committee hosts a monthly call to discuss ongoing efforts and to strategize.
- Co-Chairs
- Alan Rosenberg, Markowitz Ringel Trusty + Hartog | Miami
- April Wimberg, Dentons Bingham Greenebaum | Louisville, Ky.
- Communications Manager
- Leslie Hendrix, U.S. Bankruptcy Court for the District of Arizona | Phoenix
- Education Directors
- Travis Powers, White and Williams LLP | Cranford, N.J.
- Camisha Simmons, Simmons Legal PLLC | Dallas
- Membership Relations Director
- Morgan Patterson, Womble Bond Dickinson (US) LLP | Wilmington, Del.
- Newsletter Editor
- Joanna Caytas, Quinn Emanuel Urquhart & Sullivan | Houston
- Special Projects Leader
- Michael Lessne, Lessne Law | Fort Lauderdale, Fla.
— Alan Rosenberg
April Wimberg
Co-Chairs