Alternative Dispute Resolution

The Business Judgment Rule - Key Legal Cases, Litigation Insights, and Strategies for Director, Officers, and Litigators This session will provide a comprehensive understanding of the Business Judgment Rule (BJR) as it applies to corporate governance, with a specific focus on how directors and officers can navigate potential litigation. The session will start with a foundational overview of the BJR, followed by an in-depth analysis of the key legal cases that have shaped its application. Additionally, the session will delve into the strategies for advising corporate clients—particularly directors and officers—on how to avoid becoming targets of litigation, including the role of independent board directors in mitigating risk.

Session Structure and Key Topics:
1. Introduction to the Business Judgment Rule (BJR)
Objective: Provide a foundational understanding of the BJR and its role in corporate governance.
- Definition of the BJR and its purpose in protecting directors and officers from liability.
--- The BJR presumption: when courts defer to the decisions of corporate leaders.
--- Key elements required to invoke the BJR: good faith, rationality, and lack of conflicts of interest.
--- Key areas where the BJR applies: financial decisions, strategic direction, and operational oversight.

2. Key Legal Cases Shaping the Business Judgment Rule
Objective: Explore the landmark cases that have defined and evolved the application of the BJR.
- Smith v. Van Gorkom (1985): The duty of care in decision-making and its relation to the BJR.
- Aronson v. Lewis (1984): The standard for judging board decisions and establishing the BJR presumption.
- In re Caremark International Inc. Derivative Litigation (1996): The BJR's application in oversight and monitoring duties.
- Stone v. Ritter (2006): Examining the role of good faith and the implications for directors' oversight responsibilities.
- Directors' duty of loyalty vs. duty of care: Understanding the balance and how courts distinguish between them.

3. Litigating Business Judgment: Defending and Pursuing Claims
Objective: Offer insight into the litigation landscape for D&O claims and how the BJR impacts defense and pursuit of litigation.
- Litigating under the BJR: When the rule can be overcome by plaintiffs and how courts assess the decision-making process of directors.
- Strategies for defending directors and officers in lawsuits, including the use of the BJR as a key defense.
- How plaintiffs attempt to overcome the BJR (e.g., allegations of bad faith, lack of independence, or conflicts of interest).
- Case studies and trends in shareholder derivative suits and class actions.

4. How to Advise Directors and Officers to Avoid Becoming Targets of Litigation
Objective: Discuss proactive strategies for corporate advisors to help directors and officers avoid litigation exposure.
- Best practices for documenting decisions to ensure alignment with the BJR.
- The importance of maintaining a robust conflict-of-interest policy and board independence.
- Key governance practices that mitigate risks: regular board evaluations, clear delegation of authority, and transparency in decision-making.
- Ensuring compliance with statutory and fiduciary duties—particularly in distressed situations.
- The role of internal and external advisors in helping directors navigate complex situations.

5. The Role of Independent Board Directors in Mitigating Risk
Objective: Highlight the importance of independent directors in protecting the organization and its leadership from litigation.
- Defining the role and responsibilities of independent board members.
- How independent directors help reinforce the BJR in decision-making processes.
- The critical role of independent directors in distressed or bankruptcy situations.
- Best practices for selecting, empowering, and working with independent board directors to safeguard against personal liability.

Target Audience:
General Business Bankruptcy Counsel | Corporate Governance Professionals | Directors and Officers (D&O) | Litigators specializing in corporate governance and D&O cases | Financial Advisors specializing in distressed situations and workouts | CROs

Learning Objectives:
- Gain a comprehensive understanding of the Business Judgment Rule and its importance in corporate governance.
- Analyze major legal cases and their impact on the application of the BJR.
- Develop strategies for defending and pursuing litigation involving directors and officers.
- Learn proactive strategies for advising directors and officers to minimize the risk of personal liability and litigation.
- Understand the importance of independent board directors in mitigating risks for directors and officers. Business Suggested Speakers Franklind Lea Franklind.Lea@jsheld JS Held

It is time to amend Bankruptcy Rule 9031 to permit the appointment of special masters in bankruptcy. Discussion of the compelling reasons why Bankruptcy Rule 9031 should be repealed or amended to allow for the appointment of special masters in bankruptcy cases and proceedings. Debtor Suggested Speakers Mark Conlan mconlan@gibbonslaw.com Gibbons P.C.

Alternatives to bankruptcy filings Session will identify options to bankruptcy for struggling companies and explain why certain alternatives should be considered and in certain instances utilized. Many bankruptcy practioners are not familiar with non-bankruptcy options such as ABCs and UCC sales which in many instances are far superior to the bankruptcy option.

This session will educate the practitioner so that that individual can provide proper advice and representation for the struggling business client. Business Suggested Speakers Randy Nussbaum randy.nussbaum@sackstierney.com Sacks Tierney Scottsdale

Maximizing Value in Accounts Receivable Management Join our panel of industry experts for an insightful discussion on navigating the complex landscape of accounts receivable (A/R) management. This session aims to provide attendees with comprehensive insights into key considerations, challenges, and innovative strategies within the A/R space.

The primary focus of this panel is to explore how organizations can maximize value in their A/R portfolios. Our experts will delve into crucial aspects of A/R management, offering attendees a holistic understanding of risk analysis, portfolio purchasing, liquidation, debt collection, and international recovery.

Key Points and Supporting Topics:

• Risk Analysis in A/R Portfolios: Understand the methodologies and techniques employed for accurate risk analysis. Explore the impact of customer payment patterns, industry trends, and economic factors on portfolio performance.
• Portfolio Purchasing and Liquidation Strategies: Gain insights into successful portfolio management, acquisition, and liquidation. Learn innovative approaches to handling principal investments and overseeing significant assets.
• Effective B2B Debt Collection and International Recovery: Discover advanced analytics and modeling strategies for enhancing debt collection processes. Navigate the challenges of international debt recovery with industry-tested expertise.
• Comprehensive Approach to Bridging Business and Credit Lenders: Delve into strategies that bridge the gap between businesses and credit lenders. Maximize the value of assets within the A/R space through thoughtful and comprehensive approaches.

Attendees will leave this panel discussion equipped with actionable insights, best practices, and a deeper understanding of the evolving landscape of A/R management. Whether you are involved in risk assessment, portfolio management, or debt recovery, this session promises to be a valuable resource for professionals seeking to optimize their approach to accounts receivable. Business Suggested Speakers Julia Lechowicz jlechowicz@hilcoglobal.com Hilco Global

Macro-Level Healthcare Finance for Bankruptcy Professionals Many bankruptcy professionals are being called upon to help healthcare provider organizations as this industry faces unprecedented business distress. Whatever the professional's role, some basic understanding of healthcare finance can strengthen decision-making and performance.

This session will provide a high-level view of the unique fiscal considerations in the healthcare provider organization, specifically: 1) accounting and financial statements; 2) cashflow including the massive revenue cycle and accounts payable functions; 3) a murkier part of cashflow buried in the various governmental and private payer reimbursement models, and 4) fraud.

Beginning with accounting and financial statements, the mystery of gross revenue, net revenue, and accounts receivable on the income statement will be examined. Even experienced healthcare CFOs can trip up on accounts receivable calculations given the complexities of payer reimbursement models and payment practices, as well as the payer market changes occurring at an ever-faster pace.

Healthcare provider cashflow management consists of voluminous variations and constant change, more so in revenue cycle but also in accounts payable. Years ago, revenue cycle was simply called “billing.” The term revenue cycle more accurately describes the revenue generation process which can involve every function in the healthcare provider organization, from physician and nursing care to lab work and housekeeping.

Third, fundamentals of the most common healthcare reimbursement models will be discussed starting with basic fee-for-service reimbursement and moving through other models to the present attempts at value-based reimbursement. It may be surprising that while the industry grapples with the new value-based models, a sizable part of reimbursement is still fee-for-service.

Finally, there will be brief mention of fraud and embezzlement which can develop in the troubled healthcare provider organization and may be a significant contributor to poor financial performance.
Participants will gain a high-level perspective on the unique fiscal considerations in the healthcare provider organization to inform their work in advising clients in this troubled industry. A solid base of knowledge in healthcare finance will support accurate financial performance projections, prioritization of turnaround strategies, and organization valuations. Given the esoteric complexities in this field, attendees will also gain an appreciation for situations where using healthcare financial specialists may be helpful.

First, participants will understand special aspects of income statements for healthcare provider organizations, in particular the difficulty of estimating accounts receivable due to the variability in the payer market, reimbursement models, and billing policies and procedures.

Second, attendees will be able to discuss the umbrella structure of cashflow in the healthcare provider organization from revenue generation to accounts payable.

They will understand the fundamentals of the “revenue cycle” which spans the entire healthcare provider organization. They will also be able to outline some mid-level billing functions, common operational problems with billing in the distressed healthcare organization, and practical solutions to address them, including artificial intelligence (AI).

On the other side of cashflow management, participants will understand the cash management structure and issues in vendor contracting, purchasing, and accounts payable in the healthcare organization.

Next, participants will gain a deeper awareness of how various healthcare reimbursement models in the marketplace – e.g., Medicare Advantage, health maintenance organizations (HMOs), high-deductible plans, accountable care organizations (ACOs), etc. – affect the financial performance of healthcare provider organizations.

Finally, attendees will be made aware of some places fraud and embezzlement may develop in the distressed healthcare organization.
Creditor Suggested Speakers Jeanne Goche, MA, JD jgoche@SolutionsinHealthCareManagement.com Solutions in Health Care Management, a consultancy and financial advisory specializing in health care