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
With over 18 million life insurance policies lapsed or surrendered in 2023, and hundreds of thousands potentially eligible to be treated as valuable assets, bankruptcy trustees have a significant opportunity to enhance outcomes for estates and creditors. This session explores the critical role of life insurance policies in bankruptcy cases, emphasizing the process of valuing and monetizing these assets. It also addresses the importance of maintaining anonymity and ensuring maximum value through competitive marketplaces and non-traditional valuation practices. Attendees will gain actionable insights into identifying, protecting, and leveraging life insurance policies as a pivotal asset in bankruptcy proceedings.
1) Identify Opportunities: Understand how to recognize life insurance policies as potential assets during the bankruptcy process, including the types of policies most suitable for valuation or sale.
2) Understand the Process: Gain knowledge of the step-by-step process to evaluate, protect, and monetize life insurance policies, from assessing the policy's value to executing a sale.
3) Prioritize Anonymity: Learn best practices for maintaining the anonymity of policyholders and insureds to safeguard personal information and ensure compliance with ethical and legal standards.
4) Maximize Value: Explore how competitive bidding platforms and life settlement marketplaces can yield the highest possible value for creditors while navigating potential challenges.
5) Promote Awareness: Discuss strategies for educating policyholders and stakeholders about life insurance as an asset class, preventing policies from being overlooked or prematurely lapsed.
Business
Suggested Speakers
Stephen
Jass
stephen@LSHub.net
Stephen
Jass
stephen@LSHub.net
Life Settlement Hub
Bankruptcy attorneys regularly use auctions to liquidate assets, but few understand the underlying principles that make auctions successful, fair, and efficient. This session, inspired by Auctions by Timothy P. Hubbard and Harry J. Paarsch, provides an accessible introduction to auction theory tailored to bankruptcy practitioners. Attendees will learn about key auction types, common bidding strategies, and potential pitfalls like collusion and the "winner's curse." With a focus on practical applications, this session equips attorneys to better structure auctions, choose the right formats for specific assets, and advocate for processes that maximize creditor recovery. Perfect for attorneys aiming to enhance their approach to bankruptcy auctions and secure optimal outcomes for clients.
By the end of this session, participants will be able to identify and differentiate between key auction formats used in bankruptcy contexts, understand fundamental bidding strategies and their impact on auction outcomes, and recognize common auction pitfalls, such as collusion and the winner’s curse. Attendees will gain practical insights into selecting auction structures that align with asset types and client goals, ensuring fairer and more effective liquidation processes. This knowledge will empower bankruptcy attorneys to enhance asset recovery efforts and better advocate for clients throughout the auction process.
Business
Suggested Speakers
Mike
Carey
mcarey@tranzon.com
Mike
Carey
mcarey@tranzon.com
Tranzon Auction Properties
Note to Committee
Beverly Berneman, Frank Oswald, and I (Summer Chandler) are working on the second edition of the ABI book, Choppy Waters: Navigating the Intersection of Bankruptcy and Intellectual Property. It should be ready to go to print by the end of this year. We would like very much to have the opportunity to present at the Spring Meeting on some of the issues we will be discussing in the book and that we have encountered in our practices or other work. Thank you for considering our proposal.
Panel Description:
Intellectual property is often critical to the financial stability and well-being of a company. When a debtor enters bankruptcy, the Bankruptcy Code contains several provisions that impact rights held by the debtor, or others, in intellectual property owned or used by the debtor. Given the important role that intellectual property often plays in the life of a business, disputes pertaining to intellectual property frequently surface in the context of the debtor's bankruptcy case. Unfortunately, significant uncertainty continues to surround many of the issues that exist at the intersection of bankruptcy law and intellectual property law.
This panel will explore the complex intersection of intellectual property and bankruptcy law, focusing on the important and unique challenges and opportunities that can arise when intellectual property rights are at issue in bankruptcy proceedings. The topics discussed will include, among others: the effect of the rejection of an intellectual property license agreement, the effect of the sale of a debtor’s intellectual property on the rights of non-debtor licensees, and the assignability of intellectual property license agreements (either standalone agreements or agreements contained within a more comprehensive agreement – such as a franchise agreement). Panelists will discuss and analyze several important and interesting disputes, including, among others, the tortured bankruptcy history of 2 Live Crew/Luther Campbell and Lil’ Joe Records.
By the conclusion of the program, attendees should: (1) understand the legal framework governing the treatment of intellectual property assets in bankruptcy; (2) recognize risks and challenges related to intellectual property in bankruptcy, and (3) be able to assess the potential impact of bankruptcy on ongoing and future intellectual property transactions.
Business
The focus of the panel would be to identify uniquely Canadian distressed deal structures and litigation techniques that could be imported to the American restructuring practice. Would cover developments from coast to coast by including at least 3 Canadian practitioners from the West Coast, Central Canada and Quebec would be selected once the audience was determined. For example key points would be: could you get a reverse vesting order under Chapter 11?
Practictioners will learn new techniques and strategies unique to Canada.
Business
Natasha
MacParland
nmacparland@dwpv.com
Davies Ward Phillips & Vineberg LLP
Because bankruptcy attorneys are being asked to find non-bankruptcy solutions more and more, to avoid the expense of full-blown bankruptcy, I would love to develop competencies in areas just adjacent to our normal practice area.
Article 9 sales are one area that are so close. I would love to know more.
From understanding the goals of private equity/private finance to understanding the nuts and bolts of service requirements, potential litigation tactics that may come in to play after the fact with creditors, to traps for the unwary, I think there is a lot to cover here.
Business
Jennifer
McLemore
jmclemore@williamsmullen.com
Williams Mullen
With large cities contemplating or trying to create "reimagined downtowns" following drastic declines in commercial tenancies, and drastic increases in un-used or under-utilized downtown/urban buildings, property owners may need to adapt to potential re-uses of their commercial properties, which may or may not include Bankruptcy Court involvement by way of landlord and/or tenant bankruptcies. This panel will address the practical and legal aspects of "reimagined downtowns," including with predictions on what cities will try to do to reinvigorate their downtowns over the next few years.
Participates will understand how landlords, tenants, landlords' lenders, and cities view their respective strengths and weaknesses, and may be able to work together to achieve best outcomes, in the current situation affecting urban commercial properties.
Creditor
Suggested Speakers
This session will focus on key issues in a health care restructuring or bankruptcy from a creditor's point of view. It will address issues pertaining to both secured and unsecured creditors. Possible topics include: (1) understanding ways health care businesses are financed (receivables financing, municipal bond financing); (2) bankruptcy alternatives (receiverships, ABC, workouts); (3) DIP financing for health care businesses; (4) anticipating regulatory review; (5) issues concerning health care 363 sales; (6) issues facing committees in health care bankruptcy cases; and more.
The session will help attorneys who represent creditors understand some of the main issues their clients face with respect to distressed health care businesses and strategies for protecting their interests as the debtor goes through a Chapter 11 case.
Creditor
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
Jay
Stone
JStone@hilcoglobal.com
Buddy
Beaman
BBeaman@hilcoglobal.com
Julia
Lechowicz
jlechowicz@hilcoglobal.com
Hilco Global
Debtor estates and other distressed stakeholders can monetize formerly contaminated parcels which have no higher or better use than solar by leasing or selling those assets to specialized brownfields-to-solar developers. These niche developers can buy suitable parcels outright or offer twenty-year leases which can be transferred with the property. The Inflation Reduction Act and renewable energy-friendly states provide significant financial incentives which allow for generous lease rates. Bankruptcy trustees, debtor estates, creditors and other stakeholders have begun exploring this monetization strategy, which can be accomplished out of court, as long as the assets are at least partially remediated.
What is the brownfields solar financial model, whether through lease or acquisition, and how much revenue would it generate in a sample project?
What types of real estate assets are suitable for solar siting (and no other, higher/better uses)?
What geographical locations/states provide the best financial incentives (tax incentives, rec programs, high power rates) to generate the highest lease rate or purchase price for a trustee, debtor estate or other stakeholder?
What are the relevant provisions of the Inflation Reduction Act?
What are some of the relevant provisions in states with favorable policies?
How can a trustee, debtor estate or other stakeholder mitigate the environmental risk associated with brownfields solar projects?
How can public sector creditors properly dispose of or monetize through lease brownfield properties where the property owner is missing or refuses to appear in court proceedings?
Can environmental liabilities be discharged under section 363 of the Bankruptcy Code? Is that necessary in the context of developing solar on brownfields?
Debtor
Suggested Speakers
