Bankruptcy Litigation

From Good Hands to (Bankruptcy) Boxing Gloves: the Impact of Truck Insurance Exchange v. Kaiser Gypsum Company on Your Next Reorganization The Supreme Court's June 2024 decision in Truck Insurance Exchange v. Kaiser Gypsum Company held that insurers qualified as "parties in interest" under Section 1109(b), entitling those insurers to object to a plan of reorganization. This landmark decision is likely to have far-ranging effects in the reorganization world and affect debtors and creditors committees alike. The ABI should host a panel examining the expected extent and impact of those effects, including that:
- debtors and creditors should prepare for the fact that insurance carriers will start getting a seat at the negotiating table;
- the insurance industry may view Truck as not merely granting a seat at the table, but also as an invitation to test the boundaries of its newly granted position;
- Truck presents an existential threat to the already-risky tack of chapter 11 plans' limiting director and officer liability to only insurance proceeds;
- insurance carriers will likely leverage Truck to urge courts in jurisdictions that deem insurance proceeds to be property of the estate to reexamine the status quo; and
- insurance carriers will begin to horse-trade for concessions in connection with first-day motions and debtors' purchasing tail coverage and run-off policies post-petition. Participants will gain knowledge and skills vital to negotiating insurance-related issues in bankruptcy, such as:
- traps for the unwary in attempting to limit liability in chapter 11 plans to only insurance proceeds;
- how to maximize or minimize Truck's reach in their next plan negotiation, depending on whether their goal is to tout or downplay its effects; and
- how to navigate coverage issues if insurance carriers are granted a seat at the table during their next plan negotiation. Debtor Suggested Speakers Brandon Lewis blewis@reidcollins.com Reid Collins & Tsai LLP

The Role of Investigations in a Bankruptcy Nardello & Co. is the only Band 1 ranked investigations firm in the United States, whose experts have worked on some of the highest profile and most complex bankruptcy cases of the past decade. This includes recovering assets on behalf of investors following the collapse of FTX and assisting Sandy Hook families as creditors in the bankruptcy of InfoWars creator Alex Jones. The purpose of the session would be to discuss how investigative firms can serve a unique role bankruptcies and insolvencies. Specific topic areas would be uncovering fraud and malfeasance that have collapsed companies, tracing and recovering assets, digital investigations and cryptocurrency tracing, supporting litigation to clawback funds and performing due diligence on bidders of debtor assets to make sure that they have the necessarily wherewithal and don’t present compliance issues. The panelists will share novel and practical perspectives on how to approach these issues, drawing on Nardello & Co.’s investigative expertise in recent insolvency matters and global presence. Participants will learn when and how to utilize investigative firms to assist their clients, whether they are corporate debtors or creditors committees. Nardello & Co. would bring in Lawyers who worked on these cases or similar, to speak on panel, if desired. Business Suggested Speakers Meredith Allesee mallesee@nardelloandco.com Nardello & Co.

“Wait, Wait; Don’t Tell Them!” A corny idea clearly inspired by the NPR show “Wait, Wait; Don’t Tell Me!” The format could include any of that show’s components, including audience polls about which of several possible alternatives correctly answers a short privilege question, with an explanation from the panel. It can be as basis or as complicated as folks think would work, and could be based on actual opinions. There’s a lot to work with here, and it could be fun. I did suggest this idea to NCBJ about 15 years ago, but I don’t think they ever presented it, at least not in the context of privileges. It could easily apply to consumer and commercial practitioners, so I am deliberately not selecting a single target audience. This session will sharpen your skills in identifying and correctly applying applicable privileges (some basic, some more complicated) in a variety of bankruptcy litigation contexts. The program will include privilege issues common to both consumer and commercial practice. Other Bruce Harwood bruce_harwood@nhb.uscourts.gov US Bankruptcy Court (D NH)

Not just Maple Syrup and Hockey: Tips and Tricks from North - Developments in Canadian Law that could be imported to the US 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

How to Work With Outside Appraisers Valuation of assets, machinery and equipment, is an important part of the bankruptcy process. Monetization of assets, securing of creditor rights depends on accurate valuation of assets, and this session will detail how to find, retain, and manage outside appraisers to properly value the assets. Learn how to effectively and efficiently manage the valuation/appraisal process to maximize recoveries and provide accurate asset valuation. Creditor Suggested Speakers Christopher Nugent chris.nugent@bcamasset.com Bluechip Asset Management

Lender on Lender Violence Update Recent decisions following challenges to liability management exercises and how documents have changed as a result. Creditor Gabriel Sasson gabesasson@paulhastings.com Paul Hastings

All Things Discovery Responding to discovery, how to object, what may be privileged, what efforts must the responding party go to to collect docs not in its possession but that it could obtain with effort, when is discovery appropriate, use of a subpoena versus requests for production versus Rule 2004 examination, what is "off limits," mechanics of issuing and responding to subpoena, etc. Impacts all types of attorneys/cases: consumer, business, creditor, banks, etc. Although these are not "daily practice" issues for most of us, this would be a great "how to" program (with good materials) that attorneys could reference for years when the issues arise. Other David Cox david@coxlawgroup.com Cox Law Group

Health Care Bankruptcy & Restructuring for Creditors 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 Suggested Speakers Jeffrey Fuller jfuller@bloombergindustry.com Bloomberg Industry Group

Are you leaving money on the table? The intuition behind the many practical applications of option theory. Lenders face a fundamental problem in life: the math, from the onset, favors the borrower. This is nowhere better displayed than in real estate transactions, where most debt is non-recourse and secured at the property level. Much legal work in a real estate transaction can be viewed as an effort to make up for and possibly invert the inherent disadvantages of the lender. This session aims to provide an intuitive, practical understanding of the role of option theory in structuring and valuing the positions of borrowers and lenders. Be able to look at any situation and better assess the value of embedded optionality. See value or costs where you didn't see them before. Capture more value for your clients. Be able to draw option diagrams on cocktail napkins at networking events. Debtor Suggested Speakers Ken Miller kmiller@advisorsguardian.com Guardian Advisors

Evidentiary Rules, Objections & Procedures "Tune Up" In Bankruptcy Proceedings For many practitioners, courtroom matters often become more routine recitations of settlements or agreed isolated issues to be argued. Likely all practitioners would appreciate a "tune up" on getting through a hotly contested case. Topics might include: pretrial motions (when and how to make); discovery right/procedures/objections; review of burden of proof and burden shifting rules; advice on presenting evidence by witness & common objections; how to get "in the record" the evidence you need - appraisals, valuation, lien position, payments, etc; Expert witness rules. Other David Cox david@coxlawgroup.com Cox Law Group