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
There has not been much written or said about the effect of a class action of creditors. Can a class action obtain a class vote on a chapter 11 plan that supplants the votes of individual creditors? If so, then does class counsel and the class representative supplant the creditors committee and its counsel as the party with whom the debtor must negotiate a consensual plan? Does it matter if the class action was pending prepetition or whether a new class action was commenced as an adversary proceeding under the Bankruptcy Rules? Does it matter if the class is or was certified? What about a defendant class (as the debtor sought to be formed among parties sued by the debtor in the MA Telex Free case), rather than a plaintiff class - does that matter to any of these issues?
I was involved in a chapter 11 case representing a putative class. There is very little law on this subject. Academically, there is some analysis fo the similarities between a non-bankruptcy class action case and a bankruptcy case, but very little in the way of case law. Going forward, I always look for opportunities to assert a class action to test some or all of these issues, particularly whether the class can file a class claim.
Creditor
Suggested Speakers
Jeffrey
Sternklar
jeffrey@sternklarlaw.com
Jeffrey D. Sternklar LLC
In the aftermath of Purdue Pharmaceuticals it is clear that non-debtors releases in reorganization plans under chapter 11 and, most likely Chapter 12, require the releases to be "consensual." This invokes general principals of contract law which require, inter alia, consideration for the releases. Insiders, like the Sacklers in Purdue, can contribute cash or equity. Insurers, guarantors, and similar parties can similarly fund the releases. However, it is not clear how administrative persons can contribute "consideration" for releases especially where Secs. 326-31 largely govern types of claims that might be asserted against these persons. The Barton doctrine also provides a framework for asserting claims against many of these persons and an obligation for the court to raise claims against such persons even if her parties in interest do not.
Given the pre-Purdue inclusion of boilerplate provisions in many plans for releases of the various counsel and other case administrators, the issue arises under Purdue whether or not such releases are possible post-Purdue and how that might be obtained if they are possible.
In a post-Purdue world, counsel, other professionals and committees in reorganization cases may well face significant increased exposure to claims and liability where they may not be able to obtain releases for such claims and liability. Strategies to deal with this change are of obvious import to those attendees and those professionals they deal with in the course of reorganization cases, particularly those in which there is dissatisfaction with these individuals' actions. E.g, The Asarco case in which the reorganized debtor sued its predecessor's former counsel.
Business
Suggested Speakers
Leo
Weiss
leoweiss@ecentral.com
Retired, formerly with he U.S. Trustee Program
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
The session will review the big deals in distressed investing in 2024 and make some predictions about 2025.
I would envision 3 speakers addressing small, medium and large sized transactions. The panelists would include claims trader, real estate investor, and hard asset (private equity) investor. The moderator could be an attorney that services these constituencies.
The distressed investing world provides a significant amount of work for the legal community. I was instrumental in putting together a program for TMA NY that focused on the Private Credit Market which sold out.
Debtor
Joseph
Sarachek
joe@saracheklawfirm.com
Sarachek Law Firm
Congress granted creditors a right to an accelerated recovery of their claims through FRBP 3001. This rule is the foundation for selling a bankruptcy claim but, until recently, the integrity and liquidity of the claims market was challenged by an absence of the typical features of modern capital markets. Few creditors were able to identify potential purchasers, conduct price discovery and maximize competition for their claims. Online marketplaces developed, making a global market and rapid price discovery easily accessible, and allowing unrestricted competitive pressures to inform bid/ask price disclosure and immediately actionable supply and demand. Although the market has undergone a significant transformation, a number of recent cases have tested the rules and procedures of bankruptcy courts, clerks and claim administrators to properly manage the tens of millions of claims, and hundreds of billions of dollars owed annually to creditors who enjoy a right to liquidity.
• Understanding of the background/context for FRBP 3001
• Understanding of historical market characteristics and functionality
• Understanding of the emergence of online marketplaces
• Discussion of recent cases and the impediments to improved market functionality
• Discussion of opportunities for further market development and improvement
Creditor
Suggested Speakers
Brian
Davidoff
bdavidoff@greenbergglusker.com
Matthew
Sedigh
matt@x-claim.com
Andrew
Glantz
andrew@x-claim.com
Brian
Davidoff
bdavidoff@greenbergglusker.com
Greenberg Glusker LLP
Many creditors are not filing claims by the claims bar date. This puts debtors in a tough situation especially if the claim filed late (or not filed at all) is for a secured claim such as a house or car. Some courts are reluctant to allow a late filed claim citing limitations of rule 9006. So what can a debtor or creditor do to get a late filed claim (or no filed claim) paid?
To discuss why in the post Covid era many creditors are not filing proofs of claims timely and discuss possible solutions.
Creditor
Suggested Speakers
Rucinski
krucinski@ch13akron.com
Keith
Rucinski
Krucinski@ch13akron.com
Office of the Chapter 13 Trustee (Akron, Ohio)
The Bankruptcy Code and Non-Bankruptcy law preserve or limit claims at the outset of the case and after confirmation of a plan during the claim reconciliation process. For example, claims arising from the purchase of perishable fruits and vegetables are accorded certain treatment in a bankruptcy case under the Perishable Agricultural Commodities Act or claims governed by applicable sales tax statutes. Claims arising from employees are given priority (but capped) and claims arising from the rejection of a real property lease or employment contract are capped. This panel will consider the claim reconciliation process during a bankruptcy case and the the Bankruptcy Code and Non-Bankruptcy law affect those claims.
Business
John
Lucas
jlucas@pszjlaw.com
Pachulski Stang Ziehl & Jones
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
Christopher
Nugent
chris.nugent@bcamasset.com
Bluechip Asset Management
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
