In the wake of the U.S. Supreme Court’s Harrington v. Purdue Pharma L.P. [1] decision definitively doing away with nonconsensual third-party releases, courts and practitioners alike have been struggling with the meaning of “consensual” in the context of such releases. One such jurist is the Hon. Craig Goldblatt of the U.S. Bankruptcy Court for the District of Delaware, who tackled the issue in the recent In re Smallhold Inc. [2] decision.
Winter Leadership Conference Panel
At the upcoming Winter Leadership Conference, taking place Dec. 12-14 in Scottsdale, Ariz., the Commercial and Regulatory Law and Secured Credit Committees are hosting a joint panel, “Remote Control: Not Just for Toys Anymore,” on Dec. 13 at 9:30 a.m. with the participation of the following speakers:
UST should provide data on the fees charged by sub V trustees and what they did for the case to justify their needless fee
Business
Shmuel
Klein
SHMUEL.KLEIN@VERIZON.NET
law office of shmuel klein
World-class leadership begins with the Whole Leader. Promoting wholeness requires addressing multiple dimensions of well-being. Considering system induced stress is a significant cost personally, professionally, and organizationally, bankruptcy leaders should consider a holistic approach to improving results.
-Why wholeness is the new standard for individual, team, and organizational well-being.
-How to improve resilience to reduce the effects of system induced stress.
-How to lead a company culture with higher engagement, learning, and growth levels.
Other
Suggested Speakers
The state of the bankruptcy bar and why it's shrinking. In the past 2 years, our 3-person panel has taken over 5 other law practices. Three practitioners retired. One died. One simply wanted to get out of the bankruptcy practice area. Many more exits are on the horizon.
It's important to understand how to take over another attorney's practice effectively, efficiently, and ethically. We are compelled to give clients options, but also have a duty to ensure they will continue to have cost-effective representation. It's also essential that those of us in the practice NOW are taking the appropriate steps in succession planning to make these transitions smooth.
We will discuss why we think people are getting out, why now, and what we can do to ensure we continue to have provide quality legal services in the practice of bankruptcy law.
What steps must be taken under the guidance of the OCDC to efficiently and effectively take over a law practice.
Consumer
Between local rules establishing mediation confidentiality [1] and Federal Rules of Evidence (FRE) 408 and 501, most assume that mediation is privileged and confidential, but that might not always be the case.
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
In In re City of Detroit, Michigan, [1] the Michigan Department of Attorney General (the “Department”) found itself in hot water over its disclosure of certain confidential documents to defendants in their criminal cases arising out of the Flint water crisis (the “Flint Defendants”).
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
