Bankruptcy Process and Procedure

Consensual Releases for Sec. 327 Professionals, Committee Members,Trustees and Other Case Administrators

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

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.

Circuit Bankruptcy Judges

There are three Bankruptcy Judges that moved up to be Circuit Court Judges. Judge Ambro was a hit at ASM and has indicated he would love to speak more at ABI events. Having a discussions with the all 3 Circuit Court judges that started as Bankruptcy Judges (understanding that Judge Ambro was only a bankruptcy lawyer, not a Judge), would be very interesting. Hear their different perspectives of appeals, how they view SCOTUS decisions on bankruptcy issues, and how their fellow Circuit Court Judges rely on them on bankruptcy appeals. This sessions would given bankruptcy practitioners insight into how Circuit judges with bankruptcy experience view appeals and bankruptcy law in general. Business Chris Ward cward@polsinelli.com Polsinelli

the Pitfalls of Merchant Cash Advances

Describing the nature of the loans, how they are marketed and the scope of their usage in the marketplace. Addressing legal strategies on how to debtor's and other creditors can use the bankruptcy process to curb the abuses of these lenders. Debtor Suggested Speakers Scott Williams swilliams@rumberger.com RumbergerKirk

Article 9 Sales

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

Drafting orders: Best practices

We use lots of court approved “form” orders in the Central District of California. But here is a wide variance of opinion among the judges and the attorneys about the proper form of custom orders.

As a side note, many folks still stick “findings of fact and conclusions of law” into orders. That’s a bad habit.

If you need some help, I could put together a program with three judges. Maybe the Hon. Dan Collins, a judge from the Central District of California (maybe Hon. S. Bluebond, Hon. S. Klein, or the Hon. V. Zurzolo), and a judge to be named later. Judge Zurzolo is not often on panels, but he has strong opinions about procedure. I have done panels will all of the named judges.

Blocking and tackling, but well suited to the winter leadership format. Business Suggested Speakers J. Scott Bovitz bovitz@bovitz-spitzer.com Bovitz & Spitzer

The Perils of Late Filed Claims (or even worse, when no claim filed at all)

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 Keith Rucinski Krucinski@ch13akron.com Office of the Chapter 13 Trustee (Akron, Ohio)

History of Rule Making: Restyling Project and How to be a Changemaker

I think to flush this out, I need to speak with someone so explain the angle. The bankruptcy rules have just been restyled and the history and process are very interesting. Also it could be discussed how rulemaking works and how to submit your suggestions for rule changes and the time line etc. It could also be discussed what is currently in the pipeline and maybe even do some polling. I am currently on the Advisory Committee on Bankruptcy Rules and some interesting things are going on. The topic would be a good plenary session and apply to both consumer and business. While it does not fit a particular practice area, the conversation could directed to all practictioners. Other Suggested Speakers Nancy Whaley nwhaley@njwtrustee.com Nancy Whaley Chapter 12 and 13 Trustee

Valuable topics on meaningful themes for legal professionals that all enhance staff engagement, performance, and well-being as well as effective collaboration with the wide variety of stakeholders that legal professionals have to partner with- see below

Mindfulness and stress-reduction
The power of positivity and mental fitness
Understanding, reducing, and managing bias
Effectively managing change and uncertainty
Keys to strengthen your emotional intelligence
Conflict management in the workplace and beyond
Performance management conversations and feedback
Facilitating meaningful conversations on sensitive topics
Understanding and strengthening strategic thinking skills
Appreciating differences – building a neuro-inclusive workplace
Understanding and handling self-doubt and imposter phenomenon All the suggested topics enhance staff engagement, performance, and well-being as well as effective collaboration with the wide variety of stakeholders that legal professionals have to partner with. I'd be honored and happy to send specific learning outcomes for specific topics that are of interest to ABI. Business Suggested Speakers Carolien Moors cpmoors@gmail.com HardTalk Biz Coaching