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Litigation: Expert Cross-Examination Stratego!
Challenging an expert witness requires more than just wondering what questions to ask on cross-examination. Is the expert witness even an expert in the right subject matter? Should the expert be deposed before trial and challenged before he or she takes the stand, or would cross-examination without giving the expert the clues that come with deposition questions present the best opportunity to defuse the weight of the expert’s opinion? How can the trial lawyer prepare for cross-examination of an expert and contain the damage done on direct examination of the expert? What are the essential attributes of strong cross-examination, and how should the trial lawyer deliver the most effective and forceful cross? What are the most effective cross-examination strategies for impugning and impeaching an expert’s opinion? This panel will discuss the legal, strategic and practical considerations that arise in preparing and delivering effective cross-examination, followed by experienced trial lawyers demonstrating techniques for effective containment and impeachment of expert opinion and testimony — with an experienced judge letting them know in real time whether they succeeded.
Plan Conversions of Debt to Equity: The Means, the Math, the Risks and the Upsides
The next evolution of insolvency practice is upon us. The morphing of what started as a restructuring practice into a § 363 sale practice is old news, while the more recent introduction of nontraditional, sophisticated financial investors into the process has brought about another evolution: the debt-to-equity conversion. Why settle for prime and three when you can use Bankruptcy Code provisions like the absolute priority rule and the securities law exemption to come out post-effective date with a freely tradable equity instrument that will enable the holder to share in all of the upside of the reorganized enterprise? This panel will explore the mechanics of a debt-to-equity conversion in the context of a chapter 11 plan in the legal context, then will explain the valuation metrics and allocation calculations that underlie the dynamics as to who gets to participate and the amount of equity offered to the various case constituencies. The discussion will also cover the tools used to spur creditor acceptance of the conversion and uses of the paradigm as a means of raising new capital for the restructured debt, such as backstop agreements and rights offerings.
Loans-to-Own: How Do You Do It? Should You Do It?
The strategy of providing funding to troubled companies or purchasing existing secured debt at a discount in order to obtain ownership (so-called “loans-to-own”) continues to inspire controversy and litigation even as its use by debt financiers and other investors has become more commonplace. This panel will explore the practical considerations, business risks and legal issues associated with loans-to-own, both inside and outside of bankruptcy. Discussion on transactions outside of bankruptcy will include the scope of due diligence, intercreditor issues, insider participation, “bankruptcy-proofing,” and the risks and benefits of a “friendly foreclosure.” Discussion on transactions inside of bankruptcy will include using DIP financing to achieve ownership, potential limits on credit bidding, the impact of including or excluding insiders from the post-closing company, and risks presented by remedies such as equitable subordination and involuntary debt recharacterization.
Sealing the Deal: Negotiating, Documenting and Consummating Settlements in Bankruptcy
This interactive nuts-and-bolts panel will discuss three phases of settlements in the context of a bankruptcy case: (1) negotiating a settlement, including evaluating the benefits of settlement versus litigation risk and expense, negotiating tactics and strategies, and the role of the mediator; (2) drafting term sheets and settlement agreements, an overview of the law on the enforceability of term sheets and settlement agreements (both pre- and post-court approval), and the components of the settlement agreement; and (3) consummating the settlement, with an emphasis on Federal Rule of Bankruptcy Procedure 9019 standards, the necessary components of a motion to approve compromise, presentation to the bankruptcy court, the bankruptcy court’s role in evaluating the settlement and the court’s order approving the settlement, the nonbankruptcy aspects of a settlement, and post-settlement actions.
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