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Liquidating In and Out of Chapter 11
This session will discuss (1) selecting a trust, LLC, plan administrator or other vehicle;
(2) ensuring that affirmative claims are preserved post-confirmation; (c) establishing
a value/tax basis in litigation claims and other assets transferred to a trust or LLC;
(d) key plan provisions such as preserving 2004 discovery rights, creditor oversight,
continuing court oversight, required reporting and the retention/transfer of the
attorney/client privilege; (e) the trading of interests; (f) provisions for closing the case;
and (g) structured dismissals following asset sales as an alternative to a liquidating
plan (Jevic). Is it preferable to liquidate outside of chapter 11?
Bankruptcy Litigation
This panel will present a fraudulent transfer update and discussion regarding the split
over § 546(e) safe harbors (Physiotherapy, Tribune, Madoff, Meritt Management),
10-year reach-back periods (Kipnis), the reinstatement of unsecured creditors’
intentional fraudulent conveyance claims and the ruling that the intent of the CEO
can be imputed to the company (Lyondell), the finding that substantive consolidation
does not augment the trustee’s § 544(b) avoiding powers by allowing the trustee to
rely on predicate creditors from another estate (Petters), and the ruling that access to
a credit line rebuts unreasonably small capital claims (SemCrude). The session will
also feature an update on the Trust Indenture Act, including discussion of the recent
Second Circuit decision in Chesapeake Energy and its implications regarding the
finality of bankruptcy court orders, and an update on the litigation of feasibility
issues (Paragon).
Cross-Border Panel
This panel will discuss the domestic reach of the foreign stay (Sanjel) and recognition
of judgments/rulings in cross-border cases, including offshore bankruptcies, as well
as non-U.S. companies filing for chapter 11 and the consequences thereof
(Ocean Fisheries, Hanjin and Abengoa)
LLC Bankruptcies
This panel will focus on issues that can arise during an LLC bankruptcy, such as
what happens when parties contract out of fiduciary duties and the effect that
bankruptcy has on key provisions in an LLC operating agreement, including
management and ownership rights and remedies, as well as what happens when a
bankruptcy proceeding is initiated against the LLC or one or more of its members.
The panel will also discuss Intervention Energy and Lake Michigan, in which the
bankruptcy courts refused to enforce LLC agreement provisions requiring the
respective LLCs to obtain the unanimous consent of their members in order to
seek bankruptcy relief.
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