Business

ABCs and state receiverships are not the only chapter 11 alternatives. With even middle-market companies having widely held and tradeable note instruments, the exchange offer provides an out-of-court alternative that, if successful, can provide most of the benefits of a confirmed chapter 11 plan, and if unsuccessful, can still provide the basis for a confirmable prepackaged plan. The panel will provide an introduction to exchange offers: the goals, mechanics and documents. The panel will also explore the current thinking on the short reach of the Trust Indenture Act in exchange offers after the Second Circuit Court of Appeals’ decision in Marblegate Asset Management vs. Education Management Corp. In addition, the panel will explore opportunities to use strict foreclosure and other consensual, or nonconsensual, workouts, wind-downs and liquidations to maximize value.

The First Circuit Court of Appeals decision in Mission Product Holdings Inc. v. Tempnology LLC held that the absence of trademarks from the definition of intellection property in § 101(35A) of the Bankruptcy Code means that, unlike other types of intellectual property, a licensor’s rejection of a trademark license deprives its licensee of any right to continued use of the mark. The Supreme Court has accepted certiorari in the case and is expected to issue a decision late this Spring on the question of whether, under Bankruptcy Code § 365, a debtor-licensor’s rejection of a license terminates rights of the licensee that would survive the licensor’s breach under nonbankruptcy law. This panel will analyze the reach of the question presented, examine the arguments briefed, interpret the scope and breadth of the Court’s decision (assuming it is rendered before the term concludes), and consider the implications for commercial licensing and bankruptcy administration.

ABCs and state receiverships are not the only chapter 11 alternatives. With even middle-market companies having widely held and tradeable note instruments, the exchange offer provides an out-of-court alternative that, if successful, can provide most of the benefits of a confirmed chapter 11 plan, and if unsuccessful, can still provide the basis for a confirmable prepackaged plan. The panel will provide an introduction to exchange offers: the goals, mechanics and documents. The panel will also explore the current thinking on the short reach of the Trust Indenture Act in exchange offers after the Second Circuit Court of Appeals’ decision in Marblegate Asset Management vs. Education Management Corp. In addition, the panel will explore opportunities to use strict foreclosure and other consensual, or nonconsensual, workouts, wind-downs and liquidations to maximize value.

Lawyers and law firms, as well as other professionals, need to understand the critical issue of data security. This panel will detail why you are at risk and what you should be doing to combat the threats. The focus will be on understanding cybersecurity risks, data-protection best practices, incident-response planning and ethical obligations. This plenary program will offer practical guidance that you can use both personally and professionally, whether focused principally on consumer or commercial issues.

The panel will discuss recent cases and longstanding Supreme Court jurisprudence on recurring themes, including law vs. equity, approaches to statutory interpretation, the role of courts and limits to jurisdiction, and bankruptcy policy related to reorganization, discharge and the fresh start.

In this program, three expert mediators, two retired judges and one federal judicial mediator will provide insights on what to expect in a mediation of a dispute in a contested matter or adversary proceeding in a bankruptcy case. They will focus on the types of bankruptcy disputes that are well-suited for mediation; procedures for implementing a mediation referral, including the referral order and mediation agreement; confidentiality issues; the conduct of the mediation session; different mediation techniques; strategies for parties and counsel to conduct effective negotiations in mediations; and bad-faith participation in mediation and remedies for such conduct. The panelists also will provide their insights on traps and problems to avoid before, during and after mediation, and best practices for counsel and parties in mediations.

Practitioners are constantly looking for ways to expand, or limit, the ability of estate fiduciaries and creditors to avoid transfers. This panel will explore several cutting-edge issues with respect to fraudulent-transfer actions currently playing out in bankruptcy courts, including whether trustees may recover tuition payments by debtor-parents for the benefit of their adult children and the meaning of “reasonably equivalent value” under Section 548(A)(1)(b). The panel will explore opportunities to expand a trustee’s avoidance powers, including a trustee’s ability to stand in the shoes of the IRS and benefit from the 10-year look-back period, Ponzi scheme issues, and applying avoidance powers to foreign defendants. The speakers will also discuss whether silence is still golden in light of Husky International v. Ritz.

Cash-collateral, DIP-financing, § 363 bid-procedure and assumption-of-restructuring-support-agreement orders all enter into the early stages of a chapter 11 case, and all have the potential to dictate how the case will end. Some argue that setting a firm course for the case in the early days promotes efficiency and recognizes the financial realities posed by current capital structures. Others argue that those same orders, fashioned by a small subset of the creditor constituencies, preclude all but those at the top of the capital structure from having an effective voice in the case. The panelists include people on both sides of that debate, and the discussion will feature such topics as benchmarks in DIP financing and cash-collateral orders, recent developments in bid-procedure orders such as the recent approval by some courts of multiple breakup fees and of a no-shop clause, and just how far a restructuring support agreement can go in a pre-negotiated case.

Two of the most currently challenged industries — higher education and health care — are also the two industries most likely to use the nonprofit form of organization. Recent high-profile cases have demonstrated the pull and tug on officers and directors of those entities. Tasked with both the practical realities imposed by the need to make payroll and the mission-based obligation to pursue the organization’s charitable purposes, the officers and directors are forced to weigh financial discipline against the obligation to heal or to educate. This panel will explore the seemingly conflicting fiduciary duties of the officers and directors of nonprofit companies, identifying those duties and the statutory protections afforded those who are faced with making real-time decisions. The discussion will also explore challenges to the actions taken, including additional hurdles to asset sales under § 363(d)(1), government agency investigations and oversight, and class action litigation.