Business

This program will explore the boundaries of the sub rosa plan doctrine in a variety of contexts potentially arising in chapter 11 cases. The focus will be on efforts to resolve the relationship of the debtor to all or many of its creditor constituencies and equity-holders that arguably deviate from the priority and procedural schemes of the Bankruptcy Code. Included among the areas examined will be (1) secured creditor/acquirer carve-out and/or gifting agreements, (2) structured dismissals following § 363 sales, (3) settlements of significant or global controversies, (4) lock-up and plan-support agreements, and (5) significant distribution or settlement arrangements made in the context of DIP financing or asset sales made jointly with nondebtor parties.

Puerto Rico is burdened by over $70 billion in debt, as well as approximately $35 billion in pension underfunding. Once the U.S. House of Representatives passed H.R. 5278, the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA), in early June and the Senate passed it on June 29, 2016, President Obama signed the bill immediately — and just in time to address a $1.9 billion payment that was due on July 1, 2016. PROMESA offers relief to Puerto Rico, its municipalities and municipal agencies following a 10-year economic recession. This panel describes the circumstances that led to the financial crisis, the failed effort of the Puerto Rican government to offer relief through a "state" statute that was found to be unconstitutional by the Supreme Court, and the details of how PROMESA is designed to work. The session provides an opportunity to discuss these issues in a casual setting, including the way forward for Puerto Rico, and features a panelist who served as Hon. Steven Rhodes' expert on feasibility issues in the City of Detroit chapter 9 case.

Topics will include § 363 sale best practices to avoid Family Christian pitfalls, notice issues in light of Motors Liquidation Co., finding creditor consent, identifying highest and best offers, reopening an auction, and post-sale issues such as structured dismissals without a plan.

As the financial health of many of our municipalities continues to deteriorate, this very timely discussion, with experts experienced in the largest cases, will provide the pros and cons of a chapter 9 filing.

This panel will explore claims for substantial contribution claims in connection with asset sales, involuntary petitions and other contexts in light of the expansive reading given to 11 U.S.C. 503(b)(3) by the Sixth Circuit in [Connolly title]. The panel will also address other hot topics in commercial bankruptcy cases related to claims.

We all know how hard it is to confirm a chapter 11 plan. This panel will discuss cutting-edge issues related to confirming your chapter 11 plan so that you can arm yourselves for the inevitable battle — or negotiate confirmation with superior knowledge of the likely outcome.

"This panel will address emerging professional responsibility issues in commercial cases, including a recent Seventh Circuit decision involving the duty to advise of alternative transactional structures and other competency issues that affect fee awards and liability, standards for fee awards, disclosure and disinterestedness problems, and conflict problems in retention and the curative limits of use of conflicts and special counsel. "

This panel will be involved in an advanced discussion of the problems and opportunities that can arise in an individual chapter 11 case. The panel will discuss issues involving post-petition earnings, including voluntary assignments of future wages, and the effect of conversion to a chapter 7 proceeding; the “disposable income test”; §§ 1129(a)(15), 1129(b)(2)(B)(ii) and 1115(b); and the “absolute priority rule,” among other topics.

Our panel was there at the beginning with the National Bankruptcy Review Commission (Brady Williamson Chair) through the drafting of the law, its passage and, of course, the implementation of the final product in 2005. The panel will discuss the history of the process, what might have been intended by the proponents, and what unintended consequences were created in the process. We expect a lively discussion of this seminal law and the implications for future reform.

How will the Supreme Court’s decision in Baker Botts v. ASARCO affect professional fees? Will there be an increase in fee litigation in future chapter 11 cases? This panel will also explore the Tribune standard for payment of unsecured creditors’ post-petition professionals’ fees, fees awarded as part of global settlements (Lehman), and the recent use of fee examiners. The session could also include a discussion on when disclosure of “representations of parties in unrelated matters” is sufficient, whether conflicts be cured by the appointment of conflicts counsel, a recent Ninth Circuit decision on the potential implications of exceeding fee caps, when it is necessary to obtain a conflict waiver, current vs. recent vs. former clients, and directly adverse vs. positionally adverse.