Business

The Bankruptcy Code offers a variety of means for addressing balance-sheet issues. Its provisions for dealing with the operational issues that caused those balance-sheet problems are more limited, however. This session will discuss the diagnostic tools available to identify operational problems, with a particular focus on the primary methodology generally used by financial professionals: the “operational review.” Rather than just addressing the symptoms, an operational review primarily focuses on the root causes of a distressed/insolvent company, and provides an outline for action plans that management and the turnaround team can execute in the recovery process. The session will also address the legal and financial issues that should be considered and resolved in dealing with some of the most often-seen problems, which frequently include stale management, poor strategy, a lack of productivity focus, and deficient information infrastructure. The panel will discuss such implementation-process issues as severance and other employment issues presented in offloading stale management, as well as board fiduciary duty issues arising from receiving the results of the operational review and addressing, or not addressing, the issues identified. The panel seeks to discuss the best ways to effectively restore companies and enhance cash flow beyond the traditional and common expense-cutting methods.

What happens after a successful credit bid? This panel will discuss the scope of § 363 sale orders and whether they should or even can address intercreditor issues, corporate governance and funding issues, unitranche deals, the difference in protections between an Agreement Among Lenders and an Intercreditor Agreement, the Radio Shack intercreditor adversary proceeding, § 1111(b) elections (Baker Hughes), adequate protection (In re Chardon) and lien-stripping (Caulkett).

This panel will focus on recent litigation regarding actual vs. constructive fraud, how to plead and prove actual intent (Lyondell), the anticipated Second Circuit decision on safe harbors, etc., “fraudulent spin-off” cases (Tronox, Chemours, Paragon Offshore) and conflict-of-law issues.

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.

Presented by the Health Care and Real Estate Committees

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.

Great Debates Timothy J. Hurley, Moderator Taft Stettinius & Hollister LLP; Cincinnati Resolved: Impairment is a good thing and should be encouraged. Pro: Hon. Kevin J. Carey U.S. Bankruptcy Court (D. Del.); Wilmington Con: Hon. John E. Hoffman U.S. Bankruptcy Court (S.D. Ohio); Columbus, Ohio Resolved: If you get caught hiding assets from the piper, you should pay the piper — with exempt assets. Pro: Hon.Eugene R. Wedoff (ret.) U.S. Bankruptcy Court (N.D. Ill.); Chicago Con: Hon.James M. Carr U.S. Bankruptcy Court (S.D. Ind.); Indianapolis Resolved: You should not be permitted to assert your claim against me. I'm new Jim.Go see Old Jim. Pro: Hon. Robert E. Gerber (ret.) U.S. Bankruptcy Court (S.D.N.Y.); New York Con: Bill Brandt Development Specialists, Inc.; New York

Consumer Debate Resolved: An out-of-statute proof of claim violates the FDCPA. Business Debate Resolved: Assets can be sold free and clear of liens in state court receiverships. Judges Debate Resolved: Third-party releases should not be allowed in chapter 11 plans.

Resolved: A “workaround” contract provision is enforceable after Baker Botts v. ASARCO. Resolved: If a mortgage includes a security interest in a mortgage escrow account, the mortgage loan can be modified under § 1322. Resolved: Section 1129(a) requires an impaired accepting class for each debtor.