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So You’ve Filed a 363 Motion; Now, What About…
Discussion about unanticipated and anticipated problems in chapter 11 cases in which all or substantially all of the assets are being sold in a § 363 sale; “pay to play” arguments by unsecured creditors; should bankruptcies be run exclusively for the benefit of secured creditors?; presale orders regarding the use of sale proceeds; funding of wind-down costs and payment of administrative claims; post-sale chapter 7 conversions
Expanded Use of § 9019 in Connection with Bankruptcy Plans and Other Confirmation Issues
What are the consequences of using § 9019 settlements as a means of resolving primary intercreditor disputes?; does application of settlement approval standards effectively alter § 1129 standards?; do settlements become sub rosa plans?; is the door open for “involuntary settlements” based on a debtor’s assessment of litigation probabilities?; other related issues might include “gifting” through § 9019 in the Third Circuit vs. the Second Circuit, plan-support agreements, absolute priority rule/new value plan (Castleton Plaza), equitable mootness (Charter/SemCrude); fee reimbursements for participants (Lehman, AMR)
Cross-Border Bankruptcy Issues
Nortel (involving two courts simultaneously trying allocation issues); Kelmsley (U.S./U.K. courts regarding anti-suit injunction); ABC Learning/Fairfield Sentry (circuit court cases involving chapter 15 recognition); troubled foreign banks’ use of chapter 15 (Anglo Irish, Banco Pontual S.A.); In re Barnet (Octaviar)
18th Annual Great Debates
Past Presidents’ Debate:
Michael P.
Richman Hunton & Williams LLP; New York
Deborah D. Williamson
Cox Smith Matthews Incorporated; San Antonio
Resolved: Secured creditors should be required to fund the payment of all administrative claims and make a distribution to general unsecured creditors as a condition of cleansing substantially all of the debtors’ assets through a § 363 sale process.
Judicial Debate:
Hon. Kevin J. Carey
U.S. Bankruptcy Court (D. Del.); Wilmington
Hon. Frank J. Santoro
U.S. Bankruptcy Court (E.D. Va.); Norfolk
Resolved: A claim is not impaired for purposes of § 1129(a)(10) if the alteration of the rights in question arises solely from the debtor’s exercise of discretion, because § 1129(a)(10) recognizes impairment only to the extent that it is driven by economic need.
Consumer Debate:
John Rao
National Consumer Law Center; Boston
Brett Weiss
Chung & Press, PC; Greenbelt, Md.
Resolved: The Bankruptcy Rules and Forms should require that a national chapter 13 official plan form be used in all cases.
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