Business

The panelists will provide a § 546(e) safe harbors update, including how state law preemption will be applied post-Merit; jurisdictional issues in Relativity; the debt-recharacterization circuit split and Supreme Court withdrawal of cert in PEM v. Levin; the application of avoidance powers extraterritorially (Ampal-American, Emerald, Madoff), fraudulent-transfer circuit splits and other related matters (Physiotherapy, Tribune, Madoff, Merritt Management, Petters, SemCrude, Fragin); and the current state of the equitable mootness doctrine, including recent criticisms, especially from the Third Circuit (e.g., In re Philadelphia Newspapers, In re SemCrude L.P., In re One2One Communications LLC), and their applications (e.g., In re City of Detroit).

The panelists will provide a § 546(e) safe harbors update, including how state law preemption will be applied post-Merit; jurisdictional issues in Relativity; the debt-recharacterization circuit split and Supreme Court withdrawal of cert in PEM v. Levin; the application of avoidance powers extraterritorially (Ampal-American, Emerald, Madoff), fraudulent-transfer circuit splits and other related matters (Physiotherapy, Tribune, Madoff, Merritt Management, Petters, SemCrude, Fragin); and the current state of the equitable mootness doctrine, including recent criticisms, especially from the Third Circuit (e.g., In re Philadelphia Newspapers, In re SemCrude L.P., In re One2One Communications LLC), and their applications (e.g., In re City of Detroit).

This lively roundtable discussion will focus on adherence to local rules for purposes of malpractice prevention, civility among litigants’ counsel, professional responsibility, and related ethical considerations for practitioners by undertaking a multi-jurisdictional exploration of some of the most well regarded and most reviled local bankruptcy and district court rules, providing attendees with an opportunity to measure particular rules’ efficacy, practical effects and unintended consequences.

Mediating disputes is not new to bankruptcy litigation, but recent years have seen a trend toward pre-plan mediation of key issues in chapter 11 cases that pave the way for asset sales, plan confirmation and an efficient emergence from bankruptcy. Some examples of this include “bet the farm” litigation necessary to fund plan distributions, lien challenges/avoidance claims, claim objections, plan treatment, sale objections, third-party releases and insider claims, and structured dismissals. This panel discusses the role of UCCs, confidentiality of mediation discussions (especially important on case-dispositive issues if the matter is not resolved), impact of the changing composition of senior lenders from institutions to private-equity and hedge funds, and judicial acceptance and/or encouragement of mediation of key disputes, including the authority to order mediation.