Business

This panel will explore the evolution of real estate financing structures leading up to today’s market, and discusses how current trends and varying structures can affect results in a future workout or bankruptcy.

This session will examine three issues: (1) the role of management in § 363 sales (how to make sure that management plays the role of neutral stakeholder throughout the plan and/or § 363 process; what actions management might tend to take when it favors a particular bidder in the process; what happens when management wants to participate in the § 363 process); (2) managing management’s interests, including participation in the bankruptcy process (how to address management’s sometimes parochial concerns and keep them from adversely impacting the bankruptcy; the interplay between management’s desires and the desires of the fulcrum class as new owners post-restructuring; issues around management compensation (e.g., employment contracts, incentive plans, severance policies), including the assumption or rejection of existing contracts, plans or policies and/or the implementation of new ones and U.S. Trustee objections; who represents management and when management should look to cut its own deal); and (3) labor issues (issues around benefit plans; whether § 1113 is the only way to eliminate a successor clause (A&P); whether § 1113 is an option if the collective bargaining agreement expires or is expired (Hostess, Trump, Journal Register); whether the union has a claim for damages if rejection relief under § 1113 is granted).

Although mediation is a recommended method of dispute resolution by many government agencies, in the bankruptcy context it is often hard to get government litigants to the table. This panel will explore the Issues and methods of mediating disputes in commercial cases that involve governments and such government agencies as the SEC, EPA, and FCC, as well as state attorneys general and relevant state agencies. Issues to be discussed include how to get the decision maker into the room and how to get a governmental party to the table when its policy agenda may go beyond the business issues in the case at hand. In some instances, there may be perceived statutory impediments or “conflicts” between the government agency as regulator and as creditor. The focus will be on restructuring-determinative issues involving government agencies and adversary proceedings between debtors or other creditor constituencies and government agencies. The program will not include discussions of chapter 9 mediations, which involve very different issues. The panel will include judges, mediators and public and private litigants with experience in this type of mediation.

Join this session for an update on Puerto Rico and to discuss recent developments and ramifications beyond Puerto Rico; equitable mootness (JeffCo); and reviewing pension issues in prior and existing municipal bankruptcies, as well as prospective municipal bankruptcies (e.g., Illinois, New Jersey, Connecticut).

Join this session for an update on Puerto Rico and to discuss recent developments and ramifications beyond Puerto Rico; equitable mootness (JeffCo); and reviewing pension issues in prior and existing municipal bankruptcies, as well as prospective municipal bankruptcies (e.g., Illinois, New Jersey, Connecticut).

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.

This panel uses hypotheticals to discuss the ethical problems facing counsel and their clients in § 363 sales including collusion, abuses during due diligence, and successor liability.

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.