Business

This session will discuss (1) selecting a trust, LLC, plan administrator or other vehicle; (2) ensuring that affirmative claims are preserved post-confirmation; (c) establishing a value/tax basis in litigation claims and other assets transferred to a trust or LLC; (d) key plan provisions such as preserving 2004 discovery rights, creditor oversight, continuing court oversight, required reporting and the retention/transfer of the attorney/client privilege; (e) the trading of interests; (f) provisions for closing the case; and (g) structured dismissals following asset sales as an alternative to a liquidating plan (Jevic). Is it preferable to liquidate outside of chapter 11?

Often the hardest part about bankruptcy litigation is making the decision to take it on in the first place, considering the time, expense, available resources and anticipated benefit to the estate and its constituents. Many bankruptcy attorneys often divorce litigation from the business goals of the client, resulting in disproportionately high fees, disappointed clients and unpaid professionals. Too little time and effort is undertaken before and during the early stages of litigation to consider the foregoing and client objectives. Consequently, in most cases litigation must be viewed as a business decision. This panel will discuss these important issues and take the audience down the litigation and settlement road: (1) pre-filing the complaint; (2) early disclosures to opponents; (3) early motions; (4) discovery and discovery disputes; (5) pre-trial motions (e.g., motions for summary judgment); and finally (6) trial. The tactics and strategies often used during these steps to promote or advance settlements that best favor clients will also be addressed.

Challenging an expert witness requires more than just wondering what questions to ask on cross-examination. Is the expert witness even an expert in the right subject matter? Should the expert be deposed before trial and challenged before he or she takes the stand, or would cross-examination without giving the expert the clues that come with deposition questions present the best opportunity to defuse the weight of the expert’s opinion? How can the trial lawyer prepare for cross-examination of an expert and contain the damage done on direct examination of the expert? What are the essential attributes of strong cross-examination, and how should the trial lawyer deliver the most effective and forceful cross? What are the most effective cross-examination strategies for impugning and impeaching an expert’s opinion? This panel will discuss the legal, strategic and practical considerations that arise in preparing and delivering effective cross-examination, followed by experienced trial lawyers demonstrating techniques for effective containment and impeachment of expert opinion and testimony — with an experienced judge letting them know in real time whether they succeeded.

A discussion of what to do when you are in the middle of “Litigators Gone Wild” while maintaining your ethics and your cool.

This panel will focus on issues that can arise during an LLC bankruptcy, such as what happens when parties contract out of fiduciary duties and the effect that bankruptcy has on key provisions in an LLC operating agreement, including management and ownership rights and remedies, as well as what happens when a bankruptcy proceeding is initiated against the LLC or one or more of its members. The panel will also discuss Intervention Energy and Lake Michigan, in which the bankruptcy courts refused to enforce LLC agreement provisions requiring the respective LLCs to obtain the unanimous consent of their members in order to seek bankruptcy relief.

The strategy of providing funding to troubled companies or purchasing existing secured debt at a discount in order to obtain ownership (so-called “loans-to-own”) continues to inspire controversy and litigation even as its use by debt financiers and other investors has become more commonplace. This panel will explore the practical considerations, business risks and legal issues associated with loans-to-own, both inside and outside of bankruptcy. Discussion on transactions outside of bankruptcy will include the scope of due diligence, intercreditor issues, insider participation, “bankruptcy-proofing,” and the risks and benefits of a “friendly foreclosure.” Discussion on transactions inside of bankruptcy will include using DIP financing to achieve ownership, potential limits on credit bidding, the impact of including or excluding insiders from the post-closing company, and risks presented by remedies such as equitable subordination and involuntary debt recharacterization.

Hosted by the Bankruptcy Litigation and Young and New Members Committees This session will focus on the limits of avoidance actions by bankruptcy trustees in Ponzi scheme cases, including arguments about the expansion of the look-back period to 10 years, trustee standing, clawbacks from non investor sources, in pari delicto and how trustees decide whom to sue.

This expert panel will discuss different approaches to business development, including lawyer advertising, law firm websites, social media, beauty contests and wining and dining, and factors that may influence the effectiveness of various approaches. Examples will be used to illustrate business-development methods and explain how the Model Rules of Professional Conduct apply to the methods being discussed.

Led by Luis Pabon-Roca, the host of the highest rated political radio show and of a televised political talk show, a panel of professionals involved in the Puerto Rico PROMESA proceedings and a jurist who has presided over a municipal bankruptcy will discuss the current political, social and legal conditions in the Commonwealth and before the court in the largest governmental entity insolvency proceeding in United States history.

Led by Luis Pabon-Roca, the host of the highest rated political radio show and of a televised political talk show, a panel of professionals involved in the Puerto Rico PROMESA proceedings and a jurist who has presided over a municipal bankruptcy will discuss the current political, social and legal conditions in the Commonwealth and before the court in the largest governmental entity insolvency proceeding in United States history.