No CLE

This panel will discuss the current status of the law related to lien-stripping in chapter 7 and chapter 20 cases — including an update on the lien-stripping cases pending before the Supreme Court and Eleventh Circuit, and their potential impact on future bankruptcy practice in all chapters.

This panel will review contemporary decisions interpreting Dewsnup v. Timm and Nobelman v. American Savings Bank, such as the Wachovia Mortg. v. Smoot, 478 B.R. 555 (E.D.N.Y. 2012), which precludes lien-stripping. The discussion will also focus on §§ 1123(b)(5) and 1322(b)(2), including conflicting decisions involving the date that is relevant for deciding whether a particular property functions as the debtor’s principal residence (see In re Proctor, 494 B.R. 833 (Bankr. E.D.N.C. 2013)). The panel might also discuss lien-stripping as it involves properties outside the principal residence’s safe harbor.

This panel will discuss the complexities of recovering assets in China, Mexico and Canada, including attachment, perfection and priority issues that are unique in each jurisdiction, and the interplay of foreign registration systems and the Uniform Commercial Code. The panel discussion might include some of the complications involved in owning or being secured by foreign assets, including foreign exchange and other currency restrictions.

This panel will present strategies and tips for presenting financial evidence in chapter 11 cases. Panelists will discuss the selection, roles and fee arrangements of financial advisors and experts, employment applications/standards under the Bankruptcy Code, disclosure, protecting privilege, opinion testimony, use of demonstrative evidence, witness preparation and more.

Even with the asbestos cases largely resolved, chapter 11 remains the preferred — if not the only — way for debtors to address mass tort liability. Chapter 11 cases involving mass torts typically present complex and interwoven issues of jurisdiction, claims determination, choice of law, insurance, liability of third parties, injunctive protection and the like. Using as examples pending chapter 11 cases in Massachusetts (New England Compounding Company, involving tainted drugs) and Maine (Montreal, Maine & Atlantic RR, involving a massive explosion), this panel will discuss the strategic and legal considerations facing debtors, trustees, injured claimants and other creditors as they work toward or against a successful chapter 11 case.

In a series of vignettes, two litigants will argue motions to compel before the bankruptcy court that are designed to explore the various types of evidentiary privileges that arise in bankruptcy practice — including attorney/client privilege, joint-defense/common interest privilege, Fifth Amendment and spousal privilege — and how such privileges may be inadvertently waived.

Each affiliated debtor and its creditors have potentially conflicting interests in maximizing assets and minimizing claims, so how are these interests reconciled in multi-debtor cases?; can one board make decisions for all debtors?; when is an independent board or CRO needed to represent the interests of a particular business unit, and why don’t we see that more often?; how should one arrange intercompany DIP financing?; how should one ensure that all constituencies are represented and that key stakeholders are at the table?; should there be multiple creditors’ committees?; use of examiners and other third parties; increased use of motions seeking to disqualify counsel, mediators, etc.