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May a trustee make a distribution to a secured creditor that has not filed a proof of claim? Should trustees or debtors file surrogate claims if secured creditors have not? Does a debtor’s failure to make post‐petition payments to a creditor defeat the debtor’s eligibility for a discharge? This panel will address the emerging case law on whether direct post‐petition payments as required by the plan are considered “payments under the plan” as contemplated by § 1328(a), the growing complications that may arise from a secured creditor’s not filing proofs of claim, and the impact of proposed rule changes on these hot issues.

This panel will explore the question of whether exemptions may be denied for bad faith and whether debtors may amend their claimed exemptions to assert a different statutory basis after an exemption has been denied, including the impact of potential res judicata and collateral estoppel claims. Case law developments since Law v. Siegel will be reviewed, as well as important strategic considerations for debtors, trustees and creditors.

Mortgage Regulation Update: New “Qualified Mortgage” and Ability-to-Pay Regulations, and Loan Servicing/Loss-Mitigation Regulations Practitioners can get up to speed on the new “Qualified Mortgage Rule” (the “QM”) and the ability-to-pay regulations to prepare for future mortgage claim disputes. This panel will discuss the changes to TILA and RESPA, as well as the new Consumer Financial Protection Board (CFPB) regulations on mortgage servicing.

Young lawyers frequently learn that they will be working on a new chapter 11 case when they are directed to start drafting pleadings. This session, spearheaded by members of ABI’s Young & New Members Committee, is geared toward gaining an understanding of what precedes that moment by (1) advising and educating the new(er) generation of bankruptcy professionals on the background and “big picture” of a chapter 11 case, and (2) advising and educating the newest generation of bankruptcy professionals on pre-filing strategies. The panel will explore and help identify operational, financing and litigation problems that may be faced by distressed companies, then will explore both short-term and longer-term strategies that can be pursued before a petition is filed.

Health care is a key industry in which restructuring work will likely continue to grow in the coming years. This panel will discuss issues unique to health care insolvency, including sales of assets to for-profit and not-for-profit buyers, compliance with applicable nonbankruptcy law (i.e., federal and state regulations, including all state attorney general requirements), regulatory concerns such anti-trust laws and the Health Insurance Portability and Accountability Act (HIPAA), and the liabilities surrounding the transfer of Medicare provider agreements and Medicare and Medicaid recoupment and setoff.

This program will explore techniques and issues in the drafting of effective settlement agreements both before and after a bankruptcy filing. Pre-filing drafting issues will include such “bankruptcy-proofing” matters as the risk of a paying party’s filing, including a preference or fraudulent transfer attack, the running of a statute of limitations, “bad-boy guarantees,” and the preservation of nondischargeability. Post-filing and general drafting issues will include governing law, conditions to effectiveness, completion mechanics, penalties, factual recitations, notice, scope of general releases, judicial involvement and follow-up mechanics.

The more things change with intercreditor agreements, the more they stay the same — or so it seems. The interpretation and enforcement of intercreditor agreements continues to take center stage in many cases (high-profile and otherwise), and each decision seems to equally shed more light and raise more questions about intercreditor agreements in the bankruptcy context. This panel will focus on the recent Momentiveand TXU decisions, including the enforcement (or not) of make-whole provisions, acceleration and de-acceleration, and the use of tender offers/settlements to effect the payoffs of first-lien lenders. The panel will also examine the current trends in drafting and enforcement of various provisions, including voting assignments, pre-bankruptcy waivers and more.

In the technology field, “Moore’s law” states that capacity doubles approximately every two years. This pace of change, the reduction in the use of paper and the corresponding increase in electronic data and “cloud storage” have given rise to a multitude of issues that significantly impact the everyday practice of law and must be considered by both law firms and lawyers. This session will cover best practices to minimize risks to clients and minimize malpractice risks to lawyers. Topics will include preservation or loss of the attorney/client privilege, the disclosure of confidential information or data protected by privacy laws, the use of multiple email accounts, forwarded and “reply all” emails, the use or prohibition of the use of social media, the encryption of documents, the scrubbing of metadata from documents, and e-discovery.

No bankruptcy lawyer can represent a high-tech debtor or a business that licenses consumer brands without understanding the interplay of intellectual property law and the Bankruptcy Code. For reorganizations with intellectual property issues, choice of venue is a critical early decision that can determine the outcome of a case. This program will review the circuit-level split over the Catapult doctrine and discuss contractual and litigation solutions for the reorganization of debtor businesses that are dependent on critical patent inbound licenses. The program will review the limits of protections for nondebtor patent and copyright licensees under Bankruptcy Code § 365(n) and will discuss the recent circuit-level split over the effect of contract rejection on the rights of nondebtor trademark licensees.