Illinois State Approved Sessions

This panel will address a variety of issues in chapter 11 cases, including cramdown interest rates, credit-bidding and equitable mootness, among other issues.

This year’s hot topics will include two cases currently pending before the U.S. Supreme Court: the Caulkett decision concerning lien-stripping on primary residences in chapter 7 cases, and the Harris case regarding distribution of funds held by a chapter 13 trustee upon conversion to chapter 7. The panel will discuss a new Ninth Circuit BAP decision, one of only two in the country, concerning the dischargeability of certain student debts to for-profit institutions, as well as an emerging trend of using the Eleventh Circuit Crawford decision and the FDCPA to challenge “stale” proofs of claim for student debt. The presentation will address lenders refusing to retake abandoned collateral, as well as conflicting results from disposable-income tests, and other issues that will be of interest to those representing parties in consumer cases.

While case flings are down, the disputes that rage on in the cases have continued on. The panel will address three (3) selected litigation issues impacting the process: (a) Discovery Matters In Bankruptcy Cases – “Get to the point, get there quickly, get there cost effectively, and get the facts and documents organized”; (b) Expert Witness Matters – “If they know more than you, they must be an expert – right?” Bankruptcy Judges are becoming more discriminating (and more selective) in who and what is a proper expert and the purview of expert testimony. The panel will discuss and explore the Daubert criteria for experts, and discuss practical and strategic issues related to the effective use of expert testimony in bankruptcy litigation; and (c) Examiner Reports In Bankruptcy Litigation – we paid a lot of money and used up a lot of time on this report – now what? The legal and strategic issues related to examiner reports in bankruptcy cases.

This panel will discuss the first-day orders necessary to keep a casino open (including regulatory interplay), including motions related to chips, loyalty programs and progressive play. Featured will be a discussion of the issues related to valuation and the extent of security interests, including cash as proceeds of gaming collateral and perfection of bankroll, along with issues related to plan confirmation and § 363 sales,‎ including regulatory limitations and protection of customer lists.

This panel will address disclosure issues relating to disinterestedness, compensation and reimbursement requirements, compensation of fees incurred defending fee applications, and flat-fee arrangements between chapter 7 debtors and counsel, and other issues.

John W. Lucas, Moderator Pachulski Stang Ziehl & Jones LLP; San Francisco Judicial Debate Resolved: The “disinterestedness” requirement should be strictly enforced under § 327 (no waivers or ethical walls). Pro: Hon. Randall L. Dunn U.S. Bankruptcy Court (D. Or.); Portland Con: Hon. Madeleine C. Wanslee U.S. Bankruptcy Court (D. Ariz.); Phoenix Business Debate Resolved: Acceleration of a debt obligation under a credit agreement should act to prevent the lender from enforcing a prepayment premium Pro: Lori Sinanyan Jones Day; Los Angeles Con: Michael H. Strub, Jr. Irell & Manella LLP; Newport Beach, Calif. Consumer Debate Resolved: Attorneys should be permitted to unbundle services under an engagement agreement with a consumer debtor. Pro: Samuel A. Schwartz The Schwartz Law Firm, Inc.; Las Vegas Con: John R. Bollinger Boleman Law Firm, P.C.; Hampton, Va.

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.