Massachusetts State Approved Sessions

A detailed analysis of the many aspects of this important bankruptcy court decision.

Fraudulent transfer update (§ 546(e) (Lyondell, Tribune, Boston Generating)); Cortlandt; automatic stay litigation (i.e., requirement to turn over funds (Weber)); § 503(b)(9); aiding and abetting claims (Rural Metro); post-Stern consent to jurisdiction cases (Sixth, Seventh and Ninth Circuits and Supreme Court (Exec. Benefits, Wellness).

Conflicting ethics and professionalism under different jurisdictions; required disclosures; duties to the various courts; duties to your client; different fiduciary duties; the ethics of insolvency planning and COMI-shifting.

Topics may include selection of comparable companies; liquidity and marketability discounts; discounts for size and reorganization risk; determining a discount rate; option-based valuation methodologies (note that the panelists will discuss and highlight different positions that may be taken, but will leave it to you to decide which positions have more merit).

Major cases filed in New York may follow that state’s laws because of the location of the forum, contractual designation or some other reason. But New York law on debtors/creditors, fraudulent transfer, partnership and other areas may be out of date or may depart from the laws of other jurisdictions. Discussion of New York State law issues and recent cases certified to the New York State Court of Appeals, including rent-controlled leaseholds as property rights.

Discussion of EPF bankruptcy process issues. What are the duties of directors and their professionals in complex multi-debtor cases? More generally, when is it necessary to obtain a conflict waiver? Current vs. recent vs. former clients; directly adverse vs. positionally adverse; relatedness to a prior matter; use of confidential information; review of disinterestedness standards under Bankruptcy Code § 101(14) and related disclosure requirements; ABI Report on Standards of Professional Courtesy and Conduct.

Cramdown interest rate (Momentive); extent of security interest (ResCap); credit-bidding (Fisker, Free Lance-Star Publishing); date of collateral valuation. Will Till and Momentive change future bankruptcies? How will pre-bankruptcy and DIP financing change? What new or different issues will arise at the beginnings and endings of cases? Will contested confirmation become the norm? Will secured lenders be less willing to support a bankruptcy process? Will include discussion of changes proposed in the ABI Commission to Study the Reform of Chapter 11’s Final Report relating to secured creditor rights.

Constitutional and bankruptcy law issues raised by post-bankruptcy claims asserted by tort claimants, including finality of § 363 sale orders and due process.

Preservation and realization of NOLs through plan structures (Capmark, WaMu, Fremont General); tax-sharing agreements and allocations of tax benefits (Edison Mission); OID (ResCap); excess loss account; fair market exchanges; transfer pricing (Nortel); trading restrictions and more.

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.