New Hampshire State Approved Sessions

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.

No business chapter 11 case gets resolved without some determination of value. This panel of valuation experts and lawyers will discuss complex commercial valuation issues, including: (1) the multiple approaches to value (i.e., discounted cash flow, comparable company) and how to reconcile those values; (2) how the purpose of valuation affects the selection of the valuation methodology; (3) the most common places to probe when challenging a valuation; and (4) standard of value (fair market value, investment value or something else) and premise of value (going concern vs. liquidation), and the implications on the valuation assignment. The panel will also discuss recent case law addressing valuation contests during the life of a case, including the timing of valuations and the impact of the differing values on secured parties’ rights in chapter 11 cases.

The determination of the amount of a secured creditor’s claim and related issues often have a significant impact on both junior creditor recoveries and the likelihood of a successful reorganization. Such cases as Gencarelli, School Specialty, Momentive Performance Materials and MPM Silicones regarding “make whole” or “yield maintenance” provisions, as well as cases like SW Boston relating to the calculation of oversecured or undersecured status, have led to further uncertainty in this area. These provisions are under increasing attack as debtors attempt to refinance high-yield debt in today’s lower-interest-rate environment. Finally, the recent decisions in Fisker Automotive Holdings, Free Lance-Star Publishing and RML Development have raised uncertainty in the area of credit-bidding.

This program will address the ethical challenges to practitioners when dealing with difficult clients, ranging from the bully client to a client with a questionable background or a client that is being less than truthful. In a tough legal market when work is needed, client selection sometimes gets overlooked. This program will address what to do with a difficult client once engaged — and when it’s time to part company and how to do so. Finally, the program will also cover the ethical boundaries that sometimes get blurred by overzealous clients.

The assets of professional services firms ride the proverbial elevator every day. What happens when they stop riding? This session will address the insolvency of professional service firms, including the causes of professional service firm insolvencies, the status of partner capital, and the risks to the professionals who once rode the elevators, including potential preference and fraudulent transfer liability. This program will also review recent cases relating to the “unfinished business” doctrine in the context of law firm insolvencies. Finally, the program will examine challenges in effecting a distressed merger of professional services firms.

The trial team in this session will explore strategies to quickly discover essential facts relating to substantive and procedural legal defenses by discussing the use of discovery, the proper use of and best practices for motions for summary judgment and developing the summary judgment record, and strategies for opposing summary judgment in a contested matter to which Part VII of the Federal Rules of Bankruptcy Procedure apply. The context will be an objection to a proof of claim asserting legal defenses, including improper interest charges, based on a hypothetical case. The panelists will conduct several mock strategy sessions and a mock summary judgment hearing, and offer commentary from the trial team members.

Commission Recommendations on Resolving Court Splits: Coming Soon to a Judicial Opinion Near You ABI's Commission to Study the Reform of Chapter 11 identified more than 30 splits in case law on important issues. Such a split of authority results in delay, increased litigation costs and above all, uncertainty -- imposing a kind of "ambiguity tax" on the system, as one witness put it in testimony before the Commission. The recommendations contained in the Commission's final report, in many cases, can be implemented by judicial opinion at the bankruptcy court or court of appeals level, without need for action by Congress. This program featuring some of the most experienced and thoughtful judges on the bench today, will assess the Commission recommendations, and identify some that might be effected soon.

In today’s post-BAPCPA environment, why file for bankruptcy at all? Consideration of alternatives, including out-of-court restructurings, state law restructuring statutes, ABCs, foreclosures; receiverships; discussion of common problems, including solicitations and hold-outs.

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.

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