New York State Approved Sessions

This is not Contracts 101, but rather a panel discussion of the critical aspects of drafting contract that attorneys often forget. The panel shall discuss rules of contract construction including the last antecedent rule and its grammatical corollary, judicially adopted rules of interpretation. The panel will discuss how to avoid redundancies and ambiguities (including undefined terms) that create uncertainty and lead to costly and avoidable disputes. The program will discuss nuanced concepts which lead to more effective contracts.

This program analyzes the practical aspects of asset protection planning (i.e., what works and what does not). The program discusses practical goals and limitations of asset protection, including exposure points related to avoidance actions under the Uniform Fraudulent Transfer Act and Bankruptcy Code. The program will discuss various structures utilized, as well as the practical implications of such planning.

BAPCPA contained a number of provisions meant to assist the debtor in the art of valuation. The valuation process is more important than ever given recent Supreme Court rulings on exemption limits. This panel will revisit the statutory provisions of the Code and discuss recent cases dealing with the appropriate methodology to be employed by the debtor when completing the bankruptcy schedules — and how that valuation impacts the ultimate administration of the case by the trustee.

Reaffirmations of both secured and unsecured obligations remain a major component of consumer bankruptcy practice. This panel will discuss the ins and outs of the reaffirmation process from the debtor’s, creditor’s and debtor’s attorney’s perspectives.

This session will include a discussion of coverage, the need for coverage, covered and non-covered conduct. The panel will provide insight into common and esoteric issues in bankruptcy cases involving D&O and E&O policies, and trends that arise during a claim for D&O and E&O liability insurance coverage.

Does an ABC Really save time and money? What about liability; or automatic stay? Can I just lock the door and walk away? This panel will discuss these questions and more including discussing timing, alternatives processes to bankruptcy, forcing an involuntary bankruptcy, tax liens and anti-assignment contract clauses and the professionals role in such processes.

Do directors’ duties or decision processes change when the company’s conditions worsen? Is there still any implication to a “zone of insolvency”? How do directors’ duties change in bankruptcy? What duties are there to secured and unsecured creditors? Are there duties to controlled affiliates or their constituencies? Are there process protections? Quadrant (Delaware decision on board action).

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.

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.

Nortel (two courts simultaneously trying allocation issues); Suntech, Barnet and subsequent bankruptcy court decisions on remand (recognition and § 109(a)); Fairfield Sentry Limited (sale of SIPA claims); enforcement of judgments (Argentina litigation, Madoff); filing of chapter 11 cases by foreign debtors (Alsacia); extraterritoriality issues regarding avoidance actions (Madoff decisions). Do Fairfield, Quimonda, and Madoff represent a retreat from the principle of comity set forth in chapter 15?