2014

The opening line to any discussion about the current trends in chapter 11 cases is often, “Everything is a 363 sale.” Well, not everything: The other way that companies are seeking to minimize the risks of chapter 11 is through the prepack. This panel will discuss the mechanics of, and law behind, a prepackaged chapter 11 case, including plan-support agreements, restrictions on solicitation and how you comply with them, existing restrictions regarding those parties-in-interest that are negotiating the prepack once they start negotiations and receive non-public information, how you solicit votes pre-petition from those not directly involved in the prepack negotiations, and whether at the end of the day you can really bind anybody. The panel will also discuss the risks of overreaching in a plan-support agreement, including a discussion of the Innkeepers decision issued by the U.S. Bankruptcy Court for the Southern District of New York.

Even with the asbestos cases largely resolved, chapter 11 remains the preferred — if not the only — way for debtors to address mass tort liability. Chapter 11 cases involving mass torts typically present complex and interwoven issues of jurisdiction, claims determination, choice of law, insurance, liability of third parties, injunctive protection and the like. Using as examples pending chapter 11 cases in Massachusetts (New England Compounding Company, involving tainted drugs) and Maine (Montreal, Maine & Atlantic RR, involving a massive explosion), this panel will discuss the strategic and legal considerations facing debtors, trustees, injured claimants and other creditors as they work toward or against a successful chapter 11 case.

Contested evidentiary hearings in chapter 11 confirmation battles have one near-constant attribute: They are expert witness-intensive undertakings. Whether relating to the value of a secured lender’s collateral, the appropriate discount rate to be applied in valuing a payment stream provided under a plan, compliance with the best-interests-of-creditors test, feasibility or any number of other potentially contested issues, presenting expert testimony is at least worth considering, if not required. Panelists will focus on the presentation of expert testimony in contested commercial chapter 11 cases, identify the issues that may require expert testimony, discuss how to locate an appropriate expert, and offer their views on how to prepare and present an expert though the discovery and trial stages. This will not be a presentation on the same old real estate appraisal evidence that most experienced practitioners can recite in their sleep (“I considered the income approach, the comparable-sale approach and the cost approach.” YAWN). Rather, the panel will focus on presenting, and cross-examining, the sorts of sophisticated financial experts that testify regarding the various elements of plan confirmation.

The claims trading marketplace has been growing rapidly over the past several years and has become commonplace in most significant chapter 11 cases. Fueling this activity are private-equity and hedge funds with varying motives and interests. This panel will explore the types of trades taking place and the mechanics of claims trading, and examine the influence that hedge funds are having on chapter 11 practice, as well as their practical impact when this “new” constituent has a seat at the table.

This is the second in a series of presentations geared toward understanding the deal-document side of a common transaction in a chapter 11 case. The panel will focus on DIP financing agreements, specifically what is behind the representations and warranties, covenants, default provisions and remedy provisions: Do differences exist if the DIP lender is the pre-petition lender rather than a new provider of funding? Are there deal-document differences if it is a syndicated lender group rather than a single lender? Just as important is what the panel will not focus on: This is not intended to be a discussion of § 364 and the means for obtaining approval of, or objecting to, a DIP financing motion. Rather, the presentation will be by those who understand and can explain the provisions of, the rationale behind, and the drafting and negotiation of the DIP financing agreement’s provisions.

Using Available Technologies in Bankruptcy Litigation — From the Basics to the Cutting Edge