2015 Northeast Bankruptcy Conference

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

“Getting to Yes” in the language of the Fisher and Ury book, has become part of the common lexicon. This program will focus on negotiation techniques in the context of a bankruptcy. After an analysis of negotiation techniques applicable to the world of insolvency, experienced practitioners will relay war stories and examples of tactics that have worked, and those that have not.

This panel will first review the scope and types of coverage actually found in a typical E&O Policy and D&O Policy. Second, the Panel will discuss how claims are made under these policies with emphasis on how to assert or plead a claim so as to preserve coverage. Third, the Panel will discuss the law governing the treatment of such policies as “property of the estate” and finally, they will review the treatment and possible priority of claims that are asserted and adjudicated against the Debtor prepetition.

Was the deal ill-conceived? Was the borrower undercapitalized/overleveraged? Was it the victim of intervening circumstances and unforeseeable events? In today’s covenant-light world, more financial players and operating companies’ owners are availing themselves of relatively accessible credit facilities to cash in on the perceived value of entities with attractive balance sheets. But what happens if the company later fails and ends up in bankruptcy? Are redeeming shareholders really supposed to be the guarantors of the deal’s success?

Individual chapter 11 cases pose a number of thorny legal and practical problems for the bankruptcy practitioner. While individual chapter 11 cases contain many elements of corporate chapter 11 and chapter 13 cases, they do not fit comfortably in either chapter. Following the enactment of BAPCPA, courts have struggled to strike the appropriate balance between the provisions of the Bankruptcy Code intended for corporations and those intended for human beings. The result is substantial uncertainty for debtors and creditors alike. This session will explore: Does the absolute priority rule apply to individual chapter 11 debtors? May creditors commence an involuntary chapter 11 case against an individual? May individual chapter 11 debtors pay their living expenses in the ordinary course of business, or is notice and a hearing required? What are the advantages and disadvantages for debtors and creditors in an individual chapter 11 case as compared to a corporate chapter 11 case or a chapter 13 case?

This program will address ethical issues unique to the practice of bankruptcy law. With the increasing use of social networking sites, such as Facebook and Linked In, what ethical issues arise? What constitutes advertising and, therefore, under ethical restrictions must be disclosed as such? What constitutes client solicitation and is therefore prohibited? In related topics, how far can an attorney go in attempting to obtain committee representation, and what crosses the ethical boundaries? Finally, what duties do lawyers owe to the court and to the profession if they learn of somebody's crossing the line in any of those activities? Does it matter how they learn of them ("Facebook stalking")?