Bankruptcy Litigation

Is Your Order Final? Appeals from Confirmation Orders; It Just Doesn’t Matter Anymore: Equitable Mootness; Winning the Appeal but Losing the War: Stays Pending Appeal

Presented by the Mediation and Secured Credit Committees

The bankruptcy judge ruled against you. Now what? Motion to reconsider? Appeal to the district court? Appeal to the (gulp) court of appeals? HELP! This panel of experienced practitioners and judges will help you think through when, and how, to appeal.

This session will cover a variety of topics related to litigating claims in bankruptcy. It will explore both strategic considerations behind and the mechanics of asserting and contesting claims. Starting with the necessity and wisdom, or lack thereof, of filing proofs of claim, the program will go on to discuss the need for and sufficiency of supporting documentation, the mechanics of objecting to claims, the initial and shifting burdens of proof when a claim is contested, and the best practices in litigating contested claims from both the claimant and the estate representatives’ perspectives. The program will also cover issues regarding limitations on a bankruptcy court’s authority to adjudicate claims, estimation of claims and/or temporary allowance of claims, and late-filed claims, including the overlay of other nonbankruptcy statutes on such claims, most notably the recent case law relating to the impact of the Fair Debt Collections Practices Act on late or expired claims.

This panel will focus on three current topics: (1) discovery, with an emphasis on the impact of the new federal discovery rules regarding “proportionality”; recent developments in e-discovery, including questions of possession, custody and control in discovery disputes; the Model Protocol for Discovery of Electronically Stored Information (ESI); and limitations on e-discovery (ResCap); (2) litigating with “common interests,” covering all about what a “common interest” is, whether an agreement is needed and court approval should be sought, the limits compared to attorney/client and work-product privileges, whether “common interests” can cease, and what happens if they do; and (3) STN and 9019s, discussing how 9019 has grown since STN into a tool for resolving potential litigation during a bankruptcy proceeding, who is allowed to settle, exclusive rights to settle, when a committee with a right to prosecute can settle with a debtor and others (Lyondell, Sabine), and whether 9019 in the context of confirmation is any different (NII Holdings, Adelphia).

This panel will focus on recent litigation regarding actual vs. constructive fraud, how to plead and prove actual intent (Lyondell), the anticipated Second Circuit decision on safe harbors, etc., “fraudulent spin-off” cases (Tronox, Chemours, Paragon Offshore) and conflict-of-law issues.

War and Peace: Recent Trends and Developments in Bankruptcy Litigation and Mediation