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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")?

When companies file Chapter 11, they communicate on a number of fronts and through a number of means. Pleadings are fashioned to convey a particular message to the court, creditors and anybody else who might read them. Public companies have certain mandatory disclosures in the form of 8Ks. More importantly, and more interestingly, communications strategies are undertaken by debtors to inform but reassure their customers, vendors and the public. This program will be led by experts in the field of communications in the face of a bankruptcy. Issues include securities law compliance prepetition, avoiding improper plan solicitation, the role of communications professionals in messaging even in filed documents and in case proceedings, such as the first day declaration and at the 341 meeting and, post-petition when court approval is necessary or advisable.

Recent cases have evidenced one form of jurisdictional migration and two forms of venue migration. As to the jurisdictional migration, international companies with virtually no U.S. connection seek to, and generally succeed at, establishing a sufficient U.S. presence to file a Chapter 11 in the United States because, if there are reorganization proceedings in the countries that are their COMIs, they are perceived as inadequate (Marco Polo, Omega, GenMar). What has worked for non-U.S. companies seeking to invoke U.S. Bankruptcy Court jurisdiction, and what is the legal authority? Venue migration is nothing new--debtors file in their place of incorporation rather than the venue in which their headquarters or primary operations are. What are the factors that go into that decision? Finally, sometimes debtors are forced to migrate back. What factors have resulted in a change of venue? (Houghton Mifflin and Patriot Coal).

This program will focus on the legal and business challenges that faced counsel to a debtor, secured lenders and franchisor in a hotly litigated, modest-sized Chapter 11 in Massachusetts involving a two-tiered ownership of six Planet Fitness franchisees. Filed in 2010 and ending with a confirmed plan in 2012, the case involved shifting allegiances, successive plans, alternative considerations of an asset sale vs a change in equity ownership depending on litigation with the franchisor, and a plethora of challenging issues, including (i) the contested settlement of litigation challenges to one secured creditor, (ii) the potential cram-down of a second secured creditor, (iii) the treatment of leases intended as security, (iv) disputed feasibility, (v) the ability to assume (and assign) the franchise agreements, (vi) whether the franchisor’s right of first refusal was enforceable, (vii) whether de-branding is a real alternative to a continuation of the franchise, (viii) whether the franchisor’s rights were waived during the case, and (ix) claims estimation. See In re Chicago Investments, LLC, 470 B.R. 32 (Bankr. D. Mass. 2012).

Unlike most 363 sale programs, this program will not involve the aspects of the sale that are the focus of court proceedings, but will take an in-depth look at the transaction documents that get the deal done. The primary document discussed with be the APA-what does that document need to accomplish, what provisions should be included, how do APAs used in 363 sales differ from other APAs, what to do about reps and warranties and why and, what are the points of negotiation? Experienced deal-side practitioners will identify the elements of an asset purchase agreement that are important, and the respective views of the buyer and the seller as to those provisions.

This single plenary session will feature a policy-oriented panel discussing the reasons for municipal insolvency nationally, with a particular focus on the New England Region. The panel of highly-experienced government officials, municipal receivers and thought leaders will review and debate the challenges faced by state and local leaders in their efforts to address the financial stress facing many of our cities and towns. Among the issues to be addressed are: the pressures of labor contracts, legacy benefits, and pension and retirement plans on municipal budgets; creditor and bondholder relations; sections of the code that impact these issues; and trends arising from the most recent cases. The panel may also touch on needed Chapter 9 reform. Lawyers, lenders, insolvency specialists, as well as those interested in the future of our cities and towns, will be interested in this program.