2016

How are cash-collateral orders and adequate-protection packages being fashioned in E&P bankruptcies, and what intercreditor issues can arise as a result? This panel will discuss questions relating to lender collateral that may surface in E&P cases, such as (1) the absence of blanket liens, liens on reserves and cash as security; (2) the impact of state law defining property rights in such assets as royalty streams and leasehold interests; and (3) contract interpretation issues involving prepayment agreements and other arrangements. The panel will also discuss E&P valuation issues and their relationship to the commodity pricing cycle, as well as environmental obligations and pension/OPEB issues (e.g., Peabody).

What happens after a successful credit bid? This panel will discuss the scope of § 363 sale orders and whether they should or even can address intercreditor issues, corporate governance and funding issues, unitranche deals, the difference in protections between an Agreement Among Lenders and an Intercreditor Agreement, the Radio Shack intercreditor adversary proceeding, § 1111(b) elections (Baker Hughes), adequate protection (In re Chardon) and lien-stripping (Caulkett).

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 discuss how to make sure management (and the board) plays the role of neutral stakeholder throughout a plan and/ or § 363 process. Can the same board and management team truly represent the interests of stakeholders of BOTH a corporate parent and its subsidiaries? What if there are dozens of affiliates whose creditors have disparate interests? Why is the issue of corporate separateness (and related conflicts) overlooked in some multiple-debtor cases, but addressed in others? What are the pros and cons of various tools for addressing potential conflicts? Who should investigate when issues are raised about the validity of intercompany debt, the reasonableness of cost allocations, the ownership of intellectual property and the potential for fraudulent conveyance claims among debtors? Examples discussed may include Nortel, Caesars, EFH, Lehman, Tribune and others.

This session will cover why some out-of-court restructurings fail (EFIH, Walter) while others succeed, MNPI, trading and disclosure issues, no-shop provisions, holdouts and free-riders, and Trust Indenture Act issues.

The panel will discuss how Puerto Rico can implement economic growth and fiscal stability measures and right-size its debt obligations, and the legal, political and financial tools that can be used to achieve an optimal outcome for Puerto Rico and its people, businesses and creditors.

How are retail bankruptcies conducted today vs. 10+ years ago? How are future retail bankruptcies likely to look? What are the macro trends in retail, and what are the consequences of traditional brick-and-mortar retail? What will be the dominant types(s) of retail platform(s), and who will be buying or investing in retail assets? This session will cover IP and other technology issues (valuation, liens on IP), lease issues, privacy issues, credit cards and gift cards.

The panel will discuss recent decisions on cramdowns, gifting, equitable mootness and structured dismissals (Jevic), statutory subordination (American Housing Foundation), nonconsensual releases (Seaside Engineering), plan modification (SCH Corp.) and impairment, what happens when the debtor is not required to pay the contractual rate of interest on unsecured notes (EFH), post-petition interest (what is the federal judgment rate if a contract rate does not apply?), and the scope of § 524(e).

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.

Valuation panels have generally focused on how to value debtors and their stock. But what about valuing debt, the other form of consideration that is generally issued under a bankruptcy plan? The session will discuss coverage ratios and other credit metrics, comparability, the impact of covenants and other terms, credit reporting and rating, and more.