2016

How will the Supreme Court’s decision in Baker Botts v. ASARCO affect professional fees? Will there be an increase in fee litigation in future chapter 11 cases? This panel will also explore the Tribune standard for payment of unsecured creditors’ post-petition professionals’ fees, fees awarded as part of global settlements (Lehman), and the recent use of fee examiners. The session could also include a discussion on when disclosure of “representations of parties in unrelated matters” is sufficient, whether conflicts be cured by the appointment of conflicts counsel, a recent Ninth Circuit decision on the potential implications of exceeding fee caps, when it is necessary to obtain a conflict waiver, current vs. recent vs. former clients, and directly adverse vs. positionally adverse.

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).