Program Schedule

General Recent Developments For All Bankruptcy Practitioners

SPEAKER: Professor Jeffrey W. Morris

Intersection of State Law Remedies and Bankruptcy  - Effect of bankruptcy on state court remedies such as receivership and assignment for the benefit of creditors; authority of receiver to file bankruptcy petition on behalf of a company; to what extent can or will bankruptcy courts leave receivership in place; recent state law cases regarding the right of assignee for benefit of creditors to pursue state law preference claims; authority of company to file bankruptcy after assignment for the benefit of creditors; assets transferred to assignee as property of the estate.

SPEAKER: Professor Michael Sabbath

Collection of Attorneys’ Fees by Creditors  – Effect of Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co. (2007) on collection of fees by creditor – both unsecured and secured in commercial and consumer cases and through chapter 13 plans; effect of Travelers on § 506(b); “reasonableness” restrictions on attorneys’ fees; limitations on fee collection under state law or pursuant to agreements; actions by secured creditor that are paid for by debtor; creditors’ attorneys fees taking on the nature of the underlying creditors’ claims; lenders seeking post-petition pre-confirmation expenses after chapter 13 debtors complete plan obligations.

SPEAKER: Paul S. Singerman

Litigation:  Evidence Electronic Discovery in Bankruptcy Court  – Defining electronically stored information; preservation requirements for electronically-stored information; acceptable production formats for electronically-stored information; sanctions available for destruction or failure to produce electronic data; attorney-client privilege and inadvertent disclosure of privileged electronic information; best practices in e-discovery, document retention and destruction policies; practical considerations in preparation for bankruptcy filings.

SPEAKER: Michael D. Fielding

Recent Developments For Consumer Bankruptcy Practitioners

SPEAKER: Professor Jeffrey W. Morris

Application of Means Test  - Determining household number as economic unit consisting of those depending on debtor’s income; computing current monthly income; whether above-median income debtors may deduct payments on collateral surrendered pre-petition, post-petition, or paid off; effect of spouse having separate income and deducting separate household expenses while keeping finances separate; proving special circumstances of higher expenses or future reduced income; use of current monthly income or projected monthly income in Chapter 13 Plan.

SPEAKER: Honorable Michael G. Williamson

§707(b)(2) Motions To Dismiss - Difficulties in proving abuse by attacking computation of median income, current monthly income, or number of dependents if over-median debtor passes means test; deducting the car ownership expense when no lien on completely paid car; including mortgage payments as deductions regardless of intent to surrender house; deduction of amounts of payments that debtor is contractually obligated to make on claims secured by other collateral that debtor intends to surrender; perceived abuse from other deductible expenses.

SPEAKER: William E. Brewer, Jr.

Chapter 13 Plan - Proof by above-median debtor if projected disposable income is lower than current monthly income; determining adequate protection payments; which secured creditors must receive adequate protection and when; calculation of equal monthly payments; secured creditors’ receipt of equal monthly payments; effect of Till on secured payments; trustee’s payments of attorneys’ fees with equal monthly payments; debtor’s retention of three cars; good faith providing unsecured creditors more than required.

SPEAKER: Frank J. Santoro

Cocktail Reception for registrants and spouses, sponsored by BMC Group; GlassRatner Advisory & Capital Group, Inc.; IWIRC Georgia and Florida Networks

Overview of Consumer Bankruptcy for Business Practitioners  – The new regime under BAPCPA; pre-filing requirements for Chapter 7 debtors, the role and risks of debtor’s attorney; important distinctions in Chapter 7 between the consumer debtor and  the debtor with primarily business debts; what constitutes a filing that is an abuse under Chapter 7 so as to mandate dismissal or conversion to Chapter 13; vagaries of the means test and the calculation of projected disposable income; the length of the plan period; treatment of car loans and other secured claims in Chapter 13; the super-discharge in Chapter 13; terminology of the trade and key acronyms.

SPEAKER: Honorable Neil P. Olack

Director liability in the zone of insolvency  – The duties owed by directors to corporation; the scope of the business judgment rule; exculpation and indemnification rights provided in the corporation’s organizational documents; the development of director liability for actions taken when corporation is insolvent; the duties of directors of parent corporations and subsidiary corporation; the right of creditors to assert direct or derivative claims against directors of an insolvent corporation; defenses to such claims; coverage under director and officer liability policies.

SPEAKER: Professor Douglas G. Baird

Deepening insolvency  – Deepening insolvency doctrine under state law; recent cases relative to deepening insolvency theories; deepening insolvency as a separate cause of action or a theory of damages; third party defenses including in pari delicto and the Wagoner Rule; alternate forms of third party liability; creditor standing and/or estate standing to assert deepening insolvency claims.

SPEAKER: Sally S. Neely

The Role of Hedge Funds in Bankruptcy Cases  - Hedge funds as participants in “rescue lending” and “loans to own” before and during Chapter 11 bankruptcy; hedge funds as purchasers of stocks or bonds of distressed companies and as members of bond or equity committees; effect of disclosure requirements of Rule 2019; restrictions on trading in return for confidential non-public information; efficacy of “big boy” letters to shield restricted hedge funds from liability when selling their bonds; advantages and pitfalls in hedge funds’ ability to block confirmation of plan;; hedge funds as purchasers of trade claims and the nascent development of more transparent claim markets.

SPEAKER: David S. Heller

The Role of Hedge Funds in Bankruptcy Cases  - Hedge funds as participants in “rescue lending” and “loans to own” before and during Chapter 11 bankruptcy; hedge funds as purchasers of stocks or bonds of distressed companies and as members of bond or equity committees; effect of disclosure requirements of Rule 2019; restrictions on trading in return for confidential non-public information; efficacy of “big boy” letters to shield restricted hedge funds from liability when selling their bonds; advantages and pitfalls in hedge funds’ ability to block confirmation of plan;; hedge funds as purchasers of trade claims and the nascent development of more transparent claim markets.

SPEAKER: David S. Heller

Cocktail Reception for registrants and spouses, sponsored by BMC Group; GlassRatner Advisory & Capital Group, Inc.; IWIRC Georgia and Florida Networks

Continental Breakfast for registrants, sponsored by Carl Marks Advisory Group LLC and Conway del Genio, Gries & Co., LLC

Divisive Issues [Baird] – A survey of differences among the circuits and among the bankruptcy courts on vital issues arising in business and consumer cases.

SPEAKER: Professor Douglas G. Baird

Avoidance Actions  – Preference claims; fraudulent conveyance claims; § 544 claims;  unauthorized post-petition transfer claims; statutes of limitations; effect of conversion or appointment of trustee; effect of substantive consolidation on deadlines and defenses; effect of "critical vendor" payments or assumption or rejection of contracts; preference exposure for materialmen and subcontractors; insurance coverage for preference claims; reasonably equivalent value under § 548 and the Uniform Fraudulent Transfer Act; "good faith" for bona fide purchaser defense to fraudulent conveyance.

SPEAKER: Michael D. Fielding

Coffee Break for registrants, sponsored by Deloitte Financial Advisory Services LLP; The Douglas Wilson Companies; U.S. Bank Corporate Trust Services

Automatic stay issues – Modification of automatic stay under BAPCPA; definition of a small business debtor; particularized changes and litigation approaches for small business debtors and shifting of burdens and timing issues; definition of single asset debtor; shifting of burdens and timing issues for single asset debtors; adequate protection issues for single asset debtors; update on current developments in automatic stay litigation generally.

SPEAKER: Honorable Neil P. Olack

Litigation:  Ethics

The Attorney-Client Privilege at Risk in Insolvency - General overview of attorney-client privilege; the effect on the privilege of sharing confidential information with third parties’ professionals; the co-client privilege and the adverse interest exception thereto; the community–of-interest privilege and its limits; the right of beneficiaries to invade the attorney-client privilege between the fiduciary and its counsel; special problems of counsel for corporate conglomerate when one member of the conglomerate is spun off and becomes a debtor; specific issues relating to creditor’s committee counsel in light of new requirement that the committee provide all creditors with access to information.

SPEAKER: Dillon E. Jackson

Lunch for registrants, sponsored by Habif, Arogeti & Wynn, LLP; NRC Realty Advisors, LLC

Section 707(b)(3)  Motions To Dismiss - Defending after §707(b)(2) motion fails; time for filing notice of presumed abuse; determining if two separate households exist; effect of totality of circumstances; proving abuse by adding bonus to current monthly income to show ability to pay substantial portion of unsecured debt; effect of obtaining pre-petition or post-petition new job; passing means test by deducting contractual payments prior to surrendering house or car resulting in debtor’s new ability to meaningfully pay.

SPEAKER: William E. Brewer, Jr.

Objections To Chapter 13 Plan Confirmation and Post-Confirmation Modifications – Arguing means test for above-median debtors sets reasonable and necessary expenses; can above-median income debtors confirm 0% 36-month plan or must creditors receive full payment to confirm 36-month plan; use of applicable commitment period as multiplier or as temporal requirement; plan modification of applicable commitment period due to post-confirmation income reduction; parties’ reasons and timing for modification; reconsideration of claims; curing plan deficiencies.

SPEAKER: Frank J. Santoro

Coffee Break for registrants, sponsored by Morris-Anderson & Associates, Ltd.

Secured Auto Lenders’ Claims in Chapter 13 and 7 - Proving debtor’s personal vehicle use as stated in contract when car is used by debtor’s business or family; use of hanging paragraph when car is retained but not surrendered; treatment of deficiency claim when car is surrendered; does the hanging paragraph apply when debtors finance more than new car’s purchase price including financing of negative equity from debtor’s trade-in or cash advances; computing 910 claim interest rate with Till, contract rate, or no interest proposed.

SPEAKER: Honorable Eric L. Frank

Student Loans In Chapter 7 and Chapter 13  - Using student loan payments as special circumstance in rebutting presumption of abuse by showing no reasonable alternative to repaying this non-dischargeable debt, that repayment is not hardship, and cannot be paid outside bankruptcy if other debts are not discharged; considering if debtor’s income is sufficient to make student loan payments; effect of plan proposing to pay as separate classification when unsecured creditors do not receive full payment.

SPEAKER: Professor Michael Sabbath

Recent Developments for Chapter 11 Practitioners

SPEAKER: Paul S. Singerman

Relief from Collective Bargaining Agreements − The Supreme Court’s Bildisco holdings and the changes wrought by §1113; the standard for determining “necessary modifications”; the rejection process; the debtor-in-possession’s duty to pay post-petition amounts due under the collective bargaining agreement for obligations that would be pre-petition claims; judicial standards for approving rejection of collective bargaining agreement; damage claims arising from rejection; standards for interim relief and claims arising from the granting thereof.

SPEAKER: Stephen D. Lerner

Coffee Break for registrants, sponsored by Morris-Anderson & Associates, Ltd.

Credit Bidding in Connection With § 363 Sales and Sales Pursuant to Plans - Right of undersecured creditors to credit bid and in what amounts; preserving a secured creditor’s right to credit bid on its collateral without a blanket lien; scope of bankruptcy court’s power to deny secured creditor the right to credit bid; right of “out of the money” junior lienholders to credit bid; role of creditors’ committees when bidding process is not expected to produce any distribution to unsecured creditors; buying secured claims as a method for implementing a change of control transaction.

SPEAKER: David S. Heller

Reclamation Issues  – Possibility of new federal common law of reclamation in amended § 546(c);  priority rights of a secured lender vs. reclamation claimant; satisfaction of secured claim first out of collateral that is not subject to a reclamation demand; interplay between  administrative claims under §§ 503(b)(9) and 546 (c); payment of “20 day goods administrative claim” under § 503(b)(9) under plan or when claimed; effect of “received by the debtor” language on goods drop-shipped (directly shipped) to a debtor’s customer at the direction of the debtor.

SPEAKER: Sally S. Neely

Continental Breakfast for registrants, sponsored by Carl Marks Advisory Group LLC and Conway del Genio, Gries & Co., LLC

Appeals – Perfecting the record so as to preserve an issue for appeal; benefits and pitfalls of moving for reconsideration of an order rather than appealing it; determining whether an order is interlocutory or final and how to proceed if that is not clear; determining whether the appeal will be equitably moot if no stay pending appeal is sought of orders such as confirmation orders in cases under Chapter 11 and 13; advantages and disadvantages of bankruptcy appellate panels and of district protocols designating certain district judges to hear all bankruptcy appeals; BAPCPA’s grant of jurisdiction to courts of appeals to take appeals direct from the bankruptcy court; procedural rules in connection with such appeals.

SPEAKER: Dillon E. Jackson

Discharge, Dischargeability, and Post-Discharge Issues  – Differences in dischargeability of an individual’s debts under Chapters 7, 11, and 13; discharge of credit card debt; defending claims based on false pretenses, false representation or actual fraud; domestic support obligations; revocation actions under §727(d)(4); redressing errors by mortgagee in charges and credits in Chapter 13 cases; failure of credit reporting agencies to report accurately the effect of Chapter 7 discharge. 

SPEAKER: Honorable Michael G. Williamson

Coffee Break for registrants

Executory Contracts - Current Issues -  Definition of executory contract; assumption of contract; modifications to § 365 under BAPCPA; cure payments; non-monetary default; actual vs. hypothetical tests under § 365(c) and treatment in various circuits; damages and remedies for rejection, including enforcement of arbitration clauses and other forum selection devices; residential vs. non-residential real estate leases; personal property leases in commercial, consumer and single asset real estate cases under BAPCPA.

SPEAKER: Stephen D. Lerner

Litigation:  Professionalism

Appearing before the Bankruptcy Court  - Unique features of bankruptcy courts, including judicial management of cases, and the duty to try facts and apply law; understanding bankruptcy judges’ overriding focus on parties rather than lawyers; most common professional failings of lawyers; benefits to lawyers of being ethical and professional; achieving a reputation as an ethical, professional lawyer.

SPEAKER: Honorable Eric L. Frank

Additional Sponsors: Alvarez & Marsel, Inc., Pocket Agenda; BMC Group, CD ROMS; Hays Financial Consulting, Luggage Tags; Administar Services Group LLC, Tauber & Balser, P.C. and Wells Fargo Trumbull, Tote Bags; TrialGraphix, Signage.