Selected Topics on Confirmation Issues
by Jay M. Goffman
Skadden, Arps, Slate, Meagher & Flom LLP; New York
Mark A. McDermott and Michael W. Perl
Skadden, Arps, Slate, Meagher & Flom LLP; Chicago
This paper provides a general overview of several confirmation and related issues typically encountered in large chapter 11 bankruptcy cases. The topics covered in this paper include so-called "give-up" plans and the absolute priority rule, unfair discrimination, post-confirmation jurisdiction and litigation trusts, and bankruptcy appeals.
Read the full article. (Materials from Bankruptcy 2006: Views from the Bench)
The Sum and Substance of Substantive Consolidation
by James H.M. Sprayregen and Jeffrey W. Gettleman
Goldman Sachs & Co.; New York
Jonathan P. Friedland
Kirkland & Ellis LLP; Chicago
Substantive consolidation jurisprudence, perhaps more than many other areas of bankruptcy law, is highly unpredictable. This is in part undoubtedly due to the lack of specific Bankruptcy Code provisions and unclear legislative intent regarding substantive consolidation, removing a possible anchor for judicial decision-making. Other reasons, however, are the seeming slowness of judicial opinions to adjust to the reality of 21st Century (or even 20th Century) corporate structures, and the fact that substantive consolidation's historical roots borrowed heavily from alter ego and similar doctrines, leaving a vestige in the opinions that some kind of wrongdoing is required to order substantive consolidation.
Read the full article. (Materials from Bankruptcy 2006: Views from the Bench)
Management vs. Labor: The Collision of Bankruptcy and Labor Law and Policy
by Brian P. Leitch
Arnold & Porter LLP; Denver
Rosa Evergreen
Arnold and Porter, LLP; Denver
Glenn Roper
Arnold and Porter, LLP
Section 1113 is designed to cause parties to reach agreement. In the vast majority of cases, it works as designed, and agreements are reached prior to a decision being rendered. But when parties cannot reach agreement and courts are required to decide, who prevails in the reported §1113 decisions and why?
Read the full article. (Materials from the 2006 Winter Leadership Conference )
Committee Duties to Provide Information to Constituents and Solicit and Receive Comments from Them under 11 U.S.C. § 1102(b)(3)
by Susan M. Freeman
Lewis and Roca LLP; Phoenix
BAPCPA imposed a new obligation on creditors and equity securityholders’ committees. Such committees must:
- provide access to information for creditors who –
- hold claims of the kind represented by that committee; and
- are not appointed to the committee;
- solicit and receive comments from the creditors described in subparagraph (A); and
- be subject to a court order that compels any additional report or disclosure to be made to the creditors described in subparagraph (A).
11 U.S.C. § 1102(b)(3).
Notably, this portion of BAPCPA sets forth no consequences for a failure to comply. The BAPCPA legislative history sheds no light on Congress’ intent as to the type of information to be shared, the method for meeting the new requirement, or how Congress expected debtors, committees and courts to protect confidential and privileged information affecting both the company’s restructuring and trading in its equity securities.
Read the full article. (Materials from the 2006 One-Year Anniversary Program)
Agenda for the 2007 Annual Spring Meeting
Business Reorganization and Finance and Banking (Joint):
"There Is a New Seat at the Bankruptcy Table - Who Are the New Lenders in Bankruptcy, What Is Their Role, and How Will They Affect Bankruptcy Cases in the Future?"
The joint committee educational session will focus on the changing role of hedge funds and the future impact they will have in bankruptcy court. Recent cases, including the Dura Automotive case, will be discussed.
Suzanne Palmer, Moderator (CIT; Chicago); Judge James Peck, (U.S. Bankruptcy Court, SDNY; New York); David Lorry, (Chrysalis Capital Partners LP; Philadelphia); Peter V. Pantaleo, (Simpson Thatcher; New York).