By: David L. Barrack
Fulbright & Jaworski L.L.P.; New York
Fulbright & Jaworski L.L.P.; New York
Fulbright & Jaworski L.L.P.; New York
Editor's Note: After the publication of this article, ABI learned that the U.S. Trustee recently dismissed his appeal in the Blue Stone case. Thus, the matter is no longer pending before the 11th Circuit. The article, however, is still relevant to an ongoing substantive debate occurring across the country and contains a thoughtful analysis and discussion.
Not so long ago, when a company filed for bankruptcy, if there was a trail of fraud or serious mismanagement, a trustee would be appointed and unsecured creditors would have an opportunity to elect a permanent trustee. In 2003, one Florida bankruptcy court stated that its interpretation of the Bankruptcy Code’s requirement to appoint a trustee is as follows: “[The] Bankruptcy Code expressly provides for appointment of a trustee when a debtor’s management is replaced. The Code does not contemplate the appointment of a ‘Responsible Person’ to perform the duties of a Trustee.” 1 But some six years later, another Florida bankruptcy court in ruling on a motion to appoint a chief restructuring officer (CRO) that had been filed in response to a trustee motion, acknowledged that the debtor sought the retention of a CRO in response to a motion to appoint a trustee stating, “[t]he change [in management] was initiated by the Debtors in possession as a reasonable reaction (indeed, one that a United States Trustee should be proud of provoking) to concerns raised by the United States Trustee.” 2
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The 5th Annual Caribbean Insolvency Symposium was held February 5-7 at the beautiful Westin Casuarina Resort & Spa on Grand Cayman Island. This year’s program featured top speakers on distressed debt in one of the world’s major financial centers. The educational program provided attendees with an interactive learning experience led by prominent bankruptcy judges as well as experienced practitioners. Two of the sessions were of particular interest to the committee.
Panelists in the session “’101’ on Restructuring Portfolio Companies,” discussed the intricacies of make-well agreements and how to handle them when a company is financially distressed. Hon. Judith K. Fitzgerald of the U.S. Bankruptcy Court (D. Pa.) in Pittsburgh moderated the session. Panelists included Matthew B. Berk of Morgan Joseph & Co. Inc. in New York, Stuart M. Brown of Edwards Angell Palmer & Dodge LLP in Wilmington, Del., Hon. Robert A. Mark of the U.S. Bankruptcy Court (S.D. Fla.) in Miami and D. Ross Martin of Ropes & Gray in Boston. Please click the link below to view the materials.
’101’ on Restructuring Portfolio Companies
“Breakfast and Views from the Benches” provided bankruptcy practitioners an opportunity to participate in an interactive lecture session with a chapter 11 bankruptcy attorney and prominent bankruptcy judges. Panelists discussed a wide range of topics, including executory contract and unexpired lease issues, automatic stay issues and sale issues under section 363. Steven R. Leslie of Stichter, Riedel, Blain & Prosser, PA in Tampa, Fla. moderated the session. Panelists included Hon. A. Jay Cristol of the U.S. Bankruptcy Court (S.D. Fla.) in Miami, Hon. Paul G. Hyman of the U.S. Bankruptcy Court (S.D. Fla) in West Palm Beach, Fla., Hon. Enrique Lamoutte of the U.S. Bankruptcy Court (D. P.R.) in San Juan, P.R., Hon. John Karl Olson of the U.S. Bankruptcy Court (S.D. Fla.) in Ft. Lauderdale, Fla. and Hon. Steven W. Rhodes of the U.S. Bankruptcy Court (E.D. Mich.) in Detroit. Please click the link below to view the outline of topics discussed.
Breakfast and Views from the Benches
The 27th Annual Spring Meeting: Washington, DC like you have never seen it before! Located a few minutes from Capitol Hill, on the historic Potomac River, the Gaylord National Resort & Spa offers the most deluxe meeting and event space in the area. This year’s conference will be held April 1-4 and will have a special focus on the tough policy choices facing the new administration and Congress. The Business Reorganization Committee will hold a session on Thursday afternoon at 4:00 p.m. entitled “Class Actions in Chapter 11 Cases.” Panelists will include Corinne Ball of Jones Day in New York, Kenneth H. Eckstein of Kramer Levin Naftalis & Frankel LLP in New York, Leonard H. Gerson of Leonard H. Gerson, Esq. in New York, Michael H. Goldstein of Greenberg Traurig, LLP in Santa Monica, Calif. and Ken Marks of Susman Godfrey, LLP in Houston. Click here to register now!
