In this edition of the newsletter, we are very excited to chat with Prof. Stephen J. Lubben of Seton Hall University School of Law. In December 2004, ABI announced that it awarded a $346,000 grant to Prof. Lubben to carry out a landmark chapter 11 professional fee study. Late last year, Prof. Lubben published the results of the study, which is the largest and most comprehensive analysis of professional fees in chapter 11 cases to date. Prof. Lubben joined Seton Hall in 2002 after several years in practice with Skadden, Arps, Slate, Meagher & Flom LLP in New York and Los Angeles, where he represented parties in chapter 11 cases throughout the country. He received his bachelor's degree from the University of California, Irvine; his J.D. magna cum laude from Boston University School of Law, where he was an editor of the Boston University Law Review; and his LL.M. from Harvard Law School, where he was a teaching fellow. Following graduation from Boston University, he clerked for now Chief Justice John T. Broderick Jr. of the New Hampshire Supreme Court. Prof. Lubben has been an ABI member since 2001.
Read the full interview.
By: Philip J. Landau[1]
Akerman Senterfitt; Ft. Lauderdale, Fla.
Two commonly misunderstood remedies in the young bankruptcy practitioner's tool box are the defenses of setoff and recoupment. Section 553 of the Bankruptcy Code preserves the nonbankruptcy right of a "creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case...." 11 U.S.C. §553(a). The requisite elements of a §553 setoff are as follows: (1) the creditor holds a claim against the debtor that arose before the commencement of the case; (2) the creditor owes a debt to the debtor that also arose before the commencement of the case; (3) the claim and debt are mutual; and (4) the claim and debt are each valid and enforceable. In re Steines, 285 B.R. 360, 362 (Bankr. D. N.J. 2002). Setoff, in effect, elevates an unsecured claim to secured status, to the extent that the debtor has a mutual, prepetition claim against the creditor. See 11 U.S.C. §506(a). Because §553 does not define "mutual," the definition must be determined under state law. In re Palmieri, 31 B.R. 111 (Bankr. N.D. Ga. 1983). Mutuality is generally defined as meaning that the debts must involve the same parties, and mutual demands must exist between the debts owed. See All American Auto Salvage v. Camp's Auto Wreckers, 679 A.2d 627, 632 (N.J. 1996).
Read the full article.
For this issue of the newsletter, we interviewed David D. Bird, Clerk of Court, U.S. Bankruptcy Court for the District of Delaware, and co-chair of the Court Administration Committee. He is a graduate of the University of Miami Law School and obtained an MBA from the University of Miami School of Business. He is admitted to the Florida and Colorado Bars and has practiced law in both of those jurisdictions.
Mr. Bird has previously served as the U.S. Trustee for the Districts of Colorado, Utah and Wyoming and as the Assistant U.S. Trustee for the Southern District of Florida. He has also served as the clerk of the U.S. Bankruptcy Court for the Southern District of Florida and as a law clerk for one of the judges of that court. Mr. Bird also acts as ADR coordinator for the U.S. Bankruptcy Court for the District of Delaware.
In this interview, Mr. Bird told us about the committee's activities and gave some terrific advice about getting involved in the committee and how YNMC members can learn about the administration of the bankruptcy court.
Read the full interview.
The Winter Leadership Conference will take place Dec. 4-6, 2008, at the Westin La Paloma Resort & Spa in Tuscon, Ariz. The YNMC and the Bankruptcy Litigation Committee will team up for a joint presentation entitled "Electronic Discovery-Wall Street to Main Street: Management of Electronic Discovery Issues in Bankruptcy Litigation." Presenters include Hon. Christopher M. Klein of the U.S. Bankruptcy Court for the Eastern District of California, George R. Mesires of Barack Ferrazzano Kirschbaum & Nagelberg, LLP in Chicago, William C. Meyers of Goldberg Kohn Bell Black Rosenbloom & Moritz, Ltd. in Chicago and Andrea B. Schwartz of Fulbright & Jaworski LLP in New York. The session is scheduled for Friday at 3:45 p.m. We hope you will join us.
The YNMC is planning a new feature for future editions of the YNMC Newsletter: "Members in the News." Please share with the ABI membership your important news, such as articles you have published, board and committee appointments, and conferences at which you have spoken. You can direct your announcements to Tom Horan, Newsletter Editor, at thoran@morrisjames.com. You may also want to let your firm's marketing department know that it may submit information about your activities and achievements to us directly.
