ALI-ABA Course of Study Chapter 11 Business Reorganizations. March 29-31, 2007 Scottsdale, Arizona TABLE OF CONTENTS

Transcription

1 PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIAL ALI-ABA Course of Study Chapter 11 Business Reorganizations March 29-31, 2007 Scottsdale, Arizona TABLE OF CONTENTS 1. First Day Issues: Key Employees By Marcia L. Goldstein, Tal Sapeika, and Edward Neiger Page xi 2. How BAPCPA Affects the Rights of Unpaid Prepetition Sellers of Goods 31 By Sally S. Neely Table of Contents 33 Table of Cases 34 Study Outline 39 Appendix Debtor in Possession Financing 73 By Marcia L. Goldstein and Victoria Vron Table of Contents 74 Study Outline Intercreditor Agreement Provisions in Second Lien Transactions By Harold S. Novikoff 5. Section 363 Issues - Acquiring Troubled Companies and Assets 125 By the Honorable Barbara J. Houser, Douglas Wade Carvell, Frances A. Smith, and Jesse Tyner Moore Table of Contents 126 Table of Authorities 127 Study Outline Valuation Issues in Chapter 11 Cases 185 By Harold S. Novikoff Table of Contents 187 Study Outline 189 xiii xv vii

2 7. Developments in Lender Liability: Four Causes of Action, a Theory of 231 Damages, and a Defense By Kenneth N. Klee and Matthew C. Heyn Table of Contents 232 Table of Authorities 233 Study Outline BAPCPA Provisions Directly Affecting Executory Contracts and 295 Unexpired Leases in Chapter 11 Cases (with Hypothetical) By Sally S. Neely Table of Contents 296 Study Outline Precision Industries v. Qualitech Steel is Probably Wrong - But What is Right? By Sally S. Neely Disclosure Statements, Solicitation and Lock-Up Agreements: The Shifting 323 Dynamics of Plan Voting By Kenneth N. Klee and Matthew C. Heyn Table of Contents 324 Table of Authorities 325 Study Outline Disclosure Statements; Confirmation and Cramdown of Chapter 11 Plans 355 By the Honorable Barbara J. Houser, Douglas Wade Carvell, Holly D.F. Meister, and Rebecca A. Thomas Table of Contents 356 Table of Cases 358 Study Outline Do Bankruptcy Courts Have the Power to Issue Releases and Permanent Injunctions with Respect to Non-Debtor Parties in Chapter 11? Depends on Which Court You Ask By Thomas E. Patterson and Brendt C. Butler Post-Confirmation Issues: Ascertaining the Effective Date; 439 Post-Confirmation Jurisdiction; Serial Filing; Post-Confirmation Litigation Vehicles By Harold S. Novikoff Table of Contents 441 Study Outline Official Committees in Chapter 11 By Sally S. Neely 15. Ethical Issues for Bankruptcy Practitioners: Retention of Professionals in Bankruptcy Cases and Other Considerations By Marcia L. Goldstein viii

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5 ALI-ABA Course of Study Chapter 11 Business Reorganizations March 29-31, 2007 Scottsdale, Arizona PROGRAM Thursday, March 29, :00 a.m. Registration and Continental Breakfast 9:00 a.m. Introductory Remarks 9:05 a.m. Recent Cases and Legislative Developments Messrs. Novikoff and Patterson 9:50 a.m. First Day Issues: Key Employees Ms. Goldstein 10:30 a.m. Networking Break 10:45 a.m. First Day Issues: Trade Creditors and Utilities Ms. Neely 11:45 a.m. Second Lien and DIP Financing Ms. Goldstein and Mr. Novikoff 12:30 p.m. Lunch Break 2:00 p.m. Second Lien and DIP Financing (continued) 2:30 p.m. Committees in Chapter 11 Ms. Neely 3:30 p.m. Networking Break 3:45 p.m. Acquiring Troubled Companies and Assets; Successor Liability Judge Houser and Prof. Klee 5:15 p.m. Adjournment for the Day Friday, March 30, :30 a.m. Continental Breakfast 9:00 a.m. Recent Cases and Legislative Developments Judge Houser and Ms. Neely 9:45 a.m. Ethical Issues for Bankruptcy Practitioners Ms. Goldstein 10:45 a.m. Networking Break 11:00 a.m. Valuation of Assets and Enterprises Mr. Novikoff 12:00 noon Lunch Break 1:15 p.m. Developments in Lender Liability Prof. Klee 2:15 p.m. Real Estate-Related Issues Ms. Neely 3:15 p.m. Networking Break 3:30 p.m. Solicitation, Lock-Up Agreements, and Disclosure Statements Prof. Klee 4:15 p.m. Confirmation of Consensual and Cramdown Plans (Part 1) Judge Houser and Mr. Patterson 5:15 p.m. Adjournment for the Day xi

6 Saturday, March 31, :30 a.m. Continental Breakfast 9:00 a.m. Recent Cases and Legislative Developments Ms. Goldstein and Prof. Klee 9:45 a.m. Confirmation of Consensual and Cramdown Plans (Part 2) Judge Houser and Mr. Patterson 10:45 a.m. Networking Break 11:00 a.m. Third Party Releases, Exculpations, and Indemnities Mr. Patterson 12:00 noon Post-Confirmation Effect of Plan, Post-Confirmation Jurisdiction, and Post-Confirmation Litigation Entities Mr. Novikoff 12:30 p.m. Adjournment xii

7 ALI-ABA Course of Study Chapter 11 Business Reorganizations March 29-31, 2007 Scottsdale, Arizona PLANNING CHAIRS Kenneth N. Klee, Esquire Professor, UCLA School of Law Klee, Tuchin, Bogdanoff & Stern LLP 1999 Avenue of the Stars, 39th Floor Los Angeles, CA Sally S. Neely, Esquire Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA FACULTY Marcia L. Goldstein, Esquire Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, NY The Honorable Barbara J. Houser Chief U.S. Bankruptcy Judge U.S. Bankruptcy Court, Northern District of Texas Earle Cabell Building 1100 Commerce Street, Room 1424 Dallas, TX Harold S. Novikoff, Esquire Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, NY Thomas E. Patterson, Esquire Klee, Tuchin, Bogdanoff & Stern LLP 1999 Avenue of the Stars, 39th Floor Los Angeles, CA xiii

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9 PLANNING CHAIRS (also on faculty) FACULTY BIOGRAPHIES Kenneth N. Klee, Los Angeles, California University of California at Los Angeles School of Law Klee, Tuchin, Bogdanoff & Stern LLP B.A., Stanford University; J.D., Harvard University Robert Braucher Visiting Professor, Harvard Law School ( ); Adjunct Professor of Law, University of California at Los Angeles ( & 1997); Adjunct Professor of Law, University of Southern California (1983) Government and Public Service: Committee on the Judiciary, U.S. House of Representatives (Consultant, , ; Associate Counsel, ); U.S. Department of Justice (Consultant, ); Judicial Conference Advisory Committee on Bankruptcy Rules (Member, ; Chair, Litigation Subcommittee, ); Ninth Circuit Judicial Conference (Lawyer Representative from the Central District of California, ); State Bar of California (Chair, Bankruptcy Law Consulting Group, Board of Legal Specialization, ) Memberships: Fellow, American College of Bankruptcy (Judicial Nomination Committee, ); American Law Institute (Adviser, Transnational Insolvency Project); American Bar Association (Chair, Subcommittee on New and Pending Legislation, Business Bankruptcy Subcommittee, Section on Corporations, Business and Banking Law ( )); National Bankruptcy Conference (Chair, Legislation Committee (1992-present); Executive Committee, , present) ; Lawyers Advisory Committee of the Constitutional Rights Foundation ( ); Association of American Law Schools (Executive Committee of Debtor/Creditor Section, 1998-present); International Insolvency Institute (Founding Member, 1998-present) Publications: BUSINESS REORGANIZATION IN BANKRUPTCY (Co-Author) (West 1995); FUNDAMENTALS OF BANKRUPTCY LAW (Co-Author) (ALI-ABA, ); CORPORATE REORGANIZATION (Co-Author) (1996); Bankruptcy Aspects of Franchising, in FRANCHISING BY GLICKMAN (Matthew Bender, 1988 & Supps.); Restructuring Individual Debts, 71 AM. BANKR. L.J. 431 (1997); Barbarians at the Trough: Riposte in Defense of the Warren Carve-Out Proposal, 82 CORNELL L. REV. 101 (1997); The Future of Bankruptcy Rules, 70 AM. BANKR. L.J. 277 (1996); Adjusting Chapter 11: Fine Tuning the Plan Process, 69 AM. BANKR. L.J. 551 (1995); COLLIER ON BANKRUPTCY (Contributing Editor, ; Consulting Editor, ); NORTON BANKRUPTCY LAW AND PRACTICE (Consulting Editor, ) xv

10 Sally S. Neely, Los Angeles, California Sidley Austin LLP J.D. (Order of the Coif), B.A. (Phi Beta Kappa), Stanford University Assistant Professor of Law, Harvard Law School, Government and Public Service: Law clerk to the Honorable Ozell M. Trask (Ninth Circuit, ) Memberships: National Bankruptcy Conference (Chair ( ), Co-Chair (2005- present), Committee on Legislation; Executive Committee (1993-present); past chair, Committee on Partnerships); Fellow, American College of Bankruptcy (Regent-at-Large ( ); Director ( ); Vice President (2005-present); Chair ( ), Co-Chair (2006-present), Education Programs Committee); Stanford Law School Board of Visitors ( ); Ninth Circuit Judicial Conference Lawyer Representative ( ); Financial Lawyers Conference; Los Angeles County Bar Association; American Bar Association Publications Include: Partnerships and Partners and Limited Liability Companies and Members in Bankruptcy: Proposals for Reform, 71 AMER. BANKR. L.J. 271 (1997); AMERICAN BANKRUPTCY LAW JOURNAL (Editorial Board, ) FACULTY Marcia L. Goldstein, New York, New York Weil, Gotshal & Manges LLP A.B., J.D., Cornell University Visiting Lecturer, Yale Law School ( ) Honors: "Outstanding Bankruptcy Lawyer" (Turnarounds and Workouts, ); Insolvency and Restructuring Lawyer of the Year (WHO'S WHO LEGAL, 2006)(for the International Bar Association); "Dealmaker of the Year" (AMERICAN LAWYER, 2004) Memberships: National Bankruptcy Conference (Chair, Committee on Mass Torts); American Bar Association (Bankruptcy Ethics Committee; Chapter 11 Committee, Section of Corporation, Banking and Business Law; Creditors Rights Litigation Committee; Business Reorganization Committee, Section of Litigation); The Association of the Bar of the City of New York (Chair, Business Reorganization Committee); International Insolvency Institute; Cornell Law School (Co-Chair, Dean s Special Leadership Committee; Advisory Council; Visiting Committee); Fellow, American College of Bankruptcy Publications Include: Advisory Board, COLLIER ON BANKRUPTCY (15 th Ed.); Comity in the Cenargo International Case: Rationalising a U.S. Chapter 11 for a U.K. Company, GLOBAL RESTRUCTURING & INSOLVENCY REV. (2003); Decisions Address Retention of Bankruptcy Professionals, N.Y. L.J. (Feb. 28, 2000); Fiduciary Duties of Attorneys for Distressed Companies Murky, N.Y. L.J. (Sept. 14, 1998) xvi

11 Barbara J. Houser, Dallas, Texas Chief United States Bankruptcy Judge, Northern District of Texas B.S., University of Nebraska; J.D., Southern Methodist University School of Law Visiting Professor, Dedman School of Law, Southern Methodist University Honors: 50 Most Influential Women Lawyers in America (NATIONAL LAW JOURNAL, 1998) Fellowships: American Bar Foundation; Texas Bar Foundation Memberships: National Bankruptcy Conference (Member, Executive Committee); American College of Bankruptcy (Board of Directors); American Bar Association; Texas Bar Association; Dallas Bar Association (Past Chair, Committee on Bankruptcy and Corporate Reorganization) Publications Include: Contributing Author, COLLIER ON BANKRUPTCY (15th Edition) and COLLIER BANKRUPTCY MANUAL (3rd Edition); CODE DECISIONS (Callahan & Co.); FIFTH CIRCUIT COURT OF APPEALS SURVEY OF BANKRUPTCY (Contributing Author) Harold S. Novikoff, New York, New York Wachtell, Lipton, Rosen & Katz B.S., Cornell University; J.D., Columbia University Honors: Award for Excellence in Bankruptcy (Chambers, 2006); Best Lawyers in New York (NEW YORK MAGAZINE) Memberships: The Association of Commercial Finance Attorneys, Inc. (Director); National Bankruptcy Conference (Vice Chair, Executive Committee; co-chair, Chapter 11 and Capital markets Committees); New York State Bar Association (Committee on Bankruptcy); Association of the Bar of the City of New York (Chair, Bankruptcy and Corporate Reorganization Committee, ); Fellow, American College of Bankruptcy; American Bar Association Publications Include: Contributing author, COLLIER ON BANKRUPTCY Thomas E. Patterson, Los Angeles, California Klee, Tuchin, Bogdanoff & Stern LLP B.A., University of Manitoba; B.A.Juris., B.C.L., Oxford University Honors: America's Leading Lawyers for Business (CHAMBERS USA, ); Who s Who Legal: USA Insolvency & Restructuring, 2006); Southern California Super Lawyers (Law & Politics Media, Inc., ); Bigelow Fellow and Lecturer in Law, University of Chicago ( ) Memberships: Financial Lawyers Conference (Secretary ( ), Vice President and Seminar Coordinator ( ), President ( ), Board of Governors ( , present); California State Bar (Debtor-Creditor Relations Committee, Business Law Section, ); Los Angeles County Bar Association (Bankruptcy Sub-Committee, Commercial Law and Bankruptcy Committee, ); Fellow, American College of Bankruptcy Publications Include: Current Issues Involving Adequate Protection in Real Estate Bankruptcies, 22 CAL. BANKR. J. 75 (1994); Contributing Author, COLLIER ON BANKRUPTCY xvii

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