Bankruptcy Litigation

This panel will discuss “Stern problems” regarding bankruptcy court jurisdiction and the standing of various parties in light of the Supreme Court’s ruling in Executive Benefits Insurance Agency v. Arkison in order to identify simple solutions to these complex constitutional problems. The faculty will explain the key Supreme Court cases on constitutional jurisdiction and apply these cases to fact patterns involving preference claims, a Ponzi scheme case, a typical fraudulent conveyance claim, and a typical state law contract claim.

A broad array of potential restructuring clients — private equity, examiners, traditional bank clients, industry clients, etc. — will share their thoughts about best practices, dos and don’ts, and helpful anecdotes. What characteristics distinguish a great bankruptcy or restructuring practitioner? What advice should someone give to younger professionals in the industry who want to be future leaders? What are some examples of the challenging ethical dilemmas that younger professionals face, and how should they be handled?

Do you know the correct procedural answer, and even if the answer is “yes,” can you explain to your client why the practical answer might still be “no”? Corporate bankruptcy attorneys need to understand the procedural and practical effects of a bankruptcy judge’s discretion in key and routine motion practice.

Contested evidentiary hearings in chapter 11 confirmation battles have one near-constant attribute: They are expert witness-intensive undertakings. Whether relating to the value of a secured lender’s collateral, the appropriate discount rate to be applied in valuing a payment stream provided under a plan, compliance with the best-interests-of-creditors test, feasibility or any number of other potentially contested issues, presenting expert testimony is at least worth considering, if not required.

Latest post-petition interest litigation, make-whole payments (School Specialty, AMR), OID, etc. (ResCap, KV Pharma); enforceability of intercreditor agreements; class-action certification in bankruptcy (Rodriguez); settlement payments (Quebecor); post-Stern consent to jurisdiction cases (Sixth, Seventh and Ninth Circuits); § 502(d) disallowance under KB Toys; fraudulent transfer update (Tribune, Sentinel)