Program Schedule

 

FORTY SIXTH ANNUAL
SOUTHEASTERN BANKRUPTCY LAW INSTITUTE

MARCH 19 - MARCH 21, 2020

THURSDAY, MARCH 19, 2020 (Morning Session)
7:45 - 8:55

Registration (continued through program) and Continental Breakfast (Registrants only – included in registration fee).

8:55 - 9:00 Welcome
9:00 - 10:00

Economic Overview - Economic Expansions Don't Die of Old Age, but what about other maladies? - As we head into what will be a bitterly contentious election year, what can bankruptcy professionals expect from this economy? Will lingering trade tensions and continued political stresses cause headaches for the economy? Our opening session will provide expert perspective on these important and intriguing issues from UMB Bank Chief Investment Officer K.C. Mathews.

SPEAKER: KC Mathews

10:00 - 11:00

The Art of Cross-Examination - Cross examination is indeed an art – and when practiced poorly can result in a waste of time, or, much worse, a counterproductive record. This presentation will offer the guidance to avoid common missteps and to make your cross examinations focused, effective and persuasive. Don’t miss this entertaining and informative presentation on the art of cross examination led by one of the leading bankruptcy litigators – and a sought-after instructor on cross examination techniques – Tom Salerno.

SPEAKERS: Tom Salerno & Yann Geron
11:00 - 11:15 Refreshment Break (Registrants only – included in registration fee)

11:15 - 12:35

BREAKOUT
SESSIONS

Chapter 11 Breakout Session

Mass Tort Bankruptcies and Third Party Releases: Observations from the Frontlines - Addressing mass tort liability through bankruptcy is not new – but with the emergence of talc litigation, the opioid crisis and other mass tort trends, mass tort bankruptcies are at the forefront of the restructuring world. A key component of these cases, as well as many other complex bankruptcy cases, is the third party release – a source of ongoing debate in the bankruptcy courts. This panel, incorporating leading perspectives from the bench, bar and academia, will examine these issues in detail and addressing both historic and current trends, and the latest developments in these headline restructuring issues.

SPEAKERS: Jeff Bjork, Judge Michael Wiles & Prof. Ralph Brubaker

Consumer Litigation Toolbox Breakout Session

Confirmation Toolbox - Confirm Your Client’s Chapter 13 Case! - You’ve got to get these Chapter 13 cases confirmed – otherwise why bother? This panel will give you the tools you need to get cases over the finish line. Figure out how to deal with all those pesky trustee feasibility objections, secured claim issues, cram down issues, disposable income and means test issues, and all the other hurdles between your client and confirmation.

SPEAKERS: Judge Lisa Ritchey Craig, Michelle Bass & Marcy Ford

12:35 - 1:40

Lunch (Registrants only – included in registration fee)

 

THURSDAY, MARCH 19, 2020 (Afternoon Session)

ELECTIVE PROGRAMS A AND B
Program A (Chapter 11 Workshop)
1:40 - 3:00

363 Sales and Successor Liability: Does One Size Really Fit All? - How clear is “free and clear”? The do’s and don’ts of documenting and structuring sales to avoid post-closing assertion of claims against the purchaser. What provisions will courts allow in sale orders to head off potential successor liability issues? What types of notice is required or advisable with respect to various types of creditors and claims? Methods for dealing with unknown claims and claimants. Ability of bankruptcy courts and state courts to interpret and enforce sale orders post-closing. When is it advisable to effectuate a sale under a plan rather than Section 363, or versus nonbankruptcy options, such as Article 9 or receivership.

SPEAKERS: Bob Keach, Terri Stratton & Michael Klein

3:00 - 3:15

Refreshment Break (Registrants only – included in registration fee).

3:15 - 4:35

Current Leading Issues For Secured Lenders: This panel will examine how the bankruptcy and restructuring landscape has shifted for secured lenders in light of some recent landmark decisions and large administratively insolvent cases.  Among other topics, this panel will discuss the Momentive Performance Materials decision and its impact on secured creditor’s cram down risk, as well as the recent decisions in La Paloma Generating Co., Energy Future Holdings, and MPM Silicones with respect to those court’s varying interpretations of intercreditor agreements. Finally, the panel will provide an overview of how bankruptcy courts, creditors’ committees, the US Trustee’s office, and other constituents have evolved their approaches to certain provisions in DIP and cash collateral orders (e.g., carve outs, 506(c) waivers, budget requirements, stub rent payments, etc.) in light of heightened concerns arising from several recent high-profile administratively insolvent cases (Toys ‘R Us, Sears, and Shopko).

SPEAKERS: Julia Frost-Davies, Jeff Bjork & Reggie Dawson

4:35 - 6:00

Cocktail Reception (Registrants and Spouses)

Program B (Consumer Workshop)
1:40 - 2:20

Selling - and Valuing - a Partial Interest in Goods - Your client owns a half interest in a house or car, or maybe the client only has a life estate. How does a partial interest in goods impact their case and the value of the asset? Is the co-owner going to get sued under 363(h)? What if said property is fully encumbered and the trustee makes a deal with the creditor for a short sale? How do you protect your client’s homestead exemption if the trustee sells the property? What if the property is fully encumbered by a tax lien or a judgment lien? Are tax and/or judgment liens treated differently than mortgages? What about marshalling issues? How do all of these issues impact the valuation and the potential sale of the asset? This panel will discuss these issues and more so that you have the tools to protect your client.

SPEAKERS: Soneet Kapila & Mary Beth Ausbrooks

2:20 - 3:00

Stay! and Other Commands You’d Like to Have Followed - Debtors need the automatic stay. If your client has a prior case(s), you’re going to need to file a motion to extend or impose the stay. What issues does that raise for your case? How substantial of a change in circumstances do you need to be able to show? Do you need an affidavit from your client or does your client need to take another day off of work for the hearing? Should you always file that stay motion or is it sometimes better in the long run to just let the creditor proceed? This panel will address all the automatic stay questions you have but are afraid to ask.

SPEAKERS: Judge Diane Finkle, Travis Sasser & Judge D. Sims Crawford

3:00 - 3:15 Refreshment Break (Registrants only – included in registration fee).
3:15 - 3:55

The Ball and Chain: The Non-Filing Spouse and Other Family Members - “That’s not mine! It belongs to my spouse/sibling/parent/friend!” We’ve all heard that before. How do these “significant others” impact the case? What about the income of a non-filing spouse? If the NFS has higher income, is that a problem for the debtor? Can the marital adjustment expenses in the means test be larger than the non-filing spouse’s income? What if the marriage is post-petition in a Chapter 13? What if the debtor doesn’t know details about their spouse’s income or assets and doesn’t have access to the information? Does that create a bad faith issue for the debtor? How can you force a non-debtor to participate in a bankruptcy when he or she is not a party? These are frequent quandaries that you need to be able to address!

SPEAKERS: Judge Paul Bonapfel, David Peake & Mary Beth Ausbrooks
3:55 - 4:35

Put Up Your Dukes! 13 Discharges with Unpaid Secured Creditors - Your client made all required Chapter 13 payments and now your client wants a discharge. That’s logical. After all, the discharge was the goal of the case! But what about all those missed mortgage payments? Does the fact that the debtor did not stay current or did not “cure and maintain” the secured debt payments bar the discharge? The 11th Circuit Case, In re Dukes, says failure to stay current or “cure and maintain” secured debt payments might bar the discharge. This panel will help you draft a bulletproof plan and show you how to handle the case to give your client the best shot at a discharge.

SPEAKERS: Sabrina McKinney, Michelle Bass & Marcy Ford
4:35 - 6:00

Cocktail Reception (Registrants and Spouses)

6:00 - 9:00

The Painted Pin Bowling Reception – included with conference registration but space is limited. Prior registration is required!

 

FRIDAY, MARCH 20, 2020 (Morning Session)
8:00 - 9:00

Continental Breakfast (Registrants only – included in registration fee).

9:00 - 10:00

Supreme Court and Appellate Court Roundup: Latest Developments in Bankruptcy Issues in the Supreme Court and Circuit Courts. Eric Brunstad will discuss recent Supreme Court opinions and pending Supreme Court cases addressing bankruptcy issues and how those cases will affect our practices. Eric will also explore splits among the Circuits on bankruptcy issues, the likelihood of resolution by the Supreme Court, and implications for consumer and business practitioners.

SPEAKER: Eric Brunstad
10:00 - 11:00

Through Gritted Teeth and Clenched Jaw: Court-Initiated Sanctions Opinions In Bankruptcy Courts - Explore the behaviors that trigger court-initiated sanctions opinions and what may happen on appeal.

SPEAKERS: Prof. Nancy Rapoport, Judge James Sacca & Judge Bess Creswell
11:00 - 11:15 Refreshment Break (Registrants only – included in registration fee).

11:15 - 12:35

BREAKOUT
SESSIONS

Chapter 11 Breakout Session

Limits of Bankruptcy Court Jurisdiction - This panel will explore the “other” jurisdictional issue encountered in bankruptcy: determining the full scope of federal bankruptcy jurisdiction (without regard to the Marathon/Stern issues of the extent to which that jurisdiction can be exercised by a non-Article III bankruptcy court). The most difficult issues regarding the outermost limits of federal subject-matter jurisdiction in bankruptcy involve statutory “related to” jurisdiction in third-party disputes (involving state-law claims to which the bankruptcy estate is not a party) and so-called “supplemental” bankruptcy jurisdiction over such third-party claims. Determining the limits of the statutory grants of federal jurisdiction over such third-party state-law claims also necessitates consideration of the constitutional basis for (and limits of) federal bankruptcy jurisdiction over state-law claims.

SPEAKERS: Prof. Ralph Brubaker, Eric Brunstad & Judge Paul Baisier

Consumer Litigation Toolbox Breakout Session

Case Law Update - The Case Law Update: What’s New in the World of Consumer Bankruptcy? - This is the panel everyone in the consumer bankruptcy world needs to hear to stay current in their practice. It will cover all the latest, greatest, cases and will keep you from committing malpractice. ‘Nuff said!

SPEAKERS: Hank Hildebrand, Judge D. Sims Crawford & Sabrina McKinney

12:35 - 1:40

Lunch (Registrants only – included in registration fee).

 

FRIDAY, MARCH 20, 2020 (Afternoon Session)

ELECTIVE PROGRAMS A AND B
Program A (Chapter 11 Workshop)
1:40 - 3:00

Changes on the Waterfront: Small and Middle Market Chapter 11 Cases - This is a small and middle market 11 smorgasbord. What are any effects of recent legislation and decisions in small and middle market cases? This panel discussion will cover the SBRA (Small Business Reorganization Act of 2019), its genesis, use, and forecast areas for potential litigation. What is the projected impact on parties-in-interest: founders and families (and retention of equity or not), employees, suppliers, lenders, and communities? What are best strategies on “moving” the case and “affording” chapter 11 (by managing admin costs) including Subchapter V trustees, use of third party neutrals and third party vendors? Is there a committee? What is the role of a committee? What are best practices on managing ESI (electronically stored information) and use of e-discovery? What are a lender’s avenues to limit their bankruptcy risk? What financing opportunities are possible in these cases?

SPEAKERS: Derek Abbott, Bob Keach & Judge Wendy Hagenau
3:00 - 3:15 Refreshment Break (Registrants only – included in registration fee).
3:15 - 4:35

D&O Issues: Current issues in corporate governance, director liability and related matters: private equity governance, conflicts and protocols for dealing with multiple representations [Kirkland and Skadden protocols]; limitations on governance and filing, the “golden share” and other limitations on governance; use of independent directors and/or special committees to deal with related party transactions (e.g. dividend recoups, etc.); disclaimer of duties including with respect to Delaware LLCs and Delaware Limited Partnerships, exculpation, the business judgment rule and related matters; trusts and other litigation vehicles and the impact on D&O insurance.

SPEAKERS: Michael Klein, Julia Frost-Davies & Tom Salerno

Program B (Consumer Workshop)
1:40 - 2:20

How to Lose Successfully in Bankruptcy Court - You win some arguments you shouldn’t win, and you lose some arguments you shouldn’t lose. It’s just a fact of life in bankruptcy court. This panel will discuss practical tips and strategies for anticipating a potential loss, will address how you can react to a loss, and will help you figure out how to pull a loss into the win column – or at least into a partial win. Most importantly, it will help you sell it to your client as a total victory!

SPEAKERS: Judge Diane Finkle, Judge Cynthia Norton & Judge Sage Sigler
2:20 - 3:00

Understanding Tax Returns: Analysis of Returns by a Debtor’s Counsel and a Trustee - Tax returns are an incredible source of information. They list income, marital status, tax refunds, businesses, investments, asset depreciation and so much more. A post petition return in a chapter 13 can even impact the plan payment going forward. You have to produce tax returns at the inception of every case and most chapter 13 trustees require tax returns for the life of the case. You know they will be mining for information, so debtor’s counsel needs to do the digging in advance. This panel will teach a non-accountant how to read a return and to spot undisclosed assets and other items that can send a case off the rails and will address legal issues raised by the information found in the returns.

SPEAKERS: Soneet Kapila & David Cox
3:00 - 3:15 Refreshment Break (Registrants only – included in registration fee).
3:15 - 3:55

Discharge: The Dessert After the Dinner - The discharge is like dessert after the dinner. But what debts are actually discharged? What about that judgment against your client? What about unpaid attorney’s fees from a divorce case? Does it matter how the divorce decree is worded? Specifically, who is the debtor supposed to pay, the divorce attorney or the ex-spouse? What can creditors do to anticipate and possibly block a discharge of the debt? Can you structure a litigation settlement agreement to account for bankruptcy and to set up a res judicata/collateral estoppel argument in nondischargeability proceedings? This panel will cover all the ins and outs of thorny discharge issues.

SPEAKERS: Judge Cynthia Norton & Travis Sasser
3:55 - 4:35

Small Businesses, Big Challenges - The debtor has a small business and is in personal financial trouble. Can the business owner file a personal bankruptcy? Is a chapter 13 or a chapter 7 a better option? What if the business is an LLC or a corporation and not a sole proprietorship? Does the client need to wind down the business before filing a personal bankruptcy or can the business keep operating? Are the assets and liabilities of the business listed in the personal schedules? What about personal guaranties for the business debts? Can personal guaranties be discharged even if the business keeps operating? What information will you need for a chapter 13 Business Debtor Questionnaire? What can a chapter 7 trustee do with the business? See this panel before you wind up in a bad situation with a business debtor!

SPEAKERS: Judge Michele Kim, David Peake & David Cox

 

SATURDAY, MARCH 21, 2020 (Morning Session)
8:00 - 9:00

Continental Breakfast (Registrants only – included in registration fee).

9:00 - 10:00

Professionalism in the Face of Unprofessional Opposing Counsel and Problem Pro Se Parties: Preserving the Record in the Courtroom: Dealing with the Devil - We’ve all had to deal with an unprofessional opposing counsel or a jerk pro se litigant. It may feel like you’re dealing with the devil, but you’ve got to keep your cool and maintain your professionalism. This panel will guide you on how to do that and how to perfect and preserve the record in the event you need to appeal. This is preaching for the choir!

SPEAKERS: Prof. Nancy Rapoport & Judge Paul Bonapfel
10:00 - 11:00

Litigation Issues In Avoidance Actions - Litigation issues in avoidance actions: pleading requirements and recent case law regarding the plausibility standard; evidentiary issues, including books and records and presumptions; international application of fraudulent transfer law and the safe harbor of 546(e).

SPEAKERS: Yann Geron & Derek Abbott
11:00 - 11:15 Refreshment Break (Registrants only – included in registration fee).
11:15 - 12:15

Newer Judges' Roundtable: If I Knew Then What I Know Now - We all know the world looks different from the bench than it does from the counsels’ tables. But wouldn’t it be great to have both perspectives? This panel enlists some of our newest bankruptcy judges to share that information. They’ll tell you what they know now that they wish they knew before taking the bench. They’ll discuss the pet peeves they didn’t think they would have, their favorite and least favorite aspect of being a judge, and much more. They’re only recently removed from the trenches and they remember both sides, so make sure you stick around for this very informative final panel!

SPEAKERS: Judge Mary Grace Diehl, Judge Lisa Ritchey-Craig, Judge Michele Kim & Judge Bess Creswell