Inhaltsverzeichnis für February 2023 in ABI Journal

Coordinating Editor Aaron M. Kaufman Gray Reed & McGraw LLP; Dallas Coordinating Editor Bradley D. Pack Engelman Berger, PC Phoenix Coordinating Editor Christina Sanfelippo Cozen O’Connor Chicago Aaron Kaufman is a partner with Gray Reed & McGraw LLP in Dallas. Bradley Pack is a shareholder with Engelman Berger, PC in Phoenix. Christina Sanfelippo is an associate with Cozen O’Connor in Chicago and co-chair of ABI’s Young and New Members Committee. Multiple Affiliates: Every Action Taken for the Collective Estates Does Not Have to Be Good for Each Debtor Complex chapter 11 cases rarely involve a single debtor entity. Indeed, virtually every complex chapter 11 case involves multiple C affiliate debtors, and most of those affiliates inevitably have intercompany claims against each other, whether from accounting book entries or otherwise. The…

Coordinating Editor Luke A. Barefoot Cleary Gottlieb Steen & Hamilton LLP New York Coordinating Editor Camisha L. Simmons Simmons Legal PLLC Dallas Brad Lenox Cleary Gottlieb Steen & Hamilton LLP New York Luke Barefoot is a partner and Brad Lenox is an associate with Cleary Gottlieb Steen & Hamilton LLP in New York. Camisha Simmons is the managing member of Simmons Legal PLLC in Dallas. It is common in “prepackaged” or “prenegotiated” bankruptcies for a debtor to execute an agreement by which creditors agree to vote in favor of a reorganization plan. The popularity of such agreements (whether called “lock-up,” “plan-support” or “restructuring-support” agreements) is not surprising given that they minimize disputes (and costs), speed up the restructuring process, and provide all interested parties certainty and predictability. Although many plan-support…

Jaden Banks U.S. Bankruptcy Court (E.D. Mo.); St. Louis Jaden Banks is a law clerk to Hon. Bonnie L. Clair of the U.S. Bankruptcy Court for the Eastern District of Missouri in St. Louis. He previously clerked for the Missouri Court of Appeals in Springfield, Mo. In recent years, more and more people have traded, bought or sold digital assets, to the point that some 40 million Americans have actively invested in cryptocurrencies.1 The increased use of digital assets drove legislative changes to address the property rights associated with their use. In response, the Uniform Law Commission recommended changes to the Uniform Commercial Code recognizing digital assets as property and providing methods to sell, transfer and collateralize those assets, while several states have adopted their own approaches to regulating…

Richard J. Bernard Faegre Drinker Biddle & Reath LLP; New York Roya Imani Faegre Drinker Biddle & Reath LLP; New York Andrew N. Page Maslon LLP Minneapolis Richard Bernard is a partner and Roya Imani is an associate with Faegre Drinker Biddle & Reath LLP in New York. Andrew Page is an associate with Maslon LLP in Minneapolis. A real property asset has been described as a “bundle of sticks,”1 but what happens when one of those sticks detracts from the value of the bundle? Covenants, whether affirmative or negative,2 that run with the land (“real covenants”) can constitute such sticks because they are considered part of the real property, and they may restrict the use of the property or require the owner to perform some act. Justice Oliver Wendell…

Coordinating Editor Elizabeth B. Vandesteeg Levenfeld Pearlstein LLC; Chicago Lisa Vandesteeg is a partner in the Financial Services and Restructuring Group at Levenfeld Pearlstein LLC in Chicago. She is qualified as a Certified Information Privacy Professional for the U.S. Private Sector by the International Association of Privacy Professionals, and is an associate editor for the ABI Journal and a 2017 ABI “40 Under 40” honoree. The past several years have presented businesses with myriad challenges: the COVID-19 pandemic, supply-chain disruptions and, most recently, a looming economic recession. As a result, struggling companies may face restructuring or liquidation, and may seek to sell substantially all of their assets in connection with a sale pursuant to § 363 of the Bankruptcy Code (a “§ 363 sale”). For some debtors, customer lists and…

Roy M. Terry, Jr. The Terry Law Firm, PLLC; Richmond, Va. Klementina V. Pavlova Sands Anderson PC Richmond, Va. Roy Terry, Jr. of The Terry Law Firm, PLLC has specialized in commercial and consumer bankruptcy representations. He served for 18 years as a chapter 7 panel trustee and serves as a U.S. District Court receiver in cases initiated by the Securities and Exchange Commission. Klementina Pavlova is an associate with Sands Anderson PC, and her background includes secured transactions, bankruptcy and commercial litigation. They are based in Richmond, Va. Chapter 11 filings, like all bankruptcy filings, have noticeably declined since the onset of COVID-19. A number of bankruptcy courts have used the lull in filings exacerbated by COVID-19 to adopt or update local rules (LBRs), which provide procedures for the…

Duberstein Problem Released and Call for Judges Fifty-three teams of law students from around the nation will compete in the 31st Annual Duberstein Bankruptcy Moot Court Competition, taking place in New York March 4-6. This year’s problem, which was once again developed by Paul R. Hage of Jaffe Raitt Heuer & Weiss (Southfield, Mich.) and Prof. G. Ray Warner of St. John’s University School of Law (Jamaica, N.Y.), presents two important bankruptcy issues: 1. Whether a bankruptcy court has the authority to approve nonconsensual releases of direct claims held by third parties against nondebtor affiliates as part a chapter 11 plan of reorganization. 2. Whether a corporate debtor proceeding under subchapter V of chapter 11 of the Bankruptcy Code may, pursuant to 11 U.S.C. § 1192, discharge debts of types…

While new legislation and fresh issues await both chambers of the 118th Congress, which convened on Jan. 3, insolvency practitioners should antici-pate a number of priority bankruptcy issues resurfacing from previous sessions of Congress for consideration on Capitol Hill. This article provides a look at the changes to the legislative landscape in the 118th Congress, along with a brief overview of bankruptcy issues that are likely to regain the legislative spotlight. Legislative Landscape Changes As a result of the congressional elections in 2022, Democrats added to their narrow majority in the Senate, while Republicans overtook control of the House of Representatives by a slim margin. Democrats gained one seat in the Senate, expanding their previous majority in the 117th Congress from 50/50 (with a caucus of 48 Democrats, two independents,…

H. Jeffrey Schwartz Calfee, Halter & Griswold LLP New York Gus Kallergis Calfee, Halter & Griswold LLP Cleveland Jeffrey Schwartz is office partner-in-charge and co-chair of Business Restructuring and Insolvency with Calfee, Halter & Griswold LLP in New York. Gus Kallergis is co-chair of Business Restructuring and Insolvency in the firm’s Cleveland office. Few areas of bankruptcy law have been so beset by confusion and conflicting decisions as the entitlement of vendors to F administrative-expense priority for goods physically received, inspected and accepted by debtors from and after the 20th day preceding the filing of a bankruptcy case, as exemplified in the Kmart/Sears chapter 11 cases,1 in which seemingly contradictory rulings were issued by the court. In Kmart/Sears, the debtors filed a first-day motion seeking to affirm the administrative-expense priority…

Edward L. Schnitzer Montgomery McCracken Walker & Rhoads LLP New York Edward Schnitzer is a partner with Montgomery McCracken Walker & Rhoads LLP in New York and chair of the firm’s Bankruptcy and Financial Restructuring Department. He is also Education Director of ABI’s Mediation Committee. To qualify for an administrative-expense claim under § 503‌(b)‌(1)‌(A) of the Bankruptcy Code, a movant must establish that the expense arose from a transaction with the estate, and that such transaction benefited the estate. The U.S. Supreme Court’s Reading1 exception provides a limited exception to the estate-benefit requirement if the movant is able to establish that the claim arose from the wrongful conduct of a receiver/trustee. On Sept. 29, 2022, the U.S. Bankruptcy Court for the Western District of Oklahoma held that the Reading exception…

Dr. Adrienna Huffman The Brattle Group San Francisco Monet Lee The Brattle Group New York Coordinating Editor David Plastino The Brattle Group Boston Adrienna Huffman, Ph.D. is a senior associate at The Brattle Group in San Francisco. Monet Lee is a senior research analyst in the firm’s Bankruptcy and Restructuring Practice in New York. David Plastino, CPA is a principal in the firm’s Boston office and a lecturer in finance at the Boston University Questrom School of Business. Earlier this year, The Wall Street Journal reported that 25 companies that went public during 2020 and 2021 via Special Purpose Acquisition Companies (SPACs),1 sometimes referred to as “de-SPAC” companies, had been issued going-concern qualifications by their auditors.2 For example, Volta Inc., which operates a network of smart media-enabled charging stations for…

Michael J. Gieseke Office of the Chapter 12 and 13 Trustee Barnesville, Minn. Michael Gieseke is the staff attorney for Kyle L. Carlson, a chapter 12 and 13 trustee for the Districts of Minnesota and North Dakota. A chapter 12 trustee is tasked with fulfilling numerous statutory duties, fiduciary duties and other responsibilities assigned by the U.S. Trustee. However, the central statutory duty of a chapter 12 trustee is the receipt of payments from debtors, disbursement of funds to creditors, and accounting for such payments and disbursements.1 Payments to creditors under a chapter 12 plan are made in one of two ways: (1) from the debtor to the chapter 12 trustee, who then disburses the funds to creditors, in which case the trustee supervises and disburses the payments in accordance…

Abigail Stone Brigham Young University Law School Provo, Utah Abigail Stone is a third-year law student at Brigham Young University J. Reuben Clark Law School in Provo, Utah. She is a senior editor for the BYU Law Review and has spent the last two summers interning with bankruptcy law practitioners in the Salt Lake City area. Student loans have been a hot-button topic for the last several years, especially in recent months since the announcement of President Joe Biden’s student loan forgiveness plan. Regardless of one’s opinion of this plan, the reality is that this one-time forgiveness plan will not solve the student debt crisis for future borrowers. However, the bankruptcy system still offers a potential relief option for student loan debtors. In the spirit of the Bankruptcy Code —…

September (partial list) Spencer A. Winters Kirkland & Ellis LLP Chicago Nicole Wood U.S. Bankruptcy Court (N.D. Tex.) Fort Worth, Texas Lawrence E. Young AlixPartners LLP Houston October Julie Aberasturi U.S. Bankruptcy Court (E.D.N.Y.) Whitestone, N.Y. Alejandro Agredano Malpica, Iturbe, Buj y Maredes Ciudad de Mexico, Mexico Levi Akkerman Potter Anderson & Corroon LLP Wilmington, Del. Hon. Thomas L. Ambro U.S. Court of Appeals (Third Circuit) Wilmington, Del. Timon Amirani University of California, Los Angeles Los Angeles Ray AuYeung Lapis Advisers Denver Harrison Baker U.S. Bankruptcy Court (D. Conn.) Hartford, Conn. Alexis Banks Skadden, Arps, Slate, Meagher & Flom New York Angela Beblo Jackson Kelly PLLC Charleston, W.Va. Kristin K. Bednarek George Mason University Arlington, Va. Kamera Boyd Ballard Spahr LLP Bayonne, N.J. Todd Brannon U.S. Bankruptcy Court (W.D. Wash.)…

Biden Administration Unveils Plans to Ease Rules for Income-Based Student Loan Forgiveness The Biden administration on Jan. 10 released1 a detailed plan that aims to make it easier for student loan holders to wipe out their debts using income-driven repayment plans. “These proposed regulations will cut monthly payments for undergraduate borrowers in half and create faster pathways to forgiveness, so borrowers can better manage repayment, avoid delinquency and default, and focus on building brighter futures for themselves and their families,” U.S. Secretary of Education Miguel Cardona said. The administration first announced the change last August when it unveiled its plan to cancel up to $20,000 in student debt for qualifying borrowers. The U.S. Supreme Court plans next month to take up a challenge to that broader debt-forgiveness, which is frozen…

Alpesh Amin Riveron; Chicago Jessica Marek Riveron; Chicago Alpesh Amin is a senior managing director with Riveron in Chicago. He has more than 20 years of experience in corporate finance, restructuring and management consulting. Jessica Marek is a director in the same office, where she focuses on developing financial, operational, and strategic solutions for companies facing challenging circumstances or distress. To sustain or grow an enterprise, every company’s lifecycle will require either financing sources or the involvement of other strategic partners; these realities ring true whether a company is healthy or distressed. Market-leading companies — and their boards and management teams — often wish to capitalize on opportunities and go on the offensive by self-funding, seeking third-party financing or driving synergies through mergers and acquisitions (M&A). These proactive approaches allow…

Coordinating Editor Adam Gallagher Simpson Thacher & Bartlett LLP; London Arvid Morawe Hengeler Mueller Frankfurt Adam Gallagher is a partner with Simpson Thacher & Bartlett LLP’s European Restructuring Practice in London. Arvid Morawe is a senior associate with Hengeler Mueller in Frankfurt and advises corporate clients and financial investors on M&A transactions, as well as on corporate matters. Coordinating Editor’s Note: As some European countries enter what could be a prolonged recessionary economic climate, many will rightly worry about the value and integrity of their existing investments. However, where there is crisis, there is also opportunity. Investors with an appropriate appetite for risk will have the opportunity to acquire assets and businesses at significant discounts to what might have been the price a year ago. Yet distressed M&A is not for…

Clifford J. White III American Infosource Leesburg, Va. Cliff White is managing director for bankruptcy compliance at American Infosource, a financial technology firm. He previously served as director of the Executive Office for U.S. Trustees. I had the privilege of leading the U.S. Trustee Program (USTP), known as the “watchdog” of the bankruptcy system, for 17 years. In I March 2022, I retired after more than 40 years in public service, almost all of which was with the U.S. Department of Justice (DOJ). I am grateful to ABI for letting me share these perspectives with you. The Bankruptcy System Works The 1978 modern Bankruptcy Code carefully balances the rights of debtors, creditors and the general public. All of us have a stake in the fresh start for consumer debtors and…

Natalie Wilson Langley & Banack Inc. San Antonio Natalie Wilson is a shareholder with Langley & Banack, Inc. in San Antonio. With more than a decade of experience representing debtors, trustees and creditors in chapter 7 and 11 cases, including related litigation and appeals, she helps businesses thrive in challenging economic and regulatory environments. She is board certified in business bankruptcy law by the Texas Board of Legal Specialization. In August 2022, Disney released the trailer for its live-action remake of its 1989 classic The Little Mermaid. In case you are not an elder millennial who wore out the VHS tape of that fine film, the main character (Ariel) is a willful and romantic 16-year-old mermaid with pale skin and vivid red hair. In the upcoming remake, the title role…

Adina L. Pollan William A. Brandt Amanda Tersigni Andrew C. Helman Amy M. Leitch Hon. Barry S. Schermer of the U.S. Bankruptcy Court for the Eastern District of Missouri (St. Louis) announced that he has retired. He has been an ABI member since 1998. Adina L. Pollan has joined McGlinchey Stafford PLLC’s Financial Services Litigation Group as a partner in Jacksonville, Fla. She has been an ABI member since 2022. William A. Brandt of Development Specialists, Inc. (New York) received the 2022 Harvey R. Miller Outstanding Achievement Award from The Beard Group. He has been an ABI member since 1987 and is a past member of ABI’s Board of Directors. Amanda Tersigni of Norris McLaughlin, PA (Kings Park, N.Y.) has been appointed chair of the Young Professionals Committee of the…

ABI BOARD OF DIRECTORS EXECUTIVE COMMITTEE MEMBERS Chair Hon. Barbara J. Houser (ret.) U.S. Bankruptcy Court (N.D. Tex.); Dallas Immediate Past President Robert P. Reynolds Reynolds, Reynolds & Little, LLC; Tuscaloosa, Ala. President Hon. Kevin J. Carey (ret.) Hogan Lovells US LLP; Philadelphia President-Elect Soneet R. Kapila KapilaMukamal, LLP; Fort Lauderdale, Fla. Vice President-Research Grants Hon. Michelle M. Harner U.S. Bankruptcy Court (D. Md.); Baltimore Vice President-Communications & Information Technology Hon. Bruce A. Harwood U.S. Bankruptcy Court (D. N.H.); Concord Vice President-Diversity & Inclusion Eve H. Karasik Levene, Neale, Bender, Yoo & Golubchik, LLP; Los Angeles Vice President-Publications Paul D. Leake Skadden, Arps, Slate, Meagher & Flom LLP; New York Vice President-International Affairs Stephen D. Lerner Squire Patton Boggs; Cincinnati Vice President-Education Douglas L. Lutz Frost Brown Todd LLC; Cincinnati…