South Carolina

Presented by ABI’s Secured Credit Committee, this panel will discuss recent trends and developments concerning debtor-in-possession financing by highlighting relevant issues from the debtor’s, lender’s, and creditors’ committee’s perspectives. The discussion will focus on recent chapter 11 cases, including cases from the retail and energy industries, disruption from COVID-19, and broader market observations.

ABC sponsored this October 22, 2020, session from the Insolvency 2020 Summit. The expert panel addresses the use of technology by bankruptcy professionals inside and outside of the courtroom. The panel materials include applicable Model Rules of Professional Conduct and feature a section on questionable lawyer behavior. The panelists also suggest best practices for fee applications.

This session will discuss the impact of extraordinary and unforeseen changes in the economy; feasibility in a COVID-19 world; the split between § 1141 analysis and traditional opt-in/opt-out provisions for third-party releases; the best-interest test in connection with third-party releases; the fate of Till and cramdown; valuation issues such as what happens when projections are totally wrong; exclusivity termination; attempts to put assets beyond the reach of lenders; plan voting/§ 1129(a)(10) and artificial impairment; and estimation for voting purposes.

Is the committee’s role shrinking? This session will cover statutory vs. ad hoc committees; challenging exclusivity; judicial reactions to the use of ad hoc committees; whether all committees have a fiduciary duty, and if so, to whom; how far committees can go in representing different unsecured creditor groups (divergent interests, or multiple committees?); ad hoc lender groups; whether gifting has survived; and the risk of extinction by examining Constellation and the problem of sudden death to committee by conversion on demand.

This session will highlight several of the Rules of Professional Conduct, including RPC 1.5 (Fees); the Alix/McKinsey litigation; RPC 3.3 (Candor to Tribunal); RPC 4.1 (Truthfulness to Others); the U.S. Trustee guidelines concerning retainers; RPC 7.1 (Communications Concerning a Lawyer’s Services); overbilling, RPC 8.4 (Misconduct); fee examiners, RPC 1.3 (Diligence); disclosures, Bankruptcy Rule 2014; RPC 1.7 (Conflict of Interest); and RPC 7.3 (Solicitation of Clients).