2015

Does a secure creditor engage in inequitable conduct if it acquires debt, or makes a loan with the intent to acquire the debtor rather than collect on the loan? This panel will discuss “Loan-to-Own” and other common and singular Section 363 bidding and acquisition strategies, including the pitfalls and advances of each.

As a result of falling energy prices, experts expect bankruptcy filings in the energy sector to increase, especially those in the oil and gas industry. Bankruptcy cases involving energy companies raise unique issues due to the interplay among the Bankruptcy Code, federal and state laws, the regulatory structure governing the energy industry, and the political and practical realities of the industry’s significance on national, regional and local levels.

Preservation and realization of NOLs through plan structures (Capmark, WaMu, Fremont General); tax-sharing agreements and allocations of tax benefits (Edison Mission); OID (ResCap); excess loss account; fair market exchanges; transfer pricing (Nortel); trading restrictions and more.

Cramdown interest rate (Momentive); extent of security interest (ResCap); credit-bidding (Fisker, Free Lance-Star Publishing); date of collateral valuation. Will Till and Momentive change future bankruptcies? How will pre-bankruptcy and DIP financing change? What new or different issues will arise at the beginnings and endings of cases? Will contested confirmation become the norm? Will secured lenders be less willing to support a bankruptcy process?

Discussion of EPF bankruptcy process issues. What are the duties of directors and their professionals in complex multi-debtor cases? More generally, when is it necessary to obtain a conflict waiver? Current vs. recent vs. former clients; directly adverse vs. positionally adverse; relatedness to a prior matter; use of confidential information; review of disinterestedness standards under Bankruptcy Code § 101(14) and related disclosure requirements; ABI Report on Standards of Professional Courtesy and Conduct.