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Anatomy of a Pharmaceutical Bankruptcy Case


Level: Intermediate
Runtime: 74 minutes
Recorded Date: December 03, 2020
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Agenda

  • Recent surge in pharmaceutical bankruptcy cases, factors leading to bankruptcy, and outcome/resolution of cases
  • Primer on US pharmaceutical industry, including capital structures and development companies versus in pipeline companies
  • Unique bankruptcy issues for pharmaceutical bankruptcy cases, 363 sales of pharmaceutical companies’ assets, and restructuring plans
  • Opiate bankruptcy cases—Purdue, Mallinckrodt, and Insys
  • Ancillary issues that arise in pharmaceutical bankruptcy cases—such, product recalls, regulatory issues (FDA), and IP licensing issues
  • Impact of COVID on Pharmaceutical Industry
Runtime: 1 hour, 14 minutes
Recorded: December 3, 2020

Description

This panel will present a primer on the U.S. pharmaceutical industry, focusing on the typical capital structures of pharmaceutical/development companies versus in-pipeline companies. The panelists will examine the factors leading to the recent surge in pharmaceutical bankruptcy cases and their outcomes/resolutions, as well as ? 363 sales of pharmaceutical companies’ assets and restructurings. Opiate bankruptcy cases such as Purdue and Mallinckrodt will be highlighted, as will ancillary issues that arise in pharmaceutical bankruptcy cases, such as product recalls, regulatory issues (such as with the FDA) and IP licensing issues.

This program was recorded as part of ABI's 2020 Virtual Winter Leadership Conference on December 3rd, 2020.

Provided By

American Bankruptcy Institute
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Panelists

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Scott A. Zuber

Member
CSG Law

Scott Zuber advises on all facets of bankruptcy and creditors' rights matters and related commercial litigation. His experience includes post-petition financing and cash collateral matters; representation of sureties in bankruptcy matters; plan negotiation and confirmation issues; asset sales; representation of, and participation on, creditors' committees; federal appellate practice; trading in claims; avoidance action litigation; pre-bankruptcy workouts; commercial collections; and negotiating and drafting commercial loan documents, including those related to asset-based transactions.

Scott clerked with the Honorable Mahlon L. Fast, Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, NJ.

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Ben Pickering

Principal, Restructuring Advisory Services Group
Ernst & Young

Ben Pickering is a principal in Ernst & Young’s Restructuring Advisory Services group in New York and leads its U.S. Restructuring Life Sciences team. He has 30 years of professional experience addressing special situations and distressed matters for a wide variety of constituents.

Mr. Pickering has in-court and out-of-court experience addressing such issues as business planning, alternatives and execution, strategic alternatives, enterprise restructuring, recovery alternatives and analysis, negotiation and resolution with various stakeholders, liquidity analysis and financial constraints resolution, cash flow and financial modeling under steady state and alternative operating scenarios, and financial reporting and monitoring.

Immediately prior to joining EY, Mr. Pickering served as the interim CFO of a distressed pharmaceutical company. In this role, he led the negotiations with its sponsor and lenders, as well as other key stakeholders. He also reorganized the accounting and treasury functions, and implemented cash-flow and financial forecasting for use in business planning and negotiations with key stakeholders and restructured operations. He also prepared and negotiated the potential financing options required to support the company, and led the preparations for a potential chapter 11 filing and, ultimately, the sale of the business via a creative mechanism.

In addition, Mr. Pickering has also advised clients on crisis resolution and rapid cost takeout, operational alternatives and related impacts, including strategic assessment and options analysis, the restructuring of operations, divisional consolidation/ rationalization, business divestitures and debt restructuring. His international experience includes matters in the U.S. and Canada, Trinidad, the Cayman Islands, Bermuda, the U.K., Cyprus, Greece, Ivory Coast, Liberia, China (including Hong Kong and Macau before the handovers) and Thailand.

Mr. Pickering received his B.A. in commerce from the University of Toronto.

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Benjamin Carlsen

Senior Counsel, Credit & Bankruptcy
McKesson Corporation

Benjamin Carlsen is a Senior Counsel at McKesson Corporation overseeing the Credit & Bankruptcy division. Ben earned his JD from the University of Georgia School of Law in 2009.

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Jeffrey K. Garfinkle

Shareholder
Buchalter, PC

Jeff Garfinkle represents secured and unsecured creditors, creditors’ committees, trustees, equity receivers, debtors, and other parties in interest in a variety of bankruptcy, restructuring cases and collection matters, including out of court workouts. Jeff also specializes in matters pertaining to Articles 2 and 9 of the Uniform Commercial Code and assets sales of bankrupt and financially-troubled companies.

Jeff is regarded as one of the nation’s leading healthcare and pharmaceutical insolvency attorneys. For more than 20 years, he has served as primary U.S. insolvency, bankruptcy and collections counsel to the world’s largest healthcare corporation. In this capacity, Jeff has handled hundreds of healthcare and pharmaceutical-related bankruptcy and restructuring matters. Beyond this work, Jeff has represented committees, debtors, creditors and other parties in dozens of other healthcare bankruptcy cases. The depth and extent of Jeff’s healthcare and pharmaceutical bankruptcy expertise is unparalleled.

Jeff is deeply committed to public service and mentorship. One of Jeff’s proudest career achievements is “orchestrating,” on a pro bono basis, the successful Chapter 11 reorganization of the San Diego Symphony, during which he devoted 1,000 hours and was awarded an honorary lifetime membership in the American Federation of Musicians. Twenty-five years after emerging from bankruptcy, the San Diego Symphony continues to thrive and is one of the largest endowed orchestras in the United States. For the last decade, Jeff has served as an advisor to the law student-run Emory Bankruptcy Developments Journal.

As a recognized expert on bankruptcy, healthcare, pharmaceutical, debt financing, and commercial law issues, Jeff has spoken at numerous conferences, including those held by the National Conference of Bankruptcy Judges, American Bankruptcy Institute, and American Bar Association.

For 2021, Jeff again is recognized as one of the Best Lawyers in America in the area of Bankruptcy and Creditor Debtor Rights and Insolvency and Reorganization Law. Jeff is a member of the Board of Governors of the Financial Lawyers Conference and serves as Chair for the Commercial and Regulatory Law Committee of the American Bankruptcy Institute.

Jeff joined Buchalter in 2003 following 12 years with an international law firm and a one-year clerkship with the Honorable Louise DeCarl Adler, United States Bankruptcy Judge for the Southern District of California. In addition to practicing before the United States Supreme Court, Jeff has argued appeals in five Federal Courts of Appeals and handled bankruptcy matters in dozens of districts throughout the United States.

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Hon. Elizabeth S. Stong

Judge
U.S. Bankruptcy Court, Eastern District of New York

Judge Elizabeth S. Stong has served as U.S. Bankruptcy Judge for the Eastern District of New York since 2003. Before entering on duty, she was a litigation partner and associate at Willkie Farr & Gallagher in New York, an associate at Cravath, Swaine & Moore, and law clerk to Hon. A. David Mazzone, U.S. District Judge in the District of Massachusetts.

Judge Stong is a member of the Council on Foreign Relations and the Council and Membership Committee of the American Law Institute. She is also a Trustee and member of the Executive Committee of the Practising Law Institute, a member of the board of P.R.I.M.E. Finance, an international dispute resolution organization that promotes judicial education in complex financial disputes, and a member of the Board of Directors of the Harvard Law School Association of New York City. She is co-chair of the New York Fellows of the American Bar Foundation, serves on the ABA Standing Committee on Pro Bono and Public Service, represents the ABA’s National Conference of Federal Trial Judges in the ABA House of Delegates, and is a member of the Council of the ABA Business Law Section. She serves as co-chair of the New York City Bar Council on the Profession, a member of the New York County Lawyers Association Justice Center Advisory Board, and a board member of the New York Law Institute. She is an adjunct professor at Brooklyn Law School and St. John’s University School of Law.

Judge Stong is active in international judicial capacity building and has trained judges on five continents, including in Central Europe, North Africa, the Middle East, and the Arabian Peninsula, as an expert with the World Bank, the International Finance Corporation, and U.S. Department of Commerce Commercial Law Development Program. She has also consulted with the Supreme Court of China and People’s High Courts in Beijing and Guangzhou, and has participated in judicial workshops in Cambodia, Brazil, Argentina and Chile. She is an elected member of the European Law Institute and an Adviser to the ELI-UNIDROIT Principles of Transnational Civil Procedure project.

Judge Stong previously served as President of the Harvard Law School Association, chair of the International Judicial Relations Committee of the National Conference of Bankruptcy Judges, Vice President of the Federal Bar Council, Vice President of the Board of Directors of New York City Bar Fund Inc. and the City Bar Justice Center, Chair of the New York City Bar’s Alternative Dispute Resolution Committee and Vice Chair of its Judiciary Committee, the Board of Directors of the International Insolvency Institute, and an officer of the ABA Business Law Section. She was also a member of the board of MFY Legal Services, Inc., one of the largest providers of free civil legal services to low-income residents of New York City, and served on the ABA’s Standing Committee on the American Judicial System, Standing Committee on Continuing Legal Education, Commission on Women in the Profession, and Commission on Homelessness and Poverty.

Judge Stong received the Brooklyn Bar Association’s Freda Nisnewitz Award for Pro Bono Service, the New York Institute of Credit’s Hon. Cecelia H. Goetz Award, the ABA Business Law Section’s Glass Cutter Award, and the MFY Legal Services Scales of Justice Award, among other recognitions.

Judge Stong received her A.B. magna cum laude and her J.D. from Harvard University.


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