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Breaking the Log Jam: The Trend Toward Pre-Plan Mediation of Case-Dispositive Disputes in Chapter 11


Level: Advanced
Runtime: 62 minutes
Recorded Date: April 11, 2019
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Agenda


  • Types of Cases That May Benefit fro Mediation to Reach Case Dispositive Results
  • When Should Case Dispositive Mediation Occur?
  • Who Decides on Whether to Appoint a Mediator?
  • Who Should Participate?
  • What is the Role of the Mediator?
  • What is the Best Format for Mediation?
  • Conclusion
Runtime: 1 hour
Recorded: April 11, 2019

Description

Mediating disputes is not new to bankruptcy litigation, but recent years have seen a trend toward pre-plan mediation of key issues in chapter 11 cases that pave the way for asset sales, plan confirmation and an efficient emergence from bankruptcy. Some examples of this include “bet the farm” litigation necessary to fund plan distributions, lien challenges/avoidance claims, claim objections, plan treatment, sale objections, third-party releases and insider claims, and structured dismissals.

This panel discusses the role of UCCs, confidentiality of mediation discussions (especially important on case-dispositive issues if the matter is not resolved), impact of the changing composition of senior lenders from institutions to private-equity and hedge funds, and judicial acceptance and/or encouragement of mediation of key disputes, including the authority to order mediation.

This program was recorded as part of ABI's Annual Spring Meeting on April 11th, 2019.

Provided By

American Bankruptcy Institute

Panelists

Adrienne K. Walker

Partner
Locke Lord LLP

Adrienne K. Walker is a partner with Locke Lord LLP in Boston and focuses her practice on restructuring and commercial finance. She has bankruptcy litigation experience in creditors’ rights and representing debt-holders in chapter 11 and chapter 9 municipal bankruptcies.

Ms. Walker often represents strategic trade creditors, official and ad hoc committees, bondholders, debtors, lease parties and trustees. Her commercial lending work involves advising borrowers on private-equity and secured financing transactions.

Ms. Walker works with clients in many industries, with a particular focus on life sciences, health care, retail, senior living and manufacturing. She also advises both borrowers and lenders on complex debt structurings, including transactions involving traditional banks and, more often, private equity.

In addition, Ms. Walker is an adjunct professor at Suffolk University Law School, where she teaches advanced courses in business bankruptcy. She is also a frequent speaker and writer on numerous topics of interest in the bankruptcy and commercial lending fields. Following law school,

Ms. Walker clerked for the Justices of the Superior Court of Massachusetts. She received her undergraduate degree with honors in political science from Simmons University and her J.D. magna cum laude from Suffolk University Law School.

James R. Irving

Managing Partner
Dentons US

James R. Irving is the managing partner of the Louisville, Ky., office of Dentons US and co-chairs its Restructuring, Insolvency and Bankruptcy practice group, where he focuses on bankruptcy and restructuring matters, purchasing distressed businesses and their assets, as well as commercial litigation. He has experience representing debtors, creditors, committees, trustees, asset-purchasers and interested third parties in chapter 11 and 7 bankruptcy cases, in addition to representing creditors in foreclosure proceedings and other litigation. He also has practiced commercial litigation with a broad range of experience in state and federal courts and before the American Arbitration Association.

Mr. Irving was named one of Louisville Business First’s Forty Under 40 in 2019, was selected for the National Conference of Bankruptcy Judges Next Generation Program in 2018, and was a member of the 2017 inaugural class of ABI’s “40 Under 40.” In addition, he received the Chicago Bar Association’s Exceptional Young Lawyer Award in 2013.

Mr Irving’s experience with matters of juvenile justice through his pro bono work has led to opportunities to teach CLE sessions and edit publications on the subject for the American Bar Association. He received his B.A. in 2005 in history and political science from Williams College and his J.D. in 2008 from Vanderbilt University Law School.

Jay S. Geller

Sole Member
Law Office of Jay Geller

Mr. Geller focuses his practice on complex bankruptcy and commercial litigation, corporate reorganizations, workouts, Chapter 11 bankruptcies, and bankruptcy and commercial mediation. He has represented creditors’ committees, debtors, trustees, secured creditors, and unsecured creditors in cases of regional and national significance, including: the Creditors Committees in In re Great Northern Paper, Inc., and In re Lincoln Paper and Tissue, LLC, two Maine paper mills, In re Belknap, Inc., and In re HFH, Inc., two of the largest Chapter 11 cases in Kentucky history, and In re Telesphere Communications, Inc., a complex telecommunications bankruptcy in Illinois; the debtors in In re Commercial Financial Services, Inc., a case involving approximately $1.6 billion in securitized assets, and In re Direct Air, Inc., a commuter airline bankruptcy; the Chapter 11 trustee in In re Chicago, Missouri & Western Railway Company, one of the first railroad reorganizations under the Bankruptcy Code of 1978; one of the “test case” plaintiffs in the LandAmerica bankruptcy case; secured creditors such as Freddie Mac, Ocwen Federal Bank FSB, Home Savings of America, and The Bank of Maine in dozens of commercial foreclosure, bankruptcy, and receivership cases; and unsecured creditors and interested parties in the Fairpoint Communications and Montreal, Maine & Atlantic Railway Chapter 11 cases.

Mr. Geller was a partner in the Commercial Law Department of Jenner & Block (Chicago) until he relocated to Maine in 2000. From 2000-2008, Mr. Geller was the sole member of the Law Office of Jay S. Geller and, for most of that time, Of Counsel to Shaw Fishman (Chicago). From 2009-2011, he was Co-Chair of the Business Restructuring and Insolvency Practice Group of Bernstein Shur. Effective as of January 1, 2012, Mr. Geller reestablished the Law Office of Jay S. Geller.

Mr. Geller has served for more than 20 years as a faculty member at the National Institute of Trial Advocacy and its successor program, the American Bankruptcy Institute Litigation Symposium, teaching trial advocacy skills to commercial and bankruptcy attorneys. In 2013, he completed the ABI-St. John’s University 40-Hour Bankruptcy Mediation Training Program. Mr. Geller has spoken to numerous bar and professional associations on bankruptcy litigation topics, general bankruptcy issues, the role and duties of creditors committees, real estate issues in bankruptcy (including single-asset bankruptcies), confirmation issues in Chapter 11 cases, commercial foreclosure issues, and intellectual property issues in bankruptcy. He currently serves as Vice-Chair of the Business Litigation Subcommittee of the American Bar Association’s Bankruptcy & Insolvency Litigation Committee.

In addition to his bankruptcy and commercial litigation practice and his mediation practice, Mr. Geller was a member of the Board of Directors of Pro Bono Advocates (now known as the Domestic Violence Legal Clinic), an Illinois not-for-profit corporation, from 1992-1999, and served as President of PBA’s Board from 1994-1997. He has been recognized by the Illinois State Bar Association and PBA for his work on behalf of victims of domestic violence and applicants for political asylum, as well as for other public service. Mr. Geller was a member of the Board of Trustees of Congregation Bet Ha’am (South Portland, Maine) from 2007-2013, and continues to serve the Congregation in various capacities. Mr. Geller recently became a volunteer for the Credit Abuse Resistance Education (CARE) program.

Mr. Geller is a Fellow of the prestigious American College of Bankruptcy and is certified as a business bankruptcy specialist by the American Board of Certification. He is AV-rated by Martindale Hubbell, and is recognized by Chambers USA and Best Lawyers in America for his work in bankruptcy law.

Hon. Barbara J. Houser

Chief Judge
U.S. Bankruptcy Court, Northern District of Texas

Barbara J. Houser is the chief bankruptcy court judge for the Northern District of Texas. Judge Houser was sworn in by Chief Judge Carolyn Dineen King as the first female bankruptcy judge in the Northern District on January 20, 2000.

Upon graduation from law school, Judge Houser joined Locke, Purnell, Boren, Laney & Neeley in Dallas and became a shareholder in 1985. She joined Sheinfeld, Maley & Kay PC in 1988 as the shareholder in charge of the Dallas office and remained there until she was sworn in as a bankruptcy judge on Jan. 20, 2000.

Judge Houser was named President-Elect of the National Conference of Bankruptcy Judges, her term began on Oct. 21, 2009.

Judge Houser was born in Scottsbluff, Nebraska, in 1954 and was admitted to the Texas Bar in 1978. She received her B.S. degree with honors in 1975 from the University of Nebraska and her law degree from Southern Methodist University School of Law in 1978.


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