Attention:

LLC Bankruptcies


Level: Advanced
Runtime: 74 minutes
Recorded Date: May 22, 2019
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Agenda


  • Treatment of LLCs in Bankruptcy
  • Fiduciary Duties of Managers and Members of Delaware LLCs
  • Standing to Prosecute Claims on Behalf of an LLC
  • LLCs Filing for Bankruptcy
  • Tax Issues Relating to LLCs
  • Governance Issues
Runtime: 1 hour and 14 minutes
Recorded: May 22, 2019

Description

The panelists will delve into issues that arise during an LLC bankruptcy. What happens when parties contract out of fiduciary duties? What effect does bankruptcy have on key provisions in an LLC operating agreement, including management and ownership rights and remedies, and what happens when a bankruptcy proceeding is initiated against the LLC or one or more of its members? Learn more about two recent decisions in which bankruptcy courts refused to enforce LLC agreement provisions requiring the respective LLCs to obtain the unanimous consent of their members in order to seek bankruptcy relief (Intervention Energy, Lake Michigan). Finally, the panelists will discuss possible hidden fraudulent-conveyance issues relating to tax attributes. Do LLCs insulate management, and should releases be provided?

This program was recorded as part of ABI's New York City Bankruptcy Conference on May 22nd, 2019.

Provided By

American Bankruptcy Institute

Panelists

Irving H. Picard

Partner
Baker & Hostetler LLP

Throughout his nearly 50-year legal career, Irving Picard has focused his practice on the complexities of bankruptcy, restructuring and creditors’ rights, and he is a leader in the field of trusteeships and receiverships.

Picard currently serves as court-appointed trustee under the Securities Investor Protection Act (SIPA) for the liquidation of Bernard L. Madoff Investment Securities LLC (BLMIS), an unprecedented global recovery effort stemming from one of the largest financial frauds in U.S. history.

As SIPA Trustee, Picard’s mandate is to recover the principal stolen by Madoff to return to BLMIS customers with allowed claims. As of February 2019, with the help of his BakerHostetler legal team, he has recovered or entered into agreements to recover more than $13.3 billion, all of which will be returned to defrauded BLMIS customers. To date, Picard has overseen the return of more than $12 billion to BLMIS customers, which includes approximately $845.16 million in cash advances from SIPC. (For more information on the liquidation, visit www.madofftrustee.com.)

In addition to serving as a court-appointed trustee for securities brokerage house liquidations under SIPA more than 10 times, Picard has also served as counsel to trustees under SIPA, counsel for Chapter 11 creditors' committees, SEC receiver in a Ponzi scheme case, and disbursing agent. In 1979, Picard was appointed as the Department of Justice's first United States Trustee for the Southern District of New York, a position he held for nearly three years. From 1976 through 1979, he served as Assistant General Counsel of the Securities and Exchange Commission.

Picard is ranked in Chambers USA: America's Leading Lawyers for Business, where he has been described as "extremely intelligent, a great analytical thinker" (Chambers USA 2014), and he is listed in The Best Lawyers in America® in Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law.

The Madoff liquidation continues to be a topic of global interest. Picard has been tapped by leading news organizations to discuss the groundbreaking – and heartbreaking – case and to shed light on what the world can learn from it. With this Trusteeship, Picard and the case have come into an international spotlight, and have been widely reported on by major media including CBS’ 60 Minutes, ABC Nightly News, Bloomberg TV, NPR, CNBC, Fox Business, The New York Times, the Wall Street Journal, Associated Press, Financial Times, Reuters, USA Today, Forbes and many others.

Daniel B. Kamensky

Managing Partner & Portfolio Manager
Marble Ridge Capital LP

Daniel Kamensky is the Managing Partner & Portfolio Manager at Marble Ridge Capital LP. Mr. Kamensky started his career as a bankruptcy attorney and has over 20 years of industry experience investing across complex, multi-jurisdictional, distressed and event-driven situations.

Hon. Kevin J. Carey

U.S. Bankruptcy Judge
U.S. Bankruptcy Court District of Delaware

Hon. Kevin J. Carey is a U.S. Bankruptcy Judge for the District of Delaware in Wilmington, first appointed in 2005 and serving as Chief Judge from 2008-11.

He previously served as a U.S. bankruptcy judge for the Eastern District of Pennsylvania, appointed on Jan. 25, 2001. Judge Carey serves on ABI’s Executive Committee as Vice President-Membership and is a past global chairman of the Turnaround Management Association. He is a member of the National Conference of Bankruptcy Judges and also serves as an associate editor for the American Bankruptcy Law Journal.

Judge Carey is the Third Circuit representative on the Administrative Office’s Bankruptcy Judges Advisory Group and is a member of the Third Circuit Judicial Council’s Facilities and Security Committee. He is also a contributing author to Collier on Bankruptcy and Collier Forms Manual. Judge Carey is a part-time adjunct professor in the LL.M. in Bankruptcy program at St. John’s University School of Law in New York and at Temple University’s Beasley School of Law in Philadelphia. He began his legal career in 1979 as law clerk to Bankruptcy Judge Thomas M. Twardowski, then clerked for the U.S. Bankruptcy Court for the Eastern District of Pennsylvania.

Judge Carey received his B.A. in 1976 from Pennsylvania State University and his J.D. in 1979 from Villanova University School of Law.

Jennifer L. Rodburg

Partner, Restructuring and Insolvency
Fried, Frank, Harris, Shriver & Jacobson LLP

Jennifer L. Rodburg is a restructuring and insolvency partner resident in Fried Frank's New York office. She joined the Firm in 2000 and became a partner in 2008.

Ms. Rodburg focuses her practice on the representation of creditors and investors in corporate restructurings both in and out of court. She represents hedge funds, private equity funds, banks, property owners, asset acquirers and other strategic parties in connection with prepackaged and traditional bankruptcy proceedings, DIP and exit financings, Section 363 sales and other distressed situations. She has a broad range of experience in representing official and unofficial creditors' committees and equity committees in connection with chapter 11 cases and out-of-court restructuring situations. Ms. Rodburg also counsels investment funds, financial institutions and other clients on issues involved in trading distressed debt, analyzing the risks associated with potential investments and acquiring financially distressed companies.

Ms. Rodburg is consistently recognized by Chambers USA: America's Leading Lawyers for Business as a leading individual in Bankruptcy/Restructuring and by Legal 500 in Corporate Restructuring. She was named an "Outstanding Young Restructuring Lawyer" in the April 2009 issue of Turnarounds and Workouts. Ms Rodburg lectures on bankruptcy-related matters for seminars and panels sponsored by the Association of the Bar of the City of New York and other professional organizations.

Ms. Rodburg earned her JD at NYU Law in 2000.

Arik Preis

Partner
Akin Gump Strauss Hauer & Feld

Arik Preis focuses his practice at Akin Gump Strauss Hauer & Feld on corporate restructurings and bankruptcy. Mr. Preis represents informal and official committees of creditors, debtors, individual creditors, rights offering backstoppers, and lenders in both in-court and out-of-court restructurings. Mr. Preis has also represented lenders and administrative agents in connection with non-restructuring-related loans, including leveraged loan transactions, mezzanine financings and more traditional loans. In addition, he has represented creditors in the analysis of all types of debt documents and capital structures. Prior to joining Akin Gump, Mr. Preis was associated with a large New York-based law firm from 2001-2007 and the New York office of a large Texas-based law firm from 2007-2009. Mr. Preis received his B.A. with honors in 1997 from Wesleyan University, where he was elected to Phi Beta Kappa, and his J.D. in 2000 from the University of Virginia School of Law.


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