The Intersection of the Federal Arbitration Act and the Bankruptcy Code: Whose Discretion is it, and What Does it Mean to the Future of Bankruptcy?

Level: Intermediate
Runtime: 57 minutes
Recorded Date: December 06, 2019
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  • The Tension between the FAA and the Bankruptcy Code
  • Arbitration Provisions
  • Recent Arbitration Decisions of the Supreme Court
  • Selected Cases Since Epic Systems, Henry Schein, Inc. and New Prime
  • Should we change our thinking about Arbitrability in Bankruptcy?
Runtime: 57 minutes
Recorded: December 6, 2019


Neither the Bankruptcy Code nor the Bankruptcy Code’s legislative history contains an exception to the Federal Arbitration Act (FAA). As a result, bankruptcy courts grappling with whether to enforce an arbitration clause in bankruptcy have focused on whether there is an inherent conflict between the Bankruptcy Code and enforcement of arbitration pursuant to the FAA. The determination that arbitration is required could be the death knell for bankruptcy debtors. This panel will explore, in instances where arbitration is required, how to avoid jeopardizing the central objectives of the Bankruptcy Code that enable debtors to obtain a fresh start, as well as how to ensure uniformity of results to avoid what could be “wildly inconsistent” outcomes in arbitration that impact debtors on an individual and case-by-case basis.

This program was recorded on December 6th, 2019.

Provided By

American Bankruptcy Institute


Jane Kim

Keller & Benvenutti, LLP

Jane Kim is a partner with Keller & Benvenutti LLP in San Francisco, where she focuses on bankruptcy and restructuring law, as well as bankruptcy and general commercial litigation. She has represented debtors in possession, secured lenders and creditors, including members of official committees, prospective investors, and directors and officers of corporations.

Ms. Kim’s recent representations include out-of-court restructuring and/or bankruptcy preparation for various technology and manufacturing companies, chapter 11 representation of an e-commerce company and a casino and resort in Tahoe, and bankruptcy-related intellectual property and employment litigation.

Before joining Keller & Benvenutti in 2014, she was associated with Cleary Gottlieb in New York. Ms. Kim represented Nortel Networks Inc. as it filed its chapter 11 petition and operated within bankruptcy, and she advised the company through many of the sales of its businesses and assets, which generated a total of $7.5 billion in sale proceeds and involved coordinating insolvency proceedings across multiple regimes around the world. Ms. Kim was selected to serve as a lawyer representative for the Northern District of California and was recognized as a noted star in the bankruptcy practice area by Benchmark Litigation California.

Ms. Kim received her B.A. cum laude from Columbia College at Columbia University in 1999 and her J.D. cum laude from Harvard Law School in 2002.

Ryan G. Foley

Senior Vice President
Acrisure, LLP

Ryan G. Foley is senior vice president and general counsel at Acrisure, LLC in Philadelphia and has practiced in the areas of bankruptcy and creditors’ rights for nearly 15 years. He represents secured and unsecured creditors, lessors, lessees and investors in a wide variety of issues relating to bankruptcy, insolvency and debt restructuring.

Mr. Foley joined Shook after serving as in-house counsel at American International Group Inc. (AIG), where he managed a team of attorneys, paralegals and professional staff, both in the U.S. and overseas, responsible for the company’s recovery and bankruptcy litigation in the commercial and consumer insurance divisions. He oversaw multimillion-dollar commercial litigation cases, including premium audit disputes, broker fraud, subrogation recovery and regulatory inquiries, and he also managed related defense matters. In addition, he implemented multiple BPO/LPO engagements and alternative fee arrangements for AIG’s high-volume commercial litigation and bankruptcy docket.

Before his in-house work, Mr. Foley practiced with firms in Pennsylvania and New Jersey, focusing on commercial litigation and bankruptcy. He has also done pro bono work and, while with AIG, was the lead company attorney on training employees to obtain Veterans’ Assistance certification. Mr. Foley recently co-authored ABI’s The Business Creditor’s Guide to Debt Collection and Bankruptcy and was named one of the ABI’s “40 Under 40” insolvency professionals in its inaugural 2017 class.

He received his B.A. in history magna cum laude from Misericordia University, his J.D. from Villanova University School of Law, and his LL.M. in Bankruptcy from St. John’s University School of Law in 2013, where he received the Dean’s Award for Excellence in International Bankruptcy.

Hon. Daniel P. Collins

Bankruptcy Judge
U.S. Bankruptcy Court for the District of Arizona

Daniel P. Collins is a judge on the United States Court of Appeals for the 9th Circuit. On November 13, 2018, President Donald Trump (R) nominated Collins to a seat on this court.[1] The U.S. Senate confirmed Collins' nomination by a 53-46 vote on May 21, 2019. He received commission on May 22, 2019.[2] To see a full list of judges appointed by Donald Trump, click here.

The United States Court of Appeals for the 9th Circuit is one of 13 U.S. courts of appeal. They are the intermediate appellate courts of the United States federal courts.

Collins was a partner in the Los Angeles, California, office of Munger, Tolles & Olson LLP from 2003 to 2019.[3][4] He first joined the firm in 1996.

Collins obtained an A.B., summa cum laude, from Harvard College in 1985. In 1988, he earned a J.D., with distinction, from Stanford University, where he was Order of the Coif. During his legal studies, Collins served as a note editor on the Stanford Law Review.

Robert M. Fishman

Fox Rothschild LLP

Bob resolves difficult financial issues for clients and partners with them to find the most efficient and beneficial solution.

Chair of the firm's Financial Restructuring & Bankruptcy Department, he represents debtors and creditors through the bankruptcy process and in informal, out-of-court workouts. He has represented clients in numerous industries including health care, telecommunications, manufacturing, real estate, retail, transportation and financial services. Highly experienced, Bob has participated in all aspects of the bankruptcy process. He has represented trustees, debtors, creditors and equity committees, secured and unsecured creditors, purchasers of assets and litigants in adversary proceedings.

Bankruptcy mediation has become a significant part of Bob’s practice. He was appointed the Special Mediator in the Lauth Investment Properties, LLC (Indiana) case and successfully assisted parties in reaching a global settlement that allowed for the confirmation of a Chapter 11 plan of reorganization. Bob was retained as the Mediator in the Eastern Livestock Co., LLC (Indiana) case and mediated a nine-party set of controversies that ultimately led to a settlement between seven of the parties and allowed the Trustee’s plan to be confirmed. Bob has also mediated numerous traditional two-party disputes such as preference, fraudulent conveyance and automatic stay controversies.

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