Corporate Bankruptcy Panel: Abi Commission's Report on the Reform of Chapter 11: Small and Medium Businesses, Sales of Assets, Financing, and Plans

• Citation: Vol. 32 No. 2
• Publication year: 2016

Corporate Bankruptcy Panel: ABI Commission's Report on the Reform of Chapter 11: Small and Medium Businesses, Sales of Assets, Financing, and Plans

Michelle M. Harner

G. Eric Brunstad Jr.

The Honorable Wendy L. Hagenau

Melissa B. Jacoby

CORPORATE BANKRUPTCY PANEL

ABI COMMISSION'S REPORT ON THE REFORM OF CHAPTER 11: SMALL AND MEDIUM BUSINESSES, SALES OF ASSETS, FINANCING, AND PLANS

Michelle M. Harner (Moderator)^* G. Eric Brunstad, Jr.^** The Honorable Wendy L. Hagenau^*** Melissa B. Jacoby^****

MS. DEPPERT: Good morning, everyone. My name is Chelsea Deppert, and as this year's Executive Symposium Editor, I'd like to welcome all of you to the Emory Bankruptcy Developments Journal's (the "EBDJ") Thirteenth Annual Symposium.

Before we begin, I want to take a moment and thank those who have been invaluable to the Journal's ongoing success. First, thank you to Dean James Elliott, Professor Charles Shanor, our alumni advisor Keith Shapiro, and our advisory board for their ongoing support. Of course, a very special thanks goes out to Professor Pardo who generously donates his time mentoring our student authors and providing his expertise to the Journal.

I'd also like to extend my gratitude to those who helped make today happen. Thank you to Emory's Marketing and Communications team, the Creditors' Rights Section of the Georgia Bar, for their assistance in publicizing this event.

I'd also like to express my appreciation to the EBDJ staff members, the EBDJ's Editor-in-Chief, Armstead Lewis, and the Assistant Symposium Editor, Katherine Stuart, for their ongoing support throughout the entire planning process. Finally, thank you to Dean Robert Schapiro, Vice Dean Ahdieh, and everyone else who has helped the Journal over the years.

At this time, I'd like to invite Dean Ahdieh to the stage to say a few words.

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DEAN AHDIEH: Let me join Chelsea in welcoming you all this morning on behalf of the entire faculty as well as Dean Schapiro. If not for the fact that he is out of town on the road, he would be here welcoming you himself. I do want to thank you and welcome you on his behalf.

I also want to thank again a number of the folks that Chelsea already mentioned. The sponsors of the Symposium, we want to thank for their support to the Board of Advisors including a number of the folks that Chelsea mentioned, Dean Elliott, Professor Shanor, and especially Professor Pardo, and the alumni advisor to the Journal, Keith Shapiro, who has really been a dear friend to the Journal and also a dear friend to the Law School.

I want to thank the students for making this Symposium possible, and really for all the great work that the Journal does—particularly to Armie Lewis, the EBDJ's Editor-in-Chief, and to Chelsea Deppert, the EBDJ's Executive Symposium Editor. Thank you for the work you've done.

As I hope is apparent to all of you from the program today and from other things you already know, Emory Law School considers the Bankruptcy program here at the Law School to be one of its most special and important programs, and it considers the Bankruptcy Developments Journal to be really the crown jewel of that program. We believe it to be the best, and I understand there can be some controversy over this, but to be the best Law Journal focused on bankruptcy in the country, and the fact that it is a student-edited journal makes that an even more special achievement. We also think it's suggestive of the distinct focus that Emory Law School has on bridging the value of working across the lines of theory and practice. We pride ourselves here at Emory on doing that generally and for bridging that gap between theory and practice generally. But the Emory Bankruptcy Developments Journal may manifest that success or that focus more than anything else that we do. That's evident I think in today's wonderful program, both the substance of the program as well as the wonderful panelists that have come together from practice, from the bench, and from academia. But it's also more evident more generally in terms of the work and the engagement that the Journal and its students do in terms of engaging bench, bar, and academia very effectively. There's no better way to learn; there's no better setting to learn than in that combined atmosphere of theory and practice, and so I know that all of you will learn a great deal today. We will have a great morning, and I want to welcome you again, and thank you for being here.

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MR. LEWIS: Hi, everyone. I'd just like to thank you again for coming. First, just before we begin, I would just like to take a moment just to thank our Executive Symposium Editor, Chelsea Deppert, and also Katherine Stuart, the Assistant Symposium, for all of the effort that they have put in to coordinate this event, and all the diligent planning that they've done. So if you don't mind, I'd just like to give them a round of applause for everything.

I probably should introduce myself. I am Armie Lewis, or Armstead Lewis, and I'm the Editor-in-Chief of the Emory Bankruptcy Developments Journal. Today, I have the pleasure of introducing our Corporate panel. Today's Corporate panel will discuss the ABI's Commission to Study the Reform of Chapter 11.¹ Specifically the panelists will discuss aspects of the report that deal with asset sales, small and medium businesses, financing and plans. Before we get going, I would like to just give brief introductions for each of our panelists.

First, we have Professor Melissa Jacoby. Professor Jacoby graduated with honors from the University of Pennsylvania Law School. She is the Graham Kenan Professor of Law at the University of North Carolina School of Law, where she is also the Robert M. Zinman ABI Resident Scholar for the Spring of 2016. Professor Jacoby, along with Professor Edward J. Janger,² wrote the article that is in your CLE materials, about ice cube bonds, 363 sales and secured creditor entitlement.³ This is not only a special article because it's in your CLE materials, but it's also an award-winning article that won the American College of Commercial Finance Lawyers Grant Gilmore Award, and also won the University of North Carolina School of Law's Chadbourn Award.

Second, we have Professor G. Eric Brunstad. Professor Brunstad graduated from the University of Michigan Law School and received his J.S.D and LL.M from Yale Law School. Professor Brunstad is a partner at Dechert LLP's, Connecticut office, where his practice is primarily focused on bankruptcy appellate work. Professor Brunstad has argued numerous cases in front of the Supreme Court. I'm not going to list them all for you, but one I think that one that most of us know is the Stern v. Marshall,⁴ or the Anna Nicole case for some of the EBDJ members out there to reference. He is also a widely

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published author and is an adjunct professor at Georgetown University's Law Center.

Next, we have the Honorable Wendy L. Hagenau. Judge Hagenau graduated with honors from Duke University Law School. Before taking the bench, Judge Hagenau was a partner at Bryan, Cave, Powell, Goldstein here in Atlanta where she was named a Georgia Super Lawyer in 2007, 2008 and 2009. She was also named to the Georgia Legal Elite in 2005, 2006, 2007 and 2008. As many of you know, Judge Hagenau is a distinguished United States Bankruptcy Judge for the Northern District of Georgia, and importantly, she is on the advisory board of the Emory Bankruptcy Developments Journal. We very much appreciate everything that Judge Hagenau means to our Journal.

Moderating our panel today is Professor Michelle M. Harner. Professor Harner is a Professor of Law and Director of the Business Law program at University of Maryland's Francis King Carey School of Law where she teaches numerous Business Law courses which include bankruptcy and creditors' rights. Professor Harner was also a Robert M. Zinman ABI resident scholar for the Fall of 2015. Before becoming a professor, Professor Harner was a partner at the Chicago office of the international law firm, Jones Day, where she was part of the business restructuring, insolvency and bankruptcy group there. Professor Harner has served as the Assistant Reporter for the Advisory Committee on the Federal Rules of Bankruptcy Procedure, and most relevant to our discussion today, Professor Harner was the Reporter for the ABI's Commission to Study the Reform of Chapter 11.

Now I'm going to get out of the way and turn everything over to Professor Harner so we can start our panel discussion.

PROFESSOR HARNER: Thank you so much. I want to thank the Journal for inviting all of us today. This is a really well thought out and interesting program, and so I look forward not only to this panel's discussion but the one to follow.

As Armstead said, we're here on the corporate panel to talk about the ABI Commission's Report which sets forth its findings and recommendations after studying chapter 11 and potential issues and barriers in the chapter 11 process for over three years. When I was approached to be the Reporter for the Commission, I wholeheartedly accepted both the challenge and the opportunity because I am passionate about our federal bankruptcy system. I'm what they call a true believer. But I'm a true believer because I believe that an efficient

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and effective bankruptcy system is necessary to keep our economy growing, our people working, and our markets humming. And so it's essential that if there are deficiencies or things we could be doing better, that we really deliberate and think about those particular items and find a better way forward.

The Commission itself originated from a 2009 ABI program thinking about chapter 11. As most of you probably know, chapter 11 is the chapter of the U.S. Bankruptcy Code focused on businesses. Although some individuals can file for chapter 11 as well, the core focus of chapter 11 is reorganizing business entities. And, at this 2009 program hosted by the American Bankruptcy Institute...