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Contesting Confirmation (Series: Bankruptcy Battle Royale)

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A chapter 11 plan of reorganization or liquidation is the document that controls the methodology and order by which the debtor proposes to pay its creditors. The plan is subject to comment and criticism by any party affected by it – namely, each and every creditor of the debtor, potential targets of causes of action that the debtor may have, and parties that may have potential causes of action against the debtor. Confirmation of a plan is commonly a key goal in a chapter 11 case. Why? And trying to confirm one is often rife with dispute and litigation. Why? This webinar explores this process and provides guidance as to how to both defend and attack the confirmation of a debtor’s chapter 11 plan.

To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/contesting-confirmation-2019/

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Contesting Confirmation (Series: Bankruptcy Battle Royale)

  1. 1. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Insert the cover image for this webinar on this slide entirely 1
  2. 2. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Practical and entertaining education for attorneys, accountants, business owners and executives, and investors. 2
  3. 3. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe DISCLAIMER The material in this webinar is for informational purposes only. It should not be considered legal, financial or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure the information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. About this PowerPoint: if you are looking at this PowerPoint without the benefit of listening to the conversation that surrounded it then you are doing yourself a disservice. This PowerPoint was prepared in contemplation of being viewed in conjunction with listening to a one hour webinar on the topic 3
  4. 4. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Thank You To Our Sponsor 4
  5. 5. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe 5
  6. 6. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe 6
  7. 7. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe MEET THE FACULTY Moderator: Mark Melickian – Sugar Felsenthal Grais & Helsinger LLP Panelists: Michael Riela – Tannenbaum Helpern Michael Schwarzmann – Independent CRO and Restructuring Advisor Thad Wilson – King & Spalding LLP Rafael Zahralddin – Elliott Greenleaf 7
  8. 8. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS WEBINAR: Contesting Confirmation A chapter 11 plan of reorganization or liquidation is the document that controls the methodology and order by which the debtor proposes to pay its creditors. The plan is subject to comment and criticism by any party affected by it – namely, each and every creditor of the debtor, potential targets of causes of action that the debtor may have, and parties that may have potential causes of action against the debtor. Confirmation of a plan is commonly a key goal in a chapter 11 case. Why? And trying to confirm one is often rife with dispute and litigation. Why? This webinar explores this process and provides guidance as to how to both defend and attack the confirmation of a debtor’s chapter 11 plan. 8
  9. 9. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THIS SERIES: Bankruptcy Battle Royale – Common Committee Controversies No matter how you are involved in a Chapter 11 bankruptcy proceeding, there is a real chance you will wind up litigating some issue. Litigating in bankruptcy court, however, is very different than litigating in any other federal or state court because the customs, rules and players are all different. This webinar is designed for the litigator who does not generally find herself in front of a bankruptcy judge. 9
  10. 10. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EPISODES IN THIS SERIES 2/26/19 Episode #1: Cash Collateral and DIP Loan Contests 3/26/19 Episode #2: Anatomy of a Preference 4/23/19 Episode #3: Anatomy of a Fraudulent Transfer 5/21/19 Episode #4: Contesting Confirmation 1 0 Dates shown are premiere dates. All webinars will be available On Demand approximately 4 weeks after they premiere.
  11. 11. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Episode #4: Contesting Confirmation 1 1
  12. 12. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe INTRODUCTION TO CHAPTER 11 PLANS • The primary purpose of a Chapter 11 plan is to implement a debtor’s restructuring, which can be either a true reorganization or a controlled liquidation. A plan is a powerful device that can, among other things: ✓ Divide creditors’ claims into different classes, and provide that some or even all classes will be paid less than full or be otherwise impaired ✓ Retain, transfer or sell the debtor’s property ✓ Satisfy or modify liens ✓ Assume or reject contracts ✓ Cure or waive defaults ✓ Cancel and replace stock issuances ✓ Alter the debtor’s organizational documents and voting rights 1 2
  13. 13. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EXCLUSIVITY • The Debtor has an exclusivity period of 120 days to propose a plan, and an additional 180 days after that to seek acceptance of the plan. (11 U.S.C. § 1121(b) and (c)(3)). Other parties in interest may propose a plan after the exclusive period ends. The 120-day exclusivity period may be extended or reduced “for cause”. “Cause” is not defined, but factors that courts have looked at include, but are not limited to: ✓ Size and complexity of the case ✓ Necessity of sufficient time for the debtor to negotiate a plan and prepare a disclosure statement ✓ Good faith progress toward reorganization ✓ Whether the debtor is paying its bills as they come due ✓ Whether the debtor has reasonable prospects for a viable plan ✓ Progress in negotiations with creditors ✓ Unresolved contingencies 1 3
  14. 14. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe TYPES OF PLANS • While there are no “official categories” of chapter 11 plans, bankruptcy practitioners use a handful of descriptive terms to describe the most common approaches to plans: ✓ Reorganization plan – A reorganization plan is one in which the debtor company or companies survive and emerge from bankruptcy after paying creditors through a confirmed chapter 11 plan. The surviving entity is generally smaller in size, scope of operations, and/or geographic range. At least some of existing equity remains equity, or a body of creditors may trade debt for equity and emerge as the new owners of the Old Co. True reorganization plans are increasingly rare. ✓ Liquidating plan – A liquidating plan is a plan that proposes to liquidate and distribute assets to creditors in conjunction with the wind down/dissolution of the corporate entity. The assets of the entity may survive, having been sold as a going concern to a third party or piecemeal to various third parties, leaving behind cash, cash equivalents (e.g., A/R), and other assets (typically, litigation claims) to be liquidated and distributed through the plan. A liquidating trustee is often appointed to oversee the post-confirmation liquidation. 1 4
  15. 15. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe TYPES OF PLANS (cont’d) ✓ “Pot” plan – A “pot” plan is a plan that distributes a “pot” of assets typically left behind after corporate assets are sold. Liquidating plans are generally a form of “pot” plan. ✓ Pre-packaged plan (“prepack”) – Generally associated with large companies – public companies or large private companies backed by institutional investors. Solicitation of votes on the plan is accomplished before the bankruptcy filing and is blessed by the bankruptcy court after the bankruptcy filing. Pre-packs are generally reorganization plans and commonly involve debt for equity trades in which existing institutional creditors swap their claims for equity in the reorganized company. 1 5
  16. 16. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe PLAN PROPONENTS • A chapter 11 plan may have one or more proponents. Typically, the debtor is one proponent and may be the sole proponent. Increasingly, plans are proposed jointly by debtors and official committees of unsecured creditors. • Reorganization plan – The proponent is always the debtor, and the debtor is typically the only proponent. • Liquidating plan – The proponent may be the debtor alone, but more typically, the debtor and creditor’s committee are co-proponents of a liquidating plan, because the creditor’s committee represents the parties with the true economic stake in the outcome of the plan. • With reorganization plans, and (in some cases) liquidating plans in which the debtor is the sole proponent, the debtor and creditor’s committee may be at odds over the proposed plan’s treatment of unsecured creditors, and the creditor’s committee may ultimately object to the proposed plan and force the issue into litigation – i.e., a contested confirmation. 1 6
  17. 17. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ADEQUATE DISCLOSURE • The proponent of a plan must provide a disclosure statement to every person entitled to vote on a plan. The disclosure statement must be approved by the bankruptcy court, and must provide “adequate information” of a kind, and in sufficient detail, that would enable a hypothetical investor to make an informed judgment about the plan. (11 U.S.C. § 1125). • Types of information customarily incorporated into disclosure statements include, but are not limited to: ✓ The circumstances that gave rise to the bankruptcy case ✓ Description of available assets ✓ Anticipated future of the debtor ✓ Sources of the information provided in the disclosure statement 1 7
  18. 18. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ADEQUATE DISCLOSURE (cont’d) ✓ A liquidation analysis, comparing the plan to a hypothetical Ch. 7 ✓ Accounting and valuation methods ✓ Future management of the debtor ✓ Discussion of risks associated with the plan ✓ Description of non-bankruptcy litigation ✓ Tax consequences of the plan 1 8
  19. 19. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ADEQUATE DISCLOSURE (cont’d) • What constitutes “adequate information” in a particular case depends on the complexity of the case, the benefit of additional information to creditors and other parties in interest, and the cost of providing additional information. • Additional factors that courts may consider include, but are not limited to: ✓ The need for relative speed in plan solicitation and confirmation ✓ The need for investor protection ✓ The benefit of providing additional information, weighed against the cost ✓ Types of creditors and claims ✓ Creditors’ access to information from other sources ✓ What is reasonable practicable given the debtor’s economic state and history ✓ The condition of the debtor’s books and records. 1 9
  20. 20. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe STATEMENTS OF SUPPORT OR DISAGREEMENT • Plan proponents and opponents often request that additional materials in support of or opposition to a plan be distributed to voting creditors along with the plan and disclosure statement, or may distribute such additional materials themselves. • The question of whether additional materials must be approved by the court often hinges on whether they are considered “plan solicitation” materials, and thus come within the requirements of 11 U.S.C. § 1125. 2 0
  21. 21. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CONFIRMATION STANDARDS – COMPLIANCE WITH TITLE 11 • To be confirmed, a plan must not only meet the express confirmation requirements of § 1129, but must also: ✓ Properly classify all claims and interests under § 1122 ✓ Include all information required by § 1123 ✓ Comply with all other sections of the Bankruptcy Code • Additionally, the plan proponent’s actions must comply with the Bankruptcy Code, including a proper disclosure statement and proper solicitation procedures under 11 U.S.C. § 1125. 2 1
  22. 22. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CONFIRMATION STANDARDS – SUBSTANTIVE CONSOLIDATION • A plan may provide that a Debtor be substantively consolidated with one or more of its affiliates—and thus share assets and liabilities for purposes of the plan—under certain circumstances. Substantive consolidation can be unfair to creditors who dealt with a Debtor affiliate who ran a surplus, as opposed to a Debtor affiliate who ran a deficit. Accordingly, substantive consolidation is used sparingly 2 2
  23. 23. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe SUBSTANTIVE CONSOLIDATION (cont’d) • Bankruptcy courts have adopted many different standards for substantive consolidation. The various tests consider factors such as: ✓ Whether the benefits of substantive consolidation outweigh the harm to objecting creditors ✓ The degree of difficulty in segregating and ascertaining individual assets and liabilities ✓ Majority ownership of one entity by another, and commonality of management ✓ Commingling of assets and business functions (entanglement) ✓ Intercompany guarantees and loans ✓ Transfers of assets without observance of corporate functions 2 3
  24. 24. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CONFIRMATION STANDARDS – APPROVAL BY CREDITORS • Pursuant to § 1126, a class of creditors entitled to vote on a plan will be deemed to have accepted the plan if creditors in the class holding at least 2/3 in dollar amount and 1/2 in number vote to accept the plan. • A creditor’s vote may be “designated” (ie, disallowed) under § 1126(e), if it acts in bad faith in voting or soliciting votes for or against the plan. A vote may be in bad faith if, for example, it was designed to (1) assume control of the debtor; (2) put the debtor out of business; (3) destroy the debtor out of pure malice; or (4) obtain benefits under a private agreement with a third party which depends on the debtor’s failure to reorganize. 2 4
  25. 25. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe APPROVAL BY CREDITORS (cont’d) • Courts are divided as to whether subordination and intercreditor agreements in loan documents, which provide for one creditor to control another creditor’s vote on a bankruptcy plan, are enforceable. 2 5
  26. 26. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe VALUATION DISPUTES • Two factors the court must consider when determining whether to confirm a Chapter 11 plan are whether: ✓ The value that is to be received by impaired classes is at least equal to what they would receive in a Chapter 7 liquidation ✓ Confirmation of the plan is likely to be followed by the liquidation or further reorganization of the debtor • If a dispute arises between the debtor and other parties in interest regarding the value of the debtor’s assets and operations, an evidentiary hearing may be necessary to determine such values. 2 6
  27. 27. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe VALUATION DISPUTES – EXPERT WITNESSES • Resolution of valuation issues often requires the testimony of expert witnesses. • Valuation methodologies often employed by experts include: ✓ Discounted cash flow ✓ Comparable company ✓ Comparable transaction 2 7
  28. 28. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe FEASIBILITY • A plan will be confirmed only if confirmation “is not likely to be followed by the liquidation, or the need for further financial reorganization . . . unless such liquidation or reorganization is proposed in the plan.” 11 U.S.C. § 1129(a)(11). • To support this “feasibility” requirement, the debtor must show, by a preponderance of the evidence, that the plan has a reasonable assurance of commercial viability or a reasonable probability of success. 2 8
  29. 29. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CRAMDOWN • The bankruptcy court can confirm a plan even if a class of claims and interests does not vote in favor of it. This is called “cramdown.” 11 U.S.C. § 1129(b)(1). • In order to cram a plan down upon one or more dissenting classes, the court must find that the plan “does not discriminate unfairly, and is fair and equitable, with respect to each class of claims and interests that is impaired under, and has not accepted, the plan.” Also, at least one impaired class must have voted to accept the plan. 2 9
  30. 30. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CRAMDOWN – UNFAIR DISCRIMINATION • “Unfair discrimination” is not defined in the Bankruptcy Code. But courts have developed tests which look at not whether there was discrimination (there always is), but whether the discrimination is unfair. Four factors are examined: ✓ Reasonable basis for discrimination ✓ Could plan come to fruition without the discrimination ✓ Was discrimination proposed in good faith ✓ Relationship between discrimination and rationale 3 0
  31. 31. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CRAMDOWN – SECURED CLAIMS • If a plan is crammed down on a class of secured creditors, the court will look at three distribution alternatives (11 U.S.C. § 1129(b)(2)(A)): ✓ The secured creditor must receive deferred cash payments equal to the value of the creditor’s collateral in the bankruptcy estate. The appropriate interest rate is often litigated. ✓ The collateral is sold under the plan, subject to the secured creditor’s right to credit bid. ✓ The secured creditor receives the “indubitable equivalent” of the value of the collateral. 3 1
  32. 32. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CRAMDOWN – ABSOLUTE PRIORITY RULE • For a plan to be crammed down on a class of unsecured creditors, the plan must provide that a class must be paid in full before any junior classes receive any distribution. • In some cases, courts have approved sharing agreements, where a class of senior creditors agrees to give a portion of its distribution under a plan to a class of junior creditors, over the objection of a dissenting class. 3 2
  33. 33. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe CRAMDOWN – GERRYMANDERING • Because a plan must be approved by at least one impaired class, a plan proponent has an incentive to create an impaired class that will vote in favor of the plan. • The plan proponent may “gerrymander” a class by structuring it to ensure a favorable vote (see § 1122(a)), or by artificially impairing a class with an insignificant or de minimin impairment to manipulate the confirmation process (see § 1124). 3 3
  34. 34. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe RELEASE OF NONDEBTORS • Chapter 11 plans often include provisions releasing nondebtor entities—frequently insiders and affiliates—from liabilities relating to the debtor or the bankruptcy case. Factors that courts look at in determining whether to allow such releases include, but are not limited to: ✓ Identity of interest between debtor and third party—would suit against nondebtor deplete assets of bankruptcy estate? ✓ Substantial contribution by nondebtor to assets of reorganization ✓ Will lack of release affect debtor’s ability to reorganize? ✓ Agreement by a substantial majority of creditors to the release ✓ Whether plan pays substantially all claims of creditors affected by the release ✓ Scope of release ✓ Whether the release affects matters beyond the jurisdiction of the bankruptcy court 3 4
  35. 35. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECT OF CONFIRMATION – FREE AND CLEAR OF LIENS • Upon plan confirmation, property dealt with by the plan is free and clear of claims and interests of creditors, equity security holders and general partners of the debtor. (§ 1141(c)). This issue most commonly arises when a lienholder seeks to enforce its security interest against a reorganized debtor after plan confirmation. Most courts hold that, if the creditor participates in the reorganization, the lien is extinguished upon confirmation, unless the plan provides otherwise. 3 5
  36. 36. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECT OF CONFIRMATION – CLAIM DESCRIPTION; RES JUDICATA • The bankruptcy court’s confirmation of a Chapter 11 plan constitutes a final judgment on the merits of all claims, and is given the preclusive effect of res judicata. There is an exception where the plan reserves a litigant’s right to pursue a claim after bankruptcy. Most courts hold that the reservation of rights must be specific as to the particular claim, and may not be a blanket reservation. 3 6
  37. 37. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECT OF CONFIRMATION – SUCCESSOR LIABILITY • Chapter 11 plans often vest substantial assets of the bankruptcy estate—sometimes substantially all of the assets—in assignees or successor entities. Most bankruptcy courts are reluctant to upset the general, non-bankruptcy rule that the transferee of assets is not liable for claims that arose from the conduct of the transferor-debtor, absent the existence of well established exceptions, such as express or implied agreement by the transferee to assume a liability. 3 7
  38. 38. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe EFFECT OF CONRIRMATION – SUBSTANTIAL CONSUMMATION • Bankruptcy courts are frequently confronted with appeals by creditors after a sale has taken place or a plan confirmed. Many courts decline to hear such appeals on the grounds of “equitable mootness” where the plan is so substantially consummated that effective relief is, as a practical matter, unavailable. “Substantial consummation” is defined at § 1101(2). 3 8
  39. 39. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe REVOCATION OF CONFIRMATION • A party in interest may seek revocation of an order confirming a Chapter 11 plan (§ 1144). The motion must be made within 180 days after the confirmation order is entered, and proper notice must be given. The confirmation order will be revoked only if the court finds it was procured by fraud. • An order revoking a confirmation order must: ✓ Contain provisions necessary to protect entities acquiring rights in good faith reliance on the confirmation order; and ✓ Revoke the discharge of the debtor. 3 9
  40. 40. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT THE FACULTY 4 0
  41. 41. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Mark Melickian – mmelickian@sfgh.com Mark Melickian leads Sugar Felsenthal Grais & Helsinger LLP’s restructuring practice. Over the past 20 plus years, he has worked primarily on business transactional and litigation matters with a focus on chapter 11 commercial bankruptcy cases and non-bankruptcy distressed situations. His practice includes both debtor- and creditor-side representations and include financial institutions, indenture trustees, trade creditors, asset purchasers, investors, commercial real estate interests, corporate officers, and other parties in interest in chapter 11 cases throughout the country. In addition, a significant focus of his practice is the representation of committees and other estate fiduciaries in bankruptcy cases – over the past two decades, he has counseled dozens of official and unofficial bankruptcy committees, liquidating trustees, litigation trustees, and plan administrators charged with pursuing and liquidating assets for the benefit of estate creditors. Mark has written extensively on bankruptcy and insolvency law and other topics, having contributed materials on these subjects to American Bankruptcy Institute Journal, Bankruptcy Strategist, Wiley Bankruptcy Law Update, Ginsberg & Martin on Bankruptcy, Norton Bankruptcy Law Adviser, the Cornell University Legal Ethics Library, and dozens of professional conferences and seminars. For several years, he wrote a monthly legal affairs column for Student Lawyer, an America Bar Association publication, for which he received the Peter Lisagor Award for Exemplary Journalism from the Chicago chapter of the Society of Professional Journalists. He is a graduate of Colorado State University and Northwestern University School of Law. 4 1
  42. 42. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Michael Riela – Riela@thsh.com Mike Riela is a partner in Tannenbaum Helpern’s Creditors’ Rights and Business Reorganization practice. With more than 15 years of experience, Mike advises companies on complex restructuring, distressed M&A, loan transactions and bankruptcy related litigation matters. Mike has in-depth experience in advising clients on corporate and real estate bankruptcies, workouts, Chapter 11 and Chapter 7 bankruptcy cases, debtor-in- possession (DIP) and bankruptcy exit loan facilities, secondary market trading of distressed debt and trade claims, Section 363 sales and bankruptcy retention and fee agreements and disputes. His clients include banks, administrative agents, indenture trustees, hedge funds, private equity firms, professional services firms, trade creditors, contract counterparties, shareholders, debtors and investors. Mike has represented buyers of assets in Section 363 and out-of-court sales from sellers such as Evergreen Solar, Inc., Sonic Telecommunications International, Ltd, Urban Communicators PCS Limited Partnership, US Aggregate, Inc., and Vectrix Corporation, as well as representing lenders, trustees and administrative agents in major Chapter 11 cases and workouts such as Delta Air Lines, Inc., Extended Stay Inc., Buffets Inc., Legends Gaming LLC, Nortel Networks, Premier International Holdings Inc., and many others. To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/michael-riela/ 4 2
  43. 43. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Michael Schwarzmann – michaelschwarzmann@yahoo.com Michael Schwarzmann has over 20 years’ experience helping identify opportunities to create value for his clients. I have extensive experience working with established companies when they encounter financial difficulties by assisting them in developing solutions to address short term cash needs and longer term profitability. My process includes helping to identify cost savings and value capture scenarios by analyzing historical financial performance along with current operations and projecting optimizing strategies. Utilizing weekly and monthly cash flow statements, budgets, and forecasts, I utilize a focused, data driven approach to identifying opportunities to increase company profitability. Through a broad review of financial, operational and strategic performance, I help guide companies to increased profitability. Working across the organization, vertically and horizontally, uncovers additional solutions and generates greater buy-in of the goals, objectives and action plan, all of which are critical to maximize the impact of proposed changes. I utilize my legal knowledge to seamlessly work with counsel to identify and address legal issues in a more cost effective manner. I have guided the development and evaluation of business plans and formulated successful strategies to preserve or improve asset values. I am a consensus builder. Industry experience includes: health care, manufacturing, agricultural, construction, restaurants and franchising, energy and travel. 4 3
  44. 44. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Thad Wilson – ThadWilson@KSLAW.com Thad Wilson is a partner in the Atlanta office of King & Spalding and a member of the firm’s Financial Restructuring practice. Thad has represented a broad spectrum of clients in financial restructuring, corporate and insolvency matters, including bankruptcy-related government investigations and appeals. He has represented debtors, secured and unsecured creditors, and other parties in interest in major Chapter 11 bankruptcy cases. Thad has substantial experience representing litigants in contested matters, adversary proceedings and other high stakes litigation in significant Chapter 11 bankruptcy cases and insolvency proceedings involving creditors’ rights, fraudulent transfers, and alter ego, as well as representing buyers and sellers of distressed assets in Chapter 11 bankruptcy proceedings. Thad is a member of the American Bankruptcy Institute, the Turnaround Management Association, the Atlanta Bar Association and the State Bar of Georgia. He is a founding member of the Atlanta chapter of the Turnaround Management Association NextGen organization and is the current president-elect of its board. In 2014, he was elected to the initial class of Barristers of the W. Homer Drake, Jr. Georgia Bankruptcy American Inn of Court, of which he is currently a member. Thad is a frequent lecturer on bankruptcy-related issues before bar groups and in continuing legal education programs. Thad has authored and co-authored numerous articles on bankruptcy-related topics and has been published in numerous publications. Thad received his law degree from the University of Iowa College of Law, with distinction. 4 4
  45. 45. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe Rafael Zahralddin – RXZA@elliottgreenleaf.com Rafael X. Zahralddin-Aravena is a Shareholder, Director, and Chair of his firm’s Commercial Bankruptcy and Restructuring Practice. He founded the Elliott Greenleaf Delaware office in 2007, which specializes in business law, as its first Managing Shareholder. He works as a litigator and advises businesses on issues of compliance, corporate formation, corporate governance, insolvency, distressed mergers and acquisition, commercial transactions, cyber law, and international and cross border issues. He has been lead counsel in several significant matters including serving as special litigation counsel in Washington Mutual, the largest bank insolvency in U.S. history. In the Nortel bankruptcies, he successfully secured a settlement of more than $50 million for the permanently disabled former employees of the company. The firm and Mr. Zahralddin were named among the firms that received multiple awards in 2014, culminating in the Large Company Transaction of the Year Award from the Turnaround Management Association for their work in the AgFeed USA, Inc. bankruptcy, which involved the sale of the U.S. and China assets of a publicly traded company. 4 5
  46. 46. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe QUESTIONS OR COMMENTS? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 4 6
  47. 47. Copyright © 2019 by DailyDAC, LLC d/b/a Financial Poise Webinars™ Receive our free weekly newsletter at www.financialpoise.com/subscribe ABOUT DailyDAC DailyDAC.com is the leading source of information about assignments, article 9, bankruptcy, receiverships, out-of-court workouts and vulture investing, designed for business owners and vulture investors. Visit us at www.dailydac.com. 4 7 Premium Public Notice Service DailyDAC’s Premium Public Notice Service helps market asset sales on behalf of fiduciaries (e.g., Chapter 11 debtors-in- possession and committees, trustees, receivers, assignees), secured lenders selling collateral under UCC Article 9, and auctioneers to a very large and self-selected group of potential bidders and their advisors. The Service also assists with noticing other events, deadlines, and milestones – including tombstones and other press releases. Our free weekly newsletter, DailyDAC contains our latest bankruptcy article, current Public Notices and all opportunistic deals added to our proprietary database that week. Sign up at: https://www.dailydac.com/dacyak-weekly-newsletter-signup/
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