June 17, 2011
DC Convention Materials Now Available for Purchase
From: NACBANotices@nacba.org [mailto:NACBANotices@nacba.org]
Sent: Thursday, June 16, 2011 12:37 PM
Subject: DC Convention Materials Now Available for Purchase
I am writing to let you know that the materials from our 19th Annual
Convention, held April 15-17, 2011, in Washington, DC, are now available for
You have several purchasing options. Please note that there are two
different vendors, depending on which products/packages you are purchasing.
* Audio recordings, both in single sessions or all sessions bundled
* Video recordings for selected sessions that include the written
materials for that session;
* A flash drive containing all of the written materials from the
Convention, along with additional materials submitted by the speakers and
available only on the flash drive;
* The two-volume set of written materials available to attendees at
the Convention; and
* The two-volume set of written materials available to attendees at
the Convention PLUS the flash drive containing all of the written materials
from the Convention and additional materials submitted by the speakers
available only on the flash drive....
Barbara Andelman, Executive Director
Law Committee -- Business Law Section of the State Bar of California -- Bankruptcy e-Bulletin
June 16, 2011
Dear Insolvency Law Committee Constituency List members:
The following is an Ebulletin prepared on a case of interest by members of
the Insolvency Law Committee constituency list:
On April 26, 2011, the Supreme Court approved an Amendment to Rule 2019 of
the Federal Rules of Bankruptcy Procedure ("FRBP") with an effective date of
December 1, 2011.
RATIONALE FOR AMENDMENT
According to the Advisory Committee Reports, the purpose for the amendment
to Rule 2019 was to "expand disclosure requirements to facilitate openness
and transparency by revealing potentially divergent economic interest within
groups of creditors or equity security holders and on the putative
representatives of other stakeholders." The amendment requires committees,
groups or entities that consist of or represent creditors or equity security
holders who are acting in concert to identify "their disposable economic
interests" as it relates to the debtor.
The amended rule begins with a new definition section in subparagraph (a).
Therein the term "disclosable economic interest" is now defined in Rule
2019(a)(1) to be more expansive than only a claim or interest.
The next added definition is "represent" or "represents" which is explained
to mean the taking of a position before the court or to solicit votes
regarding the confirmation of a plan on behalf of another. According to the
Advisory Committee, these terms require active participation in the case.
Focusing on disclosures, Rule 2019(b)(1) now requires a verified statement
by every group or committee that consists of or represents, and every entity
that represents, multiple creditors or equity security interests, that are
(A) acting in concert to advance their common interests and (B) not composed
entirely of affiliates or insiders of one another. This change clarifies
that groups comprised entirely of affiliates or insiders of one another are
exempt from the rule.
Also, specifically excluded from the disclosure requirements explained in
subpart (b)(2) are: (a) an indenture Trustee; (b) an agent for one or more
other entities under an agreement for the extension of credit; (c) a class
action representative; or (d) a governmental unit that is not a person.
The reason for the exclusion of these entities is that their representation
occurs under formal legal arrangements of trust or contract law that
precludes them from acting on the basis of conflicting economic interests.
Rule 2019(c) sets forth the information required by a verified statement.
The amended rule (i) deleted the requirement to disclose the amount paid to
acquire the disclosable economic interest as contained in prior Rule
2019(a)(4) and (ii) modified the acquisition date disclosure provision by
requiring disclosure only by quarter and year.
Concerning disclosure of the price paid, the Advisory Committee noted input
received from interested parties that pricing information was highly guarded
by distress-debt purchasers who feared that its disclosure could give
industry participants unfair insight into a competitor's trading strategies.
As to the acquisition date disclosure provision, it was modified to require
disclosure only by quarter and year. This is a departure from the prior
rule 2019(a)(2) which required disclosing the amounts paid and time of the
acquisition unless it was acquired more than one year prior to the filing.
WHAT THE AMENDED RULE DOES NOT REQUIRE
Still missing from Rule 2019 is its application to Chapter 7 cases. While
the disclosure requirements are understandable as they relate to the Chapter
11 and Chapter 9 confirmation process, is the importance of disclosure any
less critical in the administration of a complex Chapter 7 case? Recent
statistics on bankruptcy filing trends confirm that scheduled asset values
are far greater collectively in Chapter 7 business filings than there were
in Chapter 11 business filings, even in the years of the largest Chapter 11
reorganization cases, including years in which General Motors and Lehman
Brothers filed for bankruptcy relief.
These materials were prepared by Gary B. Rudolph and James P. Hill of the
Sullivan Hill Lewin Rez & Engel law firm in San Diego, California.
Thank you for your continued support of the Committee.
Insolvency Law Committee
The Insolvency Law Committee of the Business Law Section of the California
State Bar provides a forum for interested bankruptcy practitioners to act
for the benefit of all lawyers in the areas of legislation, education and
promoting efficiency of practice. For more information about the Business
Law Standing Committees, please see the standing
<http://businesslaw.calbar.ca.gov/StandingCommittees.aspx> committees web
June 15, 2011
OCBF Brown Bag Program
Individual Chapter 11s, Part I: GETTING THE CASE OFF THE GROUND
Hon. Scott C. Clarkson -- United States Bankruptcy Judge, Central District of California
Michael Hauser -- Staff Attorney for the United States Trustee
Michael G. Spector -- Law Offices of Michael G. Spector, Santa Ana, CA
Next Tuesday, June 21, 2011
Registration 11:30 a.m. -- Program Commences at 12:00 p.m. SHARP
United States Bankruptcy Court
411 W. 4th Street, Santa Ana, Courtroom 5C
Check-in for the brown bag is located just past the security guards
on the first floor of the courthouse.
Despite the name "Brown Bag", no food or beverages are allowed in the
OCBF Members and Government Employees $10
No-shows and cancellations received the day of the event will be billed
Register: Visit OCBF.org
Bankruptcy court rules against gay-marriage ban
"The country’s largest consumer bankruptcy court has sided with a gay couple seeking to file a joint bankruptcy petition, taking the extraordinary step of deciding the federal law prohibiting same-sex marriages is unconstitutional.
The Los Angeles-based federal court made the ruling Monday in the case of Gene Balas and Carlos Morales, who wed during the 2008 window when same-sex marriage was briefly legal in California. “It is hurtful to hear my own government say that my marriage is not valid for purposes of federal law,” Balas said in a court filing.
Balas said he was laid off from his $200,000-a-year job in the financial industry in March 2009. The couple said they share all income and expenses.
“All the property that either of us owns is community property, and all of our debts are community debts,” said Morales, who has spent most of the relationship unemployed. “We have no prenuptial agreement, postnuptial agreement or transmutation agreement.”
The ruling written by U.S. Bankruptcy Judge Thomas Donovan wasn’t the first blow to the Defense of Marriage Act in federal court. That came last year when a federal judge in Boston declared the law an unconstitutional violation of equal protection guarantees. Two other bankruptcy courts have also rejected administration attempts to dismiss joint filings made by same-sex couples, but neither of those rulings addressed the constitutionality of the act."
June 13, 2011
CDCB Rules that DOMA Is Not "Cause" for Dismissal of Married Gay Couple's Joint Petition
In a landmark decision, written by Judge Thomas Donovan and signed by 19 other members of the court, the Central District of California Bankruptcy Court has ruled that same-sex partners who are legally married in California may file a joint bankruptcy petition, despite Section 3 of the Defense of Marriage Act, which restricts the meaning of "marriage" in any federal law to "only a legal union between one man and one woman."
The opinion in In re Balas & Morales reasoned that recent 9th Circuit jurisprudence and the recent Holder memo describing the President's stance on the constitutionality of DOMA suggests that legislation which disadvantages people on the basis of their sexual orientation must be subjected to heightened judicial scrutiny. Applying this scrutiny, the court ruled that DOMA, as applied to invalidate the joint petition of a legally married gay couple in California, unconstitutionally violates the equal protection clause of the 5th and 14th Amendments.
Read the opinion here.
Fed bankruptcy court may lose Will County courtroom space
"JOLIET — A federal bankruptcy judge soon could be looking for new chambers as Will County eyes his courtroom. The space where the U.S. Bankruptcy Court holds its calls in Joliet is actually owned by Will County. It’s found on the second floor of the county’s annex building at 57 N. Ottawa St.A three-year extension on its lease will end soon, and Will County Judge Gerald Kinney said he needs the courtroom to accommodate his own overcrowded court system.“At this point, I have little choice,” Kinney told Will County board members last week. Kenneth Gardner, clerk of the bankruptcy court in Illinois’ northern district, said the courtroom has been there since the 1990s, before the county bought the building. He said 7,548 cases were filed there last year from Grundy, Kendall, LaSalle and Will counties. It was the court’s busiest year since 2005. The federal court pays $1,159 a month to use the courtroom once a week, Gardner said. Workers compensation cases are handled there the other days of the week. Though Kinney told county board members the bankruptcy court’s cases could wind up in Chicago, Gardner said it would seek a new courtroom in the area to keep them local."
Perkins & Marie Callender's Files for Chapter 11 Protection
"Perkins & Marie Callender's Inc. filed for Chapter 11 bankruptcy protection Monday after securing key creditors' support for a plan to slash the company's $440 million debt load.
Early papers filed in the U.S. Bankruptcy Court in Wilmington, Del., put holders of $190 million worth of senior notes at the top of the list of unsecured creditors. Existing lenders led by a division of Wells Fargo & Co., owed nearly $10.1 million, have offered up to $21 million worth of bankruptcy financing, court papers say.
The company reported assets of $290 million in its bankruptcy petition."