Abi Commission to Study the Reform of Chapter 11 s2

ABI COMMISSION TO STUDY THE REFORM OF CHAPTER 11

Full Commission Meeting September 11, 2012 Chicago, Illinois

MINUTES/SUMMARY The ABI Commission held its regularly scheduled meeting on Tuesday, September 11, 2012, at the Chicago offices of Kirkland & Ellis. The following individuals participated in the meeting: Leah E. Barteld, Geoffrey L. Berman, Donald S. Bernstein, William A. Brandt, Babette A. Ceccotti, Honorable Arthur J. Gonzalez, Michelle M. Harner, Robert J. Keach, Kenneth N. Klee, Richard B. Levin, Harold S. Novikoff, James P. Seery, Jr., Sheila T. Smith, James H.M. Sprayregen, Clifford J. White III, Bettina M. Whyte and Deborah D. Williamson. Mr. Keach called the meeting to order at approximately 3:10 p.m., C.T. The meeting adjourned at approximately 5:55 p.m., C.T. The following matters were discussed during the course of the meeting:

Opening Comments: Mr. Keach welcomed the Commissioners and provided an overview of the meeting agenda. Ms. Whyte suggested exploring video conferencing for future meetings.

Status of Advisory Committees: Prof. Harner provided an overview on the progress of the Advisory Committees. All Committees had their initial organizational calls, and a few Committees began meeting and working through the Preliminary Assessments. Prof. Harner noted a few vacancies in leadership positions for the Committees, and interested individuals for those positions will be contacted this week. The Commission approved the leadership appointments made within the Committees thus far. Prof. Harner reported that the report form template was circulated to the Committees.

Field Hearing Schedule and Format: Mr. Keach reviewed the schedule for field hearings and solicited feedback as to the most productive format for the hearings. Mr. Brandt and Mr. Bernstein asked about the marketing of the field hearings by the host organizations. Mr. Keach stated that he would work with Mr. Gerdano to develop a promotional package for organizations holding hearings to use. Ms. Williamson was concerned that some of the field hearings would not be open to the public and Mr. Bernstein suggested offering a webcast of the field hearings, to allow accessibility to otherwise limited forums.

Discussing the format of the hearings, Mr. Keach asked whether the format should follow the format of the initial public hearing. He suggested a few opening remarks from Commissioners, testimony from witnesses, followed by a Q&A session. Mr. Keach noted that statements from witnesses will be available in advance, but Prof. Harner commented that the statements may be available only 72 hours prior to the hearing. Going forward, it was suggested that guidelines for testimony to be provided to the Commission should include a provision that written testimony be made available no less than one week prior to the hearing. Prof. Harner will work with the fellow, Ms. Barteld, to provide Commissioners with a background on witnesses and a summary of their respective testimony for Commissioners to review prior to the hearing.

The Commissioners determined it would be best for Mr. Keach or Mr. Togut to provide opening remarks on behalf of the Commission, and that those remarks should focus on the Bankruptcy Code in context of its evolution and why changes are needed. The Commissioners were in favor of utilizing a Q&A session and discussed the best strategies for developing questions and who should be responsible for asking the questions. September 11, 2012 Minutes ABI Commission Meeting

Mr. Keach polled the Commissioners to determine who would be in attendance at the first field hearing on October 17th. Mr. Brandt suggested that a higher attendance would be critical to credibility, and suggested inviting the leadership of the Advisory Committees to attend. The Commissioners identified three Advisory Committees that should be represented at the LSTA field hearing in October, and the Commissioners assigned to those Committees will follow up with the appropriate individuals.

The Commissioners also discussed the field hearing at the NCBJ in San Diego in October. Mr. Keach noted that at this hearing, the Commission had more flexibility to invite individuals to provide testimony. Potential witnesses were discussed, and the Commissioners will follow up with those individuals to confirm availability. Mr. Keach will coordinate with Mr. Gerdano to see if the hearing can be extended from ninety minuets to two or two and one half hours.

Venue: Mr. Keach asked the Commission to consider the relevance of the ongoing debate concerning venue of chapter 11 cases to the Commission’s study and ultimate proposed reform package. After extensive discussion, the Commission determined that further discussion of the issue was necessary. Mr. Keach indicated that he would set the matter for discussion at the next Commission meeting. The Commission also decided to undertake a similar discussion concerning individual chapter 11 cases, as well as the possibility of forming a separate advisory committee to address this subject. These matters then were tabled until the next meeting of the Commission.

Miscellaneous: Mr. Keach noted the next meeting would be held on October 3, 2012, from 2:005:00 p.m., E.T, at Skadden Arps’s New York office.