Abi Commission to Study the Reform of Chapter 11

ABI COMMISSION TO STUDY THE REFORM OF CHAPTER 11

Full Commission Meeting March 5th, 2013 New York, NY

MINUTES/SUMMARY

The ABI Commission held its regularly scheduled meeting on Tuesday, March 5th, 2013, at the New York Offices of Skadden, Arps, Slate, Meagher & Flom LLP. The following individuals participated in the meeting: Geoffrey L. Berman, Donald S. Bernstein, William A. Brandt, Jr., John Wm. Butler, Jr., Babette A. Ceccotti, Hon. Arthur J. Gonzalez, Michelle M. Harner, Steven M. Hedberg, Robert J. Keach, Kenneth N. Klee, Richard B. Levin, James T. Markus, Harold S. Novikoff, James P. Seery, Jr., Sheila T. Smith, Albert Togut, Clifford J. White III, Leah E. Barteld and Samuel J. Gerdano. Mr. Keach called the meeting to order at approximately 12:20 p.m., E.T. The meeting adjourned at approximately 4:05 p.m., E.T. The following matters were discussed during the course of the meeting:

Approval of Minutes. Mr. Keach made a motion to approve the minutes of the January 17th, 2013 meeting of the Commission. The motion was seconded. The minutes were approved unanimously.

Update on 2013 Field Hearings. Mr. Gerdano informed the Commissioners that the field hearing on April 5th is cancelled. The next field hearing will be held at the American College of Bankruptcy on March 14th, with seven confirmed witnesses and a focus on labor and benefits issues. The field hearing at the ABI Spring Meeting on April 19th will include a luncheon hearing featuring Wilbur Ross, and two subsequent panels of witnesses. Mr. Gerdano will work on identifying and confirming witnesses for field hearings in May.

Use of Surveys/Outreach Tools by the Advisory Committees. Mr. Butler raised a concern about whether Advisory Committees should conduct surveys or use outreach tools to conduct research. Commissioners expressed concern with ensuring that any survey instruments collected balanced data that would have statistical significance. Mr. Butler suggested that any tool used should be carefully vetted by the Commission prior to dissemination. Mr. Levin suggested developing a policy on the use of surveys and outreach tools. Mr. Keach made a motion that any outreach by Advisory Committees that requires a written response or a solicitation of a written response must be approved by the Commission chairs and reporter. The motion was seconded and approved unanimously.

Commission Fellows. Due to the volume of requests for the approval of Commission Fellow designation, Mr. Keach suggested that requests are approved by Commission leadership. Mr. Levin made a motion that the Commission chairs have the ability to grant the Fellow designation. The motion was seconded and approved unanimously.

Report on DC Meetings. On February 1st, 2013, Mr. Keach and Mr. Gerdano met with the Minority and Majority counsel on the relevant subcommittees in both the House and Senate that have jurisdiction over bankruptcy. Mr. Keach informed the Commission that the meetings went very well, and congressional staff was receptive to the work of the Commission and interested in attending D.C.-based field hearings if they are able. Mr. Gerdano is working on putting together a reception for the relevant subcommittees to welcome new leadership and allow Commission members to visit informally in conjunction with the ABI Annual Meeting on April 17th or 18th.

International Comparative Law Subcommittee. Mr. Keach updated the Commission on the work of the International Comparative Law Committee. Mr. Keach has been in touch with the chair, Bob Wessels, and the subcommittee was assigned its first task of researching surcharges.

National Association of Attorneys General Memorandum. Mr. Keach and Prof. Harner recognized receipt of the extensive memo of issues raised by the National Association of Attorneys General. Prof. Harner has been referring specific issues to the relevant advisory committees. Ms. Ceccotti suggested organizing a field hearing forum for the group to raise their concerns before the Commission.

Additional Field Hearings. The Commissioners expressed concern about future field hearings and whether additional dates should be scheduled. Mr. Butler suggested an effort to ensure a field hearing is held in every judicial circuit. Tentative future hearings include the UT Westbrook Conference on November 20th or 21st, 2013 in Texas, and a hearing in conjunction with NCBJ on November 1st, in Atlanta, GA.

Discussion and Debate Regarding three initial Advisory Committee Interim Reports. The Commission deliberated the best approach to reviewing the interim reports of the Advisory Committee. After much discussion, the Commission determined that the Commissioners assigned to each Advisory Committee will present the report and supporting deliberation that led to the committee’s recommendations. In instances where it would be of value, leadership from the Advisory Committee will present the supporting discussion of the Committee’s recommendation. The Commission will respond to interim reports with any further questions or issues that the Advisory Committee should look into. The Commission discussed three initial advisory committee reports: Financing Chapter 11: Rollups in DIP Loans, Role of Valuation in Chapter 11 Cases: The Purpose and Timing of Valuation Issues Relevant to Plan Confirmation Standards, and Executory Contracts & Leases: Various Definitional and Related Issues. The interim report from the Executory Contracts committee was a good structural example for Committees to base their respective Reports to the Commission. Prof. Harner will distribute the model report to the Advisory Committee leadership to review as an example.

Dates/Locations for Future Meetings. The Commission will meet again on Friday, April 5th, 2013 at the New York offices of Wachtell, Lipton, Rosen & Katz, from 10 am – 2 pm, E.T.. The Commission will also meet on May 15th, 2013 from 12 pm – 2 pm, E.T., and June 17th from 4 pm – 7 pm, E.T..