College Columns December 2016 - Page 7

Bankruptcy Now and Future


Jesse Moore, Dykema Cox Smith, Austin, Texas

Fun was had by all at the “Bankruptcy Now and Future” seminar presented by the Fifth Circuit Fellows of American College of Bankruptcy in Austin, Texas on April 1 and 2, 2016. The discussions were lively, the food was good, and the jokes all garnered laughter, funny or not.

The April Fool’s Day kick-off for the seminar occurred at a well-attended reception at the Austin offices of Norton Rose Fulbright. Fellows Norton Rose Fulbright partner Toby Gerber, Standing Chapter 13 Trustee Deborah Langehennig, Becky Roof of AlixPartners and William Snyder of Deloitte, and Norton Rose Fulbright marketing event coordinator Crystal Wallingford worked hard in putting together and raising funds for the entire seminar, including the reception, which had Austin’s famous urban bat colony venturing out to supper from the Congress Avenue bridge below as a finale.

Panel 1: A Debate on ABI Commission Recommendations

The business portion of the seminar commenced the next morning at the new J.W. Marriott hotel in downtown Austin. Opening remarks were provided by the Hon. Chief Judge Barbara J. Houser (N.D. Texas), chair of the seminar.

A series of short and friendly debates and regarding three recommendations from the American Bankruptcy Institute’s Commission to Study the Reform of Chapter 11 followed. The Hon. Marvin Isgur (S.D. Texas) moderated this panel of Fellows, which included Commission members Bettina Whyte (Bettina Whyte Consultants) and Deborah Williamson (Dykema Cox Smith) plus Craig Goldblatt (Wilmer Hale), Edwin Smith (Morgan Lewis & Bockius) and Professor Jay Westbrook (University of Texas School of Law).

As part of this panel, Judge Isgur electronically polled audience members on each issue both before and after each debate topic to see how their views changed. The exact results of this poll have either been lost by one of the authors of this article or destroyed to protect the innocent. The tempo was up-beat, thanks to the moderator’s strict yet cordial enforcement of time limits.

The first topic addressed

whether “executory contract” should be defined and, if so, how. The Commission has endorsed the “Countryman” definition of an executory contract, which has been adopted in some form or fashion by the majority of courts. This received some well-reasoned and thoughtful critiques from Professor Westbrook, who has extensively researched the subject. He discussed the inconsistencies arising from the Countryman approach and advocated a functional approach, which looks at the burdens and benefits to the estate from a contract in determining whether it is executory. While Professor Westbrook’s pitch was well-received, concerns about increased uncertainty from implementing a new standard seemed to win support for Commission’s support of the status quo.

Plan voting and inter-creditor agreements were the next debate topic. The Commission takes the position that limits should be placed on the

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