Preferences and Ordinary Course of Business Defense | CLE Course

BarbriSFCourseDetails

Course Details

Course Information

smart_display Format
On-Demand
signal_cellular_alt Difficulty Level
work Practice Area
Bankruptcy

Date & Time

event Date
Wednesday, June 16, 2021
schedule Time
1:00 p.m. ET./10:00 a.m. PT
timer Program Length
90 minutes

Credit Information

This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00

CLE

ALL

This CLE course will review the ordinary course of business defense to preference actions. The program will help counsel identify new strategies applicable when practices between the parties and in their industry are or have become anything but ordinary. The panel will also explore the limits on the bankruptcy court's discretion in interpreting "ordinary."

Faculty

Deborah Kovsky-Apap

Partner

Troutman Pepper Locke LLP

Ms. Kovsky-Apap focuses her practice on bankruptcy and out-of-court workouts. She also has substantial litigation and trial experience in the areas of bankruptcy, commercial and securities law. She handles healthcare matters, representing official committees of unsecured creditors, major unsecured creditors and asset purchasers in Chapter 11 bankruptcies of hospitals, skilled nursing facilities, long-term care and rehabilitation facilities and centrally managed medical clinics.

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Brendan G. Best

Partner

Varnum LLP

Mr. Best is a partner, chair of Varnum's Restructuring Group, and co-leader of the Banking, Restructuring, and Finance Practice Team. His practice focuses on complex Chapter 11 restructurings, out-of-court workouts, and insolvency-related transactions and litigation. He has substantial experience advising stakeholders in insolvency-related matters across a wide array of industries including manufacturing, automotive, building supply and service, energy, oil and gas, health care, food service, gaming, hospitality, construction, and real estate.

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Brian Phillips

Director

Capstone Partners

Mr. Phillips is a Director with Capstone Headwaters’ Financial Advisory Services (FAS) Group. With 30 years of experience in both the private sector and public accounting, including more than 20 years as an advisor, he has amassed diverse experience in a wide range of industries. Specializing in turnaround and crisis management, profit enhancement and debt restructuring, Mr. Phillips has represented debtors, creditors and customers including automotive supply, manufacturing, retail, not-for-profit, government, technology, and service industries.

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Description

Creditors who the debtor paid within the 90 days (longer in some cases) could not be forced to disgorge them if they were made in the "ordinary course of business" between the creditor and debtor or made according to the ordinary business terms in the industry.

The Bankruptcy Code does not define "ordinary course of business" or "ordinary terms." While certain methods and conventions have developed to establish these defenses, they are not likely to work when entire industries and economies have been thrown into chaos. Counsel will need to have strategies and arguments for asking the bankruptcy courts to modify or change their analysis.

The Consolidated Appropriation Act of 2021 (CAA) protects some creditors who accommodated their obligors. Still, the CAA does not cover many common types of obligations, including leases of personal property or goods and services sold by purchase orders not subject to a master agreement.

Listen as this panel reviews the ordinary course of business defense, the CAA, and best strategies for asserting the ordinary course of business defense in extraordinary situations.