Litigation Round-Up

Litigation Round-Up

This panel discusses four topics of interest, paying particular attention to litigation strategy and tactics with respect to each. First, it examines stays pending appeal, particularly stays pending appeals of confirmation orders, including the current state of equitable mootness law in the Second Circuit and elsewhere; when and how to move for a stay; whether and how to make a record at the confirmation hearing to support a later stay motion, and what to do about the bond requirement. Second, it considers LTL and the standard for dismissal, as well as the importance of making an evidentiary record to support good faith and insolvency on filing. Third, it considers challenges to the retention of professionals, particularly what standard should govern when a debtor seeks to retain lawyers, investment bankers and other professionals. Should it be the existence of “interests adverse to the estate” or “disinterestedness,” or some combination of the two? It also considers, among other cases, SAS and FTX, and finally venue. What are the appropriate criteria that should be considered and relied upon by the debtor when choosing venue and by other parties in interest when challenging the debtor’s choice? How clear or blurry is the line between legitimate strategy and litigation tactics?

2023
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