BEYOND THE SURFACE OF VENUE: REAL WORLD BANKRUPTCY

PRACTICE IN 2018

2018 Annual Meeting, National Conference of Bankruptcy Judges

Panel Presentation, October 30, 2018

DM3/5371622.1

Venue One of the most important aspects of a bankruptcy case

Implications of increased filings in only a few jurisdictions:

Impact on professional development;

Development of bankruptcy jurisprudence; and

Due process rights of smaller creditors.

Impact on everyday practice:

Local counsel requirements;

Telephonic participation in proceedings; and

Appellate practice

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Current Law

28 U.S.C. § 1408:

Except as provided in section 1410 of this title, a case under title 11 may be

commenced in the district court for the district—

(1) in which the domicile, residence, principal place of business in the United States, or

principal assets in the United States, of the person or entity that is the subject of such

case have been located for the one hundred and eighty days immediately preceding

such commencement, or for a longer portion of such one-hundred-and-eighty-day period

than the domicile, residence, or principal place of business, in the United States, or

principal assets in the United States, of such person were located in any other district;

or

(2) in which there is pending a case under title 11 concerning such person’s affiliate,

general partner, or partnership.

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The Big Box Issues – Venue and Reform

STATUS QUO V. REFORM

• Special expertise in DE & SDNY

re: large business Chapter 11

cases

• Streamlined rules and standing

orders

• Predictability

• Due process concerns

• Limits forum shopping

• Local solutions better

• 92 other capable Districts

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Current Distribution of Business Cases

MEGA CASES*

DE and SDNY 278 71%

Texas Southern 25 6%

Texas Northern 11 3%

Virginia Eastern 8 2%

*2010-2017 -- 394 total cases

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Current Distribution of Business Cases

IN THE FOLLOWING DISTRICTS

Year NDCA WDTX SDNY DE

2016 107 154 500 598

2017 100 81 555 682

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Current Distribution of Business Cases

DE AND SDNY CASES

AS A NATIONAL PERCENTAGE

Years Percent Description

2005-2007 10.7 All business Chapter 11 cases

2015-2017 17.3 All business Chapter 11 cases

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Impact on Bankruptcy Law and Practice

Effect on Practice Development

Busy vs. slow courts

Cases limited to consumer or non-complex commercial matters

Concentration of Bankruptcy Law Development

Jurisprudence developed in two Circuits

Inefficient allocation of court resources

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Impact on Creditors, Employees and Others

Expense of defending avoidance actions or prosecuting claims

The “need for speed” vs. the cost to creditors

Considerations for taxing and local governmental authorities

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Solutions

Venue Reform

S. 2282 - Bankruptcy Venue Reform Act of 2018

National Admission to Federal Courts

Changes to Federal Rules of Bankruptcy Procedure and Local Rules

Relaxed Rules for Admission Pro Hac Vice

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Hon. Sage M. Sigler

United States Bankruptcy Judge

for the Northern District of Georgia

Andrew Helman, Esq.

Murray, Plumb & Murray

Peter C. Califano, Esq.

Cooper, White & Cooper LLP

Jarret P. Hitchings, Esq.

Duane Morris LLP

Panelists

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Conclusion and Thank You

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