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Webinar: Subordination and Recharacterization of Claims in Bankruptcy
June 29, 2021 @ 12:00 pm – 1:00 pm
1 Hour MCLE; 1 Legal Specialization in Bankruptcy Law. Special low price!
This panel, comprised of an esteemed Bankruptcy Judge and two bankruptcy attorneys with extensive experience in such matters will discuss developments in the case law of particular interest to California practitioners, as well as some “best practices.”
The panel will discuss:
- Junior secured or unsecured creditors often assert subordination or recharacterization claims against more senior creditors to enhance recovery from a debtor that is unable to fully satisfy its debts.
- The Bankruptcy Code allows the court to apply equitable reasons to alter the general distribution scheme provided under the Bankruptcy Code, resulting in inferior treatment for a creditor that engages in misconduct which harms other creditors.
- The Bankruptcy Code also provides for subordination of claims based on the purchase or sale of securities of a debtor or its affiliate, so that such claims are treated as having equal or lesser priority of claims based on the relevant securities.
- Recharacterization is a judicially created doctrine allowing an obligation that facially involves a debt to be treated as an equity interest based on a multi-factor test.
- The subordination and recharacterization doctrines are heavily litigated, with courts in various jurisdictions using different standards and reaching disparate conclusions.
Speakers: Hon. Laura Taylor, Gary Kaplan, and Thomas R. Phinney.
Hon. Laura Taylor
Judge Laura Stuart Taylor has served as a United States Bankruptcy Judge for the Southern District of California since January 2008. She ended a seven year term as Chief Judge in October of 2019.
In January 2013, Judge Taylor was appointed to a seven year term on the Ninth Circuit Bankruptcy Appellate Panel; she was reappointed December 31, 2019. In August of 2019, she became its Chief Judge.
From 1983 – 1995 and from 1998 to 2007, Judge Taylor was an associate and partner at Sheppard, Mullin, Richter & Hampton LLP where she practiced in the Finance and Bankruptcy practice group. For most of her career she was resident in the San Diego office. From June 2005 to November 2007, she served as the San Diego office’s Administrative Partner.
From January 1995 to February 1998, Judge Taylor practiced pro bono law. She was the founder of the San Diego Volunteer Lawyer Program’s Special Education Project (the “Project”). The Project provided pro bono legal services to disabled foster youth and low income families with disabled children.
Judge Taylor received her B.A. with Highest Honors from the University of North Carolina at Chapel Hill and her J.D. with Honors from Duke University.
Gary Kaplan, is Chair of the Bankruptcy, Restructuring and Creditors’ Rights Group at the San Francisco firm of Farella Braun + Martel LLP. He has 30 years of experience representing debtors, creditors, creditors’ committees, trustees, and receivers in a wide range of bankruptcy and nonbankruptcy matters. Mr. Kaplan’s practice includes both out of court and Chapter 11 restructurings, and advising clients regarding pre- and post-bankruptcy strategy, debt collection, judgment enforcement, and provisional remedies. He represents lenders and borrowers in a wide range of financing transactions, including debtor-in-possession financing, as well as lease and guaranty matters. He also has extensive litigation experience in bankruptcy and non-bankruptcy courts, at trial and appellate levels, including in the U.S. Supreme Court.
Mr. Kaplan is Board Certified in Business Bankruptcy Law by the American Board of Certification and a Certified Legal Specialist in Bankruptcy Law by the State Bar of California. He has been selected as a Northern California Super Lawyer for the years 2004-2006 and 2009-2020. Mr. Kaplan is the former President of the Bay Area Bankruptcy Forum and former Chair of the Bankruptcy Law Advisory Commission, of the California State Bar. He is also a frequent speaker on bankruptcy and insolvency law matters.
Thomas R. Phinney
Tom Phinney co-founded the Sacramento firm Parkinson Phinney in 2005, and has practiced bankruptcy law and commercial litigation for over 25 years. Mr. Phinney has received a peer review rating of “AV preeminent” by Martindale Hubbell. He is certified as a Business Bankruptcy Specialist by the American Board of Certification, and certified as a Bankruptcy Law Specialist by the California State Bar. He was selected as a Northern California Super Lawyer for the years 2014-20. He was Lawyer Representative for the Eastern District of California to the Ninth Circuit Judicial Conference (2016-2019) and is a member of the Ninth Circuit Lawyer’s Representative Coordinating Committee (2017-2021). He was President of the California Bankruptcy Forum (2016-2017), and President of the Sacramento Valley Bankruptcy Forum (2015-2016). He is a member of the Government Affairs Committee for the California Lawyer’s Association (2018-2021). He is an adviser to the Executive Committee of the Business Law Section of the California State Bar (2016-2021). He is a writer for the American Bankruptcy Institute and a frequent speaker on bankruptcy and insolvency law issues.