Cosponsored with The American Law Institute May 30, 2012 Video Webcast TABLE OF CONTENTS FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS

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1 ALI-ABA Continuing Professional Education What Every Bankruptcy Lawyer (and Judge) Needs to Know about the New Restatement of Restitution and Unjust Enrichment Cosponsored with The American Law Institute May 30, 2012 Video Webcast PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS 1. What Every Bankruptcy Lawyer (and Judge) Needs to Know About the New Restatement of Restitution and Unjust Enrichment By Elizabeth S. Stong, Ralph Brubaker, Susan Power Johnston, Andrew Kull, Douglas Laycock and Bruce A. Markell 2. Restoring Restitution to the Canon By Douglas Laycock Page vii ix xi 1 35 v

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3 ALI-ABA Continuing Professional Education What Every Bankruptcy Lawyer (and Judge) Needs to Know about the New Restatement of Restitution and Unjust Enrichment Cosponsored with The American Law Institute May 30, 2012 Video Webcast PROGRAM (All Times Eastern Standard) 1:00 pm What Every Bankruptcy Lawyer (and Judge) Needs to Know about the New Restatement of Restitution and Unjust Enrichment --Panel Discussion --Audience Questions (submitted via ) 3:00 pm Adjournment DISCLAIMER Nothing in this program, the program materials, or communications stemming from the program (including questions and answers) should be considered as the rendering of legal advice. Non-lawyers should seek the advice of a licensed attorney in all legal matters. Registrants/readers should assure themselves that these presentations/materials/communications are still current and applicable at the time they are delivered or read. Neither ALI-ABA nor the speakers/authors can warrant that these presentations/ materials/communications will continue to be accurate, nor do they warrant them to be completely free of errors when delivered/published. Registrants/readers should verify statements before relying on them. These presentations/materials/communications reflect the viewpoints of their speakers/authors and do not necessarily express the opinions of ALI-ABA Continuing Professional Education or its sponsors. The members of this program's faculty are contributing their services to further the continuing legal education of their fellow members of the Bar. vii

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5 ALI-ABA Continuing Professional Education What Every Bankruptcy Lawyer (and Judge) Needs to Know about the New Restatement of Restitution and Unjust Enrichment Cosponsored with The American Law Institute May 30, 2012 Video Webcast PLANNING CHAIR AND MODERATOR Judge Elizabeth S. Stong Michael H. Reed, Esquire U.S. Bankruptcy Court Partner Eastern District of New York Pepper Hamilton LLP 271 Cadman Plaza East 3000 Two Logan Square Brooklyn, NY Philadelphia, PA PANELISTS Professor Douglas Laycock Professor Andrew Kull University of Virginia School of Law Boston University School of Law 580 Massie Rd 765 Commonwealth Ave, Rm 1170 Charlottesville, VA Boston, MA Susan Power Johnston, Esquire Judge Bruce A. Markell Covington & Burling LLP U.S. Bankruptcy Court The New York Times Building District of Nevada 620 Eighth Avenue Foley Federal Building New York, NY Las Vegas Boulevard South Las Vegas, NV Professor Ralph Brubaker University of Illinois College of Law 229 Law Building 504 East Pennsylvania Avenue Champaign, IL ALI-ABA Staff Producer: Harry Kyriakodis, Esquire ix

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7 FACULTY BIOGRAPHIES Planning Chair Judge Elizabeth S. Stong U.S. Bankruptcy Court Eastern District of New York Brooklyn, NY Judge Stong has served as U.S. Bankruptcy Judge for the Eastern District of New York since She was previously a litigation partner and associate at Willkie Farr & Gallagher in New York, an associate at Cravath, Swaine & Moore, and law clerk to Hon. A. David Mazzone, U.S. District Judge in the District of Massachusetts. Judge Stong is a member of the Council of the American Law Institute, Vice President of the Federal Bar Council, and a member of the International Insolvency Institute. She is an officer of the ABA Business Law Section and serves on the ABA s Standing Committee on CLE. Judge Stong is an adjunct professor at St. John s University School of Law and Brooklyn Law School. She previously served as President of the Harvard Law School Association, Vice President of the Board of Directors of New York City Bar Fund Inc. and the City Bar Justice Center, Chair of the New York City Bar s Alternative Dispute Resolution Committee, and Vice Chair of its Judiciary Committee. She was also a member of the board of MFY Legal Services, Inc., one of the largest providers of free civil legal services to low-income residents of New York City, and served on the ABA s Commission on Women in the Profession and Commission on Homelessness and Poverty. Moderator Michael H. Reed, Esquire Partner Pepper Hamilton LLP Philadelphia, PA Mr. Reed is a member of Pepper Hamilton's Corporate Restructuring and Bankruptcy Practice Group and concentrates his practice in the field of bankruptcy and insolvency law. He is a fellow of the American College of Bankruptcy and a member of the American Law Institute. Mr. Reed is past president of the Pennsylvania Bar Association and was the first person of color to lead the PBA. He previously served as chairman of the House of Delegates of the PBA and as a member of the association s board of governors. During , Mr. Reed was a member of the Lawyers Local Bankruptcy Rules Advisory Committee of the U.S. District Court for the Eastern District of Pennsylvania, which helped draft the new local bankruptcy rules adopted for the district effective February 1, During , he served a one-year term as chairman of the Eastern District of Pennsylvania Bankruptcy Conference. Mr. Reed served on two bankruptcy judge merit selection committees for the Eastern District of Pennsylvania, to which he was appointed by the United States Court of Appeals for the Third Circuit, during and 2000, when he also chaired the committee. Mr. Reed lectures nationally and regionally on bankruptcy matters and has been an adjunct professor at Temple Law School (1989; bankruptcy) and Rutgers-Camden Law School (1983, 1985; bankruptcy and secured transactions). In March 2011, Mr. Reed was appointed to the Philadelphia Board of Ethics. xi

8 Panelists (in no particular order) Professor Douglas Laycock University of Virginia School of Law Charlottesville, VA Professor Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. Before joining University of Virginia's faculty in 2010, Laycock served as the Yale Kamisar Collegiate Professor of Law at the University of Michigan Law School, and also taught for 25 years at the University of Texas and for five years at the University of Chicago. Professor. Laycock has testified frequently before Congress and has argued many cases in the courts, including the U.S. Supreme Court. He is the author of the leading casebook Modern American Remedies; the award-winning monograph The Death of the Irreparable Injury Rule; and many articles in the leading law reviews. He has co-edited a collection of essays, Same-Sex Marriage and Religious Liberty, and he recently published Religious Liberty, Volume I: Overviews and History, and Volume II: The Free Exercise Clause. Professor Laycock is vice president of the American Law Institute, a fellow of the American Academy of Arts and Sciences, and the 2009 winner of the National First Freedom Award from the Council on America's First Freedom. He earned his B.A. from Michigan State University and his J.D. from the University of Chicago Law School. Professor Andrew Kull Boston University School of Law Boston, MA Professor Kull is the nation s leading expert in the area of Restitution. He is the Reporter for the American Law Institute's Restatement Third of Restitution and Unjust Enrichment since 1997 and has been the U.S. Regional Editor of the Restitution Law Review since Professor Kull is also a well-known constitutional historian. His book, The Color-Blind Constitution, published in 1992, won the Silver Gavel Award. In addition, Professor Kull has written numerous articles and reviews. He received Metcalf Award for Excellence in Teaching in It was noted that "Professor Kull has transformed the first-year Contracts course in law school from a dry requirement to an exciting and thought-provoking initiation into the legal field." Prior to joining the Boston University School of Law faculty, Professor Kull was the Robert T. Thompson Professor of Law at Emory University. He earned his B.A. from University of California-Berkeley. his B.A. and M.A. from Oxford University, and his J.D. from the University of Chicago Law School. xii

9 Judge Bruce A. Markell U.S. Bankruptcy Judge District of Nevada Las Vegas, NV Judge Markell is a 1977 graduate of Pitzer College and a 1980 graduate of the King Hall School of Law, University of California at Davis. Following graduation, he clerked for then-judge Anthony M. Kennedy when Justice Kennedy was a member of the Ninth Circuit Court of Appeals. He then became a partner in the Los Angeles office of Sidley & Austin, specializing in workouts and bankruptcy matters. In 1990, Judge Markell joined the faculty of the Indiana University School of Law Bloomington, and move to the William S. Boyd School of Law at the University of Nevada, Las Vegas in He has taught contracts, commercial law, securitization and bankruptcy. During 1999, he was the Bruce W. Nichols Visiting Professor of Law at Harvard Law School, and has also visited other law schools. He was elected as a member of the American Law Institute in 1997 and was elected a conferee of the National Bankruptcy Conference in He became an elected member of the International Insolvency Institute in 2000 and is a fellow of the American College of Bankruptcy. A member of the editorial board of Collier on Bankruptcy, Judge Markell is the author of numerous articles on bankruptcy and commercial law. He has co-authored several books, including Core Concepts of Commercial Law: Past, Present & Future, Securitization, Structured Finance and Capital Markets and Bankruptcy: 21st Century Debtor-Creditor Law. He has been a bankruptcy judge since 2004 and a member of the Ninth Circuit's Bankruptcy Appellate Panel since He continues his association with the academy as UNLV s Senior Fellow in Bankruptcy and Commercial Law. Susan Power Johnston, Esquire Esquire, Covington & Burling LLP New York, NY Ms. Johnston practices in the area of debtor and creditor rights, with a particular focus on bankruptcy litigation. Her clients have included debtors, official creditors' committees, secured and unsecured creditors, lease holders, indenture trustees, equity holders, and parties interested in acquiring assets from debtors' estates. A member of the American Law Institute and the International Insolvency Institute, Ms. Johnston has authored, inter alia, "Conflict Between Bankruptcy Code 109(a) and 1515: Do U.S. Bankruptcy Courts Have Jurisdiction Over Chapter 15 Cases If the Foreign Debtor Has No Assets or Presence in the U.S.?," Norton Journal of Bankruptcy Law and Practice (2008) and "Cram-Down Interest Rates: Developments Following Till v. SCS Credit Corporation," Norton Journal of Bankruptcy Law and Practice, Vol. 16, No. 4 (August 2007). She is also the Co-Author of "Cross-Border Insolvency Protocols: Developing an International Standard," Norton Annual Review of International Insolvency (March 2010). Before joining Covington & Burling, she was an Assistant U.S. Attorney in the Southern District of New York ( ). xiii

10 Professor Ralph Brubaker University of Illinois College of Law Champaign, IL Mr. Brubaker is a Professor of Law at the University of Illinois College of Law, where he teaches courses in bankruptcy, civil procedure, contracts, and conflict of laws. Professor Brubaker has three degrees from the University of Illinois, including his J.D. summa cum laude and an M.B.A., and he received Bronze Tablet distinction (highest honors) and C.P.A. certification as an undergraduate. He clerked for Judge James K. Logan of the United States Court of Appeals for the Tenth Circuit, and he practiced in the bankruptcy and corporate reorganization group with the law firm Squire, Sanders & Dempsey in Cleveland, Ohio. Professor Brubaker was a member of the faculty at the Emory University School of Law in Atlanta, Georgia from 1995 until 2004, when he returned to his alma mater. Professor Brubaker is the Editor-in-Chief and a contributing author for Thomson/West s Bankruptcy Law Letter, he is co-author of a bankruptcy casebook, and he has written dozens of journal articles and essays. He is particularly expert in the complex jurisdictional and procedural facets of federal bankruptcy proceedings. Professor Brubaker is a Fellow of the American College of Bankruptcy, has served as a member of the executive committee of the board of directors of the American Bankruptcy Institute and on the advisory boards for the American Bankruptcy Institute Law Review and the St. John s University LL.M. in Bankruptcy. xiv