No Matter Where You Go, There You Are Forum Shopping

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1 No Matter Where You Go, There You Are Forum Shopping State Bar of Texas 29 th Annual Advanced Business Bankruptcy Course John P. Melko Gardere Wynne Sewell LLP William (Trey) Wood, III Bracewell& Giuliani LLP

2 Venue Considerations What are your venue choices? Venue Statute Residence or domicile Principal place of business Location of principal assets Place of affiliate filing

3 Venue Statute 28 USC Sec Venue of cases under title 11 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

4 Venue Statute 28 USC Sec Venue of cases under title 11 (2) in which there is pending a case under title 11 concerning such person's affiliate, general partner, or partnership.

5 Venue Statute What are your venue choices? Venue Statute Residence or domicile Principal place of business Location of principal assets Place of affiliate filing

6 Where are the company s executives? Will the incumbent management lead the restructure? Will outside consultants lead the restructure?

7 Where are the creditors? Secured lenders Bond holders/sub-debt Unsecured creditors

8 What are the major issues? DIP Financing Sale of all assets Global settlements Under 30 day pre-packs Fees Size of case

9 Legislation Currently pending legislation Prior legislation

10 Legislation Hearing on: H.R. 2533, the "Chapter 11 Bankruptcy Venue Reform Act of 2011" Thursday 9/8/ :00 a.m Rayburn House Office Building Subcommittee on Courts Commercial and Administrative Law By Direction of the Chairman Hearing Documentation

11 H.R Chapter 11 Bankruptcy Venue Reform Act of th CONGRESS * 1st Session * H. R To amend title 28 of the United States Code with respect to proper venue for cases filed by corporations under chapter 11 of title 11 of such Code. IN THE HOUSE OF REPRESENTATIVES * JULY 14, 2011 Mr. SMITH of Texas (for himself, Mr. CONYERS, Mr. COBLE, and Mr. COHEN) Introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 28 of the United States Code with respect to proper venue for cases filed by corporations under chapter 11 of title 11 of such Code. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

12 SEC. 1. Short Title This Act may be cited as the Chapter 11 Bankruptcy Venue Reform Act of 2011

13 SEC. 2. Amendments Section 1408 of title 28 of the United States Code is amended... (b) A case under chapter 11 of title 11 in which the person that is the subject of the case is a corporation may be commenced only in the district court for the district in which the principal place of business in the United States, or principal assets in the United States, of such corporation have been located for 1 year immediately preceding such commencement, or for a longer portion of such 1-year period than the principal place of business in the United States, or principal assets in the United States, of such corporation were located in any other district; or 2.in which there is pending a case under chapter 11 of title 11 concerning an affiliate of such corporation, if the affiliate in such pending case directly or indirectly owns, controls, or holds with power to vote more than 50 percent of the outstanding voting securities of such corporation.'.

14 SEC. 3. Effective Date Application of Amendments a. Effective Date - Except as provided in subsection (b), this Act and the amendments made by this Act shall take effect on the date of the enactment of this Act. b. Application of Amendments - The amendments made by this Act shall apply only with respect to cases commenced under title 11 of the United States Code on or after the date of the enactment of this Act.

15 Prior Legislation S. 314: Fairness in Bankruptcy Litigation Act of th Congress: A bill to protect consumers, creditors, workers, pensioners, shareholders, and small businesses, by reforming the rules governing venue in bankruptcy cases to combat forum shopping by corporate debtors. Sponsor: Sen. John Cornyn FR-TX] This bill never became law. This bill was proposed in a previous session of Congress. Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. Members often reintroduce bills that did not come up for debate under a new number in the next session.

16 Venue studies LYNN M. LOPUCKI, COURTING FAILURE: HOW COMPETITION FOR BIG CASES IS CORRUPTING THE BANKRUPTCY COURTS (2005).

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