Bringing Avoidance Actions Against Foreign Transferees: Choice of Forum, Personal Jurisdiction, Discovery and More

Best Practices for Debtors-in-Possession, Trustees, Authorized Committees and Liquidating Agents to Recover Foreign Assets

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, January 25, 2017
Recorded event now available


This CLE webinar will instruct bankruptcy estate representatives on how to recover assets from foreign defendants/transferees. The program will discuss key issues counsel must consider in pursuing foreign assets, including personal jurisdiction, choice of law, discovery tools, and enforcement of judgments, as well as the potential pitfalls and challenges.

Description

In today’s global economy, it is increasingly commonplace for bankruptcy estate representatives to be faced with the decision to pursue U.S. avoiding powers against foreign transferees.

Avoidance actions against foreign defendants can be filed in the U.S., the defendant’s home country or another country where the defendant holds assets. Debtors-in-possession, trustees, authorized committees and liquidating agents must consider a number of issues in choosing the appropriate forum.

Key issues include obtaining personal jurisdiction over the foreign defendant in U.S. courts; ensuring that U.S. avoidance law is applied, whether in the U.S. or a foreign court; overcoming discovery challenges when records or witnesses are not located in the U.S.; and getting a foreign court to recognize and enforce judgments obtained in a U.S. court.

Listen as our authoritative panel of bankruptcy practitioners discusses the framework for bankruptcy debtors-in-possession, trustees, authorized committees or liquidating agents to recover assets from foreign transferees. The panel will look at key issues in pursuing foreign assets, including personal jurisdiction, choice of law, discovery tools, and enforcement of judgments.

Outline

  1. Personal jurisdiction
  2. Choice of law
  3. Discovery tools
  4. Enforcement of judgments

Benefits

The panel will review these and other key issues:

  • What must the bankruptcy representative establish to obtain personal jurisdiction over the foreign defendant in U.S. courts?
  • What choice of law principles will determine whether the transfer in question is subject to U.S. avoidance laws?
  • What discovery challenges face estate representatives when records or witnesses are not located in the U.S.?
  • What challenges face estate representatives in convincing a foreign court to recognize and enforce a judgment issued by a U.S. court?

Faculty

Richard J. Mason, Partner
McGuireWoods, Chicago

Mr. Mason represents significant business interests in transactions and litigation, with a strong concentration in the areas of business insolvency and debtor-creditor relations. He has extensive experience representing a range of clients in business matters throughout the United States and overseas. He is an adjunct professor at Chicago Kent College of Law, where he has taught Bankruptcy Law since 1983 and began teaching Multinational Bankruptcy Law in 2011. He is a frequent speaker at continuing legal education programs. He is admitted to various federal courts in 20 states.

Timothy Graulich, Partner
Davis Polk & Wardwell, New York

Mr. Graulich has substantial experience in a broad range of domestic and international restructurings, including the representation of public and private companies, agent banks and lenders, acquirers and hedge funds in connection with pre-packaged and traditional bankruptcies, out-of-court workouts, DIP and exit financings, bankruptcy litigation and Section 363 sales. He is recognized for his work in insolvency and restructuring in various industry publications and has authored numerous articles on cross-border bankruptcy issues.

Christopher J. Redmond, Partner
Husch Blackwell, Kansas City, Mo.

Mr. Redmond is a leading authority on cross-border bankruptcy and international litigation. He represents secured creditors and creditors' committees in complex financial restructurings and bankruptcy reorganizations. In particular, he is consistently sought out for his deep knowledge in international insolvency and litigation matters, specifically concerning the pursuit of assets transferred to offshore jurisdictions. He is a member of the U.S. delegation to the U.N. Commission on International Trade Law (UNCITRAL) and was instrumental in assisting in the development of its legislative guide on insolvency. He is a member of the expert group to UNCITRAL and a representative on behalf of UNCITRAL in coordination with The Hague Conference on insolvency matters.

Patricia K. Smoots, Senior Counsel, Moderator
McGuireWoods, Chicago

Ms. Smoots focuses her practice on commercial, bankruptcy and insolvency-related litigation, commercial litigation and financial services litigation and disputes. Her clients include banks and other secured lenders, commercial lessors, insurance companies, energy producers, manufacturers, medical professionals, and a wide variety of commercial corporations and enterprises. In bankruptcy cases, she represents secured and unsecured creditors, official committees of creditors, bankruptcy trustees and other stakeholders.


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Higgs, Fletcher & Mack

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Bankruptcy Law Advisory Board

Mark N. Berman

Adjunct Professor

Northeastern University

Michael E. Foreman

Partner

ForemanLaw

Matthew Gensburg

Shareholder

Greenberg Traurig

Brian E. Greer

Partner

Dechert

Douglas Lipke

Shareholder

Vedder Price

Victor Milione

Partner

Nixon Peabody

Steven B. Smith

Senior Consultant

JND Corporate Restructuring

Michael Solow

Partner

Kaye Scholer

Robert A. Weber

Counsel

Skadden Arps Slate Meagher & Flom

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