BAPCPA: Changes to the Reclamation and Utility Provisions to the Reclamation and Utility Provisions
By: Douglas E. Deutsch
Chadbourne & Parke, LLP; New York
State law reclamation rights allow a seller to recover goods shipped to and received by an insolvent buyer within a defined period if the seller shipped without knowledge of the buyer’s insolvency. Pre-BAPCPA, the Bankruptcy Code protected those state law rights but limited the time the seller was able to exercise those rights to 10 days after a debtor’s receipt of the goods (unless the 10-day period ended after the bankruptcy filing, in which case, the seller had 20 days after receipt of the goods to make a reclamation demand).
BAPCPA Issues and the YNMC
The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) took effect on Oct. 17, 2005. It appears, perhaps based largely on the substantial highlighting contained in our new versions of the Bankruptcy Code as well as headline-grabbing articles on certain modifications (such as KERP plans), that the changes have been significant. However, when one pulls back the curtain, it is not nearly so clear that the BAPCPA changes greatly influence our everyday practices.
Starting with today's article on the new provisions related to reclamation and utility issues, we attempt to highlight the new amendments by reviewing bankruptcy opinions (some reported, some not) and everyday changes in bankruptcy practice and procedure that resulted from BAPCPA. We invite you to participate in this process.
We encourage you to submit a brief article for the YNMC newsletter on BAPCPA changes. Write on the tax provisions, a consumer change, executory contracts and leases, KERPs, foreign proceedings or any other change that catches your interest. You can also submit your comments or further insights on articles that are already written (perhaps in a format similar to a blog). Given the limited reported case law on certain issues, experiences in one area of the country or with one type of bankruptcy professional might be much different than the experience elsewhere or from a different perspective. Accordingly, diverse opinions are wanted and needed. I also note that, as always, articles on any non-BAPCPA topic are also welcome. So write for the YNMC newsletter. This is the perfect opportunity to BECOME MORE INVOLVED!
Agenda for 2007 Annual Spring Meeting
The Young & New Members Committee will sponsor a joint program with the Unsecured Trade Creditors’ Committee at ABI’s Annual Spring Meeting on Saturday, April 14, 2007 at 4:00 p.m. The program, focusing on creditor remedies, is appropriately titled “Fifty Ways to Leave Your Debtor: Lesser Known Remedies for Jilted Creditors.” The panel of experts includes Deborah L. Thorne (Barnes & Thornburg LLP; Chicago), Bruce S. Nathan (Lowenstein Sandler PC; New York) and YNMC Co-chair Brian L. Shaw (Shaw Gussis Fishman Glantz Wolfson & Towbin LLC; Chicago).
The program will address various remedies including state and federal trust fund laws (i.e., PACA, Builders Trust Fund), various lien and Article 2 rights and remedies, setoff and recoupment, and other hidden treasures that are not always at the tip of a creditor's tongue when faced with the financially troubled customer. The panel will cover the practical aspects of utilizing these remedies to protect creditors’ rights, inside and outside of the bankruptcy arena, and present a debtor’s perspective on how to address and react to these remedies when asserted against it. As stated in the marketing materials, this is truly a presentation not to be missed by anyone, whether the jilter or the jiltee.
Brand new members should also keep their eyes out for announcements regarding the Ambassador Program. At this relatively new Thursday (April 12, 2007 at 5:00 p.m.) program, new members are assigned senior ABI members (Ambassadors) to facilitate their introduction to ABI, helping the new member identify ways to become more involved and assisting them in integrating into the organization by providing opportunities to meet and network with other ABI members. This program has been a great success. We encourage all new members to participate.