Debt Market Complexity: Shadowed Practices and Financial Injustice

October 7, 2022

8AM – 5PM

University of Pennsylvania Carey Law School

Volume 171 of the University of Pennsylvania Law Review is proud to present its annual symposium on a timely legal topic.
 
Over the last decade, low interest rates and aggressive quantitative easing have resulted in strong demand for high-yield investments. Corporate borrowers have enjoyed unique leverage and have been able to draft debt instruments with fewer creditor safeguards and various trap doors.
Private equity sponsors have led this charge, and some players have recently begun exploiting contractual loopholes to seize value in distress scenarios. Creditors are being pitted against other creditors in an ever-radicalizing model. These nascent battles—which have been observed at several prominent companies, including Caesars Entertainment, Neiman Marcus, and J.Crew—raise concerns about the potential harm to the U.S. economy if a financial downturn leads to a battle for control over some of the nation’s largest companies.
 
The effect of this credit-on-creditor violence is difficult to assess because the facets are not fully understood. Shifts in creditor and lender composition have exacerbated the complexity and opacity of the leveraged loan and distressed debt markets – rendering these markets more susceptible to downturns and amplifying contagion risks for global economies.
 
This interdisciplinary symposium seeks to bring together diverse scholars to address the new dynamics that are reshaping the field. It also seeks to create a dialogue among scholars and practitioners of finance, bankruptcy law, capital markets, and economics. We hope to be at the leading edge of private equity’s next phase.
 
The University of Pennsylvania Law Review is proud to partner with Vince Buccola (Wharton), Elisabeth de Fontenay (Duke), Sujeet Indap (Financial Times), Samir Parikh (Lewis & Clark), and Katherine Waldock (the Millstein Center at Columbia) to present this Symposium. The Law Review thanks Platinum sponsor Wachtell, Lipton, Rosen & Katz and Gold sponsors Weil, Gotshal & Manges LLP and Kirkland & Ellis for helping make this event possible.
 
Registration & Contact Info 
 
 
Please contact symposium@pennlawreview.com with any questions.
 
A livestream will be available. Please register for a virtual ticket on EventBrite and we will send you a link to the livestream. Attorneys attending remotely will be eligible to receive CLE credits if they pay the requisite fees (see below for more information)
 
Schedule

 

8:00 to 8:30 a.m. Registration and Refreshments 

8:30 to 9:00 a.m. Introductory Remarks

9:00 to 10:30 a.m. Panel 1:The Leveraged Loan Market and the Impending Buyout Bust 

Brief Description: The U.S. leveraged loan market, which stood at just over $100 billion two decades ago, caught up to the size of the U.S. high-yield bond market – roughly $1.6 trillion in amounts outstanding – in 2021. Although banks still hold a majority of leveraged loans, NBFIs are significant market participants, particularly in the non-investment grade loan sector. Control rights vary across loan types. These market features raise questions about whether leveraged loans are more susceptible to fire sales and potentially lead to differences in the bargaining process during distressed work-outs and restructurings. They also raise the broad question about the gradual shift from bonds to loans in riskier debt markets. This panel will address these questions while laying the empirical groundwork for distressed debt markets that will inform the panels that follow.

Moderator: Katherine WaldockMillstein Center at Columbia

Tony Casey,University of Chicago

Jared Ellias, Harvard 

Edith HotchkissBoston College 

Edward MorrisonColumbia

David SkeelUniversity of Pennsylvania

10:30 to 10:45 a.m. Break

10:45 to 12:15 p.m. Panel 2:Contracting Complexity and the Rise of Shadowed Practices: How Private Equity Dictates Outcomes

Brief Description: Debt instruments fail to address and resolve the most challenging disputes between parties, despite their increasing length and complexity. Bondholders could demand the inclusion of provisions to better protect their positions and reduce the risk of equity sponsor gamesmanship. But sponsors have successfully negotiated for “loose” debt contracts that preserve the optionality that is often necessary in the precarious post-LBO world. In the low-interest environment that has existed over the last 10 years, bondholders have been willing to go along in exchange for higher yields. Ex ante measures to avoid collateral skirmishes have proven elusive. The resolution void has emboldened equity sponsors to exploit their considerable relationship and financial leverage, pursuing unprecedented hostile acts against creditors to preserve equity stakes.

ModeratorElisabeth de FontenayDuke

Kenneth AyotteUC Berkeley

Matt JennejohnBYU 

Samir ParikhLewis & Clark

Jeffrey Dutson, King & Spalding

George TriantisStanford

12:15 to 1 p.m. Lunch

1 to 2 p.m. Keynote Conversation: Matt Levine, Bloomberg Opinion & Sujeet Indap, Financial Times 

2 to 3:30 p.m. Panel 3: Creditors Strike Back

Brief DescriptionEquity sponsors have adopted unprecedented levels of aggression towards creditors, exploiting debt contracts to transfer value from creditors to equity holders. These new tactics initially left creditors paralyzed, but creditors have started fighting back. This panel will unpack all of the traditional and evolutionary tactics creditors are employing to protect their positions.

Moderator: Sujeet IndapFinancial Times

Bruce BennettJones Day

Joshua FeltmanWachtell, Lipton, Rosen & Katz

Nicole GreenblattKirkland & Ellis LLP

Ted GoldthorpeBC Partners

3:30 to 3:45 p.m. Break

3:45 to 5:15 p.m. Panel 4: The Judicial Role in the New Order

Brief Description: The new dynamics of lending and private equity ownership pose questions about how disputes among creditors, debtors, and their owners should be resolved. Familiar judicial norms and practices calibrated to an environment with influential senior lenders may not be optimal for an environment in which sponsors set the agenda. This panel will explore the challenges judges are beginning to face in and out of Chapter 11.

ModeratorVincent BuccolaThe Wharton School

Douglas BairdUniversity of Chicago

Ronit BerkovichWeil, Gotshal & Manges LLP

Hon. Craig Goldblatt, U.S. Bankruptcy Court, District of Delaware 

Robert RasmussenUniversity of Southern California 

5:15 p.m. to 5:30 p.m. Concluding Remarks 

 
CLE Information
 
This program has been approved for 7.0 Substantive CLE credits for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit must register for CLE credit and make a payment via the online CLE registration link in the amount of $280.00 ($140.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, passcodes provided throughout the program must be noted in your evaluation form.
 
Penn Carey Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning. 

PAST SYMPOSIUMS

The Disability Frame: Opportunities, Costs, and Constraints in the Broad Struggle for Inclusion

Time: All Day

Date: February 18-19, 2022

Where: Zoom

The University of Pennsylvania Law Review is partnering with Professor Jasmine Harris and Professor Karen Tani to present a symposium entitled “The Disability Frame: Opportunities, Costs, and Constraints in the Broad Struggle for Inclusion.”

At the heart of this symposium is the legal concept of disability. This concept has now been enlisted to address a surprising array of problems: not only disability-based discrimination and exclusion, but also the risk of COVID-19 transmission in schools, the subordination of transgender individuals, the casualties of modern capitalism, and the remediation of poverty and environmental harms, to name just a handful of examples. And yet there has been scant acknowledgment or discussion of the choice to enlist disability in these myriad ways. This symposium seeks to initiate much-needed conversation. This symposium also acknowledges that disability is not only a legal concept, but also a social construct, a lived reality, and for many individuals, a chosen identity. It is time for scholars, policymakers, activists, and present and future lawyers to grapple with the complexity of the “the disability frame” and think collectively about its implications.

The symposium will be held via Zoom on February 18-19. For more information, please reach out to Matthew Seelig at mseelig@pennlaw.upenn.edu.

REGISTRATION: https://pennlaw.zoom.us/webinar/register/WN_t-N7uC-BShm1oufopSg1rw 

We strive to be as inclusive as possible. To that end, here is some information about how this event will go. We have an ASL interpreter and also manual closed captioning as standard accommodations for each panel and speaker during the symposium. We will orally identify ourselves when we are speaking. When we are speaking for the first time, we will describe our visual appearance. In all instances, we will state our name before we speak. If a speaker shows a slide, they will describe and explain what is on the slide. We encourage participants to use plain language whenever possible and define (or avoid) acronyms.


We have a few channels by which to ask questions. Anybody may type a question in the Q&A tab. We will have a moderator read questions, unless the person asking the question prefers to ask orally. To ask your question orally, please indicate you would like to do so in the body of your question or alternatively, you may simply raise your electronic hand. We will then allow you to unmute yourself to ask the question. Finally, we will have a phone line, where anyone can call in to ask a question. That number is (215) 898-7060. You may also use this number to make accommodation requests or report technology issues. You may also alert us to issues via the chat.


This program has been approved for 3.0 Substantive and 4.5 Ethics CLE credits for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit must register for CLE credit and make a payment via the online CLE registration link in the amount of $300.00 ($150.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, passcodes provided throughout the program must be noted in your evaluation form.

 

Penn Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.

 

DAY 1 – Friday, February 18, 2022

  • 11:00 AM – 11:30 PM – Registration
  • 11:30 AM – 12:15 PM – Introductory Remarks
  • 12:15 PM – 12:45 – Keynote:  Rep. Ayanna Pressley, U.S. House of Representatives
  • 1:00 PM – 2:30 PM – Panel One: The Past
    • Rabia Belt, Stanford Law School
    • Nate Holdren, Drake University
    • Leah Samples, University of Pennsylvania
    • Karen Tani, University of Pennsylvania 
  • 2:30 PM – 3:00 PM – Break
  • 3:00 PM – 4:30 PM Panel Two: The Cost Narrative
    • Elizabeth Emens, Columbia Law School
    • Kaaryn Gustafson, University of California, Irvine School of Law
    • Jasmine Harris, University of Pennsylvania Carey Law School
 
 

DAY 2 – Saturday, February 19, 2022

  • 9:00 AM – 9:30 AM – Registration
  • 9:30 AM – 10:00 AM – Introductory Remarks
  • 10:00 AM – 11:30 AM – Panel Three: The Present
    • Katie Eyer, Rutgers Law School
    • Jamelia Morgan,  University of California, Irvine School of Law
    • Shaun Ossei-Owusu, University of Pennsylvania Carey Law School
    • Conor Dwyer Reynolds, Rochester Police Accountability Board
  • 11:30 AM – 1:00 PM – Break for Lunch
  • 1:00 PM – 2:30 PM – Panel Four: The Practitioners
    • Rebecca Cokley, Ford Foundation
    • David Ferleger, Attorney
    • Rebecca Serbin, Disability Rights Advocates
    • Mehgan Sidhu, University of Pennsylvania
    • 2:30 PM – 3:00 PM – Break
  • 3:00 PM – 4:30 PM – Panel Five: The Future
    • Ruth Colker, The Ohio State University, Moritz College of Law
    • Doron Dorfman, Syracuse University College of Law
    • Robyn Powell, Stetson University College of Law
    • Dorothy Roberts, University of Pennsylvania
    • Britney Wilson, New York Law School
  • 4:30 PM – Closing Remarks

Civil Procedure, Judicial Administration, and the Future of the Field: A Festschrift in Honor of Professor Stephen B. Burbank

 

Time: All Day

Date: February 12-13, 2021

Where: Zoom

 

No other living scholar in the field of Civil Procedure has reached more broadly or had greater impact than Professor Stephen Burbank. In 1982, Professor Burbank published “The Rules Enabling Act of 1934,” an exhaustively researched account of the passage of the statute that would lead to the Federal Rules of Civil Procedure. If Professor Burbank had never published another article, his position in the firmament of the field of procedure would have been secure.

 

But, of course, Professor Burbank went on to become one of the most prolific legal scholars of the late twentieth and early twenty-first centuries. He is the author or co-author of four books and over one hundred law review articles and book chapters that span a remarkable breadth of study and methodology. Professor Burbank’s work covers both American and international procedure alongside conflict of laws and judicial administration. He was also among the first wave of scholars to embrace rigorous interdisciplinary approaches to legal scholarship, including historical, empirical, and comparative methods.

 

This year, the University of Pennsylvania Law Review and the University of Pennsylvania Journal of Constitutional Law present a festschrift honoring Professor Burbank’s scholarship. The Festschrift is an honored tradition in American academic life. Its purpose is to celebrate the work of a great scholar through contributions from colleagues and former students. These original works of scholarship celebrate Professor Burbank by exploring and building on the most important themes of his work, illustrating how today’s cutting-edge scholarship can trace its lineage back to his body of academic work.

 

Reflecting its honoree’s career, this symposium brings together leading scholars in civil procedure and judicial administration along with renowned jurists and highlights new scholarship in international and comparative procedure and interdisciplinary approaches. This symposium also looks forward to the future of the field and new avenues of inquiry inspired by Professor Burbank’s work.

 

REGISTRATION: https://pennlaw.zoom.us/webinar/register/WN_f6AAaLSrRnaAmWbFONw9iw

 

This program has been approved for 8.5 total CLE credits (7.0 substantive credit and 1.5 ethics credit) for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit must register for CLE credit and make a payment via the online CLE registration link in the amount of $340.00 ($170.00 public interest/non-profit attorneys). In order to receive the appropriate amount of credit, passcodes provided throughout the program must be noted in your evaluation form.

 

Penn Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.

 

DAY 1 – Friday, February 12

  • 12:00 PM – 1:00 PM – Registration
  • 1:00 PM – 1:30 PM – Welcome Remarks
    • Professor Tobias Wolff, University of Pennsylvania Carey Law School
    • Professor Andrew Bradt, University of California, Berkeley School of Law

  • 1:30 PM – 3:00 PM – Panel One: Rules and Rulemaking
    • Moderator: Edward Cooper, University of Michigan Law School
    • Andrew Bradt, University of California, Berkeley School of Law
    • David Marcus, UCLA School of Law
    • Richard Marcus, UC Hastings College of the Law
    • Catherine Struve, University of Pennsylvania Carey Law School
    • Tobias Barrington Wolff, University of Pennsylvania Carey Law School

  • 3:00 PM – 3:30 PM – Break
  • 3:30 PM – 5:00 PM Panel Two: Judicial Administration and Judicial Behavior, Independence and Accountability
    • Moderator: Marin Levy, Duke Law School
    • Charles Gardner Geyh, Indiana University Maurer School of Law
    • Judge William Fletcher, U.S. Court of Appeals for the Ninth Circuit
    • Judge Robert Katzmann, U.S. Court of Appeals for the Second Circuit
    • Judge Lee Hyman Rosenthal, U.S. District Court for the Southern District of Texas
    • Judge Anthony Scirica, U.S. Court of Appeals for the Third Circuit
    • Judge Diane Wood, U.S. Court of Appeals for the Seventh Circuit

  • 5:00 PM – 6:00 PM – Break
  • 6:00 PM – 7:00 PM – Dinner

  • 7:00 PM – 8:00 PM – Keynote
    • Judge Diane Wood, U.S. Court of Appeals for the Seventh Circuit

DAY 2 – Saturday, February 13

  • 10:00 AM – 11:00 AM – Registration
  • 11:00 AM – 12:30 PM – Panel Three: International and Comparative Perspectives
    • Moderator: Gary Born, WilmerHale
    • Maggie Gardner, Cornell Law School
    • Deborah Hensler, Stanford Law School
    • Linda Silberman, NYU School of Law

  • 12:30 PM – 1:30 PM – Break for Lunch
  • 1:30 PM – 3:00 PM – Panel Four: Interdisciplinary Civil Procedure
    • Moderator: Robert Bone, University of Texas at Austin School of Law
    • Ed Purcell, New York Law School
    • Sean Farhang, University of California, Berkeley School of Law
    • Jonah Gelbach, University of California, Berkeley School of Law
    • Amalia Kessler, Stanford Law School

  • 3:00 PM – 3:15 PM – Break
  • 3:15 PM – 4:45 PM – Panel Five: The Future of the Field
    • Moderator: James Pfander, Northwestern Pritzker School of Law
    • Zachary Clopton, Northwestern Pritzker School of Law
    • David Freeman Engstrom, Stanford Law School
    • Yanbai Andrea Wang, University of Pennsylvania Carey Law School
    • Judith Resnik, Yale Law School

  • 4:45 PM – 5:15 PM – Response and Remarks by Professor Stephen B. Burbank
  • 5:15 PM – Closing Remarks
    • Tobias Wolff, University of Pennsylvania Carey Law School
    • Professor Andrew Bradt, University of California, Berkeley School of Law

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