NERA Insights Webinar | A View of Bankruptcies on Both Sides of the Atlantic

16 December 2020

Join NERA Economic Consulting Securities and Finance Practice and Bankruptcy Practice Chair Dr. Faten Sabry and Managing Director Dr. Jeff D. Makholm, along with Kirkland & Ellis Partner Brooksany Barrowes and Collyer Bristow Head of Dispute Resolution Services Robin Henry, for a complimentary webinar on Wednesday, 16 December 2020 at 11:00 am EST. The webinar explores the unsettled legal challenges over the reach the Federal Energy Regulatory Commission (FERC) has in the United States regarding bankruptcy matters involving regulated US pipelines, and the effects that the “export” of US Chapter 11 bankruptcy concepts has on the UK’s insolvency laws.


Three current cases in the Southern District of Texas and the District of Delaware—Ultra Petroleum, Extraction Oil and Gas, and Chesapeake Energy—illustrate the problems that have arisen in applying Chapter 11 to users of pipelines regulated by the FERC. Based on their active involvement in all three cases, Dr. Makholm and Ms. Barrowes review various economic and legal perspectives, including:

  • Public Interest: Resolving questions stemming from the seeming overlap between the public interest aspects of Chapter 11 and the public interest mandate of federal regulators in a period of market stress for pipeline users.
  • Judicial Precedent: Determining whether the judicial precedent, set by the Fifth and Sixth Circuit appellate courts from a prior time of market stress for the users of federally regulated interstate assets, creates “joint jurisdiction” with bankruptcy courts and the FERC.
  • Regulatory: Explaining the reasonable actions of regulators in partially or fully deregulated industries under the Federal Power Act (FPA) of 1935, the Natural Gas Act (NGA) of 1938, and the 1906 Hepburn Amendment to the Interstate Commerce Act (ICA).

The UK’s Corporate Insolvency and Governance Act, which implements regulations and rules similar to those used in the United States, received Royal Assent and came into force in June 2020. These reforms provide US-style restructuring tools to allow companies to continue trading as they restructure their debt. They also implement a temporary suspension of wrongful trading laws to afford leniency to directors. Bankruptcy legal and economic experts Dr. Sabry and Mr. Henry will discuss recent changes in the UK restructuring rules, implications for valuation disputes, and the use of market evidence in bankruptcy disputes, including:

  • Understanding the significance of the recent changes in the UK restructuring law and what it means for valuation disputes across the pond.
  • Identifying how recent valuation disputes in bankruptcy court continue to give priority to market evidence over traditional valuations methods.
  • Explaining how the economic analysis of using data on bond prices and credit default swaps can inform questions of foreseeability of defaults and management projections.
  • Examining how more bankruptcy disputes are likely to center on the reliability of management projections given the COVID-19 crisis

NERA Economic Consulting is accredited by the State Bar of California (#19366) as a provider of continuing legal education. The program is being held with the intention that its attendees qualify for 1.0 CLE credit hour in areas of professional practice. The program is appropriate for experienced attorneys only.

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