SF Annual Conference Blog – Index

Welcome to the NCBJ San Francisco Conference Blog for NCBJ’s 90th Annual Conference.  A good place to start is NCBJ President Mary Grace Diehl’s Welcome to the Blog – Get Ready for the City by the Bay article.  Just click on any topic in the index to read the article.  The index is updated each time a post to the Blog is made.  There is a list of recent posts in the right sidebar.

In recognition of NCBJ’s 90th anniversary this year, we added a special History of NCBJ section to the Blog. We also added a feature to the Blog this year so readers may post comments at the end of the blog articles.  For example, if you have been to a jazz club, museum or restaurant discussed in a post, or have other suggestions, or have attended a NextGen program at an earlier conference, we encourage you to post a comment.


Welcome to the Blog from NCBJ President Mary Grace Diehl

Welcome to the Blog – Get Ready for the City by the Bay

Education and Other Programs

The ABLJ/ABA Symposium on The NCBJ at 90: The Evolution, Role, and Impact of Bankruptcy Courts from 1926 to 2016


Another Top NCBJ Education Program Planned for the 2016 Annual Conference

Don’t Miss Entertaining, Enlightening, Exciting, and Essential Education in San Francisco!

History of NCBJ

The NCBJ Today – At 90 Years

NCBJ’s Formation 90 Years Ago as the National Association of Referees in Bankruptcy

A Short History of the NCBJ Annual Conference

1926: The National Association of Referees in Bankruptcy is formed. What else?

NCBJ Sponsored Outreach Programs

The Blackshear Fellowship Program: Promoting Diversity in the Legal Profession

Next Generation Announces 2016 Participants

Next Generation Looks Forward to Another Successful Year


Pachulski Stang Ziehl & Jones’ Annual NCBJ Party

San Francisco

Alfred Hitchcock’s Vertigo, a Great Film Shot in San Francisco

Live Jazz Near the SF Marriott Marquis

Offbeat Museums in San Francisco

Photos Taken in San Francisco

Photos Taken in San Francisco by Judge K. Rodney May

Restaurants Near the SF Marriott Marquis

Useful San Francisco Apps

Weather in Late October

Miami Beach Conference – Looking Back

Looking Back at the Miami Beach Conference

United States Supreme Court

Photos – United States Supreme Court

Welcome to the Blog – Get Ready for the City by the Bay

Message from NCBJ President Hon. Mary Grace Diehl, North District of Georgia

invitation2016Welcome to the 2016 NCBJ Conference Blog for our 90th Annual Conference in the City by the Bay.  And what better venue than the heart of San Francisco, one of the world’s great cities where everything is interesting and diverse:  food, culture, history and the people.

We are confident you will find this year’s Blog interesting and informative.  The Blog will cover a wide variety of topics, ranging from the varied education programs planned this year to San Francisco museums to receptions and parties.  To give you a taste of things to come, our own Paul Bonapfel, a bankruptcy judge in the Northern District of Georgia and Chair of the Education Committee for this year’s Conference, has given us an entertaining video and musical invitation to the Conference – singing to the melody of I Left My Heart in San Francisco.

One of our goals this year is to increase interaction between judges and bankruptcy professionals.  Our education committee has completed its outstanding program with some innovative formats to make the conference even more fun!  We will host programs sponsored by our colleagues at the ABA, ABI, ACB, AIRA, CLLA, and IWIRC.  NCBJ’s NextGen program will again be offered for 40 lawyers with 5-10 years of experience.  The lottery for positions is May 4th.  Don’t miss your chance to be included.

We welcome all bankruptcy professionals to submit posts to the Blog (a link to guidelines for posting is on the Blog home page).  Please check back from time to time for new postings.

Hope to see you in San Francisco!

Mary Grace Diehl, NCBJ President.

Pachulski Stang Ziehl & Jones’ Annual NCBJ Party

After a fun and hugely successful event last year, Pachulski Stang Ziehl & Jones is thrilled to once again host the official NCBJ “After Party.” PSZJ, the nation’s leading corporate restructuring boutique, has hosted the annual event since 1999, and is well known in the bankruptcy and insolvency community for its capacity-crowd parties. After a week of learning and networking at the NCBJ conference, a night of live music, food and drinks is the perfect way to relax and socialize.

On a related note, NCBJ will be hosting its sixth Next Generation Program at the San Francisco Conference. The Next Generation Program provides an opportunity for up-and-coming attorneys with five to ten years of experience to connect with bankruptcy judges and other bankruptcy professionals in a round table setting. In addition, there is a peer and senior practitioner networking reception, along with a reunion of former Next Generation Program participants. We are proud that PSZJ Partner John Lucas has been a NextGen board member for two consecutive years and that, over the years, several PSZJ attorneys have been selected to participate in the Next Generation Program.

Below are some photos from last year’s PSZJ After Party.

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Next Generation Announces 2016 Participants

The Next Generation program provides up-and-coming attorneys with a unique opportunity to connect with bankruptcy judges and develop connections with other bankruptcy professionals.  We are pleased to announce the 2016 Next Generation participants:

  • Ryan Bartley, Young Conaway Stargatt & Taylor
  • Andrew Behlmann, Lowenstein Sandler
  • Kevin Capuzzi, Benesh, Friedlander, Coplan & Aronoff
  • Kimberly Cohen, Shipman & Goodwin
  • Christian Cooper, Public Counsel
  • Michael Delaney, BakerHostetler
  • Roma Desai, Bernstein Shur
  • Catherine Douglas, Akerman LLP
  • Jeffrey Eaton, Menter, Rudin & Trivelpiece
  • Beth Gaschen, Lobel Weiland Golden Friedman
  • Kate Harmon, Elliott Greenleaf
  • Kathryn Harrison, Campbell & Levine
  • Teri Havron, Goldenberg, Heller & Antognoli
  • Andrew Helman, Marcus, Clegg & Mistretta
  • J. Luke Hendrix, Desmond, Nolan, Livaich & Cunningham
  • Matthew Hinker, Greenberg Traurig
  • Jarret Hitchings, Duane Morris
  • Laura Hughes, Bryan Cave
  • Kizzy Jarashow, Goodwin Procter
  • Stephanie Kanan, Lindquist & Vennum
  • Ryan Kelley, Pierce Atwood
  • Bernice Lee, Shraiberg, Ferrara & Laudau
  • Natalie Levine, Cassels Brock & Blackwell
  • Jennifer Lyday, Womble Carlyle Sandridge & Rice
  • Leslie Maxwell, Walker & Associates
  • James McGhee III, Kaplan & Partners
  • Abigail O’Brient, Mintz Levin
  • Matthew Olson, Macdonald Fernandez
  • Amanda Perach, McDonald Carano Wilson
  • Cara Porter, U.S. Bankruptcy Court
  • Kelly Roberts, Bankruptcy Law Offices of James Schwitalla
  • Isaac Rothschild, Mesch Clark Rothschild
  • Natella Royzman, Royzman Law Firm
  • Anne Shiau, Lincoln Law
  • Kristen Siracusa, Miles & Stockbridge
  • Kristina Stanger, Nyemaster Goode
  • Lisa Updike Starks, Barnes & Thornburg
  • J. Patrick Warfield, Burr & Forman
  • Carl Wedoff, Jenner & Block
  • Erin West, Godfrey & Kahn
  • Sirena Wilson, Murray & Murray
  • Andrew Wimmer, Marco Wimmer



The NCBJ Today – At 90 Years

The National Conference of Bankruptcy Judges has evolved considerably in the ninety years since the formation of the National Association of Referees in Bankruptcy in 1926 (click here for an article about NARB).  NARB’s founder, Paul H. King, would have been proud.  Over 312 of the nation’s 350 active bankruptcy judges (about 82%) are members of NCBJ, including judges from all 94 federal judicial districts.  NCBJ’s mission is to provide continuing legal education to judges, lawyers and other involved bankruptcy professionals, to promote cooperation among bankruptcy judges, to secure a greater degree of quality and uniformity in the administration of the bankruptcy system, and to improve the practice of law in the bankruptcy courts of the United States.

NCBJ’s structure consists of a Board of Governors, Executive Committee, Executive Director, Standing Committees, Special Committees, and Ad Hoc Committees.

Executive Committee and Board of Governors

NCBJ’s five officers serve on its Executive Committee: a president, president-elect, immediate past president, treasurer and secretary.  The sixteen member Board of Governors is comprised of four at-large governors, eleven regional circuit governors (one from each circuit), and a retired judge governor.  Members of the Board of Governors serve three year terms.  The Elections Committee recommends candidates for open positions for approval by the membership of the NCBJ.

Hon. Mary Grace Diehl, N.D. Ga, is NCBJ’s current president.  Hon. Mary Walrath, D. Del., will serve as president for the 2016-2017 fiscal year, and Hon. Michael E. Romero, D. Colo., for the 2017-2018 year.

Executive Director

NCBJ’s Executive Director performs numerous essential administrative tasks, including budgeting; website design and maintenance; planning the Annual Conference and Mid-Year meetings; administrative support for the Board, Executive Committee and other committees; and facilitating communications with members.  Jeanne Sleeper is NCBJ’s Executive Director.


The Executive Committee meets monthly by telephone, and more often as necessary.  The Board of Governors and Executive Committee meet in person twice a year, at the Annual Conference where the “annual members’ meeting” is held and at a “Mid-Year Meeting.”  The Board of Governors meets more often by telephone, as needed.  Members of the Board are invited to attend the monthly telephonic Executive Committee meetings.  Different committees meet at different intervals, some more often than others.

Standing and Special Committees

NCBJ’s five Standing Committees are Elections, Endowment for Education, Finance, Legislative, and Technology.  NCBJ’s Special Committees consist of Bylaws; Cost Containment/Judicial Relations; Annual Conference Education Program; Ethics; Federal Rules Advisory; Hispanic Bar; International Judicial Relations; Legal Review; various Liaisons; Membership Services; NBA/Blackshear; Next Generation Program; Marketing; Newsletter; Public Outreach; Retired Judges; Schwartz Roundtable; and Security.  Much of the heavy lifting is done by the committees.  The President has authority to appoint Ad Hoc committees for special projects.  Much of the heavy lifting is done by the committees.

The Annual Conference Education Program, Cost Containment/Judicial Relations; Endowment for Education; Ethics; Federal Rules Advisory; Finance; International Judicial Relations; Legislative; Liaison; NCBJ/NBA Blackshear; Newsletter; Next Generation; Public Outreach; Schwartz Roundtable; and Technology Committees are among the most active committees.

  • The Annual Conference Education Program Committee plans the education programs for the NCBJ Annual Conferences. Its goal is to provide timely, challenging education on bankruptcy and related topics.
  • The goal of the Cost Containment/Judicial Relations Committee is to explore methods for bankruptcy courts to increase their cost savings efforts consistent with the long term and short term mission of the court, and to foster good relationships with Article III and other federal judges, as well as, where appropriate, state court judges.
  • The Endowment for Education Committee funds bankruptcy research and education for charitable purposes, particularly including empirical research.
  • The Ethics Committee assists NCBJ officers, directors and other members on ethics issues in connection with their NCBJ activities taking into account the Code of Conduct for U. S. Judges and general ethical concepts.
  • The Federal Rules Advisory Committee evaluates proposed amendments to the Federal Rules of Civil Procedure, Bankruptcy Procedure, and Evidence and prepares proposed comments on the amendments for NCBJ to submit to the Standing Committee on Rules of Practice and Procedure as NCBJ’s comments.
  • The Finance Committee monitors NCBJ’s financial condition, and makes recommendations to the Board and Executive Committee to assure NCBJ maintains adequate financial reporting and controls and that its finances are prudently managed.
  • The International Judicial Relations Committee fosters productive engagement between NCBJ members and judges in other countries, sponsors International Judicial Roundtable discussion programs, encourages and supports NCBJ member judges with an interest in international technical assistance work, and conducts outreach to existing and potential NCBJ International Judicial Affiliate members.
  • The Legislative Committee works with the Federal Judges Association and Federal Magistrate Judges Associate to educate Congress for the betterment of the federal judiciary as a whole, and educates and informs Congress on matters of interest to the bankruptcy courts.
  • Liaison Committees. The missions of various liaison committees is to advance cooperation and communication between NCBJ and other bankruptcy-focused organizations, including ABA, ABI, ABJA, CLLA, FBA, IWIRC, NABT, NACTT, NBA, NCBC, TMA, and UST.
  • The NCBJ/NBA Blackshear Committee sponsors Blackshear Lectures and Receptions for law students and pre-law undergraduate students in the cities where each NCBJ Annual Conference is held to encourage diverse law and undergraduate students at local colleges and universities to consider bankruptcy and restructuring law as a practice area. The Blackshear Committee presents annual fellowships to minority bar members.
  • The Newsletter Committee publishes the NCBJ Conference News quarterly, typically 32 to 42 pages, for circulation to NCBJ members. Its committee members include an editor-in-chief, assistant editor, issue editors and photographers.  Published articles include such items as a message from the president, news from the annual conferences and mid-year meetings, committee activities, and activities and accomplishments of members.
  • The Next Generation Committee sponsors a program at each NCBJ Annual Conference that provides 40 up-and-coming bankruptcy attorneys with five to ten years of experience a unique opportunity to connect with bankruptcy judges and develop connections with other bankruptcy professionals.
  • The mission of the Public Outreach Committee is to develop and offer a continuous framework of programs and activities that educate and inform the public and the non-bankruptcy judiciary about bankruptcy law.
  • The Schwartz Roundtable Committee organizes sitting bankruptcy judge-only roundtable explorations of legal issues and decisional approaches of particular concern to the bankruptcy bench. Committee members develop issues for discussion, provide participant judges with background information and materials, and facilitate discussions.
  • The Technology Committee makes sure the NCBJ websites are well designed and functioning properly (a task performed mostly by the Executive Director); advises the Executive Committee and Board on technology issues affecting NCBJ; sponsors the Annual Conference Blog; and undertakes special projects.

American Bankruptcy Law Journal and NCBJ Conference News

The Journal of the National Association of Referees in Bankruptcy changed its name in 1966 to The Journal of the National Conference of Referees in Bankruptcy to reflect the change in name of the organization in 1965.  In 1971, the National Conference of Referees in Bankruptcy (NCRB) divided the academic and news aspects of the Journal into two publications: The American Bankruptcy Law Journal and the Conference Newsletter.

The American Bankruptcy Law Journal  is the world’s premier law journal devoted to bankruptcy topics.  ABLJ’s staff consists of an editor-in-chief; immediate past editor-in-chief; business manager; four bankruptcy judge associate editors; and a six member advisory board comprised of law professors, lawyers in private practice and bankruptcy judges.

Hon. Conrad K. Cyr, D. Me., served as ABLJ’s first editor-in-chief.  Hon. Jeffery A. Deller, W.D. Pa, is editor-in-chief today.  The January 1971 inaugural issue of The American Bankruptcy Law Journal, published as 45 Am. Bankr. L.J., contained commemorative letters from Richard M. Nixon, President of the United States; Warren E. Burger, Chief Justice of the United States; the Director of the Federal Judicial Center; both Chairmen of the House and Senate Judiciary Committees; the Director of the Administrative Office of United States Courts; the Chairman of the National Bankruptcy Conference; the President of the National Conference of Referees in Bankruptcy; and the President of the Commercial Law League.  [Click here to see the ABLJ Commemorative Letters].  The inaugural issue contained original articles by Professor Vern Countryman, Honorable Asa S. Herzog, John Honsberger, Q.C., Honorable Joe Lee, Honorable William J. O’Neill, and Professor Charles Seligson.

Hon. A. David Kahn, N.D. Ga, served as the first editor-in-chief of the then monthly Conference Newsletter launched in 1971.  The Conference Newsletter later became the NCBJ Conference News, published quarterly.  Hon. Kay Woods, N.D. Ohio, serves as its editor-in-chief today.

The goals of the National Association of Referees in Bankruptcy when formed in 1926 were to work towards the adoption of at least some uniform practices among referees, formulate administrative practices to improve efficiency, foster communication among referees, establish ethical guidelines, and improve the public’s perception of bankruptcy.  Today, NCBJ undertakes a much wider variety of projects to educate, promote cooperation among bankruptcy judges, improve quality and uniformity in the administration of the bankruptcy system, and generally to improve the practice of law in the bankruptcy courts of the United States.

Photos – United States Supreme Court

Although a little off topic, I am posting photos of the United States Supreme Court building I took in June 2016 and a photo of two portraits former justices within the building.

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Justices Louis Brandeis and Oliver Wendell Holmes

Brandais Holmes CL4R5863

The Supreme Court building has been widely photographs.  Here are a few more.







1926: The National Association of Referees in Bankruptcy is formed. What else?

Judicial Branch

In 1926, there were ten judicial circuit courts of appeal: the U.S. Court of Appeals for the District of Colombia and the U.S. Courts of Appeal for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Circuits.

In 1929, the Eighth Circuit was divided into the Eighth and Tenth Circuits.  In 1980, the Fifth Circuit was divided into the Fifth and Eleventh Circuits.  The U.S. Court of Appeals for the Federal Circuit was formed in 1982.

William Howard Taft (Ohio) served as the 10th Chief Justice of the United States Supreme Court from 1921 to 1930.  He was the 27th President of the United States from 1909 to 1913.  President/Chief Justice Taft is credited with convincing Congress to pass a bill for the construction of the present Supreme Court building.  You can find photos of the Supreme Court building here.

Executive and Legislative Branches in 1926

  • President: Calvin Coolidge (R-Massachusetts)
  • Vice President: Charles G. Dawes (R-Illinois)
  • Speaker of the House of Representatives: Nicholas Longworth (R-Ohio)
  • Senate Majority Leader: Charles Curtis (R-Kansas)

Attorney Organization

The National Bar Association was formed July 26, 1926.

Jazz Musicians

The great John Cotrane (sax) and Miles Davis (trumpet) were born in 1926.

NCBJ’s Formation 90 Years Ago as the National Association of Referees in Bankruptcy

The National Conference of Bankruptcy Judges, formerly known as the National Association of Referees in Bankruptcy, turns 90 this year.  It was formed in 1926.

In 1920 Referee Herbert M. Bierce of Winona, Minnesota became concerned that support in Congress could develop to repeal the Bankruptcy Act of 1898.  He thought about forming an organization of Referees in Bankruptcy.  Referee Bierce heard that Referee Paul H. King of the Eastern District of Michigan was “a man of personal magnetism, high ideals and splendid organizing ability.”  In 1923, he wrote Referee King about the concept of forming an organization for Referees in Bankruptcy.  Referee King was interested.   At the time, there was no centralized list of Referees in Bankruptcy.  Referee King compiled a list by contacting each of the Clerks of Court across the county, which showed there were approximately 535 active Referees in Bankruptcy in the continental United States.  For many years, Referee Bierce maintained the only reasonably accurate roster of referees in the country.  He estimates there were as many as 800 referees earlier in the century.

Referee King then wrote a letter to each Referee in Bankruptcy in the country inquiring as to their interest in forming a national organization of referees.  He received a positive response.  Referee Bierce recounts what happened next:

“Late in the Spring of 1925 a Rotary district conference was held at Hibbing, Minn., on the ‘Iron Range’, which Mr. King attended as the representative of Rotary International. There I met him. We discussed pushing the organization, with a meeting to be held in Detroit. He readily agreed to undertake the detailed task and to so proceed. He secured the cooperation of the Michigan and Detroit Bar Associations and the Detroit Lawyers Club all of which appointed committees to assist him. His ‘boss’, U S. District Judge Arthur J. Tuttle, who shared the federal judicial work in the Eastern District of Michigan with, now, Circuit Judge Charles C. Simons, was enthusiastic for the movement. Both judges were very proud of the Detroit bankruptcy court organization and were anxious that its virtues be made known. The Book-Cadillac, a new edifice in place of a smaller popular hostelry, was selected as headquarters and July 9th and 10th, 1926, Friday and Saturday, were chosen as dates. Mr. King issued the call and continued, by one method or another, to secure pledges of attendance. As soon as a Referee indicated his intention to attend, Mr. King made this intention certain by drafting such Referee to participate in the program. Thus he early built up an interesting program, as the idea worked admirably.”

In July 1926, a conference of bankruptcy referees from across the nation was held at Detroit’s Book Cadillac Hotel, organized by Referee King.  Eighty-two referees from 24 states and the District of Columbia attended. There were The National Association of Referees in Bankruptcy (NARB) “was organized July 9, 1926, when, on motion of Referee J. F Hendricks, Doylestown, N.Y., seconded by many, it was unanimously decided to form a permanent organization ‘even though the Referees would not necessarily be permanently in office.'”

Paul H. King was elected the first President.  Referee Watson B. Adair of Pittsburgh was elected Vice President.  Referee Herbert M. Bierce of Winona, Minnesota was elected Secretary-Treasurer and became the first Editor of the Journal of the National Association of Referees in Bankruptcy.  A Board of Directors was elected, one member from each of the nine regional circuits then in existence.  Four committees were formed: Ethics, Legislation, Resolutions, and Uniformity of Practice.  Membership on each committee consisted of one member judge from each of the nine circuits.

This is an excerpt of an article published in December, 1926, in the first issue of the first volume of the Journal of the National Association of Referees in Bankruptcy about NARB’s formation at Detroit’s Book Cadillac Hotel:

[click on the article to enlarge it]

NCBR Article

Until the formation of NARB, the more than five hundred bankruptcy referees serving nationwide in 84 judicial districts were mostly isolated within their respective districts.  There were no uniform practices.  Referees were criticized as being inefficient, having conflicts of interest, and disproportionately paying estate assets for costs of administering the estate.  Prominent law firms did not practice in the bankruptcy arena dominated by small cliques of attorneys and other professionals.  Referees, appointed by district courts for two-year renewable terms, served a judicial function and administered the estate, and routinely had ex parte communications.  Decisions of bankruptcy referees were not reported.

It was in this environment that the National Association of Referees in Bankruptcy was formed.  Initially, NARB’s principal goals were to work towards the adoption of at least some uniform practices, formulate administrative practices to improve efficiency, foster communication among referees, establish ethical guidelines, and improve the public’s perception of bankruptcy.  Toward these ends, NARB began publishing a Journal called the Journal of the National Association of Referees in Bankruptcy.  In 1971, the academic aspect of the Journal became the American Bankruptcy Law Journal, and the news aspect the Conference Newsletter, now known as the NCBJ Conference News.  Ultimately, formal rules establishing uniform practices among referees were adopted after bankruptcy administration was brought within the Administrative Office of the United States Courts in 1946.

During Paul King’s year as NARB’s first president, NARB conducted a comparative statistical study to identify the most and least efficient referees measured by administrative fees and creditor distributions, and prepared a Code of Ethics for Referees.  The Code of Ethics for Referees was adopted at NARB’s second annual conference held August 29 and 30, 1927 in Buffalo, NY.

Referee Watron B. Adais, NARB’s second president, describes the purpose of NARB and the Journal of the National Association of Referees in Bankruptcy in his introduction to the 1927, No. 1, Journal issue:

“This issue of the Journal reports the proceedings at the second Annual Conference, as well as the current news of the Association.  The success of the two conferences and the interest shown in the various issues of the Journal prove the value of both.  With rare exceptions, each referee in bankruptcy works alone, consulting with no other referee and having inadequate knowledge of how things are done by other referees.  If this Association could make available the experience of each referee for the information of all it would really benefit both the referees and the public.  The Journal serves as a line of communication among the referees and as a forum for discussion of bankruptcy practices and policies.  These services can be further developed.”

In 1965, NARB changed its name to the National Conference of Referees in Bankruptcy (NCRB).  In 1973, NCRB changed its name again to the National Conference of Bankruptcy Judges (NCBJ) to coincide with adoption of new Federal Rules of Bankruptcy Procedure, effective October 1, 1973, which referred to bankruptcy referees as bankruptcy judges for the first time.  Today, over 80% of the nation’s active bankruptcy judges are members of the National Conference of Bankruptcy Judges, which has continued and expanded upon the pioneering efforts of NARB.

Sources for this article include Herbert M. Bierce, Twenty-five Years of Association Activity: In Retrospect, 25 J. Nat’l Ass’n Ref. Bankr. 67 (1951); Russell L. Hiller,  A Conference Anniversary – Fifty Years in Retrospect, 51 Am. Bankr. L.J. 31 (1977); Paul King and the Making of the Modern Bankruptcy Courts by Kevin Ball, published by The Historical Society for the United States District Court, in the Court Legacy, Vol. XVI, No. 3, © 2009; and several other issues of the Journal of the National Association of Referees in Bankruptcy.   You can find Kevin Ball’s interesting article here: 200909_Court_Legacy

San Francisco Photos by Judge K. Rodney May

This post is made by Bankruptcy Judge K. Rodney May, M.D. Fla.  Judge May took these photos.

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The ABLJ/ABA Symposium on The NCBJ at 90: The Evolution, Role, and Impact of Bankruptcy Courts from 1926 to 2016

This post is made by Hon. Colleen A. Brown, Chief Bankruptcy Judge, D. Vt.  The abstracts of the Symposium topics are by each of the professors presenting the topic.

The ABLJ/ABA Symposium onThe NCBJ at 90:  The Evolution, Role, and Impact of Bankruptcy Courts from 1926 to 2016

This year the NCBJ will present its Second Annual American Bankruptcy Law Journal Symposium on Thursday October 27th, from 3:00 to 5:00 p.m.  It is open to all NCBJ Conference registrants. The ABLJ is delighted to welcome the ABA as its Symposium co-sponsor. The Symposium is a unique program at the NCBJ Conference. It focuses on scholarly exploration of topics based on recent empirical studies.

The Symposium is unique both in its content and format. The content of this year’s Symposium celebrates the NCBJ’s 90th anniversary.  The presenters are four nationally respected bankruptcy scholars who conducted empirical studies on topics reflecting the evolution of the bankruptcy courts over the last 90 years in the areas of municipal law, exercise of equitable powers, valuation techniques, and collaboration among the various constituents of the bankruptcy community.

The format will be more of a conversation than a presentation. In describing the evolution of the bankruptcy courts, each of the four scholars will present the results of their empirical study and the conclusions they draw from the data.  They will also discuss among themselves how their conclusions complement or raise questions about the findings of their colleagues on the dais.  The ABLJ will publish an article by each scholar covering their respective Symposium topics, in a single special edition of the Journal available in early 2017.

The topics, described in more detail below, are:

  • Professor Karen M. Gebbia, Golden Gate University School of Law: Keepers of the Code: Evolution of the Bankruptcy Community from 1926 to the Present
  • Professor John A. E. Pottow, Michigan Law School: The Rise and Fall of Bankruptcy Courts’ Equitable Powers Over the Past 90 Years
  • Professor: Melissa B. Jacoby, University of North Carolina Law School: Municipal Bankruptcies and Bankruptcy Courts: Then and Now
  • Professor Michael Simkovic, Seton Hall University School of Law: The History of Valuation Techniques in the Bankruptcy Court, 1926-2016

We hope to see you there!


by Professor Karen M. Gebbia

At the Symposium, Professor Gebbia will examine the development and influence of the modern bankruptcy community over the past 90 years, since the founding of the National Conference of Bankruptcy Judges. She will articulate essential characteristics of the bankruptcy community, and describe the fundamental ways in which that community has evolved over several distinct eras. She will then hypothesize that the bankruptcy community’s influence on bankruptcy law might vary depending on the nature of the debate. To explore this question, she will argue that the evolution of bankruptcy law, both historically and today, centers on three interrelated arcs:

(i) bankruptcy law’s substantive balancing of equities among creditors and debtors; (ii) the locus of control over, and essential nature of, the system that administers bankruptcy law; and (iii) the clarity and coherence of bankruptcy law. Professor Gebbia will employ this framework to explain the role the bankruptcy community has played at critical junctures in the development of modern bankruptcy law. Finally, she will apply this perspective to make specific recommendations regarding the manner in which the bankruptcy community, including the NCBJ, may most effectively engage in today’s ongoing debates over the future of bankruptcy law.


by Professor Melissa B. Jacoby; Abstract as of June 1, 2016

The National Conference of Bankruptcy Judges, now celebrating its Ninetieth birthday, was created relatively shortly before the establishment of a novel municipal bankruptcy law. Both the bankruptcy judiciary and municipal bankruptcy have changed dramatically since that time – both with and without statutory amendment – but there has been little attention to how they intersect. At first, municipal bankruptcies were not only minimalist in scope and detail (essentially a prepackaged bond restructuring), but also handled by generalist Article III judges of the federal district court. Today, bankruptcy judges play central roles in shaping both the procedure and substance of chapter 9 cases, which look completely different from the municipal bankruptcies contemplated in the 1930s legislation, and bearing considerably more resemblance to “freefall” chapter 11s. Yet, at the time of this writing, Congress is considering requiring that the largest- ever government bankruptcy on the horizon (Puerto Rico) be managed by a district judge. That decision would be a big mistake, reflecting a misunderstanding of the evolution of both municipal bankruptcy and the bankruptcy judiciary over the last 80-90 years.


by Professor Michael Simkovic

Financial analyses such as valuation, solvency, and capital adequacy play a crucial role in bankruptcy.  They are central to allowance of claims, adequate protection, avoidance actions such as fraudulent transfer and preference, and plan confirmation.  Today, the established methods of financial analysis accepted by most bankruptcy courts include discounted cash flow (DCF), comparable companies and comparable transactions.  However, newer methods based on market prices for equity, debt, or options and derivatives are supplementing, and in some cases supplanting more established approaches.  The new market-based methods are generally considered to be more objective, free of hindsight bias, harder to manipulate, and less expensive to implement.  However, courts may not fully understand how market information should be interpreted, and have correctly noted that such information could be of limited value if critical contemporaneously known information was not available to investors.  In this time of transition between methods of financial analysis, it may be helpful to look back, tracing the evolution of methods of valuation in bankruptcy.  Today’s “established” methods—DCF and comparables—were also once new, less than fully understood, and met with suspicion by the courts.  Understanding how these methods went from novel and controversial to established and accepted can help shed light on what we might expect to see during the anticipated transition from DCF and comparables toward more fully market-based approaches.

Alfred Hitchcock’s Vertigo, a Great Film Shot in San Francisco

Alfred Hitchcock’s 1958 film Vertigo is considered one of the great films of all time, even though on release it was neither a commercial nor a critical success.  Jimmie Stewart and Kim Novak play the protagonists.  Because many of the scenes were filmed throughout San Francisco (for locations click here), it is a fun film to watch before attending the Conference.

I will not explain the plot because I do not want to spoil the film for someone who has not seen it.  For a plot summary, click here or here.

These words are descriptive of aspects of the human psychic and other themes explored in Vertigo:  love and romance, passion, illusion, masks, trauma, obsession, pathology, fear, guilt, lust, control, power, and death.  Merriam Webster defines “vertigo” as “a sensation of motion in which the individual or the individual’s surroundings seem to whirl dizzily by”; “a dizzy confused state of mind.”

When watching Vertigo, look for the following symbolism:

Colors.  The film repeats the colors red, green, and yellow.  Watch particularly for the colors of garments and also of lighting, doors, flowers, and even the color of a car or an eye.  Red can signify danger and fear or romance and desire.  In Vertigo, it also signifies fantasy.  Green can signify life, ghostliness (a type of life after death), and envy (green with envy); the Sequoia forest shown in the picture is, ever living, ever green.  Although yellow can signify different things in different contexts, think about whether, in Vertigo, yellow (the color of the sun) signifies happiness or reality.  Glimmering white light can signify an angelic figure.  Cycling colors can signify the past repeating itself (recurrence).

Flowers.  Beauty and perfection.  Destruction of a flower can signify destruction of beauty and perfection.

Portals.  Portals are gateways to a different place, and sometimes are used to signify a gateway to another time.  An image of pillars at the entrance of a bridge can be used to depict a portal.

Spirals.  Spirals can signify recurrence and illusion.  In Vertigo, made more patent by swirling the spiral, a spiral can also signify lack of balance and dizziness causing dissociation and loss of sense of self and identity, maybe even leading to a mental breakdown.  The Urban Dictionary’s definition of “downward spiral” is particularly apt:  “This term describes a depressive state where the person experiencing the downward spiral is getting more and more depressed, perhaps due to causes unknown. It is called a downward spiral because there is no way to stop it, its just going to get worse and worse… until the person crashes, and maybe finds their way back to happiness.”

Tunnels and corridors.  Tunnels and corridors can signify a passage toward the light or toward destruction or death.  An alley is a type of corridor.

Gene Ebert regards one of the scenes in Vertigo as the greatest single shot in all of Hitchcock’s films.  Watch for it.  Ebert explains the scene: “The great scene takes place in a hotel room, lit by a neon sign.  Judy has arrived, not looking enough like Madeleine to satisfy Scottie, who wants her in the ‘same’ dress, with the ‘same’ hair.  His eyes burn with zealous fixation.  Judy realizes that Scottie is indifferent to her as a person and sees her as an object.  Because she loves him, she accepts this.  She locks herself into the bathroom, does the makeover, opens the door and walks toward Scottie out of a haunting green fog that is apparently explained by the neon sign, but is in fact a dreamlike effect.  As Hitchcock cuts back and forth between Novak’s face (showing such pain, such sorrow, such a will to please) and Stewart’s (in a rapture of lust and gratified control), we feel hearts being torn apart.”  (You can find the Ebert article here).

I hope you enjoy the film.

Another Top NCBJ Education Program Planned for the 2016 Annual Conference

This year’s NCBJ Education Committee is planning a wide-ranging curriculum for the annual conference with an impressive faculty of bankruptcy scholars, jurists, and practitioners.

Comprised of panel discussions, workshops, mock evidentiary battles, and even a talk show with leading experts in bankruptcy, this year’s education program promises to be unmatched in its variety, breadth, and quality.

The prospective selections include:

  • “Broken Bench Radio:” Tune in to an engaging program in a radio broadcast format for timely news and analysis of important bankruptcy issues hosted by Professors Bruce Markell and David Epstein and featuring experts from around the country.
  • “Tell it to the Judge!” Judges are human, too. They have quirks, idiosyncrasies, and habits. Sometimes lawyers might not use the most effective means to “clue in” judges as to what is really happening outside of the courtroom and the issues that need to be addressed. This will be a free-flowing discussion among judges and practitioners over specific topics, to foster a better understanding of views from both sides of the bench.
  • “Hot Spots in a Cold Bankruptcy World: Health Care and Energy Restructurings.” Leading authorities discuss hot topics in two key industry sectors despite a “cold” bankruptcy market: health care (including non-profits) and oil and gas (and energy, more generally). The panel members examine issues from key cases during 2015/16 and provide their opinions on the challenges for the future of these industries.
  • “What Happens After Wellness?” The Supreme Court decided that parties may consent to a bankruptcy judge’s entry of final judgment on a “Stern claim.” But the ruling leaves significant procedural and tactical issues for counsel to deal with. Experienced lawyers will discuss strategic considerations important to deciding whether to consent.
  • “Where Has [All] Our Business Gone? Alternatives to Chapter 11.” Fewer chapter 11 filings do not mean less restructuring work. This team of experts will explore non-bankruptcy alternatives and why chapter 11 appears to have fallen out of favor.
  • “Locking Up the Case: Plan Support Agreements, Intercreditor and Forbearance Agreements, and Other Strategies for Pre-determining the Case’s Outcome.” Seasoned practitioners will share their strategies for when to use these agreements and when to challenge them. Hear negotiation strategies and options for the late-to-the-party creditors who may be prejudiced by such agreements, among other cutting edge issues.
  • “OMG! How Will I Get This Evidence In?!” Imagine this scenario: you are at an evidentiary hearing and you desperately need to get some evidence in, but every time you try to lay a foundation you draw an objection and the objections are sustained? The sweat begins to form on your brow and your mind races through the rules of evidence! In this highly interactive, fast-paced program you will see experienced trial lawyers and judges work through a variety of evidentiary issues as they seek to admit evidence commonly offered in bankruptcy court. The scene will be a courtroom setting and you will be asked through electronic polling to predict whether the objections will be sustained.
  • “Diffusing the Stress in Financial Distress: The Intersection of Bankruptcy and Mental Health.” This program will provide insight into mental health issues and concerns in bankruptcy practice. Consider what practitioners can do to better arm their clients to handle the stress of bankruptcy; what those in the bankruptcy field can do if they sense a colleague is in trouble; and how to recognize key warning signs, in yourself and others.
  • “The Ethics Game: How Do YOU Win?” In an interactive game-show format, ethics gurus will highlight new and recurring ethical issues that face the bankruptcy bar and bench. Conflicts, disclosure, unbundling, social media, fees, and so much more! Fasten your seat belts….this will be a bumpy and fun ride!
  • “Chapter 13 Exit Strategies.” The panel will discuss chapter 13 dismissals (voluntary, conditional, absolute, or other), conversions, hardship discharges, closing with or without discharge, effect of dismissals on future filings, compensation, the role of the trustee, and the role of the court. Panelists will cover real-life examples of the various options and offer practical tips for this stage of the case.
  • “The Modern Mortgage.” New loan disclosure rules, underwriting standards, servicing procedures, federal regulations, and the expiration of the HAMP loan modification program complicate the lending market. Hear from industry experts and borrower advocates about key changes in four areas: underwriting, disclosure, servicing, and loss mitigation. This panel will identify evolving mortgage issues likely to surface in bankruptcy and may challenge conventional assumptions about mortgages.
  • “The Color of Money: The Implications of Race and Ethnicity in Addressing Debt.” Notwithstanding facially neutral laws, the credit and legal systems may vary for borrowers of different demographic characteristics. This session explores ways in which race, class, and immigration status (or perceptions thereof) may impact borrowing, debt collection, and bankruptcy.
  • “Consumer Financial Protection Bureau: What Bankruptcy Professionals Need to Know.” The Consumer Financial Protection Bureau (CFPB) has dramatically changed consumer credit laws, with new rules for mortgage underwriting, debt collection, credit reporting, and other activities. The CFPB brings enforcement actions, handles consumer complaints, and produces education materials. Learn about the CFPB’s activities and their impact in bankruptcy cases. The magnitude may surprise you.

Programs offered by the NCBJ Education Committee are in addition to joint NCBJ-ALBJ and NCBJ-ACB programs, and numerous programs offered by NCBJ’s conference partners. Nearly every type of issue affecting bankruptcy practice will be addressed at the annual NCBJ conference. Programs run from breakfast until evening, from small group discussions to large lectures. Most are interactive. Continuing legal education credit will be available. This year’s conference is shaping up to be superb.