Zaretsky Roundtable and Insolvency Symposium Draw Leading Scholars, Judges and Practitioners

Distinguished scholars, judges, and legal practitioners in the areas of bankruptcy and M&A gathered at the Law School recently for the Barry L. Zaretsky Roundtable Discussion: Bankruptcy M&A and the symposium held the following day: The Market for Corporate Control in the Zone of Insolvency. Both events were moderated by Edward Janger, the David M. Barse Professor of Law and a nationally recognized scholar in bankruptcy issues, and co-sponsored by the Center for the Study of Business Law & Regulation.

The topics at the events focused on the ways in which M&A and bankruptcy overlap and addressed issues related to whether, and how, financial distress changes the practical and legal environment for corporate entities. Although differing in format, both events highlighted the Law School’s longstanding leadership and depth in in the areas of corporate governance, securities regulation, commercial law, and bankruptcy.

“In the field of corporate and bankruptcy law, Brooklyn Law School is second to none,” Dean Nick Allard said in opening the symposium. “Just look at the people in this room, consider the quality of the exceptional full-time faculty that we have—such as Professors Ted Janger, James Fanto and Michael Gerber—and our adjunct resources such as Dennis Block ‘67, our many graduates who have clerked in the bankruptcy courts, and our relationships with bankruptcy judges. It would be hard not to make a case that in corporate and bankruptcy law and other areas of law, Brooklyn Law School is elite.”

The Zaretsky Roundtable, an invitation-only gathering co-sponsored by the American Bankruptcy Institute, was named for Professor Barry L. Zaretsky, a member of the Brooklyn Law School faculty for 19 years and a distinguished bankruptcy and commercial law scholar. The Roundtable provided a forum for leading academics and practitioners in bankruptcy and corporate law to discuss whether corporate law should be the model in bankruptcy or, alternatively, whether bankruptcy law and bankruptcy courts should pay special attention to distress situations. The session, which was attended by more than 20 alumni who have clerked in the bankruptcy courts, also featured Zaretsky Fellows Salvatore Daniele ‘18 and Lauren Thoms ‘19, whose white papers were published in the program. The Zaretsky Fellowship offers a select path of study for a Law School student who has demonstrated outstanding academic achievement in either bankruptcy or commercial law, and is interested in pursuing a career in either of those fields.

The symposium, which comprised multiple panels that extended the Roundtable discussion, compared the dynamics of the market for corporate control of solvent and insolvent companies. The former trade under the well-developed law of mergers and acquisitions, while the latter also trade—sometimes in bankruptcy and sometimes in its shadow, regulated instead by a bankruptcy court and federal bankruptcy law. The event, co-sponsored by the Brooklyn Journal of Corporate, Financial & Commercial Law, featured a “who’s who” of corporate, bankruptcy and M&A scholars and members of the bench (see panel lineups below).

According to Janger, who also serves as co-director of the Center for the Study of Business Law & Regulation, an overarching goal of the symposium was to break down silos he said existed between bankruptcy and corporate governance law. “We tend to live on [the bankruptcy] side of the line or [the corporate governance] side,” he said. “The idea is to get people who know a lot about both to talk with each other and compare and contrast the regulation of corporate control transactions outside of bankruptcy to the way it is done inside bankruptcy and to discuss the fundamental questions: Are they the same? Are they different? What are the differences that matter? And, further, is the difference insolvency or being in bankruptcy?”

Under the co-leadership of Janger, who recently testified before the Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts in a session titled “Small Business Bankruptcy: Assessing the System, and Fanto, an expert in the area of corporate, securities, and financial law, the Center for the Study of Business Law and Regulation unites the Law School’s existing diverse business and commercial law programs by providing a forum for scholarship that offers new perspectives on, and solutions to, real world business law and regulatory issues. The programs of the Center are unique, bringing together leading academics with practitioners, regulators, and judges to study how best to improve the functioning of a market-based economy. The Center’s programs focus on how the law regulates financial markets and business transactions, and how best to make such regulations effective.

The Market for Corporate Control in the Zone of Insolvency

PANEL I: “The Market for Corporate Control: Are Distressed Firms Different?”
Donald S. Bernstein, chair of the Restructuring Group at Davis, Polk and Wardwell; Henry T. C. Hu, the Allan Shivers Chair in the Law of Banking and Finance at the University of Texas School of Law; and David A. Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School;

PANEL II: “Value Maximization, Value Allocation and Runs in Corporate Control Transactions: Is There a Governance Problem?”
Dennis J. Block ’67, senior chairman of Greenberg Traurig’s Global Mergers and Acquisitions practice and a Trustee of the Law School; Oscar Couwenberg, Professor of Governance and Geography at University of Groningen; James Fanto, the Gerald Baylin Professor of Law at Brooklyn Law School; Stephen J. Lubben, the Harvey Washington Wiley Chair in Corporate Governance & Business Ethics at Seton Hall University School of Law; and Jay L. Westbrook, the Benno C. Schmidt Chair of Business Law at the University of Texas School of Law

PANEL III: “Regulatory and Remedial Strategies: Possible Solutions (Fiduciary Duties, Disclosure, Disenfranchisement)”
Daniel J. H. Greenwood, Professor of Law, Maurice A. Deane School of Law at Hofstra University; Adam J. Levitin, Professor of Law at Georgetown University Law Center; John A. E. Pottow, the John Philip Dawson Collegiate Professor of Law at the University of Michigan Law School; and Andrew Verstein, Associate Professor of Law at Wake Forest University School of Law

CONCLUDING PANEL: “Is Reform Necessary?”
Philip D. Anker, Co-Chair, Bankruptcy and Financial Restructuring Practice Group at WilmerHale; Hon. Martin Glenn, Bankruptcy Judge, Southern District of New York; Roberta Karmel, Centennial Professor of Law at Brooklyn Law School; and Hon. James M. Peck, Bankruptcy Judge, Southern District of New York (ret.) and co-chair of the Business Restructuring and Insolvency Group at Morrison & Foerster.

Watch the symposium:
Panel I: The Market for Corporate Control: Are Distressed Firms Different?
Panel II: Value Maximization, Value Allocation and Runs in Corporate Control Transactions: Is There a Governance Problem?
Panel III: Regulatory and Remedial Strategies: Possible Solutions (Fiduciary Duties, Disclosure, Disenfranchisement)
Conclusions: Is Reform Necessary?