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Commentary Schwab Case Casts Spotlight on Securities Arbitration

ABI Bankruptcy Brief | September 5, 2013
 
  

September 5, 2013

 
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  NEWS AND ANALYSIS   

COMMENTARY: SCHWAB CASE CASTS SPOTLIGHT ON SECURITIES ARBITRATION AND ITS FLAWS

A skirmish between the Financial Industry Regulatory Authority (FINRA) and brokerage firm Charles Schwab & Company has brought unwelcome attention to the investor arbitration process and its flaws, according to a commentary in yesterday’s New York Times DealBook Blog. The dispute started in 2011, when Schwab added a clause to its customer agreement requiring customers not to pursue or participate in class-action suits against the company. This removed an option allowing groups of investors to sue a firm, established by the Supreme Court’s 1987 ruling in Shearson v. McMahon. FINRA objected, filing a disciplinary action against Schwab last year to force the removal of the clause, and a final resolution on the matter will be heard before an adjudicatory panel next Wednesday. But the dispute has roused state securities regulators, investor advocates, and Democratic members of Congress, all demanding that the clause be done away with, no matter how the ruling goes. One investor advocate, F. Paul Bland Jr. of Public Justice, says that "If Schwab succeeds, investor protection will be enormously damaged." Click here to read the full commentary.

COMMENTARY: YOUR CITY MIGHT BE THE NEXT DETROIT...BUT THAT’S NOT ALL BAD

Detroit’s bankruptcy has sent shivers through cities all around America. That is both understandable and may not be all bad, says Benjamin R. Barber, author of the forthcoming book If Mayors Ruled the World, in a commentary in yesterday’s Wall Street Journal. Detroit’s problems are shared by many cities. Barber says that "cities have become gargantuan unfunded mandates where much of the nation’s productivity, innovation and prosperity are generated without adequate support from the outside." He believes that federal government spending still skews towards rural areas, "even though cities represent over three quarters of the American population and the absolute electoral majority." But the problems that Detroit faces, though shared by other cities, are not insurmountable. Barber’s prescriptions:

  • Declining manufacturing base: Outsourcing of jobs is a national problem, Barber says, but "cities have proven more resilient than nations, finding ways to transition from the old to the new economy."
  • A redefinition of city limits: Maps conceived in the 19th century don’t reflect today’s realities, Barber notes. Detroit has lost two-thirds of its population, but the 10 surrounding counties have grown by more than 5.3 million, along with 2 million jobs.
  • Pensions: Many cities have bigger pension costs than Detroit’s, but the answer, Barber thinks, is for residents to shoulder more of the costs of services they enjoy, and to stop putting pension obligations behind obligations to bondholders.
"Detroit’s fate may in time be Miami’s, Atlanta’s and San Diego’s," Barber says. "But that’s fine." Cities face many challenges, but they are here to stay. After all, Barber notes, "London, Rome, Alexandria and Boston are much older than England, Italy, Egypt and the United States." Click here to read the full commentary (subscription required).

DETROIT DEFENDS CONTESTED SWAPS DEAL AS KEY TO CITY’S SURVIVAL

Detroit emergency manager Kevyn Orr has asked Steven Rhodes, the federal judge overseeing its bankruptcy case, to allow a swaps deal completed with Merrill Lynch and UBS AG just prior to the filing of their chapter 9 case, according to a report from Reuters yesterday. Creditors, led by bond insurer Syncora Guarantee have objected to the deal, which would give the city unfettered access to casino tax revenue, arguing that it favors the swap counterparties over other creditors and eliminates the possibility of including the revenue — some $180 million a year — as a potential source for paying Detroit’s obligations. In a sworn deposition, Orr’s top outside financial consultant, Kenneth Buckfire, said he believed the city was in a "life and death" predicament at the time the swaps deal went through. Read more.

A BANKING BANKRUPTCY THAT TAKES A DIFFERENT PATH

When bank holding companies file for bankruptcy — usually after the Federal Deposit Insurance Corporation has taken away its banking subsidiary — the only thing left to do is marshal any assets, including a typically large tax refund, pay out the results to creditors, and liquidate. But a small Wisconsin bank holding company, Anchor BanCorp Wisconsin, plans to use chapter 11 to recapitalize rather than liquidate, according to a story by Stephen Lubben in today’s New York Times DealBook blog. The company had received more than $100 million from the federal Troubled Asset Relief Program during the financial crisis, but it still faced the prospect of losing its bank. Filing for chapter 11 will allow it to pay off more than $180 million in debt owed to other banks for just $49 million. It will also allow the company to convert the United States Treasury’s preferred stock — received as part of the TARP bailout — into a small equity stake, worth about $6 million, the holding company. Most important, according to Lubben, "Anchor said it would cancel its existing shares and sell the remaining new equity to investors, leading to the recapitalization of the holding company." Although federal regulators still need to sign off on the plan, the bankruptcy judge has approved it. This speedy trip through bankruptcy, Lubben says, was the result of a prepackaged bankruptcy case that "included the creditors voting on the plan before the bankruptcy filing." It may well "provide another template for use of chapter 11 in connection with other financial institutions," Lubben concludes. Read more.

ANALYSIS: HOSPITALS, DEBT COLLECTORS RUSH TO CREATE STANDARDS FOR COLLECTING PATIENT DEBT

Facing pressure from both the Congress and the IRS that would severely limit the ability to collect patient medical debt, The Healthcare Financial Management Association (HFMA), which comprises hospital and other healthcare financial professionals, last December joined forces with ACA International, the leading organization of debt collection professionals, to develop guidelines for dealing with patient medical debt, according to a post yesterday on Forbes.com. The stated purpose of the task force guidelines "is intended to identify a standardized process for resolving the patient portion of medical bills that should be adhered to and to provide a framework for educating patients about the patient balance resolution process," according to the task force’s recommendations. The new guidelines outline a proposed timeline for payment of patient debts. Once a bill "drops," patients would have 120 days before a health-care company would take "extraordinary collection action." The guidelines also propose removing medical debt from credit reports within 45 days, a key component of the Medical Debt Responsibility Act currently before Congress. Click here to read the full analysis.

PROPOSED AMENDMENTS PUBLISHED FOR PUBLIC COMMENT

The Judicial Conference Advisory Committees on Bankruptcy and Civil Rules have proposed amendments to their respective rules and requested that the proposals be circulated to the bench, bar and public for comment. The following proposed amendments were approved for publication by the Judicial Conference Committee on Rules of Practice and Procedure in June 2013:

Preliminary Draft of Proposed Amendments to the Federal Rules of Bankruptcy and Civil Procedure: The public comment period is open for proposed amendments to Bankruptcy Rules 2002, 3002, 3007, 3012, 3015, 4003, 5005, 5009, 7001, 9006 and 9009; Official Forms 17A, 17B, 17C, 22A-1, 22A-1Supp, 22A-2, 22B, 22C-1, 22C-2, 101, 101A, 101B, 104, 105, 106Sum, 106A/B, 106C, 106D, 106E/F, 106G, 106H, 106Dec, 107, 112, 113, 119, 121, 318, 423 and 427; and Civil Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84 and Appendix of Forms. The public comment period closes on Feb. 15, 2014. Your comments are welcome on all aspects of each proposal. The advisory committees will review all timely comments, which are made part of the official record and are available to the public. Click here to read the proposed amendments and submit comments.

NEW ABILIVE WEBINAR OCT. 3: THE INTERSECTION OF INTELLECTUAL PROPERTY AND BANKRUPTCY: KODAK, NORTEL AND OTHER CASES

IP experts will shed light on the mysteries of understanding IP law and navigating the often puzzling sales processes, drawing from their experiences in Nortel, Kodak and other important cases, in an abiLIVE webinar on Oct. 3 from 1:00-2:15 p.m. ET. Speakers will include David Berten (Global IP Law Group, LLC; Chicago), Pauline K. Morgan (Young Conaway Stargatt & Taylor, LLP; Wilmington, Del.), Cassandra M. Porter (Lowenstein Sandler LLP; Roseland, N.J.), Kelly Beaudin Stapleton (Alvarez & Marsal; New York) and Christopher Burton Wick (Hahn Loeser & Parks LLP; Cleveland). To register, click here.

RECORDING NOW AVAILABLE OF THE ABILIVE WEBINAR EXAMINING THE NEW U.S. TRUSTEE FEE GUIDELINES!

If you were not able to join ABI's recent well-attended abiLIVE webinar examining the U.S. Trustee Fee Guidelines for chapter 11 cases filed on or after Nov. 1, a recording of the program is now available for downloading! A panel of experts, including Clifford J. White, the director of the U.S. Trustee Program, discussed some of the ways the new guidelines could change day-to-day operations in firms, issues relating to the new market rate benchmarks, and how these changes might alter insolvency practice. The 90-minute recording is available for the special ABI member price of $75 and can be purchased here.

ABI GOLF TOUR UNDERWAY; LAST STOP FOR 2013 IS WINTER LEADERSHIP CONFERENCE IN DECEMBER

The 7th and final stop for the 2013 ABI Golf Tour is on Dec. 5 at the Trump National Golf Club, held in conjunction with ABI’s Winter Leadership Conference. Final scoring to win the Great American Cup — sponsored by Great American Group — is based on your top three scores from the seven ABI events. See the Tour page for details and course descriptions. The ABI Golf Tour combines networking with fun competition, as golfers "play their own ball." Including your handicap means everyone has an equal chance to compete for the glory of being crowned ABI's top golfer of 2013! A 22-handicapper won the tour event at July’s Southeast Bankruptcy Workshop. There's no charge to register or participate in the Tour.

ABI IN-DEPTH

NEW CASE SUMMARY ON VOLO: DANIELSON V. FLORES (IN RE FLORES) (9TH CIR.)

Summarized by Kevin M. Baum of Katten Muchin Rosenman LLP

Affirming the Bankruptcy Court, the Ninth Circuit, sitting en banc, held that a Bankruptcy Court may confirm a chapter 13 plan of reorganization under § 1325(b)(1)(B) only if the plan’s duration is at least as long as the applicable commitment period under section 1325(b)(4), without regard to whether the debtor has positive, zero, or negative projected disposable income. In reaching its decision, the court expressly overruled the portion of its previous decision in Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 875 (9th Cir. 2008) in which the Ninth Circuit had previously held that § 1325(b)(1)(B) does not impose a minimum duration for a Chapter 13 bankruptcy plan if the debtor has no "projected disposable income," as such term is defined in the Bankruptcy Code.

There are more than 1,000 appellate opinions summarized on Volo, and summaries typically appear within 24 hours of the ruling. Click here regularly to view the latest case summaries on ABI’s Volo website.

NEW ON ABI’S BANKRUPTCY BLOG EXCHANGE: COMING RULES COULD CUT OFF BANKS FROM AFFILIATES

The Bankruptcy Blog Exchange is a free ABI service that tracks 35 bankruptcy-related blogs. A recent blog post reported that Dance New Amsterdam, a financially troubled nonprofit dance education and performance center in New York, had staved off, at least temporarily, a shutdown by raising $50,000 it owed.

Be sure to check the site several times each day; any time a contributing blog posts a new story, a link to the story will appear on the top. If you have a blog that deals with bankruptcy, or know of a good blog that should be part of the Bankruptcy Exchange, please contact the ABI Web team.

ABI Quick Poll

Success fees for financial advisors should be prohibited.

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

INSOL INTERNATIONAL

INSOL International is a worldwide federation of national associations for accountants and lawyers who specialize in turnaround and insolvency. There are currently 43 member associations worldwide with more than 9,000 professionals participating as members of INSOL International. As a member association of INSOL, ABI's members receive a discounted subscription rate. See ABI's enrollment page for details.

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  CALENDAR OF EVENTS
 

2013

September
- ABI Endowment Golf & Tennis Outing
    Sept. 10, 2013 | Maplewood, N.J.
- Lawrence P. King and Charles Seligson Workshop on Bankruptcy & Business Reorganization
    Sept. 18-19, 2013 | New York
- abiLIVE Webinar: Complex Requirements and Ethical Duties of Representing Consumer Debtors
     Sept. 24, 2013
- Bankruptcy 2013: Views from the Bench
    Sept. 27, 2013 | Washington, D.C.

October
- abiLIVE Webinar: The Intersection of Intellectual Property and Bankruptcy: Kodak, Nortel and Other Cases
     Oct. 3, 2013
- Midwestern Bankruptcy Institute Program and Midwestern Consumer Forum
    Oct. 4, 2013 | Kansas City, Mo.
- Professional Development Program
    Oct. 11, 2013 | New York, N.Y.
- Chicago Consumer Bankruptcy Conference
    Oct. 14, 2013 | Chicago, Ill.
- International Insolvency & Restructuring Symposium
    Oct. 25, 2013 | Berlin, Germany


  


November
- Complex Financial Restructuring Program
   Nov. 7, 2013 | Philadelphia, Pa.
- Corporate Restructuring Competition
   Nov. 7-8, 2013 | Philadelphia, Pa.
- Austin Advanced Consumer Bankruptcy Practice Institute
   Nov. 10-12, 2013 | Austin, Texas
- Detroit Consumer Bankruptcy Conference
   Nov. 11, 2013 | Detroit, Mich.
- Delaware Views from the Bench
   Nov. 25, 2013 | Wilmington, Del.

December
- Winter Leadership Conference
    Dec. 5-7, 2013 | Rancho Palos Verdes, Calif.
- ABI/St. John’s Bankruptcy Mediation Training
    Dec. 8-12, 2013 | New York


 
 
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Analysis House Passage of Bank Bankruptcy Bill Creating Momentum for Senate to Act

ABI Bankruptcy Brief | December 2, 2014
 
  

December 2, 2014

 
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  NEWS AND ANALYSIS   

ANALYSIS: HOUSE PASSAGE OF BANKRUPTCY BILL CREATING MOMENTUM FOR SENATE TO ACT

The House of Representatives yesterday voted to approve a bipartisan bill amending the Bankruptcy Code for large financial institutions as part of an ongoing response to the 2008 collapse of Lehman Brothers, and this could create momentum for the Senate to act on the legislation, The Deal reported today. H.R. 5421, titled the "Financial Institution Bankruptcy Act of 2014" (or FIBA), seeks to ensure that a failing big bank can employ the traditional bankruptcy process in a way that doesn't cause collateral damage to the global financial markets. The bill, which is supported by Wall Street, is intended to drive failing banks to employ bankruptcy instead of an alternative system set up by the post-crisis Dodd-Frank Act known as the Orderly Liquidation Authority. The OLA allows regulators to infuse a failing bank and its creditors with taxpayer funds initially to stem a panic emerging from a collapsing big bank. The bill also seeks to produce an expedited bankruptcy process at the same time that it maintains creditor priority as well as transparency in the process. Prospects for approval in the Senate are unclear, though the recent shift in control of the chamber into Republican hands could be encouraging news for supporters of big bank bankruptcy reform efforts on Capitol Hill. Sens. John Cornyn (R-Texas) and Pat Toomey (R-Pa.) last year introduced legislation known as the Taxpayer Protection and Responsible Resolution Act, which shares many of the characteristics of the House measure but also calls for repeal of the OLA. However, the Senate bill would need to have its effort to repeal the OLA removed in order to be approved by the Obama administration. The OLA system, as an alternative to bankruptcy, is a key component of the Obama administration's post-crisis reform effort, and any move to repeal it would likely receive a veto from the White House. Click here to read the full article.

COMMENTARY: REGULATION FOR PROFIT

After destroying for-profit Corinthian Colleges, the Department of Education is now brokering the sale of its schools to a government contractor that guarantees and collects federal student debt, according to a commentary in yesterday's Wall Street Journal. Santa Ana, Calif.-based Corinthian went out of business this summer after federal student aid funds were cut off by DOE for alleged regulatory violations. DOE's actions precipitated a liquidity crisis that threatened to bankrupt Corinthian. Consequently, Corinthian signed a living will to sell 85 schools and close 12 others. Corinthian has now disclosed that Zenith Education Group, a spinoff of the nonprofit Educational Credit Management Corporation Group (ECMC), has agreed to buy 56 campuses for a mere $24 million. Corinthian grossed $1.6 billion in revenue and took in about $1.4 billion in federal student aid last year. So for a modest down payment, the nonprofit has scored access to a font of federal cash. In return for rubber-stamping the acquisition, DOE is taking a 50 percent cut. Corinthian's $12 million remainder will go mainly toward refunding student debt, covering existing liabilities and paying litigation costs. DOE and other federal agencies haven't relinquished their legal claims against Corinthian, according to the commentary, but they have agreed not to sue the new nonprofit owner in return for a $17.25 million payment, which is on top of the $12 million. Click here to read the full commentary (subscription required).

NEW BILL WOULD AID ATLANTIC CITY, CASINOS ON TAXES

Atlantic City's eight surviving casinos would get a break on taxes and the city would get help making up for lost revenue under a rescue plan unveiled by two New Jersey state senators, the Associated Press reported today. The plan, introduced in the state legislature late Monday and announced today by State Senate President Steve Sweeney and Sen. James Whelan, would let the casinos collectively pay $150 million in lieu of taxes for two years. It would redirect an investment alternative tax — currently used for redevelopment projects — to help pay off $25 million to $30 million of Atlantic City's debt per year. The bill has many of the elements that the struggling Trump Taj Mahal Casino Resort, which is scheduled to close Dec. 12, has been seeking from state and local government in order to keep the casino open and save its 3,000 jobs. The plan helps the city by giving it a predictable revenue stream without the massive annual casino tax appeals that have helped drain the city's coffers. Four of Atlantic City's 12 casinos have closed this year, and the plan is designed to prevent any more from going belly-up. The bill also would mandate a minimum health insurance and retirement benefits package to each casino worker, which has been a major issue in the Taj Mahal labor dispute. Trump Entertainment won a bankruptcy court ruling in October that canceled its contract with Local 54 of the Unite-HERE union and freed the company from costly health insurance and pension obligations. The union is appealing that ruling, and the company has since offered to reinstate health coverage for two years and contribute to a new pension plan. Billionaire investor Carl Icahn, who plans to acquire Trump Entertainment by forgiving $286 million in company debt he owns, plans to invest $100 million into the Taj Mahal, but only if the union drops its appeal. Click here to read the full article.

UPCOMING EVENTS FOR THE RELEASE OF THE ABI CHAPTER 11 REFORM COMMISSION'S FINAL REPORT START ON SATURDAY AT THE WINTER LEADERSHIP CONFERENCE

The Final Report of ABI's Commission to Study the Reform of Chapter 11 will be previewed on Saturday, Dec. 6, at a session at ABI's Winter Leadership Conference. The Report is the culmination of more than two years of testimony, advisory reports and deliberations. To register and participate in the session, please click here. Those not in attendance can tap into the session via live webstream at http://commission.abi.org.

The full report will be available to download on the Commission site (http://commission.abi.org) at 8 a.m. ET on Dec. 8. For ABI members in the D.C. metro area, there is very limited space available for a special press briefing that will take place at 9 a.m. ET at the National Press Club. Members interested in attending should contact ABI Public Affairs Manager John Hartgen at [email protected].

Not able to participate or view the Commission's session at the Winter Leadership Conference this weekend? ABI will be holding a special abiLIVE webinar on Dec. 10 presenting the Final Report. In this 90-minute webinar, several members of the Commission, including both co-chairs and the official reporter, will provide insight to practitioners on the key findings as submitted to Congress. Click here to register.

LAW.ABI.ORG UPDATED TO REFLECT DEC. 1 RULE CHANGES

ABI's online Bankruptcy Code and Federal Rules of Bankruptcy Procedure site, law.abi.org, is completely current with the Dec. 1 Rule changes. Some of the updates affect forum for related cases, the time period for a valid summons and attorneys fee procedures. Substantial changes were made to the Rules relating to bankruptcy appellate procedures.

USTP NOTICE OF PROPOSED RULEMAKING ON CHAPTER 11 MONTHLY OPERATING REPORTS

Section 602 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) authorizes the U.S. Trustee Program (USTP) to issue rules requiring uniform periodic reports by debtors in possession or trustees in non-small business cases under chapter 11. The USTP just published in the Federal Register a notice of proposed rulemaking seeking public comment on the proposed rule and periodic report forms. The proposed rule is published in the Federal Register at 79 FR 66659 (Nov. 10, 2014) (to be codified at 28 C.F.R. pt. 58). The proposed rule, along with the proposed periodic report forms and instructions, may be viewed on the USTP's website. The proposed rule may also be accessed at www.regulations.gov. All public comments must be submitted on or before January 9, 2015, via www.regulations.gov. Please note that the proposed rule and forms only apply in chapter 11 cases filed by debtors that are not small businesses. Small business debtors are already required to use Official Form 25C, "Small Business Monthly Operating Report."

ABI MEMBERS WELCOME TO ATTEND TRIBUTE DINNER ON DEC. 11 TO HONOR BANKRUPTCY JUDGE STEVEN W. RHODES

ABI members are invited to attend a tribute dinner honoring the 29 years of service of Bankruptcy Judge Steven W. Rhodes of the United States Bankruptcy Court for the Eastern District of Michigan for his commitment to the bench, bar and community. The Tribute Dinner will be held at the Roostertail on the Detroit River and is being hosted by the Bankruptcy Community to honor and celebrate Judge Rhodes' service and career. Please contact David Lerner at (248) 901-4010 for more information. To attend, please go to http://www.cbadetroit.com/events/Judge-Rhodes-USBC-Invite-and-Form.pdf

NEW CASE SUMMARY ON VOLO: BAVELIS V. DOUKAS (IN RE BAVELIS; 6TH CIR.)

Summarized by Dean Langdon of DelCotto Law Group PLLC

Affirming the decision of the Bankruptcy Appellate Panel (which affirmed the bankruptcy court), the Sixth Circuit Court of Appeals ruled that the bankruptcy court had constitutional authority to enter a judgment sustaining an objection to the proof of claim filed by Quick Capital in debtor Bavelis's bankruptcy case. The Sixth Circuit also affirmed the BAP ruling that the bankruptcy court properly interpreted and applied Florida securities law to find no violation of such laws by Bavelis.

There are more than 1,500 appellate opinions summarized on Volo, and summaries typically appear within 24 hours of the ruling. Click here regularly to view the latest case summaries on ABI's Volo website.

NEW ON ABI'S BANKRUPTCY BLOG EXCHANGE: TRUMP BANKRUPTCY MAY BE CONVERTED TO CHAPTER 7

A recent post discusses the possibility that Trump Entertainment's bankruptcy may be thrown into jeopardy given the worsening situation with other Atlantic City casino failures and the closure of the company's only remaining casino, Trump Taj Mahal.

Be sure to check the site several times each day; any time a contributing blog posts a new story, a link to the story will appear on the top. If you have a blog that deals with bankruptcy, or know of a good blog that should be part of the Bankruptcy Exchange, please contact the ABI Web team.

ABI Quick Poll

A single set of mandatory, uniform federal bankruptcy exemptions should be adopted.

Click here to vote on this week's Quick Poll. Click here to view the results of previous Quick Polls.

INSOL INTERNATIONAL

INSOL International is a worldwide federation of national associations for accountants and lawyers who specialize in turnaround and insolvency. There are currently 43 member associations worldwide with more than 9,000 professionals participating as members of INSOL International. As a member association of INSOL, ABI's members receive a discounted subscription rate. See ABI's enrollment page for details.

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  CALENDAR OF EVENTS
 

2014

December
- Winter Leadership Conference
    Dec. 4-6, 2014 | Palm Springs, Calif.
- 40-Hour Mediation Training Program
   Dec. 7-11, 2014 | New York
- abiLIVE Webinar
   Dec. 10, 2014

January
- New Orleans Consumer Bankruptcy Conference
    Jan. 19, 2015 | New Orleans
- Rocky Mountain Bankruptcy Conference
    Jan. 22-23, 2015 | Denver

  

 

February
- Caribbean Insolvency Symposium
    Feb. 5-7, 2015 | Grand Cayman, Cayman Islands
- VALCON 2015
    Feb. 25-27, 2015 | Las Vegas

March
- Paskay Bankruptcy Seminar
    March 5-7, 2015 | Tampa, Fla.
- Bankruptcy Battleground West
    March 24, 2015 | Los Angeles, Calif.

 

 

 
 
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