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Nonprofits: The Internal Struggles of Officers and Directors

Level: Advanced
Runtime: 74 minutes
Recorded Date: July 12, 2019
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  • The Not-For-Profit Healthcare Entity - Internal Struggles and Operational Dilemmas
  • Higher Ed and Fiduciary Duties
  • Case Studies
Runtime: 1 hour and 14 minutes
Recorded: July 12, 2019
For NY - Difficulty Level: Experienced attorneys only (non-transitional)


Two of the most currently challenged industries — higher education and health care — are also the two industries most likely to use the nonprofit form of organization. Recent high-profile cases have demonstrated the pull and tug on officers and directors of those entities. Tasked with both the practical realities imposed by the need to make payroll and the mission-based obligation to pursue the organization’s charitable purposes, the officers and directors are forced to weigh financial discipline against the obligation to heal or to educate.

This panel will explore the seemingly conflicting fiduciary duties of the officers and directors of nonprofit companies, identifying those duties and the statutory protections afforded those who are faced with making real-time decisions. The discussion will also explore challenges to the actions taken, including additional hurdles to asset sales under ? 363(d)(1), government agency investigations and oversight, and class action litigation.

This program was recorded as part of ABI's 2019 Northeastern Bankruptcy Conference & Consumer Forum on July 12th, 2019.

Provided By

American Bankruptcy Institute
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Charles R. Powell, III

Devine, Millimet & Branch, P.A.

As a creditors’ rights attorney, I focus on commercial collections for corporations and other business entities and, at times, for individuals. My work often finds me in bankruptcy courts throughout New England as well as other states. I have served as the chair of the Federal Practice Institute Bankruptcy Section since March 2014. An active healthcare practice keeps me busy advising long-term care facilities with admissions agreements, intake procedures, and collections. Although much of my time is spent counseling clients to improve their business practices to avoid the need for collection actions altogether, I have more than twenty years of experience in state and federal courts, enforcing the right to payment where other efforts have failed.

Clients of all types come to us for help in collection actions. I have served as co-counsel for Official Committees of Unsecured Creditors and for major creditor entities in several of the largest Chapter 11 bankruptcy cases ever filed in New Hampshire, and as lead counsel in a recent complex trial that was the longest trial in the New Hampshire Bankruptcy Court’s history. In my healthcare practice, my clients include nursing homes, assisted living facilities, and hospitals, for which I often serve as a de facto general counsel. My work with long-term care facilities often involves administrative proceedings. In addition, I have been involved in two ground-breaking legislative initiatives for healthcare facilities. I drafted RSA 151-E:19 which creates causes of action for negligent failure of a fiduciary to apply for Medicaid or for failure to pay the patient liability amount. That statute also creates a cause of action against recipients of transfers resulting in an "asset transfer disqualification" under Medicaid. I also was a co-drafter of RSA 151-I:1-2, which provides nursing facilities and hospitals with the authority to request the expedited appointment of a "special Medicaid representative" to complete and to prosecute a Medicaid application to successful conclusion. 

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John J. Monaghan

Holland & Knight LLP

John J. Monaghan is a partner in Holland & Knight's Boston office and serves as the national practice group leader of the firm's Bankruptcy, Restructuring and Creditors' Rights Practice Group. Mr. Monaghan is particularly focused on representing major case participants in complex commercial insolvency and restructuring matters, with a particular focus on Chapter 11 cases. He represents both U.S.-based companies as debtors in Chapter 11 and non-U.S. companies in both in court and out of court cross-border insolvency proceedings. Mr. Monaghan's creditor representations focus on matters involving senior lenders, both in syndicated and single lender deals. He also has extensive experience representing creditors' committees, equity committees, purchasers of assets, landlords, licensors, trustees, parties to prepetition contracts and leases, defendants in adversary proceedings and unsecured creditors. His experience crosses a broad array of industries, including finance, manufacturing, real estate, technology, telecommunications, retail, healthcare, resort and hospitality, franchise, food service, leasing, maritime and aviation. He advises clients on the business aspects of bankruptcy and workouts, and represents clients in matters in the bankruptcy court, as well as in other state and federal courts.

Mr. Monaghan's experience includes numerous cross-border insolvency proceedings centered in a number of countries. He has represented companies or creditors in cases centered in Singapore, the United Kingdom, Canada, Switzerland, Greece, the Caribbean, Bermuda, Brazil, the Czech Republic, Taiwan and other countries. His cross-border matters have included companies involved in shipping, finance, aviation, energy, manufacturing and hospitality.

Matters in which Mr. Monaghan has been lead counsel have resulted in the issuance of more than 30 published opinions on topics ranging from the impact of rights of first refusal on sales under a plan of reorganization to the constitutional authority of bankruptcy courts to enter final monetary judgments in fraud cases. He has been named as a top bankruptcy lawyer by numerous ranking publications and in 2008, Mr. Monaghan was inducted as a fellow in the American College of Bankruptcy - a professional, educational and honorary association whose membership is limited to those in the profession who exemplify the highest standards of professional and ethical standards. In 2010 he was named as a fellow of the American Bar Foundation.

A frequent lecturer on bankruptcy issues, Mr. Monaghan has presented seminars on the Bankruptcy Code safe harbors for financial industry transactions, constitutional issues arising from the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), litigating contested plan confirmation proceedings, the purchaser’s perspective in transactions with a Chapter 11 debtor, cross border issues in energy industry insolvencies, and maritime insolvency issues for organizations including the American Bankruptcy Institute, the National Conference of Bankruptcy Judges, the International Bar Association, Marine Money and the Association of Insolvency and Restructuring Advisors.

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Cynthia Romano

Global Director, Restructuring and Dispute Resolution Practice
CohnReznick LLP

Cynthia Romano is a Global Director of CohnReznick Advisory's Restructuring and Dispute Resolution Practice. She has more than 25 years of experience in performance improvement, turnaround management, transaction support, and investment analysis.

Cynthia guides companies from where they are to where they want to be - whether in need of a tune up or in significant distress. Partnering with CxO level management, her goal is to help companies transform their bottom line to maximize value for owners, investors and other stakeholders. Cynthia’s areas of expertise include liquidity management, profit improvement through operational restructuring, organizational and process redesign, capital sourcing, and business and creditor workout/management.

Before joining CohnReznick, Cynthia managed various restructuring practices and clients including as Partner at CR3 Partners, CEO of Chrysalis Management, Managing Director at CRG Partners, and Manager in Bain’s Corporate Renewal Group. She also founded and served as CEO of a technology company and was a Financial Analyst for an angel investor group in charge of the group’s due diligence.

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Hon. Elizabeth S. Stong

U.S. Bankruptcy Court, Eastern District of New York

Judge Elizabeth S. Stong has served as U.S. Bankruptcy Judge for the Eastern District of New York since 2003. Before entering on duty, she was a litigation partner and associate at Willkie Farr & Gallagher in New York, an associate at Cravath, Swaine & Moore, and law clerk to Hon. A. David Mazzone, U.S. District Judge in the District of Massachusetts.

Judge Stong is a member of the Council on Foreign Relations and the Council and Membership Committee of the American Law Institute. She is also a Trustee and member of the Executive Committee of the Practising Law Institute, a member of the board of P.R.I.M.E. Finance, an international dispute resolution organization that promotes judicial education in complex financial disputes, and a member of the Board of Directors of the Harvard Law School Association of New York City. She is co-chair of the New York Fellows of the American Bar Foundation, serves on the ABA Standing Committee on Pro Bono and Public Service, represents the ABA’s National Conference of Federal Trial Judges in the ABA House of Delegates, and is a member of the Council of the ABA Business Law Section. She serves as co-chair of the New York City Bar Council on the Profession, a member of the New York County Lawyers Association Justice Center Advisory Board, and a board member of the New York Law Institute. She is an adjunct professor at Brooklyn Law School and St. John’s University School of Law.

Judge Stong is active in international judicial capacity building and has trained judges on five continents, including in Central Europe, North Africa, the Middle East, and the Arabian Peninsula, as an expert with the World Bank, the International Finance Corporation, and U.S. Department of Commerce Commercial Law Development Program. She has also consulted with the Supreme Court of China and People’s High Courts in Beijing and Guangzhou, and has participated in judicial workshops in Cambodia, Brazil, Argentina and Chile. She is an elected member of the European Law Institute and an Adviser to the ELI-UNIDROIT Principles of Transnational Civil Procedure project.

Judge Stong previously served as President of the Harvard Law School Association, chair of the International Judicial Relations Committee of the National Conference of Bankruptcy Judges, Vice President of the Federal Bar Council, Vice President of the Board of Directors of New York City Bar Fund Inc. and the City Bar Justice Center, Chair of the New York City Bar’s Alternative Dispute Resolution Committee and Vice Chair of its Judiciary Committee, the Board of Directors of the International Insolvency Institute, and an officer of the ABA Business Law Section. She was also a member of the board of MFY Legal Services, Inc., one of the largest providers of free civil legal services to low-income residents of New York City, and served on the ABA’s Standing Committee on the American Judicial System, Standing Committee on Continuing Legal Education, Commission on Women in the Profession, and Commission on Homelessness and Poverty.

Judge Stong received the Brooklyn Bar Association’s Freda Nisnewitz Award for Pro Bono Service, the New York Institute of Credit’s Hon. Cecelia H. Goetz Award, the ABA Business Law Section’s Glass Cutter Award, and the MFY Legal Services Scales of Justice Award, among other recognitions.

Judge Stong received her A.B. magna cum laude and her J.D. from Harvard University.

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William K. Harrington

U.S. Trustee, Region 1 & 2

William K. Harrington is the United States Trustee for Region 1 & 2. On November 27, 2013, Mr. Harrington was appointed as the United States Trustee for Region 2. Mr. Harrington previously had served as the United States Trustee for Region 1. Prior to his appointment as the United States Trustee in Region 1 on November 8, 2010, Mr. Harrington was the Assistant United States Trustee for the District of Delaware. Prior to joining the Office of the United States Trustee, he practiced bankruptcy and reorganization law at Duane Morris LLP. Mr. Harrington is a member of the Boston Bar Association, the Delaware State Bar Association, the American Bar Association, the American Bankruptcy Institute and the Delaware Bankruptcy American Inn of Court. He received his undergraduate degree from the University of Pennsylvania and his J.D. from Villanova University School of Law.

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