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Delaware Bankruptcy Court Announces Resumption of Limited On-Site Hearings Beginning June 17; Video/Telephonic Hearings Likely to Continue Throughout the Summer

Finance, Restructuring, and Bankruptcy

On June 17, 2020, the United States Bankruptcy Court for the District of Delaware, one of the nation’s busiest bankruptcy courts, announced the resumption of limited in-person, on-site hearings in critical cases and subject to physical distancing procedures as discussed below.

The court issued the Fifth Amended Order Governing the Conduct of Hearings Due to Coronavirus Disease 2019 (COVID-19) and Reconstituting Operations together with a presentation on Reconstituting Bankruptcy Court Operations: Phase 1, which provide further guidance on the court’s partial resumption of on-site hearings and the procedures that will govern on-site hearings. These include:

  • Beginning June 17, 2020, at the discretion of the presiding judge, on a case by case basis, court hearings shall be held (i) telephonically, (ii) by a combination of telephonic and video conference, or (iii) on-site in a courtroom.
  • On-site court hearings will be at the discretion of the presiding judge and initially will be limited to trials and critical cases only.
  • The court is encouraging counsel and others to attend hearings telephonically whenever possible.
  • The presiding judge will promptly consider any request to change a court hearing from an on-site hearing to a hearing by telephone and videoconference.

The court is limiting which parties may attend on-site hearings and how many representatives may appear on behalf of each party:

  • Unless otherwise ordered by the presiding judge in a particular case, on-site visits to the court will be limited to (i) debtors, (ii) any pre-petition or post-petition secured lender to a debtor, (iii) any official or ad hoc committee, (iv) any party that is seeking relief from the Bankruptcy Court, (v) any party that has filed a written objection to relief being sought from the Bankruptcy Court, (vi) any representative of the Office of the United States Trustee, (vii) any party purchasing assets of a debtor, (viii) any witness that may be called to testify during a court hearing, and (ix) members of the press.
  • Attendance at on-site hearings is limited to (i) for an entity, one representative of that entity (two for the debtor(s)), (ii) two attorneys (three for the debtor(s)), and (iii) one financial advisor (two for the debtor(s)).
  • The manner of submitting evidence at hearings will be determined on a case by case basis by the presiding judge. The court is encouraging parties to limit the use of paper in on-site court hearings and to communicate with other parties and chambers in advance of hearings.
  • Persons merely observing a hearing are allowed and encouraged to observed by telephone and are not permitted to observe on-site.

The start times for on-site hearings will be modified as follows:

  • Each judge will schedule, at most, one on-site hearing per hour.
  • Each judge will be assigned a separate start time to begin on-site hearings:

:00 Judge Dorsey (5th Floor)                     :10 Judge Owens (6th Floor)

:20 Judge Walrath (5th Floor)                   :30 Judge Silverstein (6th Floor)

:40 Judge Sontchi (5th Floor)                    :50 Judge Shannon (6th Floor)

Physical distancing and other safety measures will remain in place:

  • All persons on court premises must maintain responsible social distancing to the extent practicable, including in the courtrooms, in the hallways, in the restrooms, at the security checkpoints, in conference rooms, and in chambers. All persons must follow any posted signs or verbal instructions as to behavior in the courtroom and court premises generally.
  • Face masks continue to be required in the courtrooms and other public areas, except when at counsel tables or when at the podium. In addition, face masks must be removed when addressing the court or testifying.
  • Physical distancing measures will be put in place, such as limiting seating at counsel tables to no more than two individuals and limiting gallery seating to no more than three individuals per row with every other row closed.
  • In place of temperature checks, the court is requiring all persons attending on-site hearings must complete an online questionnaire prior to arriving at the courthouse. The questionnaire is available at apple.com/covid19. The completed questionnaire results should be presented to court security officers upon arriving at the courthouse. The court has recommended that individuals take the questionnaire not more than 24 hours prior to the start time of the hearing and to take the questionnaire on a phone or portable electronic devise so it may be shown to the court security officers when you arrive.
  • Anyone denied admission to the courthouse should immediately contact chambers to let them know and to make alternative arrangements to appear.
  • No one may approach the bench, the clerk, the court reporter, or the witness stand unless given express permission by the presiding judge.

Persons not complying with the court’s requirements, posted signage or any instructions of any court security officer, or other Bankruptcy Court personnel will be denied access to or be ejected from the court’s premises.

The presiding judge may in their discretion amend or supplement these conditions.

All parties are strongly encouraged to review the presiding judge’s procedures prior to the hearing. Prior planning and communication with chambers is highly recommended.

Additionally, the court has issued certain guidelines for hearings conducted by videoconference.

Further information regarding the Delaware Bankruptcy Court’s resumption of on-site hearings and other procedures is available on the court’s website.

About Blank Rome’s Delaware Bankruptcy Practice

Blank Rome’s business restructuring and bankruptcy practice is ranked by Chambers USA, and is listed by The American Lawyer’s Corporate Scorecard and The Deal as one of the top U.S. bankruptcy practice groups. Our Delaware bankruptcy attorneys regularly appear before the Delaware Bankruptcy Court as lead counsel or in the role of Delaware counsel working with law firms located throughout the country.

Blank Rome’s Delaware bankruptcy lawyers have gained extensive experience representing a diverse mix of clients, ranging from chapter 11 debtors, trustees, statutory and ad hoc committees, secured lenders, note holders, landlords, equipment lessors, asset purchasers, executory contract parties, and plaintiffs and defendants in preference and other avoidance actions. Our lawyers have gained valuable industry-specific knowledge and experience handling matters in, among others, the sub-prime mortgage, gaming, chemical, biofuels, metals, solar, and retail industries.

© 2020 Blank Rome LLP. All rights reserved. Please contact Blank Rome for permission to reprint. Notice: The purpose of this update is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. This update should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel.