Limiting the Effect of BAPCA

Lurking behind the smile of every attorney who laughed at that joke, however, lies a very real concern: namely, that retaining key employees and talented executives through the course of a Chapter 11 case is no easy task. Working for a Chapter 11 debtor provides an executive with substantial career uncertainty. In exchange for such uncertainty, the executive is asked to take on substantially increased responsibility, deal with angry creditors and equity holders, and respond daily (if not hourly) to attorneys and financial advisers for any number of often unfriendly constituents ranging from the official committee of unsecured creditors to the Office of the United States Trustee (the 'UST'). In order to pacify fearful and overworked executives and to incentivize qualified executives to remain employed by Chapter 11 debtors, creative professionals and Chapter 11 executives developed what has become known as a key employee retention program, or KERP. These programs provide bonuses to executives and other key employees if they remain employed by the debtors through a date certain (often consummation of a plan of reorganization or similar benchmark). Additionally, these programs often offer severance payments to employees who are expected to be terminated without cause during the course of a Chapter 11 liquidation. Until the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ('BAPCA'), KERPs were widely and successfully utilized by Chapter 11 debtors to ensure that top talent did not leave for greener, more certain, and usually less demanding pastures.