Spring 2018 • Issue 63, page 1

Meet Chief Judge Hon. Roger L. Efremsky

By Lauter, Mick*

Michael Lauter sat down with Chief Judge Roger L. Efremsky, who presides over the United States Bankruptcy Court for the Northern District of California, to learn more about the Judge’s journey to the bench.

Q: Can you tell me a little bit about your background?
I am a graduate of Menlo College with a degree in Business Administration. After completing my studies at Menlo, I received a scholarship to study abroad for a year, at the University of Cape Town in the Republic of South Africa.

Q: Yes, I read somewhere that you studied in Cape Town. How was that experience?
It was a fantastic year. I enjoyed my studies at the University. Additionally, I was able to travel extensively throughout South Africa and Southern Africa. Among the other countries I visited were Namibia, Swaziland, and Zimbabwe (formerly known as Rhodesia).

Q: What was the scholarship?
It was a Rotary International scholarship. The scholarship permits successful applicants to study anywhere in the world for one year.

Did you study law there?
Yes, I studied Roman/Dutch and International Law. It was interesting because it gave me a different perspective of the American legal system. Living abroad and studying with other students from different countries, with diverse cultures and backgrounds, was extremely

 enlightening and gave me a broader understanding of the United States and how our country is viewed from abroad.

Q: What happened next?
After returning to the United States, I went to work for Chevron shipping in San Francisco as an accountant. Thereafter, I went to law school at Santa Clara University earning my law degree in 1983.

Q: Did you know in law school that you wanted to do bankruptcy? How did you get into that area of the law?
No, I did not know in law school that I would be a bankruptcy lawyer. I did not take any bankruptcy courses and knew virtually nothing about bankruptcy coming out of law school. However, after I graduated I went to work for a small firm in Livermore, California headed by a couple of partners that were Santa Clara law school graduates. One day, I was the only attorney in the office when I received a call from one of the partners informing me that I had to go to San Francisco to handle a relief from stay hearing for one of our bank clients. So I grabbed the file and went to court for the hearing, which was before Judge King. Neil Gendel and Irving Kornfield - two very experienced bankruptcy attorneys - were involved in the hearing, as well. Both were opposing the bank's motion for relief from stay. I remember Judge King asking me "What is the basis for relief from stay?"

I said, "Your honor, the bank has a contract with the debtor, the debtor is not paying and is in breach of contract."

Judge King said, "That is true about any debtor. Anything more?"

I just looked at him, unsure what to say. Judge King then quickly denied the motion, seeming frustrated at having to deal with this young lawyer who knew nothing of bankruptcy.

I then walked out of Court with Neil Gendel and Irving Kornfield. Neil Gendel told me that I should consider practicing in bankruptcy. He said it was a really interesting area of the law and the bar was very collegial. I responded by saying something along the lines of: "It will be a cold day in hell before I ever come back to bankruptcy court again." Irv Kornfield then looked at me with a smile and said, "That will be a day too soon."

But as fate would have it, the firm I was employed with merged with another firm in Pleasanton. One of the new partners asked if anyone had bankruptcy experience, and since I was worried as any associate about not having enough work, I raised my hand. The partner then trained me in bankruptcy from a creditor's perspective, and that's how I was introduced more officially to bankruptcy. About five years later, I had built up a book of business with secured creditor clients when my firm decided to focus solely on family law. The firm assisted me in opening up my own firm. A few years later I brought on Austin Nagel as my partner. I then practiced with him for the next 18 years in our AV rated firm.

While at my firm, early on in my practice, I met Mike Meyer, the Chapter 13 Standing Trustee in Modesto, and Judge Michael McManus who was sitting in Modesto at the time. I would go to Modesto to meet with them regularly and talk about the Bankruptcy Code and cases, and from those meetings I really developed a keen interest in Chapter 13.

At the same time, I started doing legislative work for my secured creditor clients, advising them about BAPCPA through all the years that it was in the legislative process until it finally passed.

Q: Yes, I read that you testified before a Senate subcommittee as part of that work. How was that?
I did. I testified before a Senate Subcommittee on the Office of United States Trustee and Oversight of the Courts on behalf of secured creditors at large. It was an interesting experience working with Chapter 13 Standing Trustees and various secured creditors from the banking and auto finance industries. I made numerous trips to Washington to meet with Jerry Patchen who was the head of the Executive Office of the United States Trustee and his assistant, Kevin Orr.

In addition to that, I had the opportunity to meet with various members from the Senate and the House of Representatives.

Q: Was that a natural transition, from representing secured creditors to representing Chapter 13 trustees?
It was not a transition per se as I continued to represent my secured creditor clients. What I primarily did for the Chapter 13 Standing trustees was their trial work.

Q: So how did you make the transition from being in private practice to thinking that, ok, the next step for me in my career is going to be a judgeship?
I really did not give it much thought until about the last two years of my days as a practitioner when I saw that there was an opening for a judgeship in the Eastern District of California. I seriously considered applying, but ultimately, decided not to as my wife was pregnant at the time. A little while later, a judgeship position opened up in San Jose and both my wife and Mike Meyer very much encouraged me to apply. I did and was fortunate enough to be selected on my initial application.

Q: Have you liked being a judge?
Yes. I have had the honor of handling the matters that come before me and dealing with the attorneys representing the litigants. In terms of high points, I have thoroughly enjoyed working with my law clerks, Jane Fabian and Shannon Mounger-Lum. Additionally, getting to know other Bankruptcy, Magistrate, District, and Circuit Judges has been an absolute pleasure. Moreover, I have enjoyed working with the Clerks of our Court, and our staff, as well.

Q: I imagine much of the court governance issues deal with matters of finance and various openings for judgeships, is that right?
Yes, though it is much more than that. Our Clerk of Court, Eddy Emmons, is so knowledgeable and does an excellent job of running the Court's day to day operations. As Chief Judge, I work closely with the Clerk of the Court and my fellow judges to develop budget and long-range plans for the Court. These issues can run the gamut from human resource, budgetary, facility and any other conceivable issue that can affect the Court.

Q: Has the bankruptcy court here in Oakland received any pressure to move across the street to the federal building, similar to what happened in San Francisco?
Pressure is not the word. It is more of an issue of being good stewards of the public's money. For example, the Internal Revenue Service (IRS) was considering moving out of the federal building in Oakland, and we were approached by GSA to consider moving into that building. We started the process to analyze how we might fit into the space which included development of design plans. Ultimately, the IRS decided not to move so now we are focused on whether to stay in the existing space or move to another private facility.

There is a big push to get bankruptcy courts and other adjunct courts back into the federal buildings, but space is always an issue. You need enough space not just for the courtrooms and chambers themselves but for the clerk's office and other functions. For example, in San Francisco, the bankruptcy judges and courts are on the 16th floor, but the clerk's intake office is on the 18th floor and the clerk's headquarters is on the 5th floor. That is demonstrative of the issues you face getting all these functions into an existing courthouse where space is limited.

Q: Do you have any cases that you have particularly enjoyed or that stand out in your mind from your time on the bench so far?
The one that first comes to my mind is the 3dfx case. This was a complicated pending Chapter 11 matter that I inherited from Judge Grube when I took the bench.The case was a very positive experience for me and, as a new judge, I worked very hard to make sure I was on top of all the issues. I went back through the docket and reviewed all the old briefs just to make sure I had not missed anything. Also, the case was emblematic of how Judge Grube was very helpful in my transition from private practice to the bench. He met with me, gave me his take on where he thought the case may go, and then of course on more general matters about becoming a judge.

Also, what stands out about the case to me was that there were accomplished lawyers on all sides. Very well represented, and tremendous advocates. When the parties became log jammed on key issues, I sought advice from then-Chief Judge Newsome on how to break this impasse. He responded by stating, "Set it for trial and it will settle." Which, of course, it did not. I presided over a three-week bench trial, which I truly enjoyed. This resulted in the longest decision I have written to date. It was a great experience going through the trial and then seeing it go up on appeal all the way to the Ninth Circuit.

Q: This is my obligatory time travel question: Are there things you have learned in your twelve years on the bench that you would give as advice to yourself if you could go back and talk to yourself on your first day on the job?
I would say that the bigger cases can be very interesting, they are not always so surprising - you have strong advocate, and as a judge you take your time, you prepare. What surprises you as a judge are the smaller cases that sometimes can become very involved and take up quite a bit of time and present issues of first impression. Sometimes this occurs even with a pro se debtor case. You just have to make sure you take the time on those cases and make sure you know all the facts and the law. That is something that has been borne out in my experience on the bench. It can be the little cases that can be very thought-provoking and mentally challenging. The cases do not have to have big dollars or big firms involved; fascinating legal issues can present themselves in small cases.

Q: Are there any other committees or panels you are on in the Ninth Circuit right now that you enjoy?
Yes. As Chief Judge I am on the Conference for Bankruptcy Judges for the Ninth Circuit. Working with other Chief Judges has been a rewarding experience. I am so impressed by my fellow Chief Judges. Additionally, I sit on two Ninth Circuit committees, the Alternative Dispute Resolution Committee, and Courts and Community Committee. Moreover, I have volunteered each year as a judge to preside over California high school mock trials. This has been the most rewarding experience. The quality of the students who argue these matters is amazing. The students are so prepared and polished in their presentations. For other judges who have not volunteered to participate in the program, I would highly encourage them to do so.

Q: We have seen a big push in the last few years towards uniformity in the Northern District bankruptcy court. Is that going to continue?
Yes, when you become Chief Judge people often ask you what is your goal here in your tenure? For me, who previously practiced in the Northern District of California, it always struck me as odd why there were four different ways of doing things in the Northern District of California. When I took over as Chief Judge, I worked with the Clerk of the Court to make the system uniform and more efficient for the court and the practitioners. For instance, I spearheaded the effort to make docketing uniform in the district. This was also done in part to address the reduced case load and the effect of that on court administration. Regardless of where the court personnel sits for any particular division, they do docketing for all four divisions. Practitioners now only need to learn one way of docketing, rather than four.

Similarly, in the Chapter 13 area, I was instrumental in the negotiations over the National Form Chapter 13 plan that allowed courts to opt out. My understanding is that out of the 94 districts in the country, 83 have opted out, so that was an important issue to bankruptcy courts across the country. As part of that compromise, each district had to mandate a single plan to be used in the district in order to opt out. The Northern District of California opted out and we now have a uniform plan for the district.

In addition, we have also looked at other matters such as confirmation orders in an effort to create uniformity where appropriate but also being careful to leave flexibility for judges as well. For instance, here in Oakland the three judges have been working with our law clerks to try to eliminate differences in our procedures where we can. We are now trying to do that on a district-wide basis. It is a lot of work and takes a lot of compromise on the part of the judges.

Q: Is the caseload still so low in the District that if another judge retired, he or she would not be replaced?
Yes, if another judge retired in the next four years, he or she would likely not be replaced. We would be down to six judges. The reduction in our case load has caused us to drop from being considered a large court to now being considered an intermediate court. Typically, the weighted average score of the judges are supposed to be about 1,500. They will replace a judge that retires if the judges' weighted average scores are 1,000 or higher. Right now, the judges in this district are a little below a 700 weighted average, similar to most other courts across the country except for the Southern District of New York or the District of Delaware where they have a concentration of large chapter 11 cases.

Q: Is it Judge Novack who will take over as the next Chief Judge?
Yes, Judge Novack will take over as Chief Judge on January 1, 2019.

Q: Do you have any advice for him as he prepares for that role?
Yes, in fact I have been working to keep him apprised on various ongoing matters that he will have to take over for me on the transition. The Administrative Office of the Courts is working on a new training program for incoming Chief Judges to address the matters they will deal with, as there is now little in the way of formal training. My training for Chief Judge involved meeting in Santa Rosa with my predecessor, Judge Jaroslovsky, and getting a rundown of what he was doing in his role as the Chief Judge. One thing he told me that has really been true is that as Chief Judge, you can be sailing through your work week and then all of a sudden on Friday you receive a call about some issue that will keep you working all night and through the weekend. There is always something new and different for the Chief Judge.

Q: Okay, I think that segue nicely into my final question which is this: Warriors over Cavs in how many games this year?
[laughs] Oh no, the Cavs are not going to make it this year. I would put my money on the Celtics to come out of the East, and the Warriors to beat them in six games, assuming the Warriors stay healthy. So to answer the question, Warriors in six.

*Michael Lauter is a partner in the Finance and Bankruptcy Practice Group in the Sheppard Mullin San Francisco Office. “Mick” Lauter specializes in bankruptcy, creditor's rights, receiverships, workouts and foreclosures. His practice includes representing debtors, creditors and committees in bankruptcy and representing state and federal court receivers.