United States: Bankruptcy, Creditors' Rights, & Financial Restructuring

We provide valuable knowledge and experience in the areas of commercial debt restructuring, settlements, bankruptcy trusteeships, and fiduciary work, and bankruptcy and creditors' rights litigation. The group represents debtors, secured and unsecured creditors, equity security holders, indenture trustees, creditors' committees, purchasers of insolvent companies, bankruptcy trustees, and examiners. This background, together with our experience in commercial lending transactions and general representation of commercial financial institutions and a broad range of business enterprises, enables us to provide a full spectrum of corporate, financial and bankruptcy services to our clients.

Typical types of matters include:

• Representing debtors, committees and major creditors in Chapter 11 cases
• Purchasing assets from businesses on the verge of or in Chapter 11
• Acquiring companies through Chapter 11
• Negotiating and litigating the terms of debtor-in-possession financing, use of cash collateral, adequate protection and relief from automatic stay
• Participating in the Chapter 11 Plan process, including drafting and confirming creditors' and debtors' Chapter 11 plans
• Establishing, negotiating and litigating breach of fiduciary duty and other D & O claims, and preference, fraudulent conveyance and other avoidance actions
• Out-of-court debt restructuring and workouts
• Dealing with problem real estate and asset-based commercial loans and leases
• Representing equipment lessors and other parties in disputes over leased equipment, including whether a lease is a "true lease" or a disguised financing arrangement
• Representing examiners in significant Chapter 11 cases
  Serving as Chapter 7 and Chapter 11 Trustee as well as serving as Trustee of a Trust formed under a confirmed Chapter 11 Plan.

In these activities, our attorneys also draw from the expertise found in other practice areas of the firm, including the Commercial & Asset-Based Lending, Litigation, Real Estate, Tax, and Corporate practice areas, enabling us to create innovative solutions for our clients' needs.

• Recovered over $2,850,000.00 on behalf of Chapter 7 Trustee by asserting that the Bankruptcy Code did not provide the same rights or powers to a holder of a right of withholding as it does to a holder of right of setoff
• Reached a settlement whereby an approximately $6,700,000.00 secured claim was reclassified to an approximately $615,000.00 secured claim with the remainder of the claim classified as unsecured by successfully arguing that the judgment lien portion of the claim did not attach to choses in action absent an ancillary act by the creditor
• Obtained a $640,000.00 settlement on behalf of Chapter 7 Trustee by arguing that the Trustee's hypothetical judicial lien position was superior to the position of the holder of a claim arising from an equitable lien
• Successfully obtained full payment of financial institution's multi-million dollar asset-based loan to affiliated companies, following borrowers' bankruptcy filings, the providing of a roll-up debtor-in-possession financing facility by the financial institution, and subsequent sales of assets by the affiliated debtors.
• Represented four affiliated entities, in their jointly administered Chapter 11 bankruptcy proceedings in the Middle District of Georgia Bankruptcy Court. The companies each owned retail shopping centers with a collective value of approximately $30 million.  The debtors' cash collateral motion was successfully prosecuted, and successfully defeated a motion to dismiss and multiple stay relief motions filed by the debtors' secured creditor. After extensive briefing, the bankruptcy court conducted an exhaustive three-day evidentiary hearing on the various motions before the court. The bankruptcy court held another hearing on the multiple motions before the court, and pursuant to Rule 7052 of the Bankruptcy Rules, made detailed findings of facts and conclusions of law that resulted in the bankruptcy court granting the debtors' cash collateral motion and denying all of the secured creditor's motions. The result of this hearing was a huge win for the clients as the denial of the cash collateral motion or the approval of any of the secured creditor's motions would have eliminated any prospect of reorganization of the debtors' income generating properties. The debtors subsequently filed a Chapter 11 plan of reorganization, which provided for for the modification of the secured creditor's loan and the substantive consolidation of the debtor's assets and liabilities. The debtors subsequently entered into a global settlement agreement with their secured creditor, which lead to a court approved structured dismissal of the debtors' bankruptcy cases in May 2013. As a result of their successful bankruptcy cases the debtors were able to refinance their properties on extremely favorable terms.
• Represented a landlord creditor in a Chapter 11 bankruptcy case of a Wendy's restaurant franchisee. Following a motion to reject lease filed by the debtor, negotiated full payment of rent that had accrued after the petition date but before the effective date of the rejection, including all stub-rent. In addition, successfully defended against claim objections filed by debtor and another party in interest to proof of claim requesting post-petition lease rejection damages under Section 502(b)(6) of the Bankruptcy Code.
• Represented the owner of a multi-family, low-income housing project located in Fulton County, Georgia as Debtor's counsel. The Debtor entered into a settlement agreement with its senior secured creditor, which enabled the Debtor to confirm a liquidating plan in March 2012. The plan provided for a material distribution to all non-insider unsecured creditors.
• Represented five highly distressed affiliated Debtors comprising the largest dairy farm in the Southeastern United States with operations in Georgia, Florida, Mississippi, and Texas. A plan was confirmed in January 2012.
• Represented franchisor of restaurant trademark and concepts in connection with an individual Chapter 11 case. Assisted the client in reaching a global settlement with the Debtor and obtaining Court approval of the rejection and termination of the debtor's development agreement, exercise of setoff rights, assumption of the Debtor's obligation under various guaranty agreements, and approval of the assignment of one of the Debtor's individually held franchises to an affiliated corporate entity.
• Represented the plan administrator of the bankruptcy estate of Cornerstone Ministries Inc. Duties included reviewing more than 6,000 claims totaling more than $300 million for objections; pursuing claims against directors, officers and professionals for fraud and other misfeasance; prosecuting adversary proceedings involving preference and deficiency claims; and providing general representation services in all facets of this Chapter 11 matter.
• Representing, in the District of Columbia, of a creditor in a federal suit against the FDIC in its capacity as receiver for a failed national bank. The lawsuit seeks compensatory damages of more than $24 million, under the federal Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), resulting from the FDIC's repudiation of a comprehensive, multi-year telecommunications contract between the carrier and the bank. The case presents a number of complex legal issues, including the recoverability of certain categories of damages under FIRREA, and involves extensive engagement in e-discovery activities. The case is pending.
• Successfully obtained full payment of creditor's claim after extensive litigation in the Bankruptcy Court for the Middle District of Florida in which client won a multitude of litigated matters, including obtaining the remand (following removal to the Bankruptcy Court by the Debtor) to the Florida state court of the debtor's appeal of an arbitration award issued in the client's favor, defense of the debtor's motion to disqualify the creditor's vote on the grounds of alleged bias, and the blocking of confirmation of a Plan that failed to provide the required treatment for the client under the Bankruptcy Code.
• National representation, since 2001, of a Fortune 100 telecommunications company that is a significant trade creditor, and frequent litigation defendant, in numerous corporate bankruptcy cases filed across the United States. Through this representation, Mr. White has developed particular expertise in bankruptcy issues relating to public utilities and counterparties to executory contracts with a debtor. Issues frequently arising in his bankruptcy work include the securing of deposits, pre-payments and other adequate assurance of performance from extremely high-volume utility service customers, the obligation to cure contract defaults when a debtor assumes and/or assigns its assets to a purchaser, responding to claim objections filed by debtors, and defending suits for the recovery of allegedly preferential pre-petition payments. The work that Mr. White performs for this client has included the defense of at least 75 suits for the avoidance and recovery of alleged preferences and fraudulent transfers, as well as motions for contempt and seeking sanctions based on alleged violations of the automatic stay or discharge injunction.
• Successfully obtained dismissal by the Bankruptcy Court for the District of New Jersey, on a Motion to Dismiss, of 10-count, multimillion dollar Complaint filed by the debtor on the basis that Complaint failed to comply with the heightened pleading standards recently announced by the United States Supreme Court.
• Serving as outside bankruptcy and litigation counsel, in cases across the United States, to an international processor of retail credit, debit and gift card transactions. Representation of this client has included the defense of preference claims and claim objections, as well as the successful opposition of motions for injunctive relief based on alleged violations of the automatic stay.
• Won several summary judgments for Certus Bank in suits to enforce promissory notes and guarantees involving several million dollars of debts secured by commercial and residential property and had receiver appointed to manage commercial properties.
• Acting as lead counsel for bankruptcy trustee in his effort, along with his co-plaintiff the United States of America, to force payment of capital gains taxes due in connection with sale of business by obtaining judicial determination that security grant to certain noteholders should be deemed a fraudulent transfer or that the amount due to them should be equitably subordinated to the more than $45 million due to taxing authorities. Case is awaiting disposition in trial court.
• Draft website privacy policies.
• Represented secured creditor in connection with a single asset real estate case. Successfully negotiated adequate protection payments for the lender and obtained relief from the automatic stay to allow the lender to foreclose on its mortgage and security interest in the Debtor's property. In November 2011.
• Represented Chapter 7 Trustee before the Georgia Supreme Court and 11th Circuit Court of Appeals in lien-avoidance cases resulting in seminal decisions that provide trustees with avenue to avoid an improperly attested security deed even though the deed appears of record. U.S. Bank v. Gordon, 289 Ga. 12 (Ga. 2011); Wells Fargo Bank, N.A. v. Gordon, 292 Ga. 474 (Ga. 2013); National City Mortgage v. Gordon (In re Bennett), 520 Fed. Appx. 828 (11th Cir. 2013)
• Represented Official Committee of Unsecured Creditors in large retail bankruptcy. As part of the case, the Committee was successful in having onerous DIP financing provisions removed and oversaw a robust auction of the debtor's assets as well as the sale of the debtor's intellectual property. In re SWX f/k/a Swoozies Inc., Ch. 11 Case No. 10-63316 (Bankr. N.D. Ga.)
• Represented two large telecommunications companies in successful negotiations with debtor to have bankruptcy court defer ruling to the D.C. Circuit Court of Appeals on issue of first-impression with broad implications in developing and emerging telecommunications technologies. In re CommPartners, et al., 10-20932 (Bankr. D. Nev.)
• Won summary judgment on behalf of Homeowners of Magnolia Plantation Condominiums seeking rescission of their contacts for non-completion of their homes. The developer claimed it was absolved of its duty to complete the homes due to an Act of God, specifically Hurricane Katrina. The Court ruled that the Act of God defense was not applicable because Hurricane Katrina at most made it more difficult for the developer to complete the homes.
• Successfully represented, in the Southern District of New York, a national telecommunications carrier in litigation challenging the validity and enforceability of security interests asserted by the lenders to a debtor in bankruptcy, based on provisions of the Bankruptcy Code, the Uniform Commercial Code and rulings by the Federal Communications Commission.
• Served as lead counsel for inside officers and directors in connection with breach of fiduciary duty claims asserted by bankruptcy trustee, resulting in favorable settlement for clients.
• Represented Chapter 7 Trustee in going-concern sale of regional wine retailer and restaurant. In re The Grape, et al., Ch. 7 Case No. 08-81828 (Bankr. N.D. Ga.)
• Represented a Fortune 100 telecommunications company in negotiating cable television franchise agreements throughout New York. Involved in all aspects of the franchising process including negotiating and lobbying franchise agreements with municipalities and appearances at contested public hearings.
• Successfully represented Chapter 11 Trustee in multiple avoidance actions resulting in meaningful recoveries to the debtors' bankruptcy estates.
• Represented indenture trustee in Tom's Foods, Inc. bankruptcy case.
• Represented the owner of a performance sports flooring manufacturing company as Debtor's counsel. The Debtor conducted a successful Section 363 sale.
• Represented a large cable company in the Adelphia Communications Corp. bankruptcy cases. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.
• Represented Mr. Neal Batson, the Court appointed Examiner in the Enron Corp. bankruptcy cases. Assisted Mr. Batson in examining all aspects of Enron Corp. and its affiliates, including the investigation of various off balance sheet transactions and assisting Mr. Batson in drafting reports to the court.
• Represented the client in connection with Bradlees Stores, Inc. bankruptcy case. Successfully resolved a complicated claim objection under very favorable terms to the client.
• Represented a large cable company in the WorldCom, Inc. bankruptcy cases. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.
• Represented a large cable company in the Aladdin Gaming LLC bankruptcy case. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.
• Represented the owner of a hardwood flooring manufacturing facility as Debtor's counsel. The Debtor entered into a Court approved settlement agreement with the Debtor's former owner, which enabled the Debtor to confirm a liquidating plan that provided a significant distribution to unsecured creditors. In connection with the settlement, successfully briefed and argued an appeal to the District Court, the Eleventh Circuit Court of Appeals, and the Georgia Supreme Court related to whether under Georgia law an insolvent limited liability company has exclusive standing to assert an alter ego claim against its parent or owner. The Eleventh Circuit certified the question to the Georgia Supreme Court, which answered the issue in the affirmative.
• Represented client in connection with the bankruptcy cases of Mariner Post-Acute Network, Inc. Successfully enabled the client to recover several million dollars in accounts receivables in the possession of the Debtors that the client had purchased from the Debtors prior to their bankruptcy filings under a constructive trust theory.
• Represented the franchisor of hotel trademark and concepts client in connection with In re The Finova Group, Inc. bankruptcy case.
• Represented a large poultry company in connection with the Ameriserve Food Distribution, Inc. bankruptcy cases. Successfully defended the client against a preference claim with a demand well in excess of $10 million. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion to dismiss the complaint on the basis that the Debtors had failed to preserve the right to assert the preference claim against the client in their plan of reorganization on the basis of res judicata, collateral estoppel, and judicial estoppel.
• Successfully defended large insurance company in avoidance action in connection with the RDM Sports Group, Inc. bankruptcy case. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion for summary judgment under recoupment and setoff theories.
• Successfully defended large insurance broker in connection with the RDM Sports Group, Inc. bankruptcy case. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion for summary judgment under a mere conduit theory.
• Successfully defended Rollins Cotton Company in a $23 million voidable preference action brought by the trustee of a debtor's estate in a bankruptcy of a cotton merchant in Memphis, Tenn. Affirmed in the United States District Court for the Western District of Tennessee and the 6th Circuit Court of Appeals, making new law under the UCC establishing that knowledge of a bailee of a security interest is sufficient to meet the requirements of perfection and attachment, rendering the payment of $23 million to the client within 90 days of filing bankruptcy was not a preference as creditor was secured.
• Represented nationwide wireless phone provider nationally in numerous preference and fraudulent transfer avoidance lawsuits and contempt actions.
• Represented Chapter 7 trustees from Georgia and Florida in the prosecution of hundreds of preference and fraudulent transfers actions including successfully handling numerous appeals from the Bankruptcy Court to the District Court; and successfully litigating issues related to perfection of security interests in real property to the Georgia Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit.
• Represented Fortune 100 utility company nationally in more than 75 preference and fraudulent transfer avoidance lawsuits and numerous contempt actions.
• Represented Liquidating Trustee in administration of liquidating plan of publicly traded telecommunications company. In re Verso Technologies, Inc., et al., Ch. 11 Case No.08-67659 (Bankr. N.D. Ga.)
• Negotiated and structured the sale of 20 MRI centers as well as three PET centers over a period of several years. As part of the various transactions, negotiated the settlement of millions of dollars of our client's debts and obligations. Also was involved in resolving claims of various governmental agencies.
• Represented secured creditor in connection with the bankruptcy case of a hotel owner and operator. Successfully negotiated adequate protection payments for the lender, negotiated a settlement of the Debtor's claim objection against the lender under very favorable terms, and negotiated an agreement that provided the lender with relief from the automatic stay.
• Obtained outright dismissal of a series of contempt actions filed in the Bankruptcy Court in Tennessee asserting violations of the automatic stay of section 362 and the Fair Debt Collection Practices Act based on assertions that creditor filed false proofs of claim and committed a fraud upon the Court.
• Obtained a Trustee's agreement not to pursue in excess of $10 million in alleged fraudulent transfers after extensive analysis with respect to solvency of certain debtors and consideration and value received by other debtors for payments made by them.
• Successfully obtained verdict for client in trial conducted by Chief Bankruptcy Judge for the Southern District of New York on a debtor's objection to client's claim involving complex factual, procedural and legal issues and pursuit of significant counterclaims against client, obtained a successful subsequent verdict in trial on the single issue remanded by the District Court on appeal of the original verdict, and successfully defended the second judgment on appeal to the District Court and then to the Second Circuit following argument to a Second Circuit panel that included now Supreme Court Justice Sonia Sotomayor.
• Serving as counsel to the nation's largest equipment rental company in obtaining a $7 million federal district court judgment based on disputed indemnification language in a complex transaction involving an asset purchase agreement and subordinated notes, and successfully defending that judgment on appeal to the Eleventh Circuit.
• Successfully obtained dismissal by the Bankruptcy Court for the District of New Jersey, on a Motion to Dismiss, of 10-count, multi-million dollar complaint filed by the debtor on the basis that Complaint failed to comply with the Iqbal and Twombly pleading standards.
• Successfully defended seven-figure preference action, despite weak traditional statutory defenses, by challenging Trustee's ability to establish debtor's insolvency at time of transfers as element of his prima facie case.
• Following the refusal by Trustee to dismiss preference action not satisfying statutory prerequisites, filed motion to dismiss in the Bankruptcy Court for the District of New Jersey and obtained subsequent dismissal.
• Obtained seminal rulings from Bankruptcy Courts in the Eastern District of New York and Western District of Virginia concluding that section 366 of the Bankruptcy Code applies in bankruptcy cases of resellers of telecommunications services.
• Advised a family for over a 10 year period on a complex set of integrated transactions to restructure their family businesses and address creditor issues.
• Successfully obtained ruling from the Bankruptcy Court for the Central District of California denying a Trustee's motion for leave to amend a fraudulent conveyance complaint to add over $1 million in additional transfers to the complaint, on the ground that the statute of limitations had expired and the additional transfers did not relate back to the filing of the original complaint and therefore were time-barred.
• Represents trustee in bankruptcy proceedings in Connecticut and Delaware in connection with the trustee's effort, along with his co-plaintiff the United States of America, to force the payment of capital gains taxes due as a result of an asset sale by obtaining a judicial determination that a security grant to certain noteholders should be deemed a fraudulent transfer or that the amount due to them should be equitably subordinated to the more than $45 million due to taxing authorities or recharacterized as debt.