Bankruptcy and Creditors’ Rights
Becker Glynn provides a full range of services for clients with matters involving debtor-creditor issues. We represent both debtors and creditors, as well as buyers of assets, parties in cross-border cases, fiduciaries, landlords, contract counterparties and defendants in bankruptcy and creditors’ rights litigation.
RESTRUCTURINGS AND WORK-OUTS
We represent middle market businesses and high-asset individuals in financial restructurings in chapter 11 reorganizations and out-of-court work-outs. In chapter 11 cases, we represent debtors in obtaining cash collateral use, debtor in possession financing and exit financing; dealing with creditor investigations and motions for relief from the automatic stay; structuring and implementing asset sales; assuming, rejecting and assigning executory contracts and unexpired leases; proposing, negotiating and confirming chapter 11 plans, including the use of the “cram down” provisions; and in litigating related claims..
DISTRESS ACQUISITIONS
We assist buyers of assets, including real estate and businesses, whose sellers are in bankruptcy cases and other distressed situations. In bankruptcy cases, we represent buyers in Section 363 free and clear sales and in proposing and confirming chapter 11 plans. We assist initial or “stalking horse” bidders in the bankruptcy auction process, including negotiating and obtaining court approval of break-up and topping fees, expense reimbursements and pre-qualification and restrictions on solicitation of competitive bids; advising on due diligence issues; and mooting appeals.
CROSS-BORDER
Our lawyers have represented foreign representatives of foreign debtors in seeking U.S. recognition of foreign proceedings in cross-border cases under Section 304, the predecessor to chapter 15, and in seeking ancillary relief for foreign representative such as turnover of assets in the U.S., injunctions and stays of litigation in the U.S., and the implementation in the U.S. of decrees of foreign proceedings. We also represent domestic creditors and foreign and domestic litigation defendants in chapter 15 cases.
We also analyze the risks to foreign creditors of filing claims in U.S. bankruptcy cases, because the filing of such claims constitutes consent by the foreign creditors to the jurisdiction of the U.S. bankruptcy court to determine the validity of the claim, as well as any counterclaim the bankruptcy estate may have against the foreign creditor. We examine the potential exposure of foreign creditors to such litigation and defense costs in light of their potential recovery from the bankruptcy cases on their claims.
FIDUCIARY
We have significant experience representing bankruptcy trustees, examiners, creditors’ committees and post-confirmation representatives in bankruptcy cases, as well as receivers in non-bankruptcy proceedings. We conduct investigations, structure and implement the disposition of assets and pursue litigations, such as avoidance or clawback actions and breach of fiduciary duty actions.
CREDITORS
We represent secured creditors to obtain relief from the automatic stay or for adequate protection and in valuation hearings, in asset sales and in negotiating, opposing or proposing chapter 11 plans or out-of-court work-outs. We represent other creditors in motions for relief from the automatic stay to commence or continue non-bankruptcy litigations, such as tort claimants seeking insurance proceeds, and in preparing claims in complex cases, such as those involving financial instruments and derivatives, and in defending claims objections.
LANDLORDS AND CONTRACT COUNTERPARTIES
We represent landlords in seeking relief from the automatic stay to continue non-bankruptcy litigation to recover possession of premises, in negotiating or opposing assumptions and assignments of leases, including issues of adequate assurance of future performance, in preparing lease rejection claims and in defending claims objections. We represent other contract counterparties in dealing with assumption, rejection and assignment issues, including litigation over non-assumable and assignable contracts under Section 365(c), such as personal services contracts and non-exclusive licenses of intellectual property.
BANKRUPTCY AND CREDITORS’ RIGHTS LITIGATION
Our attorneys represent defendants in bankruptcy avoidance and clawback actions, such as preference and fraudulent transfer lawsuits, breach of fiduciary duty actions, turnover and similar actions in bankruptcy court, as well as in federal district court and state court. We also handle appeals in these litigations. We also pursue non-bankruptcy creditors’ rights litigations, such as those involving special remedies such as attachments, injunctions restraining asset transfers and the appointment of receivers.
ADVISORY
We also provide advisory services for those clients seeking to develop their options and strategies in dealing with distress situations. We frequently work in the background with non-bankruptcy counsel in connection with transactions or litigations that have a bankruptcy, insolvency or creditors’ rights aspect.