Business Reorganization & Restructuring

Our litigation practice is a vital part of the firm’s Business Reorganization & Restructuring Department.  Unlike many bankruptcy specialty firms that have no separate litigation support capacity, our firm provides a full range of litigation services to clients in bankruptcy and work-out related matters.  Our clients include debtors, creditors and equity holders, and various other parties in interest.  Willkie litigators appear regularly in bankruptcy court, trying adversary proceedings and contested matters, and handle appeals in district courts and circuit courts of appeals throughout the country.

For additional business reorganization and restructuring information, please visit the firm's Business Reorganization & Restructuring practice.

Our litigators represent debtors in all aspects of chapter 11 cases, including, contested debtor in possession financing hearings, disclosure statement hearings, plan confirmation hearings, section 363 sale hearings and claims objection hearings, among other actions.  Our litigators also represent debtors as plaintiffs and defendants in adversary proceedings commenced in the bankruptcy courts.  Some of the chapter 11 cases in which Willkie litigators have represented debtors include: Adelphia Communications Corporation, LandAmerica Financial Group, Inc., Journal Register Company, CCS Medical, Inc., Hechinger Investment Company of Delaware, National Energy & Gas Transmission Inc., Railworks Corporation, Petrie Retail, Inc., Classic Communications, Inc., Big V Supermarkets, Heilig-Meyers Company, AMF Bowling Worldwide, Inc., Greatwide Logistics Services, EnviroSolutions of New York, LLC, The Grand Union Company and Integrated Resources.

Debtor Representations

In the Adelphia Communications chapter 11 case, for example, our litigators represented Adelphia in matters resulting in, among others, the following reported opinions:

  • In re Adelphia Communications Corp., 368 B.R. 140 (Bankr. S.D.N.Y. 2007) (trial opinion confirming plan of reorganization)
  • In re Adelphia Communications Corp., 371 B.R. 660 (S.D.N.Y. 2007) (dismissing equity committee’s appeal from confirmation order for mootness)
  • In re Adelphia Communications Corp., 544 F3d 420 (2d Cir. 2008) (affirming dismissal of equity committee appeal from confirmation order for mootness)
  • In re Adelphia Communications Corp., 367 B.R. 84 (S.D.N.Y. 2007) (dismissing bondholders’ appeal from confirmation order as moot for mootness and judicial estoppel)
  • In re Adelphia Communications Corp., 336 B.R. 610 (Bankr. S.D.N.Y. 2006), aff’d, 342 B.R. 122 (S.D.N.Y. 2006) (trial opinion denying motions to appoint trustee, terminate exclusivity and disqualify counsel)
  • In re Adelphia Communications Corp., 2003 WL 22316543 (Bankr. S.D.N.Y. 2003) (trial opinion granting motion to approve executive employment contracts
  • In re Adelphia Communications Corp., 327 B.R. 143 (Bankr. S.D.N.Y. 2005) appeal dismissed 222 Fed.Appx. 7 (2d Cir. Dec. 26, 2006) cert. denied 552 U.S. 941 (2007) (approving $715 million settlement with Department of Justice and SEC)
  • In re Adelphia Communications Corp., 345 B.R. 69 (Bankr. S.D.N.Y. 2006) (granting declaratory judgment and permanent injunction enjoining antitrust action to enjoin Time Warner and Comcast’s $17.6 billion acquisition of substantially all of Adelphia’s assets)
  • In re Adelphia Communications Corp., 325 B.R. 89 (Bankr. S.D.N.Y. 2005) aff’d in part, rev’d in part 331 B.R. 93 (S.D.N.Y.) (affirming in part and reversing in part order dismissing nationwide consumer class action complaint seeking $1 billion in damages for alleged unfair trade practices)
  • Highland Holdings and Zito I, L.P. v. Century/ML Cable Venture, 2007 WL 2405689 (S.D.N.Y. Aug. 24, 2007) aff’d 2009 WL 453232 (2d Cir. Feb. 24, 2009) (affirming dismissal of chapter 11 claim for breach of contract)
  • Buena Vista Television v. Adelphia Communications Corp., 307 B.R. 404 (Bankr. S.D.N.Y. 2004) (order determining breach of contract and copyright infringement claims against debtor to be "core")
  • ML Media Partners, LP v. Century/ML Cable Venture (In re Adelphia Communications Corp.), 287 B.R. 605 (Bankr. S.D.N.Y. 2003) (denial of motion for summary judgment concerning asset purchase agreement)
  • In re Century/ML Cable Venture, 294 B.R. 9 (Bankr. S.D.N.Y. 2003) (denial of motion to dismiss chapter 11 case)
Willkie litigators have also successfully argued the following decisions in other bankruptcies:
  • Millard Refrigerated Services, Inc. v. LandAmerica 1031 Exchange Services, Inc. (In re LandAmerica Financial Group, Inc.), 412 B.R. 800 (Bankr. E.D. Va. 2009) (denying summary judgment and finding funds held in bank accounts by intermediary were not held in trust for customer and no resulting trust was created in exchange transactions)
  • Frontier Pepper’s Ferry v. LanAmerica 1031 Exchange Services, Inc. (In re LandAmerica Financial Group, Inc.), 2009 WL 1269578 (Bankr. E.D. Va. May 7, 2009) (denying summary judgment and finding that the language in the Exchange Agreements clearly established that it was not the intent to the debtor to create an express trust)
  • Freeman v. Journal Register Co., 2010 WL 768942 (S.D.N.Y. March 8, 2010) (denying stockholder’s appeal of confirmation of plan)
  • In re Journal Register Co., 2009 WL 2913446 (Bankr. S.D.N.Y. July 21, 2009) (denying shareholder motion to amend findings of facts and conclusion of law set forth in confirmation order)
  • In re Journal Register Co., 407 B.R. 520 (Bankr. S.D.N.Y. 2009) (confirmation of plan over objections to “gifting” provision in plan by unsecured creditors)
  • Former Employees of Builders Square Retail Stores v. Hechinger Investment Co. of Delaware (In re Hechinger Inv. Co. of Delaware), 298 F.3d 219 (3d Cir. 2002) (stay-on benefits attributable to prepetition services were not entitled to administrative priority, even though employees did not qualify for such benefits unless they remained with debtor until their store was closed or until released by debtor, both of which were postpetition events)
  • In re Hechinger Investment Co. of Delaware, 2001 WL 1820320 (Bankr. D. Del. Jan. 29, 2001) (denial of motion to compel payments required under §365(d)(10), or in the alternative for adequate protection payments of creditor)
  • Hechinger Inv. Co. of Delaware v. Everything Warehouse, Inc., 2000 WL 33712309 (Bankr. D. Del. Nov. 20, 2000) (denying defendant’s motion to dismiss or in the alternative, to transfer venue in connection with dispute over previously approved purchase and sale agreements)
  • Classic Commc’ns, Inc. v. EchoStar Commc’ns Corp. (In re Classic Commc’ns, Inc.), 2003 WL 21262453 (Bankr. D. Del. May 30, 2003) (defendant’s motion to dismiss for lack of subject matter jurisdiction denied)
  • Heilig-Meyers Co. v. Wachovia Bank, N.A. (In re Heilig-Meyers Co.), 2005 WL 3781727 (Bankr. E.D. Va. July 29, 2005) (partial summary judgment on defense of application of the going concern standard of valuation)
  • In re Integrated Resources, Inc., 135 B.R. 746 (Bankr. S.D.N.Y. 1992) aff’d 147 B.R. 650 (S.D.N.Y.) appeal dismissed 3 F.3d 49 (2d Cir. 1993) (modified break-up fee to be paid to potential funder of reorganization plan if reorganization funding proposal were abandoned and approved)
  • 21AT Assocs. v. Integrated Resources, Inc. (In re Integrated Resources, Inc.), 1992 WL 8335 (S.D.N.Y. Jan. 14, 1992) (confirming bankruptcy decision denying plaintiff relief from the automatic stay)
  • Canadian Imperial Bank of Commerce (New York) v. Aircraft Income Partners II, L.P. (In re Integrated Resources, Inc.), 123 B.R. 181 (Bankr. S.D.N.Y. 1991) (motion for summary judgment granted in part and denied in part holding that limited recourse provisions in demand notes given by investment partnership were enforceable, notwithstanding partnership’s failure to create fund to which recourse was limited)
  • In re Integrated Resources, Inc., 1990 WL 325414 (Bankr. S.D.N.Y. Oct. 22, 1990) (approving sale of stock in a wholly owned subsidiary of debtor)
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Creditor Representations

Our litigators also represent creditors in chapter 11 cases.  These representations have ranged from litigating claims on behalf of creditors to defending creditors in preference and fraudulent conveyance actions, including claw back claims in alleged Ponzi schemes.  Willkie litigators have represented creditors in connection with avoidance claims in large bankruptcies such as Refco and with respect to alleged Ponzi schemes such as The Bennett Funding Group, Petters Company, Inc. and Lancer Partners.  Willkie has also represented accounting firms in large bankruptcy cases, such as Wedtech and Magnesium Corporation of America, in which debtors have asserted accounting malpractice claims against their auditors.

Willkie litigators have also represented lenders in chapter 11 cases.  For example, in the Delphi Corporation chapter 11 proceedings, our litigators were an integral part of the interdisciplinary Willkie team that assisted a collective of tranche C DIP lenders in acquiring effective control of the DIP facility.  Once that control was obtained, Willkie litigators helped persuade the bankruptcy court to permit the collective to submit a $3.75+ billion credit bid to acquire a substantial portion of the Delphi business.  The credit bid topped an already signed private deal between Delphi and bidders backed by Delphi's largest customer, General Motors Corporation, and the United States Treasury Department in a bankruptcy court auction that would have returned $.10 to holders of nearly $3 billion of Tranche C DIP claims.  Also, in litigation related to the PTS bankruptcy, our litigators represented Black Diamond as a successor syndicated loan agent in obtaining an injunction compelling the predecessor agent (CIT Corporation) to turn over control of a $50 million escrow account, which the predecessor agent had refused to surrender.

In addition, Willkie represented Credit Suisse in an adversary proceeding commenced by the Official Committee of Unse in blocking a plan that would have paid them only cured Creditors in the Champion Enterprises, Inc. chapter 11 proceedings in the Bankruptcy Court for the District of Delaware.  In that proceeding, the Committee asserted claims against Credit Suisse and 115 other lenders for hundreds of millions of dollars, alleging that the defendants had implemented a strategy to acquire Champion at a fire sale price and eliminate its debt, leaving the general unsecured creditors with no recovery in its eventual bankruptcy.  Taking the lead on behalf of the defendants, Willkie moved to dismiss the complaint.  The court granted the motion and dismissed 11 of thirteen counts in the complaint, finding that the defendants had acted as traditional lenders and had taken no action outside the rights granted to them under the loan documents.

Willkie litigators represented Bank of America, N.A., as administrative agent for a syndicate of prepetition lenders holding $3 billion of debt issued to SemGroup (the Agent), a midstream energy and commodity company that filed chapter 11 in the Bankruptcy Court for the District of Delaware.  We obtained summary judgment on behalf of the Agent in three separate proceedings brought by Kansas, Texas and Oklahoma oil and gas producers, defeating their claims for priority in substantial assets of the debtors.

Willkie frequently represented trustees of U.K. pension funds and/or the U.K. Pension Protection Fund in connection with claims asserted against U.S. debtors for pension deficits.  These chapter 11 cases have included Sea Containers Ltd., Nortel Networks Inc. and The Readers Digest Association, Inc.  Willkie is currently representing the Trustee of Nortel Networks U.K. Pension Plan and the Board of the Pension Protection Fund in connection with claims filed in Nortel’s chapter 11 case to recover a pension shortfall of approximately $3 billion.  In Sea Containers, Willkie litigators represented the Official Committee of Unsecured Creditors of Sea Containers Services Ltd. (“Services”) in connection with a challenge to a settlement of claims asserted by the trustees of two U.K. pension funds for deficits in pension plans sponsored by Services.  After a week long trial, the bankruptcy court approved the settlement over the objections of the Official Committee of Unsecured Creditors of Sea Containers and  Sea Containers bondholders.

Willkie litigators have also represented professionals, such as Alix Partners, Miller Buckfire, Loughlin Meghji & Co. and Rothschild, Inc., in connection with their retention, service and compensation as advisors in chapter 11 cases.

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Equity Holder Representation

Our litigators recently represented certain holders of preferred stock of Smurfit Stone Container Corporation (“SSCC”) in connection with their objection to the debtors’ disclosure statement and confirmation of their plan of reorganization.  After extensive discovery and the conclusion of a trial before the Bankruptcy Court for the District of Delaware concerning the appropriate valuation of the debtors, the firm’s clients and certain holders of SSCC’s common stock, entered into a settlement with the debtors and the creditors committee in which the preferred and common stock holders received a significant ownership stake in reorganized SSCC.  But for the settlement, equity would have received no recovery in the case.

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Bidder Representation

Willkie litigators have also represented bidders for the assets of companies in bankruptcy in connection with litigation arising from or in connection with contested auctions.  Our litigators represented the ComVest Group in connection with one of its affiliate’s acquisition of substantially all of the assets of Velocity Express Corporation out of its chapter 11 proceedings pending before Bankruptcy Court for the District of Delaware. The firm’s litigators also represented Level 3 Communications, Inc. in connection with its acquisition of substantially all of the assets of Genuity Solutions, Inc. out of its chapter 11 proceedings pending before the Bankruptcy Court for the Southern District of New York.

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