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Bankruptcy and Restructuring

Overview

Anderson Kill’s bankruptcy and restructuring attorneys bring broad experience in complex cases. We understand that troubled businesses face a wide range of issues and leverage our highly respected practices in other areas of law, including secured and unsecured lending, structured finance, mergers and acquisitions, insurance, tax, real estate, ERISA, and employment law, among others, to handle all bankruptcy or restructuring issues in order to maximize the benefits and minimize the risks for your business. Through this comprehensive approach, we determine the best way to strengthen your business’s position and achieve its goals.

We offer a full range of restructuring resources and strategies. We represent both domestic and international business clients in debt restructurings, bankruptcy cases, creditors’ rights matters, litigation and related finance, mergers and acquisitions and other corporate transactions.

Debtors

Anderson Kill’s attorneys have substantial experience in representing debtors in Chapter 11 cases and distressed businesses in out-of-court recapitalizations and restructurings, as well as through the Chapter 11 process.  We also represent businesses in pre-packaged and pre-negotiated reorganizations.

In representing debtors, our attorneys utilize technical experience in such areas as debtor-in-possession financing, asset sales, granting of adequate protection of interests, treatment of executory contracts and unexpired leases, prosecution of voidable transfers, and the implementation of new value plans.

We also call upon other practice areas within the firm to address the wide range of legal issues that routinely arise for debtors in Chapter 11 cases.  In order to assure our successful representation of a debtor, we often employ our skills in the areas of commercial litigation, corporate law and finance, employment and labor law, insurance coverage litigation for policyholders, intellectual property, real estate and tax.

Navigating a business through the Chapter 11 process requires more than technical skills alone. Successfully confirming a business reorganization requires negotiating skills, financial acumen and a thorough understanding of a debtor’s business.  Because Anderson Kill attorneys have many years of experience in reorganizing many different types of businesses, we believe that we are in a unique position to confront and successfully resolve the problems of financially distressed businesses.

Official and Unofficial Committees

Anderson Kill has been especially prominent in the representation of creditors, with engagements on behalf of committees, lending groups and holders of control positions. Our attorneys have handled the full panoply of complex financial, business and legal issues necessary to assist committees in performing their functions.

Our notable accomplishments have included:

  • Replacing Old Equity and Management
  • Confirming Creditor Reorganization Plans
  • Prevailing in Contested Plan Confirmations
  • Forcing Sales of Viable Businesses
  • Resolving Intercreditor Disputes
  • Dealing Successfully With Complex Capital Structures
  • Unraveling Securitizations
  • Bankruptcy M&A
  • DIP and Exit Financing
  • Conflicts Counsel Engagements
  • Prosecuting Involuntary Bankruptcy Cases
  • Extensive Bankruptcy and Restructuring Litigation
  • Committee Administration

Bondholder and Indenture Trustee

Our Bankruptcy and Restructuring attorneys have successfully represented both ad hoc and official bondholder committees and indenture trustees. We are especially well known for our success on behalf of bondholders in difficult cases.

Our notable accomplishments in difficult cases have included:

  • Advancement and Enforcement of Bondholder Rights
  • Replacing Management
  • Confirming Bondholder Reorganization Plans
  • Terminating Exclusivity
  • Prevailing in Contested Plan Confirmations
  • Forcing Sales of Viable Businesses
  • Forcing Liquidation of Broken Businesses
  • Prosecuting Involuntary Bankruptcy Cases
  • Dealing Successfully With Complex Capital Structures
  • Bankruptcy M&A
  • Extensive Bankruptcy and Restructuring Litigation

Banks and Secured Lenders

Anderson Kill regularly represents banks, secured lenders and other lending institutions. Because of our extensive experience in protecting the interests of lenders, both secured or unsecured, we are able to provide effective representation and evaluation of alternative strategies to maximize recoveries.

Among the services we typically provide to lenders are the following:

  • Workouts, loan restructuring and documentation
  • Representation in voluntary and involuntary bankruptcy proceedings, including:
    • cash collateral agreements and orders
    • debtor-in-possession financing
    • exit financing
    • bankruptcy litigation
  • Third party litigation involving management misconduct and professional malfeasance
  • Filing involuntary bankruptcy petitions
  • Proposing and confirming creditor plans

State, Local and Foreign Governments and Agencies

Anderson Kill represents state and local agencies, taxing and regulatory authorities, and foreign governments in complex bankruptcy and related litigation matters in State and Federal Courts throughout the United States, including the Bankruptcy Courts.

Our representation of governmental entities includes bankruptcy cases, adversary proceedings and similar matters relating to tax and revenue collection, dischargeability and industrial development projects. Our attorneys have handled matters on behalf of employment, health, insurance and motor vehicle agencies, ad valorem, sales and income tax authorities and individual governmental representatives named personally in proceedings initiated by debtors and trustees.

Investors, Buyers and Sellers of Businesses and Assets

Our attorneys have extensive experience in mergers, acquisitions, and other exit transactions in the bankruptcy and restructuring context. We thus effectively and efficiently represent clients in the purchase and sale of the stock or assets of corporations in bankruptcy proceedings. We also represent clients in the purchase and sale of claims in bankruptcy.

We have represented investors, purchasers and sellers in a variety of bankruptcy mergers and acquisitions transactions. We have helped navigate buyers and sellers through acquisitions and dispositions of entire businesses, as well as specific assets, in numerous matters, often including cross-border sales. Many times, transactions are structured to convey and acquire businesses and assets under Section 363 of the Bankruptcy Code. At other times, because of the objectives of the client, we have been involved in transferring businesses and assets through plans of reorganization.

In addition to our experience involving typical corporate and bankruptcy concerns in sales of businesses and assets, our attorneys are often called upon to address complex issues involving, among other things, conveying and acquiring businesses and assets free and clear of environmental, tax, and other governmental claims, as well as product liability, employee, and successor liability claims. We also routinely assist our clients in negotiating the transactional details that are critical to successful bankruptcy sales such as bidding procedures, overbids, break-up fees, and other procedures typically utilized in bankruptcy sales.

Parties in Bankruptcy and Financial Services Litigation

Because of our firm’s strong litigation background, Anderson Kill routinely handles complex financial services and bankruptcy-related litigations. Many of these cases involve non-bankruptcy issues in areas where we also have substantial experience. Relying upon our substantial litigation resources and experience, we offer effective representation to debtors and creditors in financial services litigation, including:

  • Asset Recovery Negligence
  • Breach of Fiduciary Duty Plan-Related Litigation
  • Contested Matters Preference Litigation
  • ERISA Professional Malpractice
  • Foreclosure Fraud Proxy Contest Litigation
  • Fraudulent Transfers Securities Trading
  • Indenture Reformation Securities Fraud
  • Insurance Coverage Securitizations
  • Inter creditor Disputes Trustee Appointment
  • Involuntary Bankruptcy Petitions Tax and Regulatory Disputes

Experience

Official Talc Claimants Committee in LTL Management LLC (J&J bankruptcy). Anderson Kill was asked by the Official Talc Claimants Committee in May 2022 to serve as special insurance counsel in LTL Management LLC in the U.S. Bankruptcy Court for the District of New Jersey. LTL is the spinoff Johnson & Johnson created to resolve talc claims relating to its talc products. The LTL (J&J) bankruptcy involves over $2 billion in insurance assets. The U.S. 3rd Circuit rejected LTL’s (J&J’s) bankruptcy as being in bad faith, as requested by the talc claimants, permitting the talc claimants to pursue their claims directly in the tort system. LTL (J&J) again filed for bankruptcy on April 4, 2023. On July 28, 2023, the Bankruptcy Court rejected the filing, holding that the proposed bankruptcy didn’t meet the standards for financial distress. LTL (J&J) again has appealed, and the Third Circuit has accepted cert and set a briefing schedule. Anderson Kill has identified insurance assets available to pay claimants’ settlements and judgments and has answered claimants’ counsels’ questions regarding the $2 billion in insurance available to do pay claims against LTL (J&J).

Tort Claimants Committee and Future Claimants Representative in Cyprus Mines. Anderson Kill was approved by the US Bankruptcy Court for the District of Delaware to serve as special insurance counsel to the Tort Claimants Committee and the Future Claimants’ Representative in the Cyprus Mines case, effective March 25, 2021. Cyprus Mines provided talc to Johnson & Johnson and others, and its bankruptcy proceeding is impacted by those of J&J subsidiaries. Holders of claims for personal injury or wrongful death arising from exposure to talc or talc-containing products constitute the largest creditor constituency in the Cyprus Mines Chapter 11 case, which stems from the company’s provision of talc to Johnson & Johnson. Potentially over $1.6 billion in insurance assets stand to be recovered and transferred to the trust to cover claims from those with mesothelioma or ovarian cancer caused by exposure to asbestos-bearing talc products. Anderson Kill is working to transfer those insurance assets to the Trust and to mediate before Ken Feinberg and Tim Gallagher with an insurance company interested in settling its dispute before litigation by the ensuing trust.

Kaiser Gypsum Committee of Asbestos Personal Injury Claims and the Future Claimants’ Representative. Anderson Kill was approved by the US Bankruptcy Court for the Western District of North Carolina as Special Insurance Counsel to the Committee of Asbestos Personal Injury Claimants and the Future Claimants’ Representative in the Kaiser Gypsum Company asbestos bankruptcy in the Western District of North Carolina. Anderson Kill advised the Committee and the FCR and their counsel regarding how best to secure over a billion dollars in insurance coverage that will be used to fund payments to the Asbestos Claimants. On August 9, 2018, the U.S. Bankruptcy Court for the Western District of North Carolina, Charlotte Division entered a lift stay order permitting claimants to file suit against the Debtors to access over a billion dollars in insurance coverage. On August 13, 2020, the U.S. Bankruptcy Court confirmed the bankruptcy plan proposed by the ACC and FCR and made the lift stay order part of the permanent plan. Anderson Kill presently represents the resulting Kaiser Gypsum Asbestos Settlement Trust. Pending the appeals, claimants can access at least $5.5 million in insurance coverage for each and every claim without limit – and even more excess insurance coverage within limits.

Pereira, Trustee of Payroll Express v. Marshall & Sterling, Inc., No. 92-B-43150 (CB)/98-8405A. (U.S. Bankruptcy Court, Southern District of New York). (January – May 2002). 2005 WL 2438444. Tried and won an insurance broker malpractice action resulting in a judgment in excess of $21.8 million in bankruptcy court. District Court reversed – case was settled.

Approved by the Court as an expert witness pursuant to Bankruptcy Code Sections 327, 328(a) and 1107(b) in Garrett Motion, Inc., et al., Case No. 20-12212 (MEW) (U.S. Bankr. Ct. S.D.N.Y.)(2021).

Finova — Counsel to Equity Committee.

Dow Corning — Special Insurance Counsel to the Debtor and Officers.

Celotex — Special Insurance Counsel to the Debtor.

Drexel Burnham — Counsel to Equitable Life.

PSINet — Bankruptcy Counsel to Securities Plaintiffs.

Southmark — Counsel to Equity Committee.

Sleepmaster — Counsel to Creditors Committee.

Kasper ASL — Counsel to Creditors Committee.

LBS Communications — Counsel to Creditors Committee.

Natures’ Elements — Counsel to Creditors Committee.

Metaldyne – Counsel to the Creditors Committee and Reorganization Trust.

Delphi – Counsel to Wells Fargo.

Lead defense team in a $25 million preference lawsuit under Chapter 5 of Title 11 (United States Bankruptcy Code) brought by estate of Circuit City Stores, Inc.

Events

Protecting State Interests: Bankruptcy From a Government Perspective Seminar
  • Mark D. Silverschotz
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  • September 27, 2016
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  • Hilton Santa Fe, Historic Plaza, Santa Fe, New Mexico
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Creating Value Through Bankruptcy: Selling and Financing a Distressed Business in Bankruptcy
  • Dennis J. Nolan
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  • June 4, 2015
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  • The Union League, 140 S. Broad Street, Philadelphia, PA
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Alternatives to Bankruptcy
  • Dennis J. Nolan
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  • October 16, 2014
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  • The Union League, 140 S. Broad Street, Philadelphia, PA
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Insurance Coverage Issues in Bankruptcy Reorganizations
  • Robert M. Horkovich
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  • May 18, 2016
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  • Philadelphia, PA
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Protecting State Interests
  • Mark D. Silverschotz
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  • September 27, 2016
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  • Santa Fe, NM
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Publications

BACK TO THE FUTURE WITH SILICON VALLEY BANK
  • Anderson Kill Bankruptcy & Restructuring Alert
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STORM CLOUDS ON THE HORIZON – BANKRUPTCY AND INSURANCE ISSUES RELATED TO BANK FAILURES
  • Anderson Kill Policyholder Alert
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TEN TIPS FOR DEALING WITH BANKRUPTCIES CAUSED BY THE COVID-19 SHUTDOWN
  • Policyholder Advisor & Alert
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This Time Is Different: Core Bankruptcy Jurisdiction for Insurance Coverage Lawsuits for Coronavirus-Related Claims (ICLC)
  • Insurance Coverage Law Center (ICLC)
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THIS TIME IS DIFFERENT: CORE BANKRUPTCY JURISDICTION FOR INSURANCE COVERAGE LAWSUITS FOR CORONAVIRUS-RELATED CLAIMS (AK)
  • Policyholder Advisor & Alert
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D&O POLICY ‘BANKRUPTCY EXCLUSION’ HELD TO BE AN UNENFORCEABLE ‘IPSO FACTO’ CLAUSE
  • New York Law Journal (NYLJ)
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READ MY LIPS: NO NEW FEES – RECOGNIZING AND RECOVERING “TAX” CLAIMS IN BANKRUPTCY CASES
  • National Association of Attorneys General, NAGTRI Journal
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SUPREME COURT NARROWS AVAILABILITY OF FEDERAL DIVERSITY JURISDICTION FOR CERTAIN BUSINESS ENTITIES
  • Commercial Litigation Advisor & Alert
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“DEATH OF COMPANY”: INSURANCE COVERAGE IN BANKRUPTCY
  • The John Liner Review
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COMPETING INSURANCE INTERESTS IN BANKRUPTCY
  • CPCU Society
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THIRD CIRCUIT RAISES THE BAR ON GRANTS OF SUBSTANTIVE CONSOLIDATION
  • The Journal Of Corporate Renewal
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THE PRECARIOUS STATUS OF SUBSTANTIVE CONSOLIDATION AS A BANKRUPTCY REMEDY
  • Anderson Kill's Bankruptcy and Restructuring Newsletter
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OWENS CORNING LIKELY TO STIR SUBSTANTIVE CONSOLIDATION DEBATE
  • The Journal Of Corporate Renewal
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THE ABC’S OF SUBSTANTIVE CONSOLIDATION, PART II
  • Anderson Kill's Bankruptcy and Restructuring Advisor
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INSUBORDINATION: DETERMINING UNSECURED POST-PETITION INTEREST CLAIMS AGAINST SUDDENLY SOLVENT DEBTORS
  • Daily Bankruptcy Review SmallCap
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THE SOLVENT DEBTOR’S OBLIGATION TO PAY POST-PETITION INTEREST
  • Bankruptcy & Restructuring Advisor
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THE ABC’S OF SUBSTANTIVE CONSOLIDATION, PART I
  • Bankruptcy & Restructuring Advisor
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ADVANCING THE CREDITORS’ PLAN: HOSTILE TAKEOVERS IN CHAPTER 11
  • Bankruptcy & Restructuring Advisor
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“UH-OH”; D&O INSURANCE IN BANKRUPTCY
  • Corporate Counsel
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D&O INSURANCE DURING BANKRUPTCY
  • The Corporate Board
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News

Broad Swath of Excess Insurers, Reinsurers Named in PG&E Bankruptcy Filing
  • January 30, 2019
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Arthur S. Orlick, Distinguished Bankruptcy Attorney and Longtime Chair of Anderson Kill P.C.’s Bankruptcy Group, Dies at 85
  • July 6, 2016
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Attorneys React to High Court’s Puerto Rico Debt Ruling
  • June 13, 2016
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Mark Silverschotz, Veteran Bankruptcy Attorney, Rejoins Anderson Kill P.C.
  • March 1, 2016
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Lawyers React to Justices’ Ruling on Bankruptcy Court Power
  • May 26, 2015
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Law360 Quotes Anderson Kill’s Dennis J. Nolan on Supreme Court Bankruptcy Ruling
  • June 12, 2014
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Lawyers Weigh In on High Court’s Arkison Ruling
  • June 9, 2014
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Anderson Kill Names Dennis J. Nolan a Shareholder
  • September 6, 2013
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People

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Luma S. Al-Shibib

Shareholder , New York

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Jeffrey E. Glen

Of Counsel , New York

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Robert M. Horkovich

Firm Managing Shareholder , New York

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Frank G. Murphy

Of Counsel , Philadelphia

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Dennis J. Nolan

Shareholder , New York

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Mark D. Silverschotz

Of Counsel , New York

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Key Contact(s)
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Dennis J. Nolan
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Mark D. Silverschotz
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