Representing minority LLC member in derivative action against majority LLC members serving on board and their affiliated lender funds asserting claims for breaches of fiduciary duty and aiding and abetting such breaches.
Herrick defended a managing general agent in a major breach of contract dispute with an insurance carrier seeking several hundred millions of dollars in damages. This case was high-stakes and complex, involving extensive document discovery, witness depositions, two motions to dismiss, several discovery disputes, numerous experts and an appeal of one motion to dismiss decision. Following intensive fact depositions, the parties reached a settlement on favorable terms for our client.
Herrick represented Flat Footed LLC, an investment management firm, in a successful proxy campaign to block a merger between two distressed REITs. Following a months-long public proxy campaign by Flat Footed opposing the proposed merger between Diversified Healthcare Trust and Office Properties Income Trust, the two companies announced their termination of the merger agreement.
Represented a group of creditors who had their existing debt subordinated to other creditors via an improper amendment to a credit agreement that occurred to facilitate an “uptier” transaction. We represented this client group in both the bankruptcy and a related adversary proceeding that we commenced. A plan of reorganization was approved by the bankruptcy court with terms favorable to our clients. This matter is particularly notable because it involves novel legal issues associated with the timely and growing trend of creditors challenging “uptier” transactions more broadly.
Representing mezzanine lender in connection with defaults under the mezzanine financing for a luxury hotel in New York City, including advising the lender on a potential UCC foreclosure of the hotel or a potential sale of the lender’s mezzanine loan to a third party.
Filed amicus briefs on behalf of a group of bankruptcy law professors concerning debtor LTL Management LLC ("LTL"), an entity created by Johnson & Johnson to hold its talc liabilities to cancer victims exposed to talc in J&J’s products. The professors filed these briefs in support of a motion to dismiss LTL’s chapter 11 case, both before the Bankruptcy Court in the District of New Jersey, and the appeal to the Third Circuit Court of Appeals. In January 2023, the Third Circuit reversed the Bankruptcy Court’s decision and dismissed the LTL Chapter 11 case. (D.N.J. and 3rd Circuit Court of Appeals 2022-2023).
Herrick regularly represents NFP, a national insurance brokerage and consulting firm, in connection with a pre-litigation disputes and litigation.
Serving as (i) Special Counsel to the Official Committee of Unsecured Creditors charged with investigating potential estate claims and causes of action relating to a 363 sale of intercompany company notes and certain credit default swap transactions, and (ii) Special Counsel to the Official Committee of Unsecured Creditors in high profile litigation on behalf of debtors’ estates, seeking to recover billions of dollars of claims arising from several prepetition transfers. (In re Sears Holdings Corporation, et al. (S.D.N.Y.)
Co-counsel to group of minority lenders challenging non-pro rata “uptier” transaction entered into between borrower, majority lenders and equity sponsor. The litigation involved a timely topic that has garnered significant attention in the market, i.e., whether a private roll-up debt exchange qualifies as an “open market” purchase exempt from the credit agreement’s general requirement that all distributions be made pro rata. After we successfully opposed defendants’ motion to dismiss, allowing the minority lenders’ primary claims to proceed to discovery, the parties entered into a settlement, resulting in an outcome favorable to our clients.
Counsel to Reorganized SunEdison, Inc. concerning indemnity claims asserted by the syndication agent and lead arranger for a pre-petition second lien loan facility.
Representing reorganized debtor in contractual dispute regarding terms of loan to debtor’s liquidating trust and opposing liquidating trustee’s motion to re-open chapter 11 cases.
Representing indenture trustee for convertible noteholders in connection with Debtors’ bankruptcy cases.
Serving as Co-Counsel to the Official Committee of Unsecured Creditors, on behalf of Debtors’ estates, in lawsuit asserting fraudulent transfer, breach of fiduciary duty, and related claims in connection with prepetition transactions totaling billions of dollars.
