Herrick’s Restructuring & Finance Litigation Department is comprised of an agile team of accomplished restructuring, litigation and corporate attorneys with decades of experience advising clients in all phases of complex litigation and in and out of court restructurings.
Our clients include private equity and hedge funds, official and ad hoc creditor committees, bondholders and noteholders, mortgage lenders and borrowers, real estate developers, financial institutions, corporate debtors, trustees, independent directors, special investigation committees and foreign representatives.
In addition to serving as primary counsel in a variety of finance litigation and core bankruptcy matters, the team frequently works side-by-side with some of the world’s largest law firms, serving as conflicts or special litigation counsel.
Strength in Distressed Real Estate
Combined with Herrick’s powerhouse Real Estate team, our group is uniquely suited to handle distressed real estate situations and disputes. Our seasoned restructuring lawyers have vast experience in all facets of in and out-of-court real estate restructurings and related litigation. We have extensive experience concerning real estate sales in connection with Section 363 of the Bankruptcy Code; confirmed Chapter 11 plans seeking relief from automatic stays to pursue foreclosures; opposing "cram-down" Chapter 11 plans; contesting valuation proceedings; inter-creditor disputes; and other bankruptcy-related litigation.
Areas of Focus
- Corporate Restructuring
- Bankruptcy Litigation
- Corporate Raiding and Restrictive Covenant Litigation
- Complex Contract Disputes
- Official and Ad Hoc Committee Representations
- Cross-Border Litigation and Restructuring
- M&A Litigation
- Section 363 and Plan Sales
- Finance Litigation
- Intercreditor Disputes
- Real Estate Litigation and Workouts
- Valuation Disputes
- Asset Recovery and Fraudulent Conveyance Litigation
Matter Highlights
NFP, an Aon Company: Herrick regularly represents NFP, a national insurance brokerage and consulting firm, in connection with a wide range of pre-litigation disputes and litigation.
In re Boston Generating LLC, et al. (S.D.N.Y.): Representing the largest ad hoc group of defendants-appellees in a matter that has been litigated for over a decade involving fraudulent conveyance claims arising from a $2 billion leveraged recapitalization. The Second Circuit affirmed the dismissal of all claims in In re: Boston Generating, LLC. In so doing, the Second Circuit ruled that the Bankruptcy Code’s safe harbor provision for securities contracts payments, 11 U.S.C. § 546(e), applied to the leveraged buyout and pre-empted the plaintiff-appellant-trustee’s state-law fraudulent conveyance claims, which attempted to claw back approximately $708 million from the defendants-appellees.
Co-counsel to a group of minority lenders challenging non-pro rata priming transaction entered into between borrower, majority lenders, and equity sponsor. The legal issues being litigated here (i.e., whether a private roll-up debt exchange qualifies as an “open market” purchase, good faith and fair dealing requirements, and the extent an equity sponsor can claim the economic interest defense to tortious interference claims) are timely topics garnering significant attention in the market. This matter is one of several recent high-profile litigations involving “uptier” exchanges.
In re Sears Holdings Corporation, et al. (S.D.N.Y.): Served as Special Litigation Counsel to the Official Committee of the Unsecured Creditors in the Sears Chapter 11 cases in connection with (i) a high-profile litigation against Sears’ former majority shareholder, former officers and directors, and others asserting fraudulent transfer, breach of fiduciary duty and related claims in connection with prepetition transactions totaling billions of dollars (the “Insider Litigation”) and (ii) investigating potential estate claims and causes of action relating to a 363 sale of intercompany notes and certain credit default swap transactions (the “Investigation”). Both matters have involved complex financial litigation with multiple parties, experts, and numerous counsel. After multiple years of litigation, the parties reached a global settlement, resolving both the Insider Litigation and the Investigation. That settlement, which was approved by the Bankruptcy Court on August 31, 2022, will provide the Debtors’ estates with $180 million in value and resolve other potential liabilities of the estates, allowing the Debtors to achieve administrative solvency and finally reach an effective date for their plan confirmed in October 2019.
Flat Footed LLC in Successful Proxy Campaign to Block Merger Between Two REITs: Represented an investment management firm, Flat Footed LLC, in a successful proxy campaign to block a merger between two distressed REITs. Following a months-long public proxy campaign opposing the proposed merger between Diversified Healthcare Trust and Office Properties Income Trust, the two companies announced their termination of the merger agreement.
International Arbitration Dispute: Successfully defended an international manufacturer against a complex, multi-million-dollar breach of contract claim brought by a U.S. trading company involving the sale of petrochemicals. The case primarily concerned whether a contract was formed under the UN Convention on Contracts for the International Sale of Goods (“the CISG”) or the UCC. The representation included a seven-day trial involving multiple fact and expert witnesses.
In re All Year Holdings Ltd. (Bankr. S.D.N.Y.)
Represented real estate debtor as special litigation counsel. Won motion to dismiss adversary proceeding, which was affirmed on appeal. (S.D.N.Y.)
In re Wythe Berry Fee Owner LLC (Bankr. S.D.N.Y.)
Represented real estate debtor in Chapter 11 case involving the William Vale Hotel and complex in Brooklyn, NY. The Court confirmed the Chapter 11 plan of reorganization, which provided for a $177 million sale of property, resulting in full payment to all creditors.
In re Urban Commons 2 West LLC (Bankr. SDNY): Represented Silver Creek Development, a real estate development and investment company, in the Chapter 11 cases of real estate developer and hotelier, Urban Commons 2 West LLC and certain affiliates, which defaulted on hotel loans regarding the former Ritz-Carlton of Battery Park (now called The Wagner) in downtown Manhattan. After almost three years in Chapter 11, including 13 months of mediation, the Bankruptcy Court issued a favorable ruling on behalf of our client which: (i) approved the debtors’ sale of its hotel lease interests to our client; (ii) confirmed the debtors’ Chapter 11 plan; (iii) approved a global 9019 settlement reached between our client, the Battery Park City Authority, the Union, the Residential Board and the debtors negotiated over two and a half years; and (iv) overruled the sole objection interposed by a junior, out-of-the-money mechanic’s lienholder who argued that the debtors could not sell their property free and clear of its lien. After navigating a range of complex legal, financial and regulatory post-confirmation challenges, our client successfully closed on the acquisition of the leasehold interests of the property.