In re Whiting Petroleum Corporation, et al. (Bankr. S.D. Tex.)
Representing indenture trustee for convertible noteholders in connection with Debtors’ bankruptcy cases.
Representative Matters
Sears – Special Counsel to Creditors Committee
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.)
Sears Holdings Corporation, et al. v. Lampert, et al. (Bankr. S.D.N.Y.)
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.
Schneider, et al. v. Pine Management, Inc., et al. (N.Y. Sup. Ct.):
Representing LLC property manager and majority LLC members in suit by minority LLC members alleging breach of contract and breach of fiduciary duty claims related to scope of manager’s authority to manage properties owned by LLCs.
In re Millennium Lab Holdings II LLC, et al. (D. Del.)
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.
SunEdison, Inc.
Counsel to Reorganized SunEdison, Inc. concerning indemnity claims asserted by the syndication agent and lead arranger for a pre-petition second lien loan facility.
ICG Global Loan Fund 1 DAC, et al. v. Boardriders, Inc., et al. (NY Sup. Ct.)
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.
BlueBay Total Return Credit Fund, et al. v. Fontana, et al. (NY Sup. Ct.)
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.
National Financial Partners, Corp. (NFP)
Herrick regularly represents NFP, a national insurance brokerage and consulting firm, in connection with a pre-litigation disputes and litigation.
Johnson & Johnson Spin-off Bankruptcy Case: Amicus Briefs
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).
Lender – Luxury Hotel in New York City
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.
In re: Charge Enterprises Inc. (D. Del.)
Represented Kenneth Orr and certain KORR entities, significant shareholders and creditors of the debtor in the In re Charge Enterprises, Inc. Chapter 11 case in the Bankruptcy Court for the District of Delaware. The Debtor commenced its Chapter 11 case with a prepackaged plan negotiated with its prepetition secured lender and sought confirmation of that plan – which provided for the Lender to receive 100% of the equity in post-reorganization Charge – within 48 days of the bankruptcy filing. Prior to the Chapter 11 case, Charge had described in its SEC filings certain aggressive acts by the Lender that hindered Charge’s ability to refinance its debt to the Lender and increased the size of the debt purportedly owed by Charge, which led to the Charge’s inability to repay the notes at maturity. But, in its first-day Chapter 11 filings, the Debtor looked to blame KORR for its predicament, claiming that a separate dispute with KORR over illiquid investments Charge made with KORR left Charge with insufficient liquidity to repay the Lender notes. That dispute was the subject of a separate New York State Court litigation commenced by Charge while negotiating its restructuring with the Lender. In the limited time available in the Chapter 11 case, Herrick engaged in a strategy of attacking the Debtor and its Lender’s proposed restructuring on several fronts. Ultimately, KORR reached a settlement of all its disputes with Charge and the Lender, which was a positive result for Herrick’s client as well as for the Debtor and its estate. The plan and disclosure statement were approved pursuant to the Confirmation Order.
In re Envision Healthcare (S.D. Texas)
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.
Flat Footed LLC – Successful Proxy Campaign to Block Merger Between Two REITs
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.