Our Practice
Complementing its extensive core bankruptcy and restructuring practice is WilmerHale’s market-leading bankruptcy and creditors’ rights litigation practice. Led by Phil Anker and Ross Firsenbaum, two partners with decades of experience in major bankruptcy and other insolvency litigation, the practice has handled and repeatedly prevailed in some of the nation’s largest insolvency-related litigation matters in bankruptcy and district court, as well as on appeal. These matters, many of them precedent-setting, have varied greatly, but they have included the following:
- The defense (and occasional prosecution) of fraudulent transfer, fiduciary duty, alter ego, and related claims brought in bankruptcy adversary proceedings arising out of leveraged buyouts, spinoffs, leveraged recapitalizations, share repurchases, and other extraordinary corporate transactions involving companies that ended up in bankruptcy. We have prevailed on motions to dismiss, at summary judgment, in trial, and on appeal for sponsors, directors and officers, former parent companies, shareholders, and the like in matters involving hundreds of millions and in some cases billions of dollars. These cases have included precedent-establishing decisions applying the safe harbor in Section 546(e) of the Bankruptcy Code against most fraudulent transfers and preference claims for securities-related transactions (Tribune, Boston Generating, Nine West, among others); extending the in pari delicto defense to bar claims against investment banks brought by bankruptcy estates of alleged wrongdoers (Refco); developing and extending the “ratification” doctrine to defeat fraudulent transfer and related claims brought by bankruptcy estates for the benefit of creditors that had participated in the underlying transactions later challenged in court (Lyondell, Idearc, among others); persuading courts and adversaries to enter early-stage “protocol orders” that allow defendants to obtain immediate dismissals based on defenses such as that they are “non-transferees” or “conduits” and therefore not proper defendants in fraudulent transfer actions (Lyondell, Tribune, PROMESA insolvency proceedings); and rejecting hindsight-based expert opinions of insolvency and instead applying contemporaneous market assessments (Idearc).
- Contested confirmation hearings raising valuation, equal treatment, cramdown, feasibility, and other factual and legal issues, in leading cases around the country. We have successfully represented both plan proponents and objectors in cases such as Momentive, EFIH, Intelsat, and Diamond Sports.
- The defense of large fiduciary duty and related claims brought against directors and officers of leading companies that ended up in bankruptcy or other financial distress (Sears, Silicon Valley Bank, among others).
- The representation of insurers, former owners and other third parties facing massive liability claims in mass tort bankruptcy cases (Boy Scouts of America, Archdiocese of Baltimore, Imerys, among others).
- Numerous appeals, both in the federal Courts of Appeals and in the US Supreme Court, in some of the most significant bankruptcy appellate cases ever (Jevic, Mission Tempnology, Combustion Engineering, Tribune, EFIH, Momentive, among others).
- Removal of many state-court actions to federal court based on “related to” bankruptcy jurisdiction (including defeat of motions to remand based on lack of subject matter jurisdiction, mandatory abstention, and equitable abstention), leading to the dismissals of actions once in federal court (Refco, SPhinX, Lyondell, Puerto Rico qui tam action).
Simply put, most large firms have experienced civil litigators, and many have seasoned core restructuring lawyers. But very few have first-class litigators who combine extensive trial and appellate experience with intimate knowledge of bankruptcy law and familiarity with bankruptcy and other insolvency-related practice. We do.
