Practice

Bankruptcy & Restructuring

Providing comprehensive solutions to companies across the entire lifecycle of restructurings and bankruptcy proceedings

We provide comprehensive counsel to clients facing financially distressed situations. Our multidisciplinary team serves as strategically partners for our clients across many industries to proactively issue spot, educate on processes, and offer solutions to strengthen recoveries.  
 

We pride ourselves on working proactively to advise on mitigating bankruptcy risks in structuring mergers, financings, acquisitions and settlements. Our collective experience allows us to anticipate insolvency issues and address them through transaction analysis and deal structuring. 

Our team provides services to all stakeholders in distressed business scenarios, including: 

DEBTOR REPRESENTATION
In Chapter 11 cases, we have helped corporate debtors to re-organize and emerge as productive entities by placing an emphasis on finding creative and cost-effective solutions to their problems, including introductions to potential financing sources, equity partners, and buyers.

DISTRESSED MERGERS & ACQUISITIONS
Foley Hoag provides distressed M&A services to parties interested in purchasing assets from, making investments in, or obtaining control of financially troubled entities. We have assisted clients in successful section 363 auctions and sales, as well as investments through plans of reorganization. Attorneys in our Bankruptcy & Restructuring practice have the negotiation and transactional skills necessary to reach and close deals in difficult, often time-constrained circumstances.

COMMITTEE REPRESENTATION
In our representations of creditors’ committees, we provide intensive analyses of the debtors’ financial prospects, with the goal of negotiating a feasible and realistic plan of reorganization. As counsel for creditors’ committees and liquidating trustees, Foley Hoag has employed its litigation experiences to prosecute and defend adversary proceedings involving:

  • Fraudulent transfer and other avoidance claims
  • Breach of fiduciary duty claims against officers, directors and other insiders
  • Lien avoidance and other claims against financial institutions
  • Claims against professional service firms that rendered services to the debtor

GENERAL CREDITOR REPRESENTATION
Our attorneys represent debtor-in-possession lenders, asset-based lenders, strategic lenders and exit finance lenders in court procedures and out-of-court restructurings. To avoid the transaction costs that would otherwise be incurred in court proceedings, we have represented secured creditors in negotiating and documenting forbearance agreements and loan modifications. We have a track record of fashioning creative solutions for even the most problematic defaulted loans, including workouts involving deeds-in-lieu-of-foreclosure, cash-flow mortgages, and equity participations.

We also have a robust opinion practice in all areas of debtor-creditor law, including equitable subordination, true sale and non-consolidation issues.

Our bankruptcy and restructuring team includes experienced litigators who regularly try complex insolvency-related and other business cases in federal and state courts. We represent:

  • Creditors in avoidance actions, including in defense of preference and fraudulent transfer claims
  • Big Four accounting firms in suits and arbitrations brought by litigation trustees
  • Foreign sovereign governments, foreign government-owned businesses, and foreign pension funds when their interests are implicated in a bankruptcy or insolvency matter, or in a related commercial dispute
  • Clients in asset-recovery actions both in United States and numerous foreign jurisdictions

In the technology and life sciences contexts, many of our clients express concern about the financial viability of entities involved in intellectual property and other licensing transactions. We analyze the risks inherent in such situations and assist our clients in negotiating licenses and other agreements that will protect their rights to the fullest extent possible in the event of a bankruptcy by the counter-party.

 

Areas of Focus

You can depend on our deep experience in bankruptcy and restructuring for businesses in a wide range of industries including: 
 
  • Life sciences and healthcare
  • Technology
  • Manufacturing
  • Real estate
  • Retail
  • Mining 
  • Financial services
  • Energy, oil and gas
  • Gaming, hospitality, and entertainment
  • Legal and accounting services
  • Media and telecommunications

Experience

 

DEBTOR REPRESENTATIONS

  • New York law firm, Liddle & Robinson LLP, and its managing partner, Jeffrey Lew Liddle in their Chapter 11 cases. Stabilizing the operations of this professional services business facing a difficult time including successfully challenging various liens claimed by its lender in a contested cash collateral trial, allowed it to continue to serve its ongoing clients, and laid the groundwork for a successful wind-up of its business affairs. Like much debtor work, our insolvency lawyers worked with a team of litigators, finance lawyers, and tax specialists to develop a practical approach tailored to the specific needs of the debtor’s business.
  • Managing general partners of the debtors in In re Fort Hill Square Associates, who owned One and Two International Place, the largest commercial office building complex in downtown Boston. The debtors had pre-petition debt in excess of $600 million. Following extensive plan and cram-down litigation with the primary secured lender, the debtors successfully emerged from bankruptcy in conjunction with an over $700 million recapitalization, with unsecured creditors receiving 100% of their claims and our clients, the general partners, retaining significant ownership interests in, and day-to-day management of, the reorganized debtors.
  • Modern Shoe Company LLC and Highline United LLC, distributers and retailers of high-end footwear and handbags in their successful Chapter 11, which concluded with two 363 sales of substantially all of their assets.
  • Organogenesis, Inc., a Massachusetts-based biotechnology company, in its successful Chapter 11 reorganization. Organogenesis successfully restructured approximately $40 million in debt, and obtained court approval of a plan of reorganization that paid a guaranteed dividend to creditors of 35%.
  • Nortel U.S. group of companies on all Canadian law matters relating to its cross-border restructuring proceedings under the CCAA and Chapter 11, the sales of its business and assets in a series of auctions, and the ground-breaking global settlement of a dispute over apportionment of more than US$7 billion of net sales proceeds
  • Radianse, Inc, a manufacturer of real-time location equipment for hospitals, and executed a creatively structured 363 auction of its assets, which resulted in sufficient proceeds to pay general unsecured creditors a dividend of 100%.
  • Served as special tort and insurance litigation counsel to Church Street Health Management, one of the largest dental practice management companies in the United States, which filed Chapter 11 in order to address hundreds of millions of dollars of potential tort liability and to seek insurance coverage for those potential claims.
  • Served as co-counsel to Houghton Mifflin Harcourt Brace Publishing Company, in post-confirmation proceedings out of its pre-packaged Chapter 11 plan of reorganization.

 

PURCHASERS IN DISTRESSED MERGERS & ACQUISITIONS

  • Mill Road Capital, L.P., the pre-petition primary equity holder and co-sponsor of the confirmed, pre-packaged plan of reorganization of Rubio’s Restaurants, Inc., a Carlsbad, CA-based Mexican restaurant chain with approximately 170 restaurants in California, Arizona and Nevada
  • A wholly-owned subsidiary of The ONE Group, owners and licensors of the STK branded restaurants, as purchaser of the assets of Kona Grill Inc. and its Chapter 11 debtor affiliates, a restaurant business, for $25 million in cash and the assumption of working capital liabilities of approximately $11 million.
  • Alexion Pharma International Operations Unlimited Company in its acquisition of assets representing the AntiEotaxin program of Immune Pharmaceuticals Inc. and its Israeli subsidiary, Immune Pharmaceutical Ltd., out of bankruptcy
  • The Fertility Partners in its acquisition of heathcare facility related assets from Chapter 7 debtor IntegraMed America
  • The Children’s Place in its acquisition of the Gymboree® and Crazy 8® brands through a Chapter 11 Section 363 auction
  • Compass Partners in its acquisition of the intellectual property and other assets of The Big Apple Circus through a Chapter 11 bankruptcy auction, which won M&A Advisor's 12th Annual Turnaround Award
  • THQ Nordic in its acquisition of Kingdoms of Amalur: Reckoning, Copernicus and their related intellectual property from a Rhode Island receivership and the purchase of other gaming software and IP, including the name THQ, from the seller’s bankruptcy case
  • Benchmark Electronics, Inc., a public company and contract manufacturer located in Texas, in connection with Benchmark’s successful purchase of the majority of the assets of ACT Manufacturing out of its bankruptcy proceeding.
  • Prospect Therapeutics, Inc., an affiliate of a West Coast private equity fund, in connection with its successful purchase of the majority of the assets of Glycogenesis, a publicly-traded biotechnology company based in Massachusetts. Following a two-day contested evidentiary hearing, the court rejected the attempts of the debtor’s founder to prevent the transfer of a patent license, and approved the sale to the firm’s client.

 

COMMITTEE REPRESENTATIONS

  • Represented the creditors’ committee in the Malden Mills Chapter 11 reorganization. Malden Mills, then one of the largest privately held companies in Massachusetts, restructured approximately $180 million in secured and unsecured debt under a plan in which creditors received a cash dividend along with stock and board representation in reorganized Malden Mills.
  • Represented the creditors’ committee in the Chapter 11 liquidation of Engage, Inc., and the creditors trust established following the sale of the majority of Engage’s assets to a third party. The firm brought a multi-count adversary proceeding against Engage’s former parent, and various directors and officers, which ultimately resulted in a dividend to creditors in excess of 60%.
  • Represented the creditors’ committee in the Chapter 11 cases of RJ Development and two related entities, biotechnology companies that manufactured a variety of medical devices. They emerged from bankruptcy pursuant to a plan that paid general unsecured creditors 40 cents on the dollar.
  • Represented the creditors’ committee in the Chapter 11 case of East Boston Neighborhood Health Center. After litigating with the secured lender, the debtor proposed a plan of reorganization under which creditors received a cash dividend of ~ 40% of their claim.

 

GENERAL CREDITOR REPRESENTATIONS

  • Successfully defended Brightwood Capital SBIC II, LP and Brightwood Capital Advisors, LLC in related fraudulent conveyance adversary proceedings filed in the United States Bankruptcy Court for the Northern District of Georgia (Atlanta Division) commenced by the Chapter 7 Trustees in two affiliated bankruptcy cases.
  • Alamos Gold Inc., a mining company, as a creditor in the chapter 11 case of Republic Metals Corporation, a metals refiner in litigation involving title, bailment and ownership issues.
  • A real estate development company and landlords in retail cases including Modell’s Sporting Goods, Men’s Wearhouse, Toys R US, Gymboree and Payless
  • Ginkgo Bioworks, Inc. in a collaboration and license agreement with Biogen (Nasdaq: BIIB) to develop a next-generation recombinant adeno-associated virus (AAV) production platform
  • Successfully defended The Cadillac Fairview Corporation Limited in bankruptcy court litigation against Adidas Canada in the case of In re Relay Opco LLC f/n/a Rockport Canada in a novel issue concerning the application of the statutory cap on lease claims under the Bankruptcy Code.
  • Advised the U.S. subsidiary of a Chinese shipping and logistics company regarding its distressed trucking business, including advice on substantive consolidation and other issues relating to insulating the company from bankruptcy risk
  • Four Massachusetts-based private equity funds in In re Scott Cable Communications, Inc., in a highly complex thirty-five day trial defending a lawsuit brought by the United States Department of Justice on behalf of the IRS, seeking to recharacterize or alternatively equitably subordinate over $50 million in secured claims issued pursuant a confirmed Chapter 11 plan of reorganization.
  • Represented Dow Corning Corporation in litigating a claim for trade secret theft in the Chapter 11 case of In re GT Advanced Technologies, Inc.,
  • Represented Alere, Inc., which held a secured loan in and option to purchase a business unit from Liberty Medical Supply, Inc., which filed Chapter 11 to try to thwart Alere’s option. Following expedited discovery, the bankruptcy court denied the debtor’s motion to reject the option, the debtor was compelled to sell the business unit to Alere and pay Alere’s loan in full, including attorneys fees.
  • Represented Houghton Mifflin Harcourt Publishing Co. in the Chapter 7 case of Johnny Carson’s former personal attorney, Henry Bushkin, with respect to the Trustee’s claims for copyright infringement and turnover of royalty payments that HMH owed Bushkin for a book he authored regarding Carson.
  • Represented Houghton Mifflin Harcourt Publishing Co. in an attempt by the Chapter 11 Debtor, WD Encore Software, LLC to assume and assign a non-exclusive software license.
  • Represented Elements Capital Group in a non-dischargeability trial that resulted in the denial of discharge for two Chapter 7 debtors on the grounds that the debtors acted with actual intent to hinder, delay, or defraud creditors and knowingly made false statements on their schedules and statements of financial affairs.

 

FINANCING REPRESENTATIONS

  • Providing the Federal Reserve Bank of Boston with workout and bankruptcy representation for the Main Street Lending Program (MSLP)
  • The Brazilian Federal Government in the restructuring of aircraft loans and amended leases to Grupo Aeromexico, a Mexican airline that filed for bankruptcy in the Southern District of New York.
  • A Canadian provincial pension fund in a workout of real estate debt of over $150 million
  • A leading private sector bank in India in the workout of a borrower in the computer services business
  • PNC Bank in Troll Communications LLC's US$15 million secured credit facilities and as exit financing lender in other cases.