Business Reorganizations, Bankruptcy, and Creditors' Rights

Businesses confronting the possibility of insolvency face a unique mix of legal, business, financial, and human relations challenges. Robinson+Cole has worked extensively on these issues for regional, national, and international clients, including banks and other financial institutions, individual lenders, syndicated lending groups, institutional investors, including hedge and private equity funds, acquirers of assets from financially distressed companies, real estate and equipment lessors, and other parties in need of specialized debtor-creditor relations counsel.

Our insolvency and creditors rights practice includes lead lender, secured creditor, and major vendor representation; insolvency acquisition advice and representation; defense against bankruptcy preference, fraudulent transfer, subordination, and other avoidance claims; foreclosures; the development and negotiation of out-of-court and Chapter 11 workouts, restructure, and reorganization plans; lender liability litigation; and representation on matters arising out of loan participations, intercreditor agreements, lender conduct, executory contracts, license and franchise agreements, distributorship agreements, and commitment letters.

Members of our group work with lawyers in our other firm practice groups to assure the high quality advice needed in complex insolvency-related matters. We draw on Robinson+Cole's vast experience in financial services, finance, mergers and acquisitions, private equity, hedge funds, litigation, finance and real estate, financial regulation, and tax law. Applying our collective skills and backgrounds enables us to provide seamless cross-disciplinary representation in any bankruptcy, restructuring or reorganization situation, whether in our out of court. Additionally, our lawyers have extensive working relationships with crisis managers, financial advisors, and other insolvency professionals to enhance our clients' primary objective of maximizing value in the most efficient manner possible.

    • Experience
      • Represented foreign liquidator of overseas banks in litigation to recover more than $140 million in U.S. assets seized by the New York superintendent of banks. To recover the seized funds for distribution in liquidation proceedings in Belgrade, we filed an ancillary proceeding under the United States Bankruptcy Code in the Bankruptcy Court for the Southern District of New York. The litigation included successful appeals to the District Court and the United States Court of Appeals for the Second Circuit. Following remand, the litigation settled on advantageous terms. We defeated subsequent collateral attacks on the settlement in New York State Supreme Court and the Appellate Division.
      • Represented commercial lenders in a variety of workout and default resolution negotiations in connection with single and multiple lender/borrower loan restructurings in the manufacturing and health care industries.
      • Retained by major U.S. bank in workout followed by Chapter 11 of significant manufacturer. Implemented debtor-in-possession (DIP) financing and negotiated a consensual plan. When the debtor could not meet prenegotiated conditions, terminated DIP financing and participated in consensual liquidation by trustee, first of machinery and equipment, then of real estate, with accounts collected by creditor.
      • Represented secured creditors in many single asset real estate cases, involving all types of commercial properties. Initiated and pursued stay relief and confirmation litigation through stay relief and disposition, confirmation hearings on competing plans, negotiated resolution or sale of debt to third party.
      • Developed multistate regulatory compliance program for third-party energy supplier.
      • Represented creditors in some of the largest bankruptcy cases throughout the United States, including Lehman Brothers, Chrysler, Lyondell Chemical, Enron, WorldCom, Adelphia, and US Airways I and II.
      • Represented financiers, who provided venture capital to a marketing company, in successfully moving to convert the marketing company’s bankruptcy case from a Chapter 11 reorganization to a Chapter 7 liquidation and in foreclosing on collateral, including the debtor’s intellectual property. Representation included extensive discovery and briefing, culminating in a successful trial in the Bankruptcy Court in the Southern District of New York.
      • Represented institutional lender in a multifaceted workout with affiliated borrowers involving several real estate assets and equipment, culminating in a heavily negotiated forbearance agreement, pursuant to which our client received full repayment of the indebtedness.
      • Represented Fortune 500 company as major investor in, and lender to, professional sports league. Implemented DIP financing to facilitate orderly liquidation. Negotiated consensual plan that preserved tax benefits for estate and maximized likely return to creditors, dependent upon outcome of antitrust litigation.
      • Special counsel to debtors in Mortgage Lenders Network USA, Inc. (District of Delaware).
      • Counsel to Official Committee of Unsecured Creditors in N.V.E., Inc. (District of New Jersey) and counsel to Official Committee of Unsecured Creditors in Fleet Trucking, Inc. (Southern District of New York). *
      • Counsel to a member of the Creditors' Committee in Bayonne Medical Center (District of New Jersey). *
      • Counsel to Integrated Control Systems, Inc. (District of Connecticut). *
      • Special counsel to the chapter 7 trustee in Murdoch Claims Management (District of Connecticut), a third-party insurance claims administrator.
      • Represented designer and manufacturer of firearm component parts in licensing and royalty dispute with international firearm manufacturer.
      • Represented American subsidiary of international packaging machinery manufacturer in claims under Delaware's fraudulent transfer and unlawful dividend statutes.
      • Represented major insurance company in adversary proceeding involving claims of fraud, unfair trade practices, and successor liability against debtor in possession.
      • Represented insurance carriers in filing and prosecuting involuntary bankruptcy proceedings against insolvent third-party claims administrators.
      • Represented trustee in an adversary proceeding in a dispute with debtor over ownership interest in publicly traded securities.
      • Represented designer and manufacturer of firearm component parts in licensing and royalty dispute with international firearm manufacturer.
      • Counsel to national construction services provider in Circuit City (Eastern District of New Jersey), a national consumer electronics retailer.
      • Representation of the selling majority shareholder in a $20 million fraudulent transfer action brought by a bankruptcy trustee. The challenged transfer arose out of a leveraged buyout of our client's business, which ended up in a Chapter 7 liquidation case within two years after the transaction closed. Representation included extensive deal and valuation analysis, particularly with regard to likely expert testimony on the value of intellectual property and the reasonableness of cash flow projections at the time the transaction closed. One of the key defenses was the "settlement payment doctrine" under Section 546(e) of the bankruptcy code, which is novel and has split the circuits in interpreting its availability. After several years of litigation, Robinson & Cole settled the fraudulent transfer action on favorable terms for the client, relying on the settlement payment doctrine, other defenses, and valuation analyses.
      • Representation of a managed care insurer that issued a group health plan to an employer that subsequently entered into bankruptcy. On behalf of the managed care insurer, Robinson & Cole handled all aspects of the Chapter 11 bankruptcy proceeding, including negotiation of the inclusion of the managed care insurer in the court's critical vendor payment order to allow premiums to continue to be paid from the debtor's assets, payment of all accounts receivable due and owing to the insurer, and timely assumption of the group health plan insurance contract by the bankruptcy trustee.
      • Represented a lender in a $4.5 million foreclosure claim in which the defendant counterclaimed for $18 million in damages sounding in lender liability. The matter was contested over the last three years and settled on the eve of trial. Multiple motions were drafted and argued before the court, including summary judgment.
      • Representation in a $500,000 Connecticut foreclosure action in which default under a forbearance agreement and default of an adequate payment plan in Bankruptcy court continued to result in extensive motion practice and hearings before the Bankruptcy court. Obtained a relief from stay and foreclosed on the property.
      • Representation of a complex Connecticut foreclosure action involving property in California and Connecticut. The debtor has appealed the California denial of counterclaims related to the nonjudicial sale of the California property. In the process of negotiating global settlement for both the California and Connecticut actions following the default of the debtors of a forbearance agreement.
      • Representation an insurance carrier concerning longshoreman’s insurance policy issued to a shipyard in a Chapter 11 proceeding commenced in the District of Connecticut. Following confirmation of debtor’s Chapter 11 plan, represented carrier in asserting approximately $1.5 million administrative claim for unpaid and past due premiums. Additionally, undertook review and analysis of claims made under policy for purposes of fixing of carrier’s prepetition general unsecured claim. Negotiated the ultimate settlement agreement covering all aspects of obligations owed to carrier, which resulted in substantial payments of all amounts due, as well as an extension of ongoing coverage for limited period postconfirmation.
      • Represented purchaser of distressed food business in out-of-court asset purchase. Negotiated, structured and documented combination of debt acquisition and real/personal property foreclosures utilizing Article 9 remedies and deed-in-lieu transaction. Successfully negotiated with creditors regarding successor liability issues.
      • Retained by the General Electric Company to represent its industrial systems division in all bankruptcy and commercial collection litigation matters throughout the U.S. Provided advice regarding collateralizing debt obligations and enforcement of alternative creditor remedies, including advice concerning reclamation and mechanic’s liens. Defended and settled numerous preference cases.
      • Represented secured creditor in Chapter 11 case regarding LBO debt resulting from acquisition of similar mail order businesses. Engagement included litigation over amount of debt resulting from net worth guaranties issued by operating companies, with the debtors asserting that proper interpretation of the guaranties resulted in debt reducing to zero. Settled litigation and negotiated consensual plan providing for lender to immediately receive all of the value of its collateral.
      • Represented lender in a $25 million loan restructure in the commercial construction industry that involved complex intercreditor and bankruptcy issues.
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    • News
      • August 15, 2016

        Robinson+Cole Receives Top Listing in Connecticut Lawyer Count in The Best Lawyers in America® 2017

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      • July 21, 2016

        Steve Boyajian Quoted in 'Buyer Beware' Article in Law360

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      • June 9, 2016

        Hartford Lawyers Publish Article in ABI Journal

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      • March 4, 2016

        Steve Boyajian Examines Series LLCs in ABI Journal Article

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      • January 21, 2016

        Patrick Birney Writes Article on Make-Whole Premiums for Norton Journal of Bankruptcy Law and Practice

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      • April 13, 2015

        Patrick Birney Writes Article for ABI Journal

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      • March 9, 2015

        Steven Boyajian Writes ABI Journal Article on Federal Debt Collection Laws

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      • October 30, 2014

        Patrick Birney Authors Article for ABI Journal

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      • August 19, 2014

        Robinson+Cole Receives Top Listing in Connecticut Lawyer Count in Best Lawyers National Peer Review Survey

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      • April 25, 2014

        Steven Boyajian Authors Article for American Bankruptcy Institute Journal

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      • October 30, 2013

        Providence Lawyer Speaks at RIBA's Annual Recent Developments in the Law Conference

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      • August 28, 2012

        Robinson & Cole Receives Top Listing in Connecticut Attorney Count in Best Lawyers National Peer Review Survey

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      • May 14, 2012

        Robinson & Cole Welcomes Twelve New Attorneys in Five Offices Expanding its Presence across the Northeast

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      • June 30, 2010

        Patrick Birney Leads Off Bankruptcy Law360 coverage of Schwab v. Reilly

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      • February 2, 2010

        Robinson & Cole Attorneys Elected to Board of Directors of Turnaround Management Association’s Connecticut Chapter

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    • Publications + Presentations
    • The Enforceability of Mechanics' Liens in Bankruptcy Is Dependent on State Law (4/11/2017)

      Connecticut Exemptions, published in Bankruptcy Exemption Manual, authored by Michael R. Enright
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      Overview of the Bankruptcy Code and Claims Trading, published in Business Workouts Manual, authored by Michael R. Enright
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      "Revised Article 8 of the Uniform Commercial Code: Taking Security Interests in Securities Held in Brokerage Accounts – Finally, Commercial Rules Which Make It Easier to Do Business," published in Client Alert, authored by Michael F. Maglio
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      Post-Closing Matters, published in Collier Practice Guide, authored by Michael R. Enright
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      Bankruptcy and Reorganization, published in Controller's Business Adviser, authored by Michael R. Enright
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      Bankruptcy Preferences and the Ordinary Course Defense: Recent Decision Rescues Supplier (6/17/16)

      "Unharnessing the Governmental-Unit Stay Exception: SEC v. Miller," co-authored by Patrick M. Birney and Andrew A. DePeau (May 2016)
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      Supreme Court Takes Broad View of Fraud Exception to Discharge (5/17/2016)

      "Series LLCs: Can a Series File for Bankruptcy, and What if It Does?" published in American Bankruptcy Institute Journal, authored by Steven J. Boyajian (March 2016)
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      Debtor’s Founder Ordered to Turn Over Social Media Accounts (7/15/2015)

      "Perfecting Security Interests in a Debtor's Insurance Policy," published in American Bankruptcy Institute Journal, authored by Patrick M. Birney (April 2015)

      Secured Party Loses Challenge To UCC-3 It Approved (Oct 2014)

      Venue Reform Three Years Later (7/29/14)

      Court Rejects Settlement For Inadequate Disclosure (7/11/2014)

      Constructive Trusts in Bankruptcy Court: Not Dead Just Yet (3/14/2014)

      "The Transfer of Unemployment Insurance Experience Rates," published in American Bankruptcy Institute Law Review, authored by Steven J. Boyajian (9/2013)

      "Commercial Lending and Regulatory Compliance: What Lenders Need to Know," presented by Norman H. Roos, webinar through Lorman® Education Services (1/17/2012)

      "Recent Developments Regarding Priorities in Bankruptcy," at Task Force on Current Developments, Business Bankruptcy Committee of the ABA Section of Business Law, presented by Michael R. Enright (annually)
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      "What Every Litigator and General Practitioner Should Know About Bankruptcy Law and Procedure in These Turbulent Economic Times," at Fairfield County Bar Association program (2/2009)

      "Reawakening Section 1334: A New Framework for Analyzing the Enforceability of Arbitration Agreements in Bankruptcy," published in American Bankruptcy Institute Law Review, authored by Patrick M. Birney (Winter 2008)

      "Jumping Cautiously to the Front of the Line," published in Connecticut Law Tribune (9/22/2008)

      "The Tipping Point: Shifts in Negotiating Leverage Created by the Bankruptcy Reform Act," at Commercial Finance Association Annual Meeting, San Diego, California, co-presented by Michael R. Enright and Stuart Ames, Patricia Redmond, and Robert Zadek (11/10/2005)
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      "Minimizing Client Risk: Avoiding the Pitfalls of Multi-Borrower Loan Arrangements," at ABA Business Law Today Teleseminar, co-presented by Michael R. Enright and Stuart Ames and Michael Maglio (2/9/2005)
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      "Avoiding and Defending Against Preference Claims," at WESFACCA (10/7/2004)
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