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The Troutman Sanders LLP Bankruptcy Practice Group specializes in services to clients who encounter business issues that relate to financially distressed situations. Whether the financial problems relate to a customer, a competitor, a related company or the client itself, members of this practice group are ready to provide counseling, workout and litigation services.
The Practice Group
The Troutman Sanders Bankruptcy Practice Group includes experienced commercial and bankruptcy litigators, as well as attorneys with corporate, lending and accounting backgrounds with experience in workouts and restructurings. They have industry qualifications in many of the sectors which are currently experiencing challenges, e.g., real estate, automotive, utilities, textiles, medical care, technology, motion picture theaters and food service. The Bankruptcy Practice Group has provided client services, nationally, in the following general areas:
- Representing financially troubled businesses in reorganization proceedings under Chapter 11 of the Bankruptcy Code.
- Representing secured creditors in Chapter 11 cases, obtaining release of collateral or repayment of debt in connection with negotiated plans of reorganization.
- Representing committees of unsecured creditors in Chapter 11 cases, including providing litigation services in prosecuting preference and fraudulent conveyance claims of the bankruptcy estate.
- Acting as counsel to lenders where the borrower is encountering financial problems requiring debt restructuring, debt consolidation or alternative financing arrangements.
- Providing advice to lenders regarding documentation of the relationship with their customers, limiting the risks involved should a serious deterioration in financial condition occur.
- Acting as counsel to indenture trustees in financing transactions where bonds are not repaid according to their original terms.
- Assisting clients in the acquisition of assets from insolvent enterprises or bankruptcy trustees.
- Acting as bankruptcy trustee or court-appointed receiver for distressed businesses and conducting asset liquidations.
- Obtaining receivers for businesses or assets to protect lenders from the dissipation of their collateral, pending foreclosure or sale.
- Representing lenders in state court collection actions, suits on promissory notes, foreclosure actions, garnishments and other creditor remedy proceedings.
Bankruptcy Litigation
Frequently, clients find themselves involved in litigation matters in the bankruptcy courts. Whether they are defendants in preference or fraudulent conveyance claims or are striving to develop their own business through a contest for assets of a bankruptcy estate, the Bankruptcy Practice Group has extensive experience in the substantive areas of bankruptcy law, as well as meaningful training and experience in trial preparation, trial practice and litigation techniques. In the past they have undertaken such tasks as:
- Representing the bankruptcy trustee of a major furniture chain to recover fraudulent transfers to insider beneficiaries of a leveraged buyout.
- Defending substantial fraudulent transfer claims brought by a chapter 11 litigation trust arising out of the debtor’s purchase of our client’s business.
- Defending a regional financial institution in a multi-million dollar lawsuit involving equipment leases which had been rejected in bankruptcy and as to which the enforceability of "hell or high water" clauses was at issue.
- Representing numerous building material suppliers in preference actions brought by a regional building products supplier who had filed a Chapter 11 case.
- Defending a hostile takeover of a conglomerate by a minority shareholder which, as a Chapter 11 Debtor, sought to avoid the terms of a shareholder agreement in its Plan of Reorganization.
- Representing a consumer lender in a class action in bankruptcy court involving charges for non-filing insurance to individual borrowers.
- Representing a major printing company in a preference action brought by the trustee in connection with an escrow arrangement which had been undertaken to minimize preference exposure.
- Serving as counsel to a regional carrier of local telephone service in a national class action brought by a bankruptcy trustee for a long distance re-seller, and successfully negotiating a settlement involving the claims of 320,000 consumers.
Core Bankruptcy Services
A main focus of the Bankruptcy Practice Group involves the representation of debtors, creditors and other parties in bankruptcy cases pending in the federal courts. Members of the Group have the specialized knowledge and skills which are required to advise and successfully represent clients before a bankruptcy court. Following are examples of recent traditional bankruptcy representations undertaken by the Group:
- Represented the nation’s largest car haul company, which was a public company, in its Chapter 11 reorganization in Atlanta.
- Represented the nation's largest chain of mental health care facilities in Chapter 11 cases in Delaware.
- Represented a substantial jewel distributor in its Chapter 11 case in New York.
- Represented a major national lender in connection with debtor-in-possession financing in a $200 million retail credit facility and a $100 million textile manufacturing facility in Delaware.
- Acted as counsel to a governmental agency in connection with its lease of land to a debtor shipbuilder's issues included litigation over environmental contamination.
- Represented a consumer product conglomerate in connection with the Chapter 11 case of one of its competitors where issues involved patent infringement and a claim in excess of $200 million.
- Appointed as SEC receiver in connection with Chapter 11 liquidation of an offshore bank involving claims by more than five thousand creditors.
- Represented debtors in single asset real estate cases as a method of restructuring existing indebtedness.
- Served as counsel to a major fast food chain in connection with the liquidating Chapter 11 of its sole distributor in Delaware.
- Served as counsel to national waste disposal firm in acquisition of assets from a Chapter 11 Trustee in Florida -- acquisition occurred in a court-held auction.
- Negotiated and successfully closed a pre-packaged $6 million acquisition of a carpet company by a regional firm in a Chapter 11 case in North Carolina.
- Acted as counsel to landlords in retail bankruptcies where substantial lease assignment, rejection and administrative lease claims were involved.
- Successfully confirmed a Plan of Reorganization for a $200 million real estate development venture, involving contested issues among partnership owners and creditors.
Creditors' Committees
In major Chapter 11 cases, Creditors' Committees play an important role. Troutman Sanders is fortunate to have been selected as counsel to numerous court-appointed committees of unsecured creditors and equity holders. Additionally, members of the Bankruptcy Practice Group have served as counsel to committee members, including the chairs of those committees. As such, Troutman Sanders attorneys understand the fiduciary obligations which may be imposed on committees, the different perspectives which committee members may bring to deliberations, and the need for thorough and prompt communications with committee members. Sample committee representations include the following:
- Served as counsel to Trade Creditors' Committee of a large building products company where trade debt exceeded $100 million -- full payment achieved.
- Served as counsel to Creditors' Committee of a men's suit manufacturer in middle Georgia where trade debt exceeded $5 million and major issues involved an under-funded pension plan.
- Served as counsel to Equity Security Holders' Committee of a North Georgia carpet manufacturer forced to liquidate its real estate holdings in a Chapter 11; after payments of all creditors' claims in full, equity holders realized substantial residual value.
- Served as counsel to Creditors' Committee of manufacturer which had annual revenue of about $75 million and which was insolvent as a result of leveraged buyout. Trade creditors received a dividend of 46% in cash on confirmation.
- Assisted the chairman of the Creditors' Committee for an East Coast chemical production firm to effectively represent both the individual interests of his company in seeking payment of its $6 million claim and further the goals of the unsecured creditor group.
- Served as counsel to individual members of creditors' committees in situations where reclamation, preference or trade secret issues required specialized advice.
Workouts
In the current business climate, members of the Bankruptcy Practice Group are frequently asked to advise institutional clients and smaller businesses on strategies - before and after bankruptcy - to avoid litigation costs and resolve financial issues. Highlights of recent services performed in this area include the following:
- Negotiated the consensual return to the lessor client of six leased aircrafts from an insolvent charter service and documented the agreement in consent orders entered in a state court writ of possession action.
- Resolution through a consensual Chapter 11 plan of a shareholder dispute involving a corporation that services intermodal shipping containers.
- Documented forbearance arrangements which permitted the sale of a 1700 acre plantation in South Georgia, along with cattle and related farming assets, while protecting certain other client assets.
- Implemented inter-creditor agreements among secured creditors and vital suppliers to Georgia convenience store chain so as to avoid bankruptcy and enable pay-down of debt through gradual sale of excess assets.
- Negotiated a $12 million debt restructuring between a large institutional lender and a privately held family entertainment company which positioned the client for accelerated repayment and eventual full prepayment of debt.
Collections & Routine Matters
In addition to representing creditors in the bankruptcy forum, the Bankruptcy Practice Group also represents creditors in their efforts to collect on their claims outside of the bankruptcy arena. Group attorneys review the documentation describing the nature of the obligation(s) (promissory note, security deed, guarantees, etc.), draft an appropriate demand letter, and, if necessary, file suit in state court to obtain a judgment on the default. In the event the debtor files for bankruptcy protection, the same attorney may represent the creditor in the bankruptcy -- eliminating any "learning curve" that would otherwise result from the transfer of the file.
The Bankruptcy Practice Group frequently represents large commercial businesses in somewhat complicated bankruptcy-related litigation. They also, however, have represented clients with annual sales of less than $1 million, secured claims of less than $500,000 and equity interests that were potentially worthless. Such representations have run the spectrum from contested stay relief litigation to merely filing a proof of claim. For smaller clients in financial distress, they may negotiate a workout with the creditors or arrange for an orderly liquidation without the delay and expense of bankruptcy. Finally, whether the client be large or small, they sometimes merely monitor a bankruptcy case and provide advice either upon request of the client or according to criteria established by the client and the responsible attorney.
Counseling
The Bankruptcy Practice Group interacts with many other practice groups within Troutman Sanders to provide a full and complete package of advice to clients. Frequently, the Bankruptcy Practice Group is called upon by members of the corporate and lending groups to provide advice on such issues as avoiding fraudulent conveyance or preference liability in connection with pending transactions, perfecting security interests so as to be effective against a bankruptcy trustee, or advising with respect to asset transfers. They have worked with the Firm's tax specialists to provide sound bankruptcy advice and insure that the tax consequences are acceptable as well. Bankruptcy attorneys are often included in the negotiations of real estate transactions to enable clients to anticipate the consequences of financial problems with developers, owners, tenants, or borrowers and provide solutions or options in the documents.
