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Davis & Gilbert’s Insolvency, Creditors’ Rights & Financial Products Practice is focused on creating and executing viable legal solutions for companies and financial institutions dealing with financial distress and related litigation. We help clients in need of creative solutions to achieve financial goals or deal with the financial distress of customers, borrowers and other third parties. We help financial institutions manage distressed assets, unwind transactions and prosecute and defend litigation, including lawsuits concerning complex structured finance and derivative transactions.

THE DAVIS & GILBERT ADVANTAGE
Our Insolvency, Creditors’ Rights & Financial Products practice is dedicated to achieving the best possible outcome for companies and financial institutions as secured creditors, unsecured creditors, investors, asset purchasers and borrowers whenever they have to address insolvency or bankruptcy issues. We employ a general counsel approach and draw on the multi-disciplined experience of our attorneys to effectively structure transactions, prosecute and defend litigation and minimize our clients’ liability.

OUR CLIENTS
We help companies of all sizes in a diverse range of fields, including marketing communications, commercial real estate, software development and healthcare. We also represent clients in all of the major financial sectors including investment and commercial banking, mortgage banking, asset management, brokerage and private equity. Our financial institutions clients include several large, multinational commercial banks, and we also represent a growing number of hedge funds on a variety of issues.

INSOLVENCY
Our attorneys are experienced in financings, workouts, liquidations, distressed sales and acquisitions, and relationships with financially distressed third parties. We prosecute and defend all types of actions in bankruptcy proceedings, including preferential transfer and fraudulent transfer actions. In addition, we have developed a niche practice representing the interests of advertising agencies and other marketing companies in the area of media liability. Our status as a thought-leader in media liability is demonstrated by the leading advertising agencies that regularly seek our assistance, and by the press, which has sought the benefit of our opinions and experience regarding emerging trends in bankruptcy affecting the marketing communications community.

FINANCIAL INSTITUTIONS
Our practice covers a wide range of financial product related litigation and insolvency issues faced by financial institutions and others in the financial services industry. The broad and diverse experience of our attorneys, who come from both litigation and corporate backgrounds, makes us particularly well equipped to advise clients in complex and rapidly evolving industries, including the secondary mortgage market. In this regard, we have gained vast experience defending repurchase (put-back) and fraud actions in residential mortgage-backed securities (RMBS) litigation, and matters involving the operation of residential mortgage loan origination businesses.

We have been actively and closely involved in many of the most notable and highly visible business events in recent years related to the economic downturn, including the subprime mortgage fallout and resulting lawsuits by investors and securitization trustees, the Ponzi scheme of Bernard L. Madoff Investment Securities and the receivership of Washington Mutual Bank.

REPRESENTATIVE MATTERS ADDRESSED ON BEHALF OF OUR CLIENTS

  • Representation of secured lenders, mortgage loan warehouse lenders, landlords, vendors and other creditors in upfront transactions and chapter 11 and chapter 7 bankruptcy proceedings
  • Defense of preference and fraudulent transfer actions
  • Recapitalizations and restructurings - Secured financings, including asset-based loan transactions; debt for equity swaps - Unsecured financings, including working capital lines of credit
  • Inter-creditor and subordination arrangements
  • Liquidations and wind-downs - Determination of appropriate reorganization and liquidation strategies - Non-judicial liquidations on behalf of debtors - Settlements with creditors
  • Collection actions and enforcement of judgments
  • Analysis of extent and priority of liens
  • Purchase/sale of distressed assets
  • Management of distressed financial assets

REPRESENTATIVE INSOLVENCY ISSUES ADDRESSED INCLUDE:

Media Liability

  • Sequential liability and agent/principal theories of liability
  • Protective contractual provisions in contracts with advertisers, media buying companies, media aggregators and media vendors
  • Enforcement by media and media buying companies where advertiser is insolvent

Preferential and Fraudulent Transfer Liability

  • Defending preferential and fraudulent transfer actions on behalf of marketing communications and other companies in the event of a counterparty’s bankruptcy
  • Creating and executing large scale global resolution of potential preference liability, including contribution from third party transferees

Landlord – Tenant

  • Representing commercial landlords in chapter 7 and chapter 11 bankruptcy cases filed by tenants
  • Enforcing commercial landlords’ rights under the Bankruptcy Code, including payment of pre- and post-petition rent and enforcement of security deposits
  • Motions seeking relief from the bankruptcy automatic stay in order to commence or continue eviction proceedings
  • Negotiating assumption of commercial leases in bankruptcy

REPRESENTATIVE ISSUES ADDRESSED ON BEHALF OF FINANCIAL INSTITUTIONS INCLUDE:

Asset-based Lending and Structured Finance

  • Developing comprehensive financing structures, including secured working capital facilities, warehouse lines and equity participation
  • Upfront negotiation and restructuring of secured revolving and term credit facilities
  • Intercreditor arrangements
  • Foreclosure strategies for senior and junior creditors
  • Termination of swaps and related disputes
  • Restructuring of management of collateralized debt obligations and disputes regarding priority of payments

Residential Mortgage-Backed Securities and Secondary Mortgage Market

  • Repurchase claim liability of seller/sponsor under mortgage loan purchase agreements and securitizations
  • Defense of fraud actions on behalf of the seller/sponsor by RMBS investors
  • Enforcement rights of mortgage loan warehouse providers in bankruptcy under master repurchase agreements
  • Servicer compliance with government programs designed to encourage mortgage loan modifications
  • Priority of mortgage loan purchaser/investor versus repledgee of collateral when seller/pledgor of collateral is in bankruptcy
  • Priority of mortgage loan warehouse lender versus purchaser/investor when seller is in bankruptcy
  • Attorney General, SEC and other governmental investigations
  • Use of trust holding structures to minimize risk of mortgage loan portfolio
  • Use of joint marketing programs as an exit strategy for distressed loans
  • Sales of mortgage loan pools and portfolios

Fraudulent Transfer Liability

  • Defense of fraudulent transfer claims under federal and state laws against financial institutions as indirect investors in a global Ponzi scheme
    - Impact of chapter 15 bankruptcy of offshore investor and rights of competing trustees
    - “Good faith” defense analysis
    - Extraterritorial application of the Bankruptcy Code
    - Section 546(e) safe harbor for certain protected financial contracts and parties
    - Specific defenses of a leverage provider under derivative transactions
CONTACT US

For additional information on Davis & Gilbert’s Insolvency, Creditors’ Rights & Financial Products Practice, please contact:

Joseph Cioffi
212.468.4875
jcioffi@dglaw.com


INSOLVENCY
Our attorneys are experienced in financings, workouts, liquidations, distressed sales and acquisitions, and relationships with financially distressed third parties. We prosecute and defend all types of actions in bankruptcy proceedings, including preferential transfer and fraudulent transfer actions. In addition, we have developed a niche practice representing the interests of advertising agencies and other marketing companies in the area of media liability. Our status as a thought-leader in media liability is demonstrated by the leading advertising agencies that regularly seek our assistance, and by the press, which has sought the benefit of our opinions and experience regarding emerging trends in bankruptcy affecting the marketing communications community.

FINANCIAL INSTITUTIONS
Our practice covers a wide range of financial product related litigation and insolvency issues faced by financial institutions and others in the financial services industry. The broad and diverse experience of our attorneys, who come from both litigation and corporate backgrounds, makes us particularly well equipped to advise clients in complex and rapidly evolving industries, including the secondary mortgage market. In this regard, we have gained vast experience defending repurchase (put-back) and fraud actions in residential mortgage-backed securities (RMBS) litigation, and matters involving the operation of residential mortgage loan origination businesses.

We have been actively and closely involved in many of the most notable and highly visible business events in recent years related to the economic downturn, including the subprime mortgage fallout and resulting lawsuits by investors and securitization trustees, the Ponzi scheme of Bernard L. Madoff Investment Securities and the receivership of Washington Mutual Bank.

REPRESENTATIVE MATTERS ADDRESSED ON BEHALF OF OUR CLIENTS

  • Representation of secured lenders, mortgage loan warehouse lenders, landlords, vendors and other creditors in upfront transactions and chapter 11 and chapter 7 bankruptcy proceedings
  • Defense of preference and fraudulent transfer actions
  • Recapitalizations and restructurings - Secured financings, including asset-based loan transactions; debt for equity swaps - Unsecured financings, including working capital lines of credit
  • Inter-creditor and subordination arrangements
  • Liquidations and wind-downs - Determination of appropriate reorganization and liquidation strategies - Non-judicial liquidations on behalf of debtors - Settlements with creditors
  • Collection actions and enforcement of judgments
  • Analysis of extent and priority of liens
  • Purchase/sale of distressed assets
  • Management of distressed financial assets

REPRESENTATIVE INSOLVENCY ISSUES ADDRESSED INCLUDE:

Media Liability

  • Sequential liability and agent/principal theories of liability
  • Protective contractual provisions in contracts with advertisers, media buying companies, media aggregators and media vendors
  • Enforcement by media and media buying companies where advertiser is insolvent

Preferential and Fraudulent Transfer Liability

  • Defending preferential and fraudulent transfer actions on behalf of marketing communications and other companies in the event of a counterparty’s bankruptcy
  • Creating and executing large scale global resolution of potential preference liability, including contribution from third party transferees

Landlord – Tenant

  • Representing commercial landlords in chapter 7 and chapter 11 bankruptcy cases filed by tenants
  • Enforcing commercial landlords’ rights under the Bankruptcy Code, including payment of pre- and post-petition rent and enforcement of security deposits
  • Motions seeking relief from the bankruptcy automatic stay in order to commence or continue eviction proceedings
  • Negotiating assumption of commercial leases in bankruptcy

REPRESENTATIVE ISSUES ADDRESSED ON BEHALF OF FINANCIAL INSTITUTIONS INCLUDE:

Asset-based Lending and Structured Finance

  • Developing comprehensive financing structures, including secured working capital facilities, warehouse lines and equity participation
  • Upfront negotiation and restructuring of secured revolving and term credit facilities
  • Intercreditor arrangements
  • Foreclosure strategies for senior and junior creditors
  • Termination of swaps and related disputes
  • Restructuring of management of collateralized debt obligations and disputes regarding priority of payments

Residential Mortgage-Backed Securities and Secondary Mortgage Market

  • Repurchase claim liability of seller/sponsor under mortgage loan purchase agreements and securitizations
  • Defense of fraud actions on behalf of the seller/sponsor by RMBS investors
  • Enforcement rights of mortgage loan warehouse providers in bankruptcy under master repurchase agreements
  • Servicer compliance with government programs designed to encourage mortgage loan modifications
  • Priority of mortgage loan purchaser/investor versus repledgee of collateral when seller/pledgor of collateral is in bankruptcy
  • Priority of mortgage loan warehouse lender versus purchaser/investor when seller is in bankruptcy
  • Attorney General, SEC and other governmental investigations
  • Use of trust holding structures to minimize risk of mortgage loan portfolio
  • Use of joint marketing programs as an exit strategy for distressed loans
  • Sales of mortgage loan pools and portfolios

Fraudulent Transfer Liability

  • Defense of fraudulent transfer claims under federal and state laws against financial institutions as indirect investors in a global Ponzi scheme
    - Impact of chapter 15 bankruptcy of offshore investor and rights of competing trustees
    - “Good faith” defense analysis
    - Extraterritorial application of the Bankruptcy Code
    - Section 546(e) safe harbor for certain protected financial contracts and parties
    - Specific defenses of a leverage provider under derivative transactions


CONTACT US

For additional information on Davis & Gilbert’s Insolvency, Creditors’ Rights & Financial Products Practice, please contact:

Joseph Cioffi
212.468.4875
jcioffi@dglaw.com