On the Pulse…Helping To Make the Best of a Difficult Situation: A Profile of Marshall Dennehey’s Bankruptcy Litigation Practice Group

Defense Digest, Vol. 22, No. 4, December 2016

By Gregory W. Fox, Esq.*

No matter the industry, it can be very challenging when any person or entity integral to your business files for bankruptcy. Whether it is your client, your customer, your insured, your borrower, your lessee, your sub-contractor, your vendor or any other business “partner,” all of a sudden, new rules apply to your business relationship. And successfully navigating this change of landscape is critical to effectively and efficiently moving forward.

The attorneys in Marshall Dennehey’s Bankruptcy Litigation Practice Group have the experience and knowledge to help you do just that. Drawing on extensive experience handling various bankruptcy matters, and with the support of a firm of over 500 attorneys with practices spanning numerous industries, our bankruptcy attorneys have the knowledge, support and creativity to ensure that your interests are protected and that you are able to maximize your opportunities in any bankruptcy situation.

Focus on Defending Bankruptcy Litigation

Stemming from our roots as a civil defense firm, the focus of our bankruptcy practice is defending bankruptcy litigation. Our attorneys defend all manner of bankruptcy-related litigation, including preference and fraudulent-transfer claims, avoidance actions, actions to determine the validity or extent of liens, actions to turn over property, violation-of-stay and violation-of-discharge-injunction proceedings, contract disputes, insurance coverage disputes, director and officer claims, consumer-protection claims and all other types of adversary proceedings.

Some of the most common types of bankruptcy litigation include preference and fraudulent-transfer claims. These claims permit bankruptcy trustees, debtors in possession and sometimes creditors’ committees to sue those to whom the debtor paid money prior to filing bankruptcy in order to “claw back” the money for the benefit of the entire bankruptcy estate. For example, any payment made to a creditor within 90 days of the bankruptcy may be clawed back as an avoidable “preference” if it was made in payment of an antecedent debt and enabled the creditor to receive more than it would have through a bankruptcy liquidation. In addition, any payment made within two years of the bankruptcy (and sometimes longer under applicable state law) may be avoided as a “fraudulent transfers” if it was made either: (1) with the intent to hinder, delay or defraud any creditor; or (2) while the debtor was insolvent (or caused to become insolvent) and in exchange for less than a reasonably equivalent value.

Defending these types of claims can be particularly frustrating to those targeted as defendants because, on top of being sued, such people/entities are often already owed money from the debtor that they will likely never recover in full, or even in part. Indeed, when facing the high probability of bankruptcy-related write-offs, the prospect of having to return additional money previously recovered—and sometimes spent—can be exceedingly tough to stomach.

Fortunately, there are a number of defenses available to these claims. Marshall Dennehey’s bankruptcy attorneys are practiced at identifying and successfully asserting those that apply, leveraging them to achieve an amicable settlement.

Consulting Services Regarding the Impact of Bankruptcy on Defense of Non-Bankruptcy Litigation

Drawing from both our civil defense background and our bankruptcy experience, another main focus of Marshall Dennehey’s bankruptcy practice is advising clients involved in defending non-bankruptcy litigation as to the impact of related bankruptcies on their case. Bankruptcies are often viewed as a roadblock or impediment to litigation. But they don’t have to be. And sometimes they can even give rise to additional defenses or litigation strategies. Our attorneys consult with defendants, their defense attorneys, and/or their insurance companies to efficiently guide litigation impacted by related bankruptcies and to identify and implement strategies to maximize any benefit that might be obtained as a result.

General Services to Creditors

In addition to defending bankruptcy-related litigation and consulting on the impact of bankruptcies on civil defense litigation, Marshall Dennehey’s bankruptcy attorneys are also available to provide a wide range of other services necessary to protect and enforce the rights and interests of our clients who find themselves as creditors in a bankruptcy. Among other things, we prepare, file and defend proofs of claims; we obtain relief from the automatic stay or from any discharge injunction; we challenge dischargeability of debts; we object to reorganization plans that are not in our clients’ best interest; and we routinely advise our clients as to the impact of bankruptcy events on their rights and obligations and the business options that they may have as a result of such events.

Where We Can Help

With offices in both Wilmington, Delaware, and New York, New York, we have a strong presence where the largest corporate bankruptcies are regularly filed. But our geographic reach goes beyond these hotbeds. We have over 20 offices throughout the east coast, and with attorneys regularly practicing in neighboring jurisdictions, our bankruptcy attorneys are poised to efficiently see to your needs in no fewer than 10 different states:

• Connecticut
• Delaware
• Florida
• Kentucky
• Maryland
• New Jersey
• New York
• Ohio
• Pennsylvania
• West Virginia

And if need be, we are also able to partner with local counsel in other venues.

For more information about Marshall Dennehey’s Bankruptcy Litigation Practice Group, please visit http://www.marshalldennehey.com/practice-areas/bankruptcy-litigation.

*Greg is a shareholder in our Philadelphia, Pennsylvania office who can be reached at 215.575.2827 or gwfox@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}