Choose Language

  


Professionals




Recent Publications

And the Walls Came Tumbling Down: Issues in U.S. Construction Insolvencies

We are in the midst of arguably the worst economic crisis since the Great Depression. One of the biggest victims of this meltdown is the construction industry, both residential and commercial, which has been hit as hard, if not harder, than any industry in the United States. >>

Fiduciary Duties in Troubled Times

The recent economic tumult brings to the forefront the issue of fiduciary duties in the context of insolvency – an unfortunate circumstance faced by an increasing number of boards of directors and shareholders in these troubled times. >>



Judith Elkin

Partner

New York


1221 Avenue of the Americas
26th Floor
New York, New York 10020
T +1 212.659.4968
F +1 212.884.8228

Areas of Practice

Education

  • J.D., University of Wisconsin, 1981, cum laude
  • B.A., Binghamton University, State University of New York, 1978, summa cum laude

Bar Admissions

  • New York
  • Texas

Court Admissions

  • New York Court of Appeals
  • Texas Supreme Court
  • U.S. Supreme Court
  • U.S. Court of Appeals for the Second Circuit
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Sixth Circuit
  • U.S. Court of Appeals for the Tenth Circuit
  • U.S. Court of Appeals for the Eleventh Circuit
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Eastern District of Texas
  • U.S. District Court for the Western District of Texas
  • U.S. District Court for the Southern District of New York

Judith Elkin is a partner in the Bankruptcy and Business Restructuring section and served as chair of the section for five years. Ms. Elkin has in excess of 25 years of experience representing debtors, creditors, creditors' committees, lenders, trustees, acquirors and other parties in interest in reorganization proceedings and financial restructurings. She is also a bankruptcy litigator with particular expertise in bankruptcy appeals. She speaks frequently on insolvency issues both in the U.S. and internationally, most recently in Madrid and Buenos Aires at the annual meeting of the International Bar Association Section on Insolvency, Restructuring and Creditors' Rights and in the Cayman Islands and Lake Tahoe at programs sponsored by the American Bankruptcy Institute.

Ms. Elkin is currently working on or has completed transactions including:

  • Representation of Calyon (n/k/a Credit Agricole Corporate and Investment Bank) as a multi-million dollar senior secured lender, DIP lender and exit lender to various SemGroup entities. SemGroup is a multi-billion dollar global gatherer, distributor, storer, transporter and marketer of crude oil and refined petroleum products.

  • Representation of Bank of America as agent for the $2.6 billion Century Credit Facility in Adelphia Communications Corp. Chapter 11 case.

  • Representation of Calyon (n/k/a Credit Agricole Corporate and Investment Bank), as a project lender on an electricity generation facility in Missouri, in the Calpine Corp. Chapter 11 case.

  • Representation of Calyon as lender and co-chair of the Unsecured Creditors' Committee in Enron Corp. Chapter 11 case.

  • Representation of Mirant Corporation, one of the world's largest generators and marketers of electricity, in its Chapter 11 restructuring.

  • Representation of asset acquirors in numerous bankruptcy cases involving asbestos liability issues, including in the cases of National Gypsum Company and Federal-Mogul Corporation.

  • Negotiation of settlement of in excess of $50 million of coverage litigation on behalf of Travelers in conjunction with reorganization of United States Brass, manufacturer of polybutylene pipe.

  • Obtained dismissal of $30 million lawsuit against major accounting firm and successfully defended judgment through denial of petition for writ of certiorari to U.S. Supreme Court.

  • Representation of AMR (American Airlines) in its acquisition of certain international routes from TWA in its Chapter 11 case.

  • Representation of Unsecured Creditors' Committee in successful restructuring of El Paso Electric Co., $2 billion electric utility.

  • Representation of Highland Capital, a major shareholder and potential acquiror, in Delphi reorganization case.

Representative Case Involvement

  • Adelphia Communications Corp.
  • ATA Airlines, Inc.
  • Calpine Corporation
  • Delphi Corp.
  • El Paso Electric Company
  • Enron Corporation
  • Federal-Mogul Corporation
  • General Motors Corp.
  • Mirant Corporation
  • SemGroup L.P.
  • United States Brass Corporation

Professional Recognition

  • Recognized in Best Lawyers in America - Bankruptcy and Creditor-Debtor Rights Law (Woodward/White, Inc., 2005-2010)
  • Recognized as a Super Lawyer - Bankruptcy and Creditor/Debtor Rights Law (2008, 2009, 2010)

Selected Representative Experience


Federal-Mogul Corporation
The Flexitallic Group purchased assets from a corporate predecessor of Federal-Mogul. Some of those assets had been used in the manufacture of asbestos containing products prior to their purchase by Flexitallic. Federal Mogul was in bankruptcy because it was being sued for billions of dollars of asbestos liability. Flexitallic was named in some of those lawsuits even though it had never manufactured a product using asbestos in the US. The Bankruptcy Code section 524(g) provides for third parties to obtain permanent injunctions from asbestos liability that it derivative of that of the debtor in certain circumstances. After over seven years of work, Flexitallic was able to obtain this permanent injunctive relief.

Delphi Corporation
Representation of a hedge fund that was both a major creditor and equity holder of Delphi. The fund sought to serve as a lead plan proponent with the Debtors. The fund's proposal was determined not to be the highest and best proposal. Delphi ultimately confirmed another plan of reorganization with the assistance of the U.S. government and General Motors in conjunction with the GM Chapter 11 case. Creditors received significantly less than they would have received under the original plan proposal.

Creditor's Committee Representation - El Paso Electric Company
Represented the Official Creditors’ Committee in the Chapter 11 case of El Paso Electric Company, the second investor owned public utility to file bankruptcy since the 1930’s. The case involved complex issues regarding the financing of El Paso’s investments in a nuclear power plant and the impact of recently enacted federal deregulation of the power industry. The case was concluded through the successful issuance of new public securities to refinance the pre-bankruptcy debt that totaled over $2 billion.

Calpine - Energy
Represented Calyon (now known as Credit Agricole Corporate and Investment Bank) as a project finance lender for the construction of a power plant. Successfully forced sale of power plant which resulted in payment in full in less than a year.

Creditor Committee Representation - Enron
Represented Calyon S.A. (now known as Credit Agricole Corporate and Investment Bank), the co-chair of the Official Committee of Unsecured Creditors in Enron's epic Chapter 11 bankruptcy case.

General Wireless, Inc.
Represented $50 million unsecured creditor Hyundai Electronics America (HYNIX) in the Chapter 11 case of a wireless telecommunications company that acquired its licenses from the FCC in the highly controversial C-block auctions.

United States Brass
Represented Travelers Insurance in negotiating plan treatment of $50 million in disputed insurance coverage as part of the restructuring of this polybutene pipe manufacturing suffering from millions of dollars of product liability claims.

Acquisition - Sfuzzi Assets
Represented the founder and principal shareholder of Sfuzzi, Inc. in his successful bid to re-acquire control of the Sfuzzi restaurant chain out of its bankruptcy pending in the United States Bankruptcy Court for the Northern District of Texas.

First Japanese Bank Real Estate Restructuring
Represented a syndicate of Japanese banks in connection with their first ever restructuring of a real estate credit facility in the United States, the $300,000,000 corporate headquarters of 7-Eleven, Inc.

America West Airlines
Represented GE Public Finance as lender to America West Airlines for the construction of the baggage handling system at the new Denver Airport. Successfully obtained payment in full for client before confirmation of plan because of threat of not allowing completion of project.

Fedders North America, Inc.
Represented Highland Capital Management, L.P. as secured lender in confirmed Chapter 11 case. Highland was a co-proponent of the plan of liquidation. Highland and the other lenders are also defendants in a lawsuit brought by the successor to the unsecured creditors' committee alleging multiple causes of action. In May 2009, the court issued a ruling, dismissing all claims against the lender defendants, including Highland, other than the aiding and abetting breach of fiduciary duty claim. We are currently defending Highland with regard to the remaining claim.

Adelphia
Represented Bank of America, as agent for $2.5 billion credit facility owed by various Adelphia entities, in Adelphia’s Chapter 11 bankruptcy case. Successfully obtained payment in cash in full for clients when cable operations were sold to Time Warner and Comcast. Continue to represent Bank in related litigation.

Debtor Representation - Mirant Corporation
Represented Mirant Corporation and certain of its direct and indirect subsidiaries in their Chapter 11 cases in Fort Worth. Mirant was an international company whose core business is the production and sale of electricity and electrical capacity. The Mirant Corporation bankruptcy is the largest bankruptcy case ever filed in Texas.

East Texas Steel Company
Represented the Creditors’ Committee in the Chapter 11 case of this steel company in which our attorneys secured bankruptcy court approval to run an auction of the company’s assets. The success of the Committee in putting the company on the market led to the company’s parent infusing sufficient cash into the company to permit a near full recovery to unsecured creditors.

AmeriTruck
Represented Volvo Finance as a major secured creditor and lessor in the bankruptcy case of this nationwide trucking company filed in Dallas, Texas.

$2.48 Billion Multi-Facility Finance - Cable Company
Represented the administrative agent in connection with the workout and eventual bankruptcy of a cable television company, resulting in a 100 percent collection of all indebtedness (subject to continuing litigation).

SemGroup
Represent Calyon (now known as Credit Agricole Corporate and Investment Bank) as a secured lender and potential DIP lender to various SemGroup entities. SemGroup is a multi-billion dollar global distributor and transporter of oil and gas and asphalt. SemGroup and several of its subsidiaries are in Chapter 11. Calyon is also a secured lender to other SemGroup entities that are not currently in bankruptcy.

Debtor Representation - Merchants Fast Motor Lines, Inc.
We represented this debtor-in-possession and its subsequent trustee in the orderly wind-down of this major national trucking company. Merchants was formerly the second largest less than truckload trucking company in Texas with operations in 48 states. The restructuring involved numerous environmentally contaminated truck terminals, union termination issues, and hundreds of personal injury claims. Later we represented the liquidating trustee in winding up the affairs of Merchants and the sale of its remaining assets.

Michael Petroleum
Representation of this petroleum company in their Chapter 11 proceedings involving a pre-arranged plan and a 363 sale.

Memberships

  • American Bar Association: Litigation Section (Co-Chair, Bankruptcy and Insolvency Litigation Committee, 1997-2001), Section of Business Law (Business Bankruptcy Committee)
  • International Bar Association: Section on Insolvency, Restructuring and Creditors' Rights: (co-chair of the Creditors' Rights Subcommittee, 2006-2008; vice chair 2009-2010)
  • American Bankruptcy Institute
  • International Women's Insolvency & Restructuring Confederation (IWIRC) (Vice Chair, Executive Committee member)
  • Bar Association of the City of New York
  • Dallas Zoological Society: Board of Directors and Executive Committee member 2000-2004
  • Wildlife Conservation Society

Online Publications

Weathering the Storm: Charter Communications Decision Allows Reinstatement of Debt
Many companies secured their financing several years ago when the credit market featured advantageous pricing and loose loan covenants. Because these favorable terms would be impossible for borrowers to obtain in today’s lending environment, many viable companies with highly leveraged capital structures are looking for strategies to restructure debt. Charter Communications (“Charter”), the country’s fourth largest cable television company, took a gamble during, arguably, the most challenging period in the modern era of global corporate finance.  See how the company's bold moves paid off. 

10/04/2009 - And the Walls Came Tumbling Down: Issues in U.S. Construction Insolvencies
We are in the midst of arguably the worst economic crisis since the Great Depression. One of the biggest victims of this meltdown is the construction industry, both residential and commercial, which has been hit as hard, if not harder, than any industry in the United States.

08/01/2009 - Fiduciary Duties in Troubled Times
The recent economic tumult brings to the forefront the issue of fiduciary duties in the context of insolvency – an unfortunate circumstance faced by an increasing number of boards of directors and shareholders in these troubled times.

07/20/2009 - Weathering the Storm: Fiduciary Duties of Officers and Directors in Troubled Company Situations
Directors and officers managing corporations, especially when the corporation is insolvent or operating in insolvency situations, need to be cognizant of their fiduciary duties. This alert provides a brief overview of these fiduciary duties, including practical considerations in the exercise of these duties.

07/01/2009 - Weathering the Storm: The Appointment of an Examiner
With the economic crisis leading to the failure of many businesses, bankruptcy cases are on the rise. In many of the cases grabbing headlines, such as Lehman Brothers, Nellson Nutraceutical, New Century and SemCrude, courts have shown a willingness to appoint examiners to investigate, report on and make recommendations regarding possible issues of mismanagement, fraud or other improprieties relating to the affairs of the debtor or its former or current management.

04/30/2009 - Weathering the Storm: Recent Decision Creates Additional Cash Requirements to Reorganize
On April 8, 2009, the Second Circuit Court of Appeals issued a ruling that creates an additional hurdle for companies providing single-employer pension funds when seeking to reorganize through a bankruptcy. In general, the termination of a pension plan can give rise to a per-employee termination premium (a “Termination Premium”) owed by the company terminating the plan to the Pension Benefit Guaranty Corporation (“PBGC”), the quasi-governmental entity that insures pension plans.

03/05/2009 - Chapter 15 of the U.S. Bankruptcy Code: New Procedures for Cross Border Insolvencies
The Bankruptcy Abuse, Prevention and Consumer Protection Act of 2005, which was signed into law in the United States on April 20, 2005 and became effective, for the most part, on October 17, 2005, creates a new chapter of the United States Bankruptcy Code (11 U.S.C. 101, et seq., as amended) (the “Bankruptcy Code”) – Chapter 15.

08/30/2007 - Enron--Appellate Court Overturns Ruling on Equitable Subordination and Claims Disallowance
‘Taint Clear: “Purchased” Claims are Not Subject to Equitable Subordination or Disallowance Based Solely on Seller’s Conduct, but Purchaser’s Knowledge of the Seller’s Conduct May Be Fatal

04/12/2007 - Supreme Court Holding Allows Bankruptcy Proofs of Claim to be Amended to Recover Attorneys' Fees
On March 20, 2007, the United States Supreme Court issued a unanimous opinion in Travelers Casualty & Surety Co. of America v. Pacific Gas & Electric Co., No. 05-1429, 2007 WL 816795 (March 20, 2007), holding that a creditor may supplement its unsecured claim in a bankruptcy case to recover contract-based attorneys’ fees incurred during the bankruptcy case through the litigation of bankruptcy law matters.
 

Professionals

Services

Experience

Firm

Newsroom

Events

Careers

Locations
© 2010 Haynes and Boone, LLP: All rights reserved
Terms    Privacy Policy   Attorney Advertising