Michael Foreman is a member of the Bankruptcy and Business Reorganization Practice Group in Haynes and Boone's New York office. He has more than 20 years of financial restructuring and bankruptcy experience, representing secured and unsecured lenders and creditors, acquirers of and investors in distressed assets, and reorganizing of financially distressed companies, in many of the nation's largest and most complex restructurings under Chapter 11 of the federal bankruptcy code.
Michael also represents lenders, other creditors, investors and companies in out-of-court and cross-border restructurings, and regularly advises clients in mergers and acquisitions, corporate finance transactions, and internal investigations on corporate governance, accounting and insolvency-related matters. In addition, he provides bankruptcy counseling in the areas of structured financing and securitization.
Michael has been recognized by New York Super Lawyers as a leading bankruptcy and creditors' rights attorney, and regularly lectures and writes on bankruptcy and corporate governance matters.
Representative Experience
Significant Creditor Representations:
- Representation of national bank as indenture trustee, collateral trustee, cash management bank and creditor, including as indenture trustee of securitization trusts organized by American Home Mortgage, as collateral agent and trustee for Second Secured Lien Notes issued by PJ Holley, as indenture trustee for notes issued by Daimler-Chrysler, as cash management bank for General Growth Properties, and creditor of Lehman Brothers Holding Inc.
- Representation of multinational oil and shipping equipment manufacturer as a development contract creditor in the MPF Ltd. and PetroRig Chapter 11 cases.
- Representation of subordinated lenders in the eStyle Chapter 11 case.
- Representation of multinational telecommunications equipment manufacturer as a development contract creditor in the Global Crossing, 360 Networks and Flag Telecom Chapter 11 cases, foreign insolvency proceedings and out-of-court cross-border workouts.
- Representation of national bank as lender or agent in Brooklyn Hospital, Jillian's Entertainment, Far & Wide Corporation Chapter 11 cases and in out-of-court workouts.
- Representation of national telecommunications provider as contract creditor and services provided in the Touch America Chapter 11 case, and as a party in interest in the Cable & Wireless Chapter 11 case.
- Representation of petitioning bondholders in the Multicanal Section 304 ancillary case.
- Representation of credit insurer of $500 million creditor in the Student Finance Chapter 11 case.
- Representation of pre-petition lender in the FrontLine Corporation Chapter 11 case.
- Representation of health-care factor and lender, including as DIP lender in the Med Diversified Chapter 11 case and replacement lender in the National Century Finance Chapter 11 case.
- Representation of education publisher as creditor in the Publishers Group West Chapter 11 case.
- Representation of insider and affiliated creditors and ERISA control group members in Trans World Airlines I Chapter 11 case.
- Representation of creditors in Chapter 11 cases and out-of-court restructurings, including automotive parts suppliers in Chapter 11 cases of General Motors and Chrysler and first and second tier suppliers.
- Representation of creditors, customers and suppliers in Chapter 11 cases, including with respect to adversary proceedings and non-core proceedings.
Significant Distressed M&A Transactions
- Represents The Penn Traffic Company, the operator of supermarkets and related distribution companies with debt exceeding $250 million, and its affiliates as debtors' counsel in their Chapter 11 cases pending in the United States Bankruptcy Court in Wilmington, Delaware.
- Representation of automotive parts supplier with $150 million debt in Section 363 sale of substantially all business units, including the re-negotiation of collective bargaining agreement and OEM customer contracts and the settlement of litigation claims asserted by official unsecured creditors committee against pre-petition lenders and equity holders.
- Representation of television stations owner and operator in the $250 million Chapter 11 pre-packaged plan acquisition of Benedek Communications.
- Representation of real estate investment fund in the $150 million acquisition of the San Juan Ritz Carlton Hotel, Spa & Casino and related mortgage debt, through the confirmation of a mortgagee-sponsored Chapter 11 plan for the hotel owner.
- Representation of multinational hospitality management and food services company in the $100 million Section 363 acquisition of the riverboat business of American Classic Voyages.
- Representation of management group in its $10 million Section 363 acquisition of the government telecommunications business of Metromedia Fiber Networks.
- Representation of investor group in its $10 million acquisition of secured claims against Right Track Recording Studios.
- Representation of children's clothing manufacturer with $150 million debt in the Section 363 sales of certain of its business divisions, and the confirmation of its Chapter 11 plan of reorganization.
- Representation of regional discount retailer with $300 million debt in its Chapter 11 reorganization and subsequent refinancing and sale transactions.
- Representation of United States holding company for an international conglomerate of department and specialty store retailers, shopping, strip mall and commercial real estate developers and owners, regional homebuilders and real estate brokerage unit, with $1 billion debt, including Section 363 sales or liquidations of substantially all of the assets of department store and specialty retailers, Section 363 sales of real estate brokerage unit and commercial and residential real estate properties, restructuring of commercial and residential real estate properties, and settlement of claims and causes of action with provisional liquidators of affiliates in foreign insolvency cases.
- Representation of office equipment manufacturer with $150 million debt in sale of substantially all of the assets and settlement of claims and causes of action with liquidator of parent company in its foreign insolvency case.
- Representation of holding company roll-up of delivery service businesses with $75 million debt in connection with cross-border restructuring and asset dispositions.
- Representation of companies and investors seeking to acquire assets and businesses through Section 363 auction sales and out-of-court distressed asset transactions.
Other Significant Chapter 11 and Out of Court Representations
- Representation of developer of oil and gas production support service projects with $275 million debt in its Chapter 11 case.
- Representation of court-appointed examiner in the $500 million Chapter 11 restructuring of Polaroid Corp. in connection with the examination into allegations of accounting improprieties.
- Representation of telecommunications equipment manufacturer with $1 billion debt in its pre-arranged Chapter 11 restructuring.
- Representation of the Chapter 11 Trustee of a statewide not-for-profit health-care system with $1.2 billion debt, including the confirmation of a consolidated Chapter 11 plan.
- Representation of national consumer products distributors in its acquisition of a specialty foods distribution company.
- Representation of a multi-industry holding company for consumer products companies in the homebuilding and related industries in connection with its $1 billion secured debt restructuring.
- Representation of multinational shipping container owner and syndicator in connection with its $200 million debt restructuring.
- Representation of multinational holding company for companies in the telecommunications and related technology industries in connection with its $125 million debt restructuring.
- Representation of a Mexican telecommunications company in connection with its restructuring of $200 million debt.
- Representation of Argentine cable television company in connection with its restructuring of $150 million debt.
- Representation of partnership owning Manhattan premium office building in connection with its restructuring of $500 million debt pursuant to a Chapter 11 pre-packaged plan.
- Representation of book publisher and video producer and distributor in connection with its restructuring of $250 million debt pursuant to a confirmed Chapter 11 plan.
- Representation of textile and automotive parts supplier in connection with its restructuring of $200 million debt pursuant to a pre-arranged Chapter 11 plan.
- Representation of 200-attorney law firm in connection with its dissolution and resolution of $75 million debt pursuant to a confirmed Chapter 11 plan.
- Representation of owner and franchisor of fast-food restaurant chains in connection with its restructuring of $750 million debt pursuant to a confirmed Chapter 11 plan.
- Representation of specialty homewares retailer in connection with its liquidation and resolution of $100 million debt pursuant to a confirmed Chapter 11 plan.
- Representation of textile manufacturer in connection with its restructuring of $75 million debt.
- Representation of specialty woman's apparel retailer with $50 million debt in connection with its liquidation pursuant to a confirmed Chapter 11 plan.
- Representation of specialty clothing retailer with $50 million debt in connection with its restructuring pursuant to a confirmed Chapter 11 plan.
- Representation of holding company of photo technology retailer and company owning related technology with $50 million debt in connection with its liquidation pursuant to a confirmed Chapter 11 plan.
- Representation of owner of fuel supply and owner/franchisor of gas and automobile service stations with $75 million debt in connection with its restructuring pursuant to a confirmed Chapter 11 plan.
Speeches and Publications
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference, "Rights Offerings in Bankruptcy: Tougher Creditor Challenges, Closer Court Scrutiny, Strategies for Debtors and Creditors Negotiating and Executing a Rights Offering," May 25, 2011.
- "Fundaments of Chapter 11," Haynes and Boone Seminar, "Nuts and Bolts of (International) Insolvency," March 29, 2011.
- Article, "Retiree Benefits and Bankruptcy Code Compliance," Arthur T. Carter, Michael E. Foreman and Samuel Brett Glass, Law360, October 15, 2010.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference, "Valuations of Distressed Companies, Best Practices for Valuing Businesses Before, During and After Bankruptcy or Reorganization," September 2, 2010.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference, "Bankruptcy Reorganization Plans: Recent Trends and Developments, Strategies for Debtors and Creditors to Navigate Complex Plan Confirmation Rules," June 22, 2010.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference, "Real Estate Bankruptcies: The Impact of In re General Growth - Strategies for Real Estate Companies, Lenders and Investors Dealing With Special Purpose Entities," November 4, 2009.
- Speaker, PLI Briefing, "In re General Growth Properties, Inc.: Motions to Dismiss SPE Cases . . . DENIED, " September 11, 2009.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference, "Reorganization Plans and Cram Downs - Strategies for Debtors and Creditors to Navigate Complex Plan Confirmation Rules," July 23, 2009.
- Speaker, New York City Symposium for Corporate Leaders, Breakout Session panelist, "When the Going Gets Tough, the Tough Start Suing: Director and Officer Liability in a Challenging Economy and Practical Advice on What to Do About It," May 7, 2009.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference - "D&O Duties When a Company Faces Insolvency Teleconference: Strategies for Avoiding and Defending Direct and Derivative Lawsuits," October 15, 2008; January 28, 2009; April 28, 2009.
- Speaker, Association of Corporate Counsel - Greater New York CLE Seminar: Bankruptcy and Restructuring for the In-House Lawyer: "A Discussion of Common Topics When The Other Side of a Transaction or a Competitor Files for Bankruptcy," October 16, 2008.
- Speaker, Legal Publishing Group of Strafford Publications CLE Teleconference: "Distressed M&A: Buying and Selling Businesses Facing Financial Trouble," October 29, 2008.
- Speaker, New York State Bar Association: "2008 Practical Skills Program on Basic of Bankruptcy Practice," October 30, 2008.
- Article, "Buying a Troubled Business: Bankruptcy and Other Options," Private Equity Focus, June 26, 2008.
- Article, "In the Zone: New Insolvency Rules," (co-author), The Corporate Board, May/June 2008.
- Article, "Corporate Restructuring: Valuation Litigation is Key Process," Michael E. Foreman and Scott K. Rutsky, National Law Journal, March 5, 2007.
- Article, "Radnor Holdings: Delaware Bankruptcy Court Upholds Lenders' Actions," Michael E. Foreman and Scott K. Rutsky, Metropolitan Corporate Counsel, January 2007.
- Speaker, The Secured Debt Conference, Panel on Distressed Debt and DIP Financing, March 2006.
- Speaker, 7th Annual New York City Bankruptcy Conference, Panel on Property of the Estate and Substantive Consolidation, May 2005.
- Article, "Bankruptcy and Corporate Reorganization: Proposed Chapter 15," Michael E. Foreman and Maryse S. Selit, New York Law Journal, August 26, 2002, 13.
Professional Recognition
- Recognized as a New York Super Lawyer, Bankruptcy and Creditor/Debtor Rights Law (2007-2012)
- Martindale Hubbell® Law Directory with a Peer Review Rating of AV® Preeminent™
Selected Representative Experience
The Penn Traffic Company - Chapter 11
Representation of The Penn Traffic Company and its subsidiaries in their Chapter 11 cases in the Delaware bankruptcy court. At filing, Penn Traffic owned and operated 79 supermarkets in the northeast part of the United States, and had total debt exceeding $250 million and annual revenues approaching $900 million. Following a spirited marketing and sale process, debtors sold substantially all their assets to TOPS Markets, LLC.
Online Publications
02/13/2013 -
Weathering the Storm: Delaware Bankruptcy Court Declines to Designate Votes of Parties to a Post-Petition Restructuring Support Agreement
On January 31, 2013, the Bankruptcy Court for the District of Delaware in In re Indianapolis Downs, LLC declined to designate the votes of parties to a post-petition restructuring support agreement (i.e., a lock-up agreement), instead confirming the Debtors’ Modified Second Amended Joint Plan of Reorganization (the “Plan”) based on the votes of such parties.
11/15/2011 -
Law360 Guest Article: Executory Contracts With Multiple Personalities
Rejection of a contract in bankruptcy may not always accomplish a debtor’s goal to shed ongoing contractual obligations and liabilities, especially when dealing with employee benefit plans.
11/03/2011 -
Weathering the Storm: Can Executory Contracts Have Multiple Personalities? The Fifth Circuit Finds an Asset Purchase Agreement Amended an ERISA Plan
Rejection of a contract in bankruptcy may not always accomplish a debtor’s goal to shed ongoing contractual obligations and liabilities, especially when dealing with employee benefit plans. On October 13, 2011, the Fifth Circuit Court of Appeals highlighted this issue in its opinion in
Evans v. Sterling Chemicals, Inc. regarding the treatment of a pre-bankruptcy asset purchase agreement which contained a provision addressing the debtor-acquiror’s post-closing ERISA retiree benefit plan obligations to its new employees resulting from the transaction.
10/15/2010 -
Carter, Foreman and Glass Guest Column in Law360: Retiree Benefits And Bankruptcy Code Compliance
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.
09/28/2010 -
Weathering the Storm: Third Circuit Rules Regardless of Plan Reservation of Rights Language, Bankruptcy Debtor Must Comply with the Bankruptcy Code to Amend, Modify or Eliminate Retiree Benefits
Once a company files a Chapter 11 bankruptcy petition (to sell its assets, reorganize or liquidate), Bankruptcy Code § 1114 sets forth a detailed procedure for the employer to follow to modify or terminate certain retiree benefits.
12/01/2009 -
In re General Growth Properties, Inc.: Motions to Dismiss SPE Cases....Denied
In the recent heyday of real estate and structured finance, the use of “bankruptcy-remote” special purpose entities (“SPEs”) as borrowers was a fundamental underwriting requirement by lenders, and a critical factor considered by ratings agencies, to shield lenders and their collateral from the potentially adverse impact of bankruptcy filings by their borrowers’ parents and affiliates.
08/25/2009 -
Weathering the Storm: Recent Court Decision Exposes the Reach of a Corporate Family’s Financial Distress to its Bankruptcy-Remote Special Purpose Entities and Their Lenders
In the recent heyday of real estate and structured finance, the use of “bankruptcy-remote” special purpose entities (SPEs) as borrowers was a fundamental underwriting requirement by lenders in many loans, and a critical factor considered by ratings agencies, to shield lenders and their collateral from the potentially adverse impact of bankruptcy filings by their borrowers’ parents and siblings.