Areas of Practice

 

 


Luskin, Stern & Eisler
is best known as a superior alternative to large firm representation of financial institutions in complex out-of-court workouts, bankruptcy proceedings and related litigation throughout the country.  We frequently work with lender groups in restructurings and chapter 11 proceedings in the hedge fund, project finance, airline, telecommunications, mining, energy, commodities, health care, entertainment, travel, and retail sectors.  Our clients, many of whom we have represented for over 30 years, repeatedly turn to us to unravel complex transactions involving derivatives (including commodity, interest rate hedges and foreign exchange contracts), securitizations and cross-border financings.  We are also frequently called on to replace or supplement an agent’s counsel and take the lead on a restructuring, an enforcement action, or chapter 11 proceedings.


Bankruptcy and Creditors’ Rights

Luskin, Stern & Eisler primarily represents domestic and foreign banks. We also represent international corporations, finance and leasing companies, hedge funds, landlords, trade creditors, bondholders, asset purchasers, claims traders, investors and official and unofficial committees of creditors.  Since its founding in 1989, the firm has been involved in every aspect of bankruptcy proceedings.  Our experience ranges from representation of large lender groups in high profile chapter 11 cases and cross-border insolvency proceedings to individual creditors and trustees in chapter 7 cases and the Financial Oversight and Management Board for Puerto Rico.  Our recent representations include: 

  • Financial institutions as agents and lenders in the Miami Metals I, Inc. (f/k/a Republic Metals Refining Corp.) chapter 11 cases in New York (owner of a precious metals refinery); The Hertz Corporation chapter 11 cases in Delaware (car rental business); the Rochester Drug Co-Operative, Inc. chapter 11 case in Rochester (pharmaceutical distributor); the Garrett Motion Inc. chapter 11 cases in New York (automotive technologies and equipment); the Mineral Park chapter 11 case in Delaware (owner and operator of copper mine); the Midway Gold chapter 11 case in Colorado (owner and operator of gold mine); the AES Eastern Energy chapter 11 cases and the Longview Power chapter 11 cases in Delaware and the Panda Hereford chapter 11 case in Dallas (owners and operators of power plants); the Abengoa Bioenergy US Holding, LLC cases in Missouri (energy); the Abeinsa Holding, Inc. cases in Delaware (energy); the Peabody Energy Corp. cases in Missouri (coal); the Transmar Commodity Group Ltd. cases in New York (commodities); the American Airlines and Republic Airlines chapter 11 cases in New York (airlines); the Primorsk chapter 11 case in New York (ship owner); the Millennium Lab chapter 11 case in Delaware (health care); and chapter 11 cases of middle market companies in a broad range of industries around the country and international companies in cross-border insolvency proceedings.

  • The Financial Oversight and Management Board for Puerto Rico in lift stay and related litigation and in connection with various contract and conflict issues.

  • The Chapter 11 Trustee of Fletcher International, Ltd., a private equity/hedge fund, in the trustee’s wide-ranging investigation of the fund’s financial affairs and the successful confirmation of a liquidating chapter 11 plan.

  • The Chapter 11 Examiner in the Caesar’s Entertainment chapter 11 cases, as conflicts counsel in the examiner’s investigation of certain pre-petition transactions, and preparation of his final report.

  • The Fee Examiner in the Eastman Kodak chapter 11 cases in which we were responsible for reviewing and reporting to the bankruptcy court on the fee applications of over 20 professionals, the Examiner in the North General Hospital chapter 11 case in New York and the Examiner in the Nellson Nutraceutical chapter 11 case in Delaware.

  • A Special Committee of the Board of Directors of a parent company in connection with the chapter 11 case of its subsidiary, which confirmed a plan of reorganization to address thousands of asbestos-related claims.

  • Global multimedia companies as intellectual property licensor and licensee in the chapter 11 case of The Weinstein Company, LLC, a television and film production and distribution company; as intellectual property licensor in the chapter 11 case of Global Eagle Entertainment Inc., a provider of in-flight and on-board entertainment to airlines and cruise lines; in contractual relationships in the chapter 11 cases of Relativity Media, a television and film production and distribution company, as an intellectual property licensor and member of the unsecured creditors’ committee in the chapter 11 case of THQ, Inc., a developer and publisher of video games; and as the largest unsecured creditor in the chapter 11 case of Rdio Inc., a music streaming company.

  • A film studio in chapter 11 cases filed by movie theatre chains in Arizona, Delaware, Florida and Michigan.


Loan Restructurings and Workouts

A large portion of our practice involves the representation of agents, lender groups and individual lenders in the out-of-court restructuring, refinancing and repayment of loans, conversion of debt to equity and acceptance of collateral in satisfaction of debt. We have represented creditors in workouts involving financially troubled companies in a wide spectrum of industries, including companies in the automotive, commodities, energy, real estate and real estate construction, health care, art dealership, airline, aircraft and equipment leasing, manufacturing, retailing, mining, commercial fishing, school construction, radio broadcasting, equipment supply, publishing, entertainment and advertising industries. Much of our restructuring work has involved syndicated loan transactions, including project finance loans, asset and mortgage backed securitizations, collateralized debt obligations, failed leveraged buyouts and roll-ups and the refinancing of senior debt facilities. More specifically, our out of court workout experience includes the following:

  • Energy company restructurings: out-of-court workouts of loans to domestic and international oil and gas producers and companies in the oilfield services industry including the restructuring of reserve based secured loans.

  • Travel company restructuring: restructuring of a travel company through an out-of-court uptiering financing transaction.

  • Hedge fund liquidation: liquidation of a hedge fund through a bespoke process mediated by a former bankruptcy judge that resulted in repayment of counterparty claims arising out of terminated swap transactions without a bankruptcy filing.

  • Hedge fund restructuring: restructuring of the debt of a hedge fund including a syndicated facility secured by equity interests in operating companies and assignment of advisory and investment management agreements.

  • Project finance and infrastructure restructurings: restructuring of troubled project finance loans secured by power plants, ethanol plants, methane projects, alternative energy projects, copper and gold mines, port management and parking facilities. On several of these restructurings, we represented lenders in converting debt to equity and forming entities to take ownership of the projects.

  • Law firm restructuring: the workout of a loan secured by the accounts receivable of an AmLaw 50 law firm.

  • Mining company restructurings: out-of-court restructurings of troubled loan and commodity and FX hedging obligations of a Canadian operator of a gold mine in Brazil and operators of copper mines in Arizona and Mexico.

  • Real estate restructurings:  the workout and restructuring of  multiple loans secured by three office buildings in Manhattan; the workout and restructuring of a loan secured by a condominium development in Miami; the restructuring of a loan secured by a portfolio of commercial buildings in Sacramento; the restructuring of a loan secured by three parcels of land and transferable development rights designated for governmental service agency buildings; the workout and repayment of several defaulted loans to a group of affiliated borrowers secured by golf courses and mixed-use developments; and the workout of a $300 million warehouse line of credit secured by more than 50 loans to landowners and developers.

  • Swap and hedge agreements: the representation of a financial institution with billions of dollars in claims against several hedge funds arising out of the termination of their swaps during the Covid-19 pandemic; workout of exposure on credit default swaps to Ambac, Syncora, Bluepoint, MBIA, CIFG, FGIC, and ACA; the restructuring of interest rate swap agreements held by three financial institutions with the owner of a power generating facility in Arkansas; the workout of the exposure of a group of financial institutions under commodities hedges with the owner of a copper mine under construction in Mexico;

  • Commodities broker restructuring: the workout of margin debt owed by a member of the Chicago Mercantile Exchange.

  • Latin American restructurings: the workout of a loan to Cerro Negro, an oil and gas company owned by the government of Venezuela; insolvency proceedings involving Tribasa, Grupo Acerero del Norte, and Czarnikow Rionda; and the workout of loans to a Brazilian food manufacturer and a Brazilian soybean exporter.

  • Shipping industry restructurings: the workout of syndicated loan facilities secured by containerships, other types of shipping vessels, and assignments of operating charters.

  • Municipality restructurings: the restructuring of bond debt secured by buildings owned by a California municipality and of certificates of participation issued to fund pension liabilities of the City of Detroit.


Commercial Litigation

Our commercial litigation practice focuses on the enforcement and preservation of creditors’ rights in bankruptcy, other federal and state courts, and arbitration proceedings. We represent financial institutions as plaintiffs and defendants throughout the country as well as in cross-border matters. We also frequently litigate in bankruptcy court issues relating to first day orders, use of cash collateral, relief from stay, sale of assets and bidding procedures. The following matters are illustrative of our broad commercial litigation experience:

  • Enforcement of creditor rights: plaintiffs in an action to enforce the terms of a credit facility against a real estate developer; in the foreclosure of a mortgage secured by a retail mall; in various loan enforcement proceedings against a regional fast food franchisee, a hemp processor, a printing company, car dealerships, commercial airlines, real estate developers, energy supply companies and retailers; plaintiffs in actions involving sub-prime and alt-A securitizations, equipment loans and asset based loans; in a fraudulent conveyance action brought by several banks against MBIA, challenging the restructuring of its monoline insurance business; in an action seeking a declaratory judgment with respect to termination of billions of dollars of credit default swaps by FGIC; and in an action involving a massive check-kiting scheme, and as a claimant in related bankruptcy and criminal proceedings.

  • Defense of creditor rights: defendants in a “lender liability” case arising out of the Adelphia chapter 11 case; in a California “lender liability” action arising out of a bankruptcy proceeding and litigation in France; in mortgage “put back” litigation brought by CIFG; and in various preference and fraudulent conveyance actions, including actions to recover “false profits” in Ponzi schemes.

  • Bankruptcy litigation: eight secured lenders in the chapter 11 case of Miami Metals I, Inc. (f/k/a Republic Metals Refining Corporation) in multi-party litigation with the debtors’ former customers over the debtors’ precious metals inventory; mortgagee in the Coltex single-asset real estate chapter 11 case in which we obtained a ruling from the Court of Appeals for the Second Circuit rejecting confirmation of a “new value” plan and significantly limiting the availability of such plans; two music licensors in the chapter 11 case of a failed music streaming company in which we successfully defeated confirmation of a plan prior to solicitation; and a financial institution in litigation with the debtor over the turnover of assets in the possession of a state court-appointed receiver.

  • Contract disputes: a financial institution in a lawsuit commenced by the estate of a former executive concerning change in control benefits.

  • Arbitration: a financial institution in an arbitration relating to ownership interests in an investment management firm.

  • Stay-related litigation: the Financial Oversight and Management Board for Puerto Rico in stay and related litigation in the U.S. District Court for Puerto Rico and in the First Circuit Court of Appeals; a fuel distributor and owner of gas stations in litigation against the operator; and a multimedia company in litigation over extension of the automatic stay to a pending action against the debtor’s officers and directors.

  • Securitization litigation: a financial institution in its capacity as “Owner Trustee” in litigations arising out of residential mortgage and student loan securitizations.


Bank Financing, Asset-Based Lending and Leveraged Finance

Our loan origination practice includes the negotiation and documentation of secured and unsecured revolving and term loans, acquisition loans, asset based loans, real property and construction loans, margin loans, art and other types of personal investment-related loans, letter of credit facilities, industrial revenue bond financings, repurchase agreements, pre-export and other commodities financing for domestic and offshore sellers, chapter 11 debtor-in-possession and exit financings and various types of structured financings. We represent agents and arrangers and participant lenders in syndicated transactions as well as individual lenders in bilateral secured and unsecured facilities. When drafting documents, we incorporate safeguards against the bankruptcy, insolvency and structural risks that we frequently encounter and we advise our clients how best to protect against the potential insolvency of their borrowers and counterparties. Our recent representations include:

  • Commodity financing: revolving loan and letter of credit borrowing base facility to a global exporter of ferrous and non-ferrous metals and its Hong Kong based affiliates; revolving loan and letter of credit borrowing base facility to a BVI-based exporter of metals and its Mexico and Brazil-based affiliates; revolving loan and letter of credit facility to a global exporter of petroleum and its Belgium and UK-based affiliates; facilities secured by precious metals; revolving loan and letter of credit borrowing base facilities to agricultural producers and commodities traders secured by grain, livestock, sugar, coffee and other commodities.

  • Asset based loans: bilateral and syndicated asset-based borrowing base, revolving credit and term loan facilities to companies in a wide variety of industries including an owner/operator of shipping ports; a private oil and gas holding company; oil and gas producers; a frozen food importer and exporter; a manufacturer of chemicals; a metal fabricator; a purchaser of farm subsidies; a consumer products company; a reality TV film company; a finance company that lends to law firms; a natural gas trader; a hemp processor; and a lender to start-up businesses in the oil and gas industry.

  • Real estate financing: the financing of land acquisition for a New York City hotel development project; the refinancing of a 550,000 square foot multi-use building in Manhattan; the financing of shopping centers, office buildings and apartment complexes in Florida, Nevada, California and Washington; and construction financing for a multimedia center in Las Vegas.

  • Acquisition financing: the financing of a public trust for the purchase of a Manhattan office building and the acquisition of a national hotel chain.

  • Revolving credit and term loan facilities: a $1 billion revolving credit facility secured on margin by marketable securities; revolving credit facilities to three feeder funds operating in the Cayman Islands secured by equity interests in hedge funds; a term loan and revolving credit facility to a real estate developer for the refinancing of a multi-use New York City office building; and a $150 million estate tax liquidity facility.

  • Personal investment related loans: bilateral and syndicated facilities to investment funds secured by capital call commitments and to high net worth individuals and their affiliates secured by personal investments such as marketable securities, Rule 144 securities, margin accounts, hedge fund and private equity company interests, fine art collections and aircraft; lender to executives and employees of public and private companies secured by restricted common stock issued under employee stock incentive programs. Repurchase agreements: bilateral repurchase facilities to Latin American sellers of commodities such as coffee, grain and sugar. DIP financing: post-petition financing to numerous chapter 11 debtors.

We are committed to delivering the highest quality representation.  This requires the concentrated focus and total dedication that are best cultivated in a small, specialized firm such as ours, where lawyers and staff work together as a team to respond to clients’ needs in a thorough yet cost-effective manner.

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