In the News

Lehman Brothers Announces Settlement to Resolve Massive RMBS Claims; Estimation Hearing Slated for Later This Year

September 1, 2017

Daniel A. Lowenthal

For over eight years, In re Lehman Bros., No. 08-13555-scc (Bankr. S.D.N.Y.), has been one of the most active, complex bankruptcy dockets in the country. A large portion of the remaining contested matters in that case are claims by trustees for residential mortgage backed securities (RMBS), who continue to pursue claims against the Lehman estate for losses caused by toxic mortgages. Recent developments show that Lehman is trying to wrap up many, if not most, of those RMBS claims by the end of this year.

Most practitioners are aware of the events surrounding Lehman’s bankruptcy filing in 2008, but fewer have followed the long road that the RMBS claims in the case have traveled. Prior to the bar date in 2009, the RMBS Trustees filed proofs of claim for hundreds of trusts, covering hundreds of thousands of mortgage loans. Lehman eventually agreed to reserve $5 billion for payment of those RMBS claims.

In December 2014, the Bankruptcy Court ruled against the RMBS Trustees: rejecting the Trustees’ request to increase that reserve amount, Judge Chapman agreed with Lehman that the Trustees could not use sampling for purposes of estimating Lehman’s liability on claims. While Judge Chapman recognized that sampling had been used in connection with RMBS claims in other bankruptcies (such as the ResCap case), and that sampling was regularly used in RMBS litigation brought by monoline insurers, she declined to authorize it in the Lehman bankruptcy.

Instead, Judge Chapman implemented an RMBS Claim Protocol that called for individual review of over 200,000 loan files and instructed the RMBS Trustees to submit claims for alleged breaches and misrepresentations on a loan-by-loan basis to Lehman. The Protocol established a time table for review and submission of claims to the Lehman estate, and contemplated that the Trustees would complete their review of loan files by early 2016.

The RMBS Trustees worked to meet the benchmarks for review of loan files, but disputes over resolution of the claim files persisted. By September 2016, only a small percentage of claims had been resolved.

Spurred by the deadlock, earlier this year Lehman announced that negotiations with a group of institutional investors (including Blackrock and Goldman Sachs’s asset management wings) had yielded a potential agreement to resolve the RMBS claims. In March 2017, those institutional investors presented the proposed settlement agreement to the RMBS Trustees for consideration and solicitation of certificateholder input. On June 1, the RMBS Trustees announced that they had accepted the settlement agreement on behalf of over 240 trusts.

Lehman filed a 9019 motion for approval of the settlement agreement. At a hearing on July 6, Judge Chapman approved the settlement agreement as fair and reasonable under the extraordinarily complex circumstances. The Southern District of New York recently affirmed that determination, clearing the way for the procedures set forth in the settlement agreement.

Under the settlement agreement procedures, Lehman and the trustees will forgo the Claim Protocol and proceed to an estimation hearing, pursuant to section 502(c), on almost all of the RMBS claims. (A handful of trusts either opted out of settlement or have liquidated; those trusts are not included in the estimation hearing procedures.)

According to the settlement agreement, at the estimation proceeding Lehman will ask the Court to estimate the RMBS claims in an amount no less than $2.416 billion. The RMBS Trustees have the ability to seek estimation at a higher amount and likely will argue that the claims are worth more than $2.416 billion. Both Lehman and the RMBS Trustees are expected to present expert testimony during the estimation hearing and call additional witnesses to testify.

The parties have requested that the Bankruptcy Court schedule the estimation proceeding as early as October 2017. The parties anticipate the estimation proceeding will last 14 days, with time equally allocated between sides.

The estimation hearing will be a major showdown between the Lehman estate and the RMBS Trustees who have litigated these claims for years. We are continuing to monitor this case closely and will provide updates as events unfold.

First Circuit Clarifies the Scope of the Bankruptcy Court’s Jurisdiction in Civil Proceedings

August 18, 2017

Daniel A. Lowenthal

Recently, in Gupta v. Quincy Medical Center, 858 F.3d 657 (1st Cir. 2017), the U.S. Court of Appeals for the First Circuit clarified the limits of the bankruptcy courts’ subject-matter jurisdiction over civil proceedings. The decision, authored by Judge Lipez and joined by retired Supreme Court Justice David Souter (sitting by designation), provides a thorough analysis of the bankruptcy courts’ jurisdiction in such cases.

The decision hinges on the Court’s interpretation of 28 U.S.C. § 1334, the foundation of the bankruptcy courts’ jurisdiction. Under § 1334(a), the bankruptcy courts (via referral from the district courts) have original jurisdiction over petitions for relief under the Bankruptcy Code. Under § 1334(b), the bankruptcy courts have jurisdiction over other civil proceedings “arising under,” “arising in,” or “related to” cases filed under the Code. In Gupta, the First Circuit wrestled with the bankruptcy courts’ jurisdiction under § 1334(b).

Gupta involves claims for severance payments by former senior executives of the debtor, a hospital in the Boston suburbs. Shortly after filing its chapter 11 petition, the debtor sold its assets in a 363 sale. The asset purchase agreement (APA) obligated the purchaser to make severance payments to employees who were terminated after the sale.

The order approving the 363 sale provided that the bankruptcy court would retain jurisdiction over any disputes arising under or related to the sale contract. The debtor’s plan and the confirmation order also each provided that the bankruptcy court would retain exclusive jurisdiction to enforce orders providing for the sale of the debtor’s property.

Immediately after the sale closed, the purchaser terminated the executives. The executives sought an order from the bankruptcy court requiring payment of severance, as provided in the APA. The bankruptcy court held it had jurisdiction over the executives’ claims, emphasizing the retention of jurisdiction provisions in the sale order, plan, and confirmation order. After an evidentiary hearing, the bankruptcy court entered an order finding the purchaser liable to the executives for the severance pay.

The Court of Appeals held that the bankruptcy court’s jurisdictional analysis was wrong. The First Circuit agreed that the bankruptcy courts (like all federal courts) retain jurisdiction over the interpretation and enforcement of their prior orders, but stressed that “a bankruptcy court may not ‘retain’ jurisdiction it never had—i.e., over matters that do not fall within § 1334’s statutory grant.” Thus, if the bankruptcy court never had jurisdiction over the executives’ claims in the first place, the fact that the sale order, plan, and confirmation order purported to “retain” that jurisdiction was irrelevant.

In conducting its analysis, the bankruptcy court had never analyzed whether it purported to have “arising under,” “arising in,” or “related to” jurisdiction under § 1334(b). On appeal, the First Circuit undertook that analysis.

The First Circuit quickly rejected “arising under” jurisdiction (which exists where the Bankruptcy Code itself creates the cause of action) because Massachusetts contract law—not the Code—created the executives’ claims for severance pay.

Likewise, the Court rejected “related to” jurisdiction, which concerns claims that potentially may have an effect on the bankruptcy estate. The executives’ claims for severance pay against the purchaser, the Court of Appeals reasoned, could not conceivably impact the debtor’s estate.

The only remaining possibility was “arising in” jurisdiction. But the Court found that lacking, as well. The Court rejected the executives’ argument that the bankruptcy court had “arising in” jurisdiction because, but-for the existence of the debtor’s bankruptcy, their severance pay claims would not exist. It is not enough, the Court held, that a claim arose in the context of a bankruptcy case; in doing so, the Court specifically rejected the executives’ reliance on a “but for” test. Rather, the Court held, “for ‘arising in’ jurisdiction to apply, the relevant proceeding must have no existence outside of the bankruptcy context.” In other words, “the fundamental question is whether the proceeding by its nature, not its particular factual circumstance, could arise only in the context of a bankruptcy case.” (emphasis in original) This standard, the Court concluded, was not met: the executives’ claims as “essentially employment disputes” based on state contract law, and thus “look like [claims] that could have arisen entirely outside the bankruptcy context.”

It is no doubt tempting for practitioners and bankruptcy courts to include retention of jurisdiction clauses into orders resolving disputes in bankruptcy litigation. Gupta, however, suggests that such clauses might not be reflexively followed and that the jurisdictional foundation of the bankruptcy courts’ rulings in civil proceedings may be subjected to scrutiny.

Mr. Lowenthal, Chair of the firm’s Business Reorganization and Creditors' Rights Practice, has earned recognition as a skilled advocate in the bankruptcy, creditors' rights, and corporate restructuring arena. He represents creditors' committees, trade creditors, indenture trustees, and bankruptcy trustees and examiners in domestic and international cases.

Mr. Lowenthal recently served as counsel to the court-appointed Examiner in the chapter 11 cases of FTX Trading Ltd. and its affiliates. In this position, he investigated issues critical to the FTX bankruptcy cases, including potential conflicts of interest and fraudulent transfers, that were summarized in two publicly filed reports.

Mr. Lowenthal also represents U.S. and non-U.S. business entities in a wide range of complex litigation issues, including creditors’ rights disputes, purchases of intellectual property assets, and distressed debt acquisitions and restructuring. He has achieved numerous favorable results for clients in trial and appellate courts as well as commercial arbitration. Recently, he successfully defended former executives of a failed European bank against allegations that they had defrauded investors.

A regular speaker on bankruptcy law topics, Mr. Lowenthal recently presented for the American Bankruptcy Institute, the Practising Law Institute, INSOL International, INSOL Europe, and the Association of Corporate Counsel. Most recently, Mr. Lowenthal was a member of INSOL Europe’s 2023 Amsterdam Congress Technical Committee. He has been recognized by JD Supra’s Readers’ Choice Awards as one of the top ten authors in the Bankruptcy category from 2023-2026. Mr. Lowenthal has received Martindale-Hubbell’s highest rating of "AV Preeminent" based on both peer and client reviews and has been named to The Best Lawyers in America in the area of Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law. He has also been named by Super Lawyers in the areas of bankruptcy: business and business litigation. Lastly, Mr. Lowenthal has been named to the 2022-2026 editions of the Lawdragon 500 Leading U.S. Bankruptcy & Restructuring Lawyers guide.

Representative Matters

Represented court-appointed Examiner in chapter 11 cases of FTX Trading Ltd., including assisting him with various investigations summarized in two publicly filed reports.

Represented foreign administrators of a global alternative energy company in its chapter 15 cross-border bankruptcy case, successfully petitioning the court for the return of over $28 million held in a U.S. bank account.

Representing noteholders of a Brazilian company in a lawsuit arising from a debt default.

Representing the Oversight Committee for a post-confirmation liquidating trust in the Southern District of Texas.

Representing the Indenture Trustee for a series of unsecured notes in connection with an Italian insolvency proceeding and a related chapter 15 case.

Represented a bidder in a competitive auction to acquire the assets of a chapter 11 debtor.

Lead counsel to the Official Committee of Unsecured Creditors of multi-state real estate developer with liabilities in excess of a billion dollars. The Bankruptcy Court praised the “remarkable results” achieved through the “extraordinary efforts” of Patterson Belknap attorneys in this case.

Representing an international financial institution as Indenture Trustee in cross-border insolvency cases pending in Grand Cayman and Hong Kong.

Represented an Indenture Trustee and Co-Chair of the Official Committee of Unsecured Creditors on over $5 billion of unsecured debt in one of the largest, most complex cases ever filed in Delaware, the Energy Future Holdings Corp. cases.

Represented an Indenture Trustee in the Nortel Networks Inc. cross-border cases, a set of insolvency cases filed in the U.S., the U.K., and Canada.

Represented an Indenture Trustee on bonds governed by New York law in an insolvency case in London.

Represented an Indenture Trustee on $1.7 billion of unsecured debt in the Washington Mutual, Inc. case.

Representing a former member of the Board of Directors in The Weinstein Company Holdings bankruptcy case.

Represented an international law firm in a proceeding before the U.S. Bankruptcy Court relating to conflicts of interest in a Chapter 11 representation.

Represented the winning bidder in an auction to acquire the assets and intellectual property from a Chapter 7 debtor over the objection and competing bid of the debtor’s secured lender.

Special litigation counsel to an Official Committee of Unsecured Creditors to investigate fraudulent conveyance claims.

Conducted an internal investigation of a multi-national law firm following its role in a large Chapter 11 bankruptcy case.

Representing the Post-Confirmation Trustee in the Tarragon Corporation case.

Special litigation counsel to a Chapter 7 trustee in the bankruptcy of an employee leasing company.

Represented an Indenture Trustee in the Nortel Networks Inc. cross-border cases, a set of insolvency cases filed in the U.S., the U.K., and Canada.

Represented the Liquidating Trust Board in the TerreStar Networks Inc. case.

Represented the Trust Oversight Committee in the Disney retail store chain case.

Represented Harrison J. Goldin, an Examiner in the Enron Corp. case, in an investigation of many of Enron's special-purpose-entity transactions.

Representing international creditors, including entities in the U.K., the Netherlands, and Germany, in the Lehman Brothers Holdings Inc. case.

Represented a Scottish aviation company in the Hawker Beechraft Corporation case.

Defending a reinsurance company in a fraudulent conveyance lawsuit brought by creditors of Tribune Company in U.S. Federal Court.

Representing a Mexican creditor in the Stanford International Bank Ltd. case.

Obtained a favorable result on behalf of the largest private bank in Brazil in connection with the Chapter 15 case of a Brazilian company.

Represented the Retiree Committee in the U.S. Airways, Inc. case, including serving as trial counsel on the debtor’s motion to eliminate retiree benefits.

Won a crucial decision of first impression for financial institutions whose security interests were challenged by the bankruptcy trustee in The Bennett Funding Group, Inc. case, a case that stemmed from an alleged $1 billion Ponzi scheme.

Represented the Official Committee of Unsecured Creditors in the STAR Telecommunications, Inc. case.

U.S. Courts of Appeals, Second Circuit; Third Circuit
U.S. District Court, Southern, Eastern and Northern Districts of New York
New York

MEMBERSHIPS: American Bar Association; Bankruptcy and Corporate Reorganization Committee of the New York City Bar Association; American Bankruptcy Institute; Board of Editors, The Bankruptcy Strategist; INSOL International; INSOL Europe (2023 Amsterdam Congress Technical Committee); Turnaround Management Association and the New York Institute of Credit.

"Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?" The Bankruptcy Strategist (April 30, 2026)
"Federal District Court Ruling Upholds Uptier Transactions," INSOL International (February 18, 2026)
"Judge Blasts Defendant for Ignoring Discovery Obligations and More," Law.com (January 27, 2026)
"Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable," The Bankruptcy Strategist (October 1, 2025)
"The Divestiture Rule Explained: A Judge-Made Doctrine Doesn’t Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction," The Bankruptcy Strategist (June 30, 2025)
"Non-Creditor Was Entitled to Actual Notice of A Chapter 11 Plan's Injunction Barring Suits Against Insurance Carriers," The Bankruptcy Strategist (May 14, 2025)
"Formal & Informal Negotiation ASAP!" Eurofenix, the Journal of INSOL Europe (Spring 2025)
"A Primer on Chapter 11 Trustees & Examiners," New York Law Journal (April 9, 2025)
"The Barton Doctrine: Suit Against Receiver Did Not Require Court Permission," The Bankruptcy Strategist (March 31, 2025)
"Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss," The Bankruptcy Strategist (November 2024)
"Ch. 11 Ruling Shows Early Attempt To Tackle Purdue Fallout," Law360 (September 5, 2024)
"Courts Split Over Requirement for Chapter 15 Jurisdiction In the U.S.," The Bankruptcy Strategist (June 2024)
"Bankruptcy Courts Have Contempt Power, Del. Case Reminds," Law360 (May 14, 2024)
"Bankruptcy Ruling Stresses Value of Client Communication," Law360 (March 25, 2024)
"Navigating Asset Tracing Challenges in Bankruptcy," Law360 (December 11, 2023)
"Section 363 Ruling Lines Up With Avoidance Action Precedent," Law360, (September 26, 2023)
"Post-Siegel Trustee Fee Rulings Further Debtor-Friendly Trend," Law360, (June 9, 2023)
"A Curious Bankruptcy Case Where Bad Behavior's Overlooked," Law360, (April 14, 2023)
"Substantial Contribution: a New Decision from the 3rd Circuit," Westlaw Today, (January 11, 2023)
“U.S. Bankruptcy Court Denies Chapter 15 Recognition to a Case on the Isle of Man,” The Bankruptcy Strategist, (January 2023)
"FTX Bankruptcy Provides A Road Map For Crypto Regulation" Law360, (December 1, 2022)
"What to Do If Your Tenant Is Bankrupt" American Bar Association, (November 29, 2022)
"Bankruptcy Ruling Provides Clarity On Administrative Priority" Law360, (October 28, 2022)
"Golf Project Ch. 11 Ruling Is A Deal Term Negotiation Lesson" Law360, (August 29, 2022)
"Examining Equitable Mootness After High Court Ch. 11 Denial" Law360, (July 2022)
"Recent Decision on Derivative Standing by a Creditors' Committee to Challenge a Lender's Liens" INSOL International News Update, (November 2021)
"The Impact of the CARES Act on US Consumers, Small Businesses, Bankruptcy and Insolvency Laws and Procedures" International Corporate Rescue, (May 2020)
"Bankruptcy Sales Under Section 363: The Business Judgment Test That Judges Often Cite Isn't Always the One They Use" Norton Journal of Bankruptcy Law and Practice, (February 2020)
"Bankruptcy Courts Don’t Need to Hold an Evidentiary Hearing in Order to Appoint a Chapter 11 Trustee" National Association of Credit Management, eNews, (January 2020)
"Court Decision Discusses the Barton Doctrine and the Automatic Stay in Chapter 15," INSOL International News Update, (December 2019)
"A Bankruptcy Code Chapter 15 Primer: Decision in New York Addresses Key Issues of Jurisdiction, Recognition, Public Policy, and More," INSOL International News Update, (November 2019)
Contributor to the Firm's Bankruptcy Update Blog
"New York Bankruptcy Court Issues Ruling on Recognition of Foreign Proceedings," INSOL International News Update, (September 2019)
"Buyers vs. Tenants in a Bankruptcy Sale A Tension Between §§363(f) and 365(h)," New York Law Journal, (June 2019)
Co-Author "The 'Substantial Contribution' Test for Indenture Trustees," ABI Journal, (February, 2019)
"Chapter 15: Court Permits Foreign Debtors to Access and Receive Funds in U.S. Account," INSOL International News Update, (February, 2019)
Co-Author "SCOTUS Recap: What Lies Ahead For the Lower Courts’ Tests for ‘Non-Statutory Insiders’," The Bankruptcy Strategist, (May, 2018)
"Venezuelan Debt Crisis Intensifies as Its Leaders Ponder Responses," Journal of Corporate Renewal, (March, 2018)
"Chapter 15: U.S. Creditor Required to Seek Recovery in Foreign Main Proceeding," INSOL International News Update, (February, 2018)
"Federal judge joins others, says bankruptcy court not allowed to impose punitive sanctions," Legal Newsline, (January, 2018)
"Retail Woes Mount as List of Troubled Companies Grows," Journal of Corporate Renewal, (June, 2017)
"In re Creative Finance Ltd: Chapter 15 Case Dismissed," INSOL International News Update, (February, 2016)
“Rights of Trade Creditors in the US,” Eurofenix, The Journal of INSOL Europe, (Spring 2015)
"Tough Choices Confront Trade Creditors When a Retailer Faces Bankruptcy," Journal of Corporate Renewal, (October, 2014) and the Sydney (Australia) Insolvency News, (February 3, 2015)
"Equitable Mootness: Two Recent Third Circuit Decisions," The Bankruptcy Strategist, (January, 2014)
"Stanwich Clarifies Wagoner Rule in Fraudulent Transfer Cases," Journal of Corporate Renewal, (October, 2013)
"Section 365(o) Coming into Focus," The Bankruptcy Strategist, (January, 2011)
"The Absolute Priority Rule: An Analysis in Terms of Armstrong World Indus., Inc.," The Bankruptcy Strategist, (June, 2006)
"Revisions to Bankruptcy Code Sections 365 and 366," The Bankruptcy Strategist, (April/May, 2005)
"Critical Vendor Actions: Paying Vendors to Supply Chapter 11 Debtors," The Bankruptcy Strategist, (June, 2003)
"Fraudulent Conveyance of Licenses Auctioned by the FCC: The 5th Circuit View," The Bankruptcy Strategist, (December, 2000)
"Analyzing Letter of Credit Issues in the Bankruptcy Context," The Bankruptcy Strategist, (June, 1998)
"3d Circuit Offers Primer on Valuing Debtor's Assets, Liabilities," The Bankruptcy Strategist, (April, 1998)
"Is a 'Mere Conduit' an 'Initial Transferee' Under Section 550?," The Bankruptcy Strategist, (March, 1998)

The George Washington University Law School (J.D., with honors, 1987)
Duke University (A.B., magna cum laude, 1982)

Recent Speaking Engagements

"Dissecting the Role of Chapter 11 Examiners and Trustees," Celesq Webinar (April 17, 2025)
"Formal and Informal Negotiation ASAP!" INSOL Europe's 2024 Congress in Sorrento, Italy (October 4, 2024)
"Tracing and recovery of debtor's assets by insolvency practitioners," INSOL Europe Annual Congress in Amsterdam (October 13, 2023)
"Are Bankruptcies/Insolvencies/Restructurings Returning?," SCG Legal's Midyear Meeting in Berlin, Germany - Panel Moderator (May 12, 2023)
“An Overview of Chapter 11,” Conseil National des Administrateurs Judiciaires et des Mandataires Judiciaires in La-Colle-sur-Loup, France (June 10, 2022)
“Equitable Mootness: What Should the Law Be?” American Bankruptcy Institute’s Annual Spring Meeting in Washington, D.C. (April 29, 2022)
"Chapter 15 at 15," New York City Bar Committee on Bankruptcy and Corporate Reorganization — Event Co-Chair (May 12, 2021)
“Venezuelan Debt Crisis and Related Social and Political Issues,” New York City Bar Committee on Bankruptcy and Corporate Reorganization (June 19, 2019)
"Asset Sales in Bankruptcy,"American Bankruptcy Institute's New York City Bankruptcy Conference (May 22, 2019)
"Venezuelan Debt Crisis," Expert Webcast (October 11, 2018)
"Cross-border Bankruptcy Issues," American Bankruptcy Institute's New York City Bankruptcy Conference (May 24, 2018)
"Cross-border Insolvencies," Fashion Institute of Technology State University of New York, International Finance Class (May 3, 2018)
"Cross-Border Panel," American Bankruptcy Institute's New York City Bankruptcy Conference (May 18, 2017)
“Cross-Border Insolvency Concepts,” Global Restructuring and Insolvency Conference in Barcelona (March 10, 2017)
"Current Issues in Retention and Compensation of Bankruptcy Professionals," American Bankruptcy Institute's 18^thAnnual New York City Bankruptcy Conference (May 12, 2016)
"View from the Islands: How Does Common Law Compare with Statutory Recognition Principles?," INSOL Annual Regional Conference in Dubai (January 25, 2016)
“Bankruptcy and the Retail Industry,” Industry Event in New York City (June 15, 2015)
"Cross-Border Bankruptcy Issues," ABI New York City Bankruptcy Conference (May 14, 2015)
Pre-Packaged Insolvency Proceedings: Developments and Hard Lessons Learned," INSOL Europe Annual Congress in Istanbul (October 10, 2014)
“Cross-Border Bankruptcy Issues,” ABI New York City Bankruptcy Conference (May 15, 2014)
“Bankruptcies in the United States: Key Chapter 11 Concepts,” Australian Restructuring Insolvency & Turnaround Association in Sydney (April 14, 2014)
“Intellectual Property Issues in Bankruptcy,” Asian American Bar Association of New York (July 11, 2013)
“Trademark and Patent Licenses in Bankruptcy,” ABI New York City Bankruptcy Conference (May 16, 2013)
“What In-House Counsel Need to Know Before a Counterparty Bankruptcy,” Association of Corporate Counsel Webcast (September 12, 2012)
"How Are the Lower Courts Dealing with Stern v. Marshall?" ABI New York City Bankruptcy Conference (May 9, 2012)
"Strategies to Succeed in a Crisis - How to Protect Creditors' Interests in the U.S. and Germany," Bankruptcy Seminar in Frankfurt, Germany (April 29, 2009)

News

October 28, 2024

Patterson Belknap Attorney Served as
Independent Examiner in FTX Bankruptcy Case
Firm Serves as Counsel to the Examiner

Patterson Belknap attorney Robert J. Cleary served as the Independent Examiner in the FTX Trading Ltd. bankruptcy cases pending in Delaware. Mr. Cleary was responsible for drafting an initial report summarizing the findings and status of all previous investigations into the...

December 15, 2023

Firm Secures Settlement in Multi-Million Dollar Investment Fraud Case

December 7, 2022

Firm Represents Global Alternative Energy Company in Cross-Border Chapter 15 Bankruptcy

October 28, 2024

Patterson Belknap Attorney Served as
Independent Examiner in FTX Bankruptcy Case
Firm Serves as Counsel to the Examiner

December 15, 2023

Firm Secures Settlement in Multi-Million Dollar Investment Fraud Case

December 7, 2022

Firm Represents Global Alternative Energy Company in Cross-Border Chapter 15 Bankruptcy

October 31, 2022

Firm Attorneys Honored by Legal Aid Society at 2022 Pro Publico Awards

January 12, 2021

Patterson Belknap Launches Commercial Real Estate Workouts and Litigation Group

September 14, 2017

Patterson Belknap Launches Bankruptcy Update Blog

January 31, 2017

Daniel A. Lowenthal Named Chair of the Firm’s Business Reorganization and Creditors’ Rights Practice

September 23, 2010

Partner Dan Lowenthal Profiled in Bankruptcy Professional

October 31, 2022

Firm Attorneys Honored by Legal Aid Society at 2022 Pro Publico Awards

January 12, 2021

Patterson Belknap Launches Commercial Real Estate Workouts and Litigation Group

September 14, 2017

Patterson Belknap Launches Bankruptcy Update Blog

January 31, 2017

Daniel A. Lowenthal Named Chair of the Firm’s Business Reorganization and Creditors’ Rights Practice

September 23, 2010

Partner Dan Lowenthal Profiled in Bankruptcy Professional

Publications

April 30, 2026

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

The Federal Arbitration Act was enacted to require courts to enforce parties’ agreements to arbitrate disputes. More recently, the Supreme Court has said that “[t]he federal policy is about treating arbitration contacts like all others, not about fostering arbitration.” In...

The Bankruptcy Strategist

January 1, 2026

Judge Blasts Defendant for Ignoring Discovery Obligations and More

A recent decision by Bankruptcy Judge Brendan Shannon was peppered with some harsh words for a defendant in an adversary proceeding. Judge Shannon said the party’s “failure to perform basic discovery responses and participation in litigation … has been breathtaking....

The Bankruptcy Strategist

October 1, 2025

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

In 2020, the Supreme Court ruled that a bankruptcy court’s decision to lift the automatic stay of pending litigation imposed by the Bankruptcy Code is a final, appealable order. But what if a bankruptcy court lifts the stay and later...

The Bankruptcy Strategist

April 30, 2026

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

The Bankruptcy Strategist

January 1, 2026

Judge Blasts Defendant for Ignoring Discovery Obligations and More

The Bankruptcy Strategist

October 1, 2025

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

The Bankruptcy Strategist

June 30, 2025

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn't Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction

The filing of an appeal in federal court generally divests the lower court of jurisdiction. This rule of appellate jurisdiction applies both to appeals from a district court to a court of appeals and from a bankruptcy court to a district...

The Bankruptcy Strategist

April 25, 2025

Formal & Informal Negotiations ASAP!

In the United States, debtors in financial distress typically favor out-of-court restructurings over bankruptcy filings. Negotiated resolutions with key constituencies can be cheaper and more efficient than court proceedings. To continue reading Daniel Lowenthal's article in Eurofenix, please click here.

Eurofenix, the Journal of INSOL Europe

April 9, 2025

A Primer on Chapter 11 Trustees & Examiners

A debtor that files for Chapter 11 is referred to as a “debtor in possession.” Bankruptcy Code section 1107 empowers a debtor with the rights and powers of a trustee. A debtor in possession will be responsible for marshaling assets, administering...

New York Law Journal

November 14, 2024

Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss

At the motion to dismiss stage, courts usually won't consider affirmative defenses. This issue arose recently in a preferential transfer case, where a defendant sought to dismiss a complaint by arguing it was a mere conduit, not an initial transferee....

The Bankruptcy Strategist

September 5, 2024

Ch. 11 Ruling Shows Early Attempt To Tackle Purdue Fallout

In Harrington v. Purdue Pharma LP in June, the U.S. Supreme Court held that the U.S. Bankruptcy Code does not authorize nonconsensual releases of nondebtors as part of a Chapter 11 plan. The court narrowly read the Bankruptcy Code's language...

Law360

March 25, 2024

Bankruptcy Ruling Stresses Value of Client Communication

U.S. Bankruptcy Judge Jacqueline P. Cox recently found that three Illinois attorneys violated their ethical obligations by failing to return their client's phone calls. She ordered the attorneys to return roughly half of their already-court-approved, and paid, flat fee. In...

Law360

All Publications

June 30, 2025

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn't Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction

The Bankruptcy Strategist

April 25, 2025

Formal & Informal Negotiations ASAP!

Eurofenix, the Journal of INSOL Europe

April 9, 2025

A Primer on Chapter 11 Trustees & Examiners

New York Law Journal

November 14, 2024

Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss

The Bankruptcy Strategist

September 5, 2024

Ch. 11 Ruling Shows Early Attempt To Tackle Purdue Fallout

Law360

March 25, 2024

Bankruptcy Ruling Stresses Value of Client Communication

Law360

Show All

Lehman Brothers Announces Settlement to Resolve Massive RMBS Claims; Estimation Hearing Slated for Later This Year

First Circuit Clarifies the Scope of the Bankruptcy Court’s Jurisdiction in Civil Proceedings

Chapter 15 Petition Granted Over Allegations of Wrongdoing

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Daniel A. Lowenthal

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Publications

Education

Recent Speaking Engagements

In the Media

News

Bankruptcy Update Blog

Bankruptcy Court Denies Motions to Convert Case and to Appoint an Examiner

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

Bankruptcy Avoidance Law: Court Allows Bankruptcy Trustee to Sue a Subsequent Transferee Even When the Initial Transferee Isn’t a Defendant

Bankruptcy Court Denies Motions to Convert Case and to Appoint an Examiner

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

Bankruptcy Avoidance Law: Court Allows Bankruptcy Trustee to Sue a Subsequent Transferee Even When the Initial Transferee Isn’t a Defendant

Judge Blasts Defendant For Ignoring Discovery Obligations and More

Debts Related to Ponzi Scheme Deemed Non-Dischargeable

Federal District Court Ruling Upholds Uptier Transactions

Bankruptcy Court Clarifies Scope of Trustee’s Due Diligence Prior to Filing Preference Action

The Bourbon Industry Faces Hard Times

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

Judge Blasts Defendant For Ignoring Discovery Obligations and More

Debts Related to Ponzi Scheme Deemed Non-Dischargeable

Federal District Court Ruling Upholds Uptier Transactions

Bankruptcy Court Clarifies Scope of Trustee’s Due Diligence Prior to Filing Preference Action

The Bourbon Industry Faces Hard Times

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

Publications

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

Judge Blasts Defendant for Ignoring Discovery Obligations and More

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

Arbitration and Bankruptcy: Can a Debtor that is Party to an Arbitration Agreement Lack Authority to Arbitrate Core Bankruptcy Claims?

Judge Blasts Defendant for Ignoring Discovery Obligations and More

Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn't Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction

Formal & Informal Negotiations ASAP!

A Primer on Chapter 11 Trustees & Examiners

Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss

Ch. 11 Ruling Shows Early Attempt To Tackle Purdue Fallout

Bankruptcy Ruling Stresses Value of Client Communication

The Divestiture Rule Explained: A Judge-Made Doctrine Doesn't Necessarily Deprive a Lower Court of Ongoing Subject Matter Jurisdiction

Formal & Informal Negotiations ASAP!

A Primer on Chapter 11 Trustees & Examiners

Court Rules Mere Conduit Defense Not Suitable for a Motion to Dismiss

Ch. 11 Ruling Shows Early Attempt To Tackle Purdue Fallout

Bankruptcy Ruling Stresses Value of Client Communication

Firm Highlights