March 9, 2012 7:00 PM
The Bankruptcy Files: Brown Rudnick Boosts Beacon Power by Taking Chapter 11 Case on Contingency
Posted by Brian Baxter
This week saw Lehman Brothers finally emerge from bankruptcy after more than three years in court, the Tribune Company’s tortured Chapter 11 saga continue to crawl along, and the big fees racked up by the external advisers working on both matters make headlines.
Lurking in the background was the case of troubled renewable energy company Beacon Power, whose bankruptcy filing last Halloween was overshadowed by MF Global Holdings’s descent into Chapter 11 and the high-profile flameout of solar panel manufacturer Solyndra.
When they took the assignment to represent Beacon Power, the Tyngsboro, Massachusetts-based company’s lawyers from Brown Rudnick knew their client wouldn’t survive an extended stay in Chapter 11, especially given the political firestorm kicked off by the government’s financial backing for Solyndra.
Founded in 1997, Beacon Power owed roughly $40 million to the federal government as part of an Energy Department loan program, and simply didn’t have the money to pay employees, repay the government, and make its creditors whole, let alone compensate its outside lawyers.
Brown Rudnick energy and environmental partner Andrew Kaplan in Boston, who has represented Beacon Power for several years on energy regulatory matters, says the firm decided to take his client’s Chapter 11 case on contingency, an unusual fee arrangement in bankruptcy.
“In order for our client to survive, we had no choice but to design this fee arrangement,” says Kaplan, noting that the firm would only collect its fee if the company was sold as a going concern through a successful reorganization of its obligations. “There would have been no money left to pay employees or repay the government.”
It appears that the unusual arrangement paid off. Beacon Power, which makes flywheel energy storage systems that provide backup power to energy grids, was sold last week to private equity firm Rockland Capital in a $30.5 million deal. Regulators have approved the transaction, which calls for Rockland to assume some of the Energy Department’s loans and invest $5.5 million in cash into the company.
All told, the federal government stands to recoup about 71 percent of the amount it loaned Beacon Power via the Energy Department program, Kaplan says. Almost all of the company’s employees will be retained by Rockland Capital, which specializes in energy investments. In the end, Beacon Power fared better than Solyndra, whose assets are being liquidated in a controversial firesale.
Kaplan says that Rockland, advised by Bracewell Giuliani‘s Jonathan Gill, was one four companies that bid to acquire all of Beacon Power. Several other suitors sought to capture parts of the debtor, which operates a power plant in Stephentown, New York, and has plans for a second facility in rural Pennsylvania.
“Anytime the government funds innovative technologies, some will do well and others will not,” Kaplan says. “Beacon [itself] was a good idea, but the government called in its loan and the company got caught up in this big political debate.”
Brown Rudnick received $912,681 from Beacon Power in the year prior to its Chapter 11 filing, according to a court filing by the firm. In February, court filings show that Brown Rudnick sought about $930,000 for work done on behalf of Beacon Power during November of last year.
Kaplan says the firm’s post-petition fees are included in a final contingency payment that should be “a little less than $2 million” for just over four monthsâ€™ work. William Baldiga, the managing director of Brown Rudnickâ€™s litigation and restructuring group, and partner Sunni Beville handled the firm’s bankruptcy work for Beacon Power, which Kaplan hopes will remain a firm client.
In a somewhat more high-profile matter, Brown Rudnick’s restructuring lawyers have also been busy in recent weeks representing holdouts, some of them hedge funds, seeking alternative legal remedies to a $173 billion economic rescue package for Greece that will restructure the country’s sovereign debt.
The Am Law Daily reported last month on the role played by lawyers from Cleary Gottlieb Steen Hamiltonâ€”whose work was highlighted by The New York Times this weekâ€”Allen Overy, Bingham McCutchen, Linklaters, and White Case in putting together the agreement to help the Hellenic Republic stave off default.
In other recent bankruptcy news of note (hourly rates listed in parentheses, when available):
American Baby Products
After launching a mass recall in 2009 when babies began losing fingertips in the company’s once-trendy strollers, Norwalk, Connecticutâ€“based Maclaren USAâ€”which produces the Maclaren line and also does business as American Baby Productsâ€”saw its share of the toddler-toting industry shrivel.
Ultimately, things got so bad that the company was forced to file a Chapter 7 petition in Bridgeport in late December, a development that went largely unnoticed for almost two months before parenting Web sites picked up on it. The New York Timesâ€™s DealBook has more on the unusual filing by the debtor, which is now liquidating its assets in bankruptcy court.
Douglas Skalka, a partner at Neubert, Pepe Monteith in New Haven, is advising Maclaren USA in the Chapter 7 case. The company lists just $45,413 in assets against $15.9 million in liabilities, according to court records.
American West Development
A rough market for residential builders finally caught up with American West Development on March 1, when the Las Vegasâ€“based company filed for bankruptcy in Nevada. Bloomberg reports that the homebuilder, founded in 1984, has reached agreement on a reorganization plan with a group of banks led by California Bank Trust.
Brett Axelrod ($630), managing partner of Fox Rothschild‘s Las Vegas office, is representing American West, along with bankruptcy counsel Charles Axelrod ($750) in Los Angeles and corporate partner David Jaffe ($550) in Pittsburgh and financial restructuring partner Anne Loraditch in Las Vegas ($495).
Court filings by the firm show that partners are billing between $340 to $750 per hour, counsel between $310 and $750, and associates at hourly rates ranging from $210 to $500. Fox Rothschild was paid a $200,000 retainer for its services on February 1 and in the year prior prepetition received almost $2.7 million from American West.
Donald Gaffney, head of the bankruptcy practice at Snell Wilmer in Phoenix, and partner Robert Kinas are advising California Bank Trust.
Forth Worth-based independent oil and gas company Cano Petroleum filed for bankruptcy in Dallas on March 7, citing continued losses and loan defaults as rendering it unable to raise capital, Reuters reports. The company, which lists assets of $63.3 million against debts of nearly $116.3 million, plans to sell itself to stalking horse bidder NBI Services in a $47.5 million deal.
Thompson Knight restructuring partners David Bennett and Demetra Liggins are advising Cano in its Chapter 11 case. Court filings by the firm show that it has been paid a $250,000 retainer, in addition to prepetition payments totaling $935,277 for services to the debtor.
Thompson Knight has advised Cano on corporate, securities, and regulatory matters since 2009. A declaration by Bennett reveals that partners from the firm are billing Cano between $515 and $740 per hour for their work on the bankruptcy, while associates and counsel are billing at rates ranging from $245 to $600.
According to a list of Cano’s 20 largest unsecured creditors, the company owes $13,791 to Vinson Elkins for “attorney fees.” Phillip Feiner serves as general counsel for Cano.
Attorneys from Tulsa’s McDonald, McCann Metcalf and Kelly Hart Hallman in Fort Worth are advising NBI in the matter.
Less than two months ago, Quinn Emanuel Urquhart Sullivan restructuring chair Susheel Kirpalani was appointed examiner in the bankruptcy of Dynegy Holdings, ostensibly to determine whether the debtor was treating bondholders fairly. Now Kirpalani’s report has been released, and the news isn’t good for the debtor.
Houston-based energy company Dynegy put Dynegy Holdings and several other affiliates into bankruptcy back in November, according to our previous reports. The â€œupside-down bankruptcyâ€� was unusual in that it sought to flip the normal Chapter 11 formula, whereby bondholders are repaid first through asset sales or other means, by protecting shareholders through an asset transfer.
Dynegy Holdings, advised by its bankruptcy and litigation lawyers from Sidley Austin and White Case, had reorganized its operations prior to its Chapter 11 case. Assets linked to coal-fired power plants like the Danskammer Generating Station in Newburgh, New York, were transferred to parent Dynegy so the holding company would have no claim on them, instead being saddled with bond debt.
A group of bondholders led by trustee U.S. Bank and hedge fund Appaloosa Management, represented by lawyers from Cadwalader, Wickersham Taft and Andrews Kurth, respectively, challenged the asset transfer in bankruptcy court. (Paul, Weiss, Rifkind, Wharton Garrison is advising an ad hoc committee of bondholders.)
Kirpalani, who left Milbank, Tweed, Hadley McCloy for Quinn Emanuel in a high-profile lateral move in January 2007, released his 173-page examiner’s report on Friday in U.S. bankruptcy court in Poughkeepsie, New York.
Seton Hall University bankruptcy professor Stephen Lubben, writing for The Timesâ€™s DealBook, calls the report a â€œbombshell.â€� Reuters reports that shares in parent Dynegy plunged nearly 50 percent following the release of the report.
â€œThroughout the planning and execution of the prepetition restructuring, the Dynegy Inc board favored paths that benefited Dynegy Inc and its shareholders to the detriment of Dynegy Holdings and its creditors,â€� Kirpalani wrote in his report.
Kirpalani called the conveyance of assets prior to the bankruptcy filing by Dynegy Holdings an â€œactual fraudulent transferâ€� that had to be reversed. Catherine Callaway serves as general counsel for Dynegy. The company has been seeking to restructure $4 billion in debt due to bondholders.
In Japan’s largest bankruptcy in more than two years, the country’s last maker of computer memory chips, Tokyo-based Elpida Memory, filed for bankruptcy protection last week after its last-minute efforts to refinance $5.6 billion in debt failed.
Elpida, a maker of dynamic random access memory (DRAM) devices, will now seek to reorganize its operations under the supervision of the Tokyo District Court. Three Japanese firms have landed roles on the bankruptcy case, according to sibling publication The Asian Lawyer.
A statement released by Elpida lists 13 lawyers from Kobayashi Associates Law Office, Oh-Ebashi LPC Partners, and Ogawamachi Sogo Law Office as counsel to the company, whose market share of the global DRAM market is about 12 percent. The Asian Lawyer notes that another leading Japanese firm, Nishimura Asahi, and Simpson Thacher Bartlett also have a history of advising Elpida.
Pemco World Air Services
Troubled Tampa-based Pemco World Air Services, which provides aircraft maintenance and repair work to airlines, filed for bankruptcy in Delaware on March 5. Pemco, which entered Chapter 11 along with two affiliates, lists both debts and assets of between $50 million and $100 million.
Kirkland Ellis is serving as lead bankruptcy counsel to Pemco. Robert Brady, a bankruptcy partner at Delaware’s Young Conaway Stargatt Taylor, is serving as local counsel to the debtor. Neither firm has yet filed billing statements with the bankruptcy court.
Pemco is a unit of Sun Capital Partners, a Boca Raton, Floridaâ€“based private investment firm. C. Deryl Couch serves as general counsel for Sun Capital.
Ryan International Airlines
AMR does not have the market on airline bankruptcies cornered these days. Rockford, Illinoisâ€“based Ryan International, not to be confused with Dublin-based budget carrier Ryanair Holdings, flew into Chapter 11 in Rockford on March 6, listing assets of $48.6 million against liabilities of nearly $79.2 million.
Hinshaw Culbertson partners Michael Seese ($525), Thomas Wallrich ($450), Thomas Lester ($350), William Connelly ($350), and Matthew Hervin ($295) are advising Ryan International. Hinshaw has received $140,000 in retainers for its services in the bankruptcy case, excluding payments totaling more than $400,000 in the year prior to the company’s Chapter 11 filing, according to court records.
Ryan International, which was a leading provider of airlift services for the U.S. military, saw its bottom line take a beating once the federal government began reducing spending in line with pullout of troops in Iraq and Afghanistan. Last month Global Aviation Holdings, another major troop transporter, also filed for bankruptcy because of military budget cutbacks.
According to a list of Ryan International’s 30 largest unsecured creditors, the debtor owes $102,627 in attorneys’ fees to Washington, D.C.’s Cooper Kirk and $85,454 to Baker Botts in Houston.
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