The Contributors Speak Up

Introducing the Creditor Coalition Contributors

This group of top restructuring lawyers, financial advisers, investment bankers, investors and law professors will examine timely financial and restructuring topics and share their insight, bringing light to complex and important issues.

Read on to meet the Contributors and the topics they'll tackle.

Rachel Ehrlich Albanese is a nationally recognized Partner and Co-Chair of the U.S. Restructuring Practice at the global law firm of DLA Piper. She has more than 20 years' experience representing secured and unsecured creditors, debtors, equity holders, purchasers of distressed assets, and other parties in interest in a wide range of restructuring matters, including cases under chapter 11 of the US Bankruptcy Code, out-of-court workouts, and cross-border insolvency proceedings. In addition, she has been involved in the current restructuring efforts in Puerto Rico since the earliest days when she participated in dozens of meetings with U.S. Congress members and staff to develop the law that ultimately became PROMESA.

Ms. Albanese is a co-chair of the Women in Bankruptcy & Restructuring affinity group of the National Association of Women Lawyers (NAWL). She was selected by Crain’s New York Business as a 2022 Notable Woman in Law and is recognized by Chambers and Partners for Bankruptcy and Restructuring in New York. She is an active member of the American Bankruptcy Institute, the International Women's Insolvency & Restructuring Confederation and the Turnaround Management Association, among others. She is a contributing author of the Bloomberg Law: Bankruptcy Treatise.


Rachel Albanese

Philip Anker is Co-Chair of Wilmer Hale’s Bankruptcy and Financial Restructuring Practice Group. He is an experienced bankruptcy litigator and counselor who has practiced for more than 30 years in the field. Among other honors, he has been inducted as a Fellow of the American College of Bankruptcy. Mr. Anker has been selected as one of the “Best Lawyers” in Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law in Best Lawyers in America each year since 2005. In the 2020 edition, Best Lawyers in America named him "Lawyer of the Year" in the area of Litigation - Bankruptcy.  He is also listed in the 2012-2021 editions of Chambers USA: America's Leading Lawyers for Business for his Bankruptcy/Restructuring work; the 2010-2021 editions of Benchmark Litigation, which have rated him as a “National Star” and “Top 10 Practitioner” for bankruptcy law; and in the 2020-2021 editions of Lawdragon as one of the nation's 500 leading bankruptcy lawyers.

Recent cases in which Mr. Anker has played a leading role include Boy Scouts, Grupo Aeromexico, Intelsat, Mallinkrodt, Sears, and Tribune.


Philip Anker

Martin Bienenstock teaches Corporate Reorganization at Harvard Law School, University of Michigan Law School, and University of Pennsylvania Carey Law School and chairs restructuring at Proskauer Rose LLP.  Martin currently leads the representation of the Oversight Board for Puerto Rico.  He has led restructurings of such companies as General Motors, Chrysler Financial, Enron, and Global Marine, and represented creditors such as the Owens Corning commercial creditors, the Caesar Entertainment creditors’ committee and the MF Global creditors’ committee.  Martin authored the treatise Bankruptcy Reorganization and is named one of the 100 Most Influential Attorneys in the United States by the New York Law Journal.


Martin Bienenstock

Kevin Eckhardt is a Senior Managing Editor and Legal Analyst at Octus. Prior to joining Octus in April 2019, Kevin practiced bankruptcy law for almost 20 years, specializing in creditor representation in large chapter 11 cases and distressed asset, leveraged loan and bankruptcy claims transactions. As a senior legal analyst at Octus, Kevin covers the largest and most contentious bankruptcy cases in U.S. courts.  Kevin has also spoken on bankruptcy issues at external conferences, including the Harvard Bankruptcy Roundtable and the Trial Lawyers of Mass Torts annual meeting. Since 2020, Kevin has written the Americas Court Opinion Review column for Octus, where he comments on bankruptcy cases, decisions, trends and issues. Kevin clerked for U.S. Bankruptcy Judge Jerry A. Funk of the Middle District of Florida and attended the University of Florida's Levin College of Law.


Kevin Eckhardt

David Elsberg is a founding partner of Elsberg Baker & Maruri.  Before that he was Co-Chair of Quinn Emanuel’s Investment Fund Practice and a founding and Managing Partner of Selendy Gay Elsberg.  

He represents a wide array of clients across many industries, including private equity, venture capital, and hedge funds and their portfolio companies.  David has broad experience representing bondholders, trustees, foreign liquidators and secured lenders in large insolvency-related matters and in and liability management transactions in proceedings in bankruptcy court, Article III federal courts and state courts.

Chambers refers to David as “fabulously smart” and “fearless”—as well as “very creative, thoughtful and collaborative” and “an excellent litigator with a strong commercial sense.” Chambers notes David’s “impress[ive] … ability to communicate with the court very effectively” and describes him as “strategic and understated, yet able to be as aggressive and effective a litigator as you will ever encounter.” Chambers also named David a “Leading Individual” in commercial litigation.

Law360 named David a Securities MVP, noting his “artful and measured cross-examination style.” Law360 also reports that clients describe David as “aggressive, passionate, and a first-rate thinker” whose “ability to read people and think numerous questions ahead is uncanny.”

Lawdragon named David one of the “500 Leading Litigators in America” and “500 Leading Plaintiff Financial Lawyers.”

The New York Law Journal honored David with its “Distinguished Leader” award for “great performance while demonstrating clear leadership skills leading to positive outcomes.”


David Elsberg

Mr. Heimowitz is a Member of the Advisory Board of the Creditor Rights Coalition. Mr. Heimowitz is the Founder and Managing Member of Coda Advisory Group, an independent advisory firm that specializes in providing advice to and advocating for parties-in-interest involved in restructurings and special situations. He also acts as an independent director for companies in distress, restructuring and bankruptcy.

Prior to founding Coda, Mr. Heimowitz was a portfolio manager at Claren Road Asset Management, a long-short credit hedge fund owned by The Carlyle Group. Prior to Claren Road, he was a Managing Director, Head of Credit Special Situations, and Co-Head of the Distressed Trading Desk for Citigroup Global Capital Markets.

He is a CFA Charterholder, an advisory board member of the American Bankruptcy Institute, a founding advisory board member of the University of Pennsylvania Institute for Restructuring Studies, and regularly publishes and lectures on U.S. and transnational insolvency matters.


Marc Heimowitz,

Vlad Jelisavcic is the Founder of Cherokee Acquisition. He previously founded Bowery Opportunity Funds in 2009 and co-founded Longacre Fund Management, LLC in 1999. From 1993 to 1998, he was a Vice President in the High Yield Department of Bear, Stearns & Co. Inc., where he was responsible for trading distressed bank loans and trade claims. From 1987 to 1990, Mr. Jelisavcic worked in the Tax Department of Deloitte & Touche. Mr. Jelisavcic was a Certified Public Accountant and earned a J.D. from the University of Iowa College of Law in 1993 and a B.S. in Accounting from New York University in 1987.


Vlad Jelisavcic

Sidney Levinson is Co-Chair of Debevoise & Plimpton’s Restructuring Group.  He has extensive experience advising a range of clients, including bondholders, secured lenders, debtors, trustees and creditors’ committees in large and complex restructuring and bankruptcy proceedings, along with out-of-court workouts and liability management transactions.  In addition, Mr. Levinson has served as lead trial counsel in a number of high-profile cases, including representing Hawaiian Airlines in obtaining an $80 million judgment (plus attorney fees of $3.9 million) against Mesa Air Group.   Mr. Levinson is a fellow in the American College of Bankruptcy, previously served as a subcommittee co-chair for the ABA's Business Bankruptcy Committee, and is ranked as a leading restructuring lawyer by Chambers USA.  From 1992 until 1995, Mr. Levinson was a trial attorney in the U.S. Department of Justice (Civil Division), specializing in bankruptcy and commercial litigation.  Recent cases in which Mr. Levinson has played a leading role include Guitar Center, Alpha Media, Barney’s, Hexion and Caesars Entertainment.


Sidney Levinson

Mark Lightner is Head of Special Situations Legal Research at CreditSights, a Fitch Solutions Company. Prior to joining CreditSights, Mark was a restructuring attorney at Cleary Gottlieb Steen & Hamilton LLP and Morrison & Foerster LLP, where his practice focused on managing restructuring engagements and advising senior management, generals counsel, boards of directors, and public entities on all aspects of debt restructuring. Mark clerked for two judges, including a bankruptcy judge in the Southern District of New York, and he also serves as an adjunct professor of law, teaching semester-long courses on bankruptcy, debtor/creditor law, and municipal debt restructuring. Mark has published extensively on topics at the intersection of law and finance, and his work has been cited by domestic and international courts at both the trial and appellate levels.


Mark Lightner

Mr. Lonergan is a Principal in the New York office of McKool Smith. Kyle focuses on complex commercial litigation and bankruptcy litigation. Kyle has handled significant matters in a number of areas, including fraudulent conveyances, directors’ and officers’ liability, professional liability, insurance coverage, and a wide range of financial and contractual disputes. Currently, among other matters, Kyle is representing the litigation trustees of major commercial bankruptcy estates in pursuing hundreds of millions of dollars of claims against numerous parties. These matters include the bankruptcy estates of Rite Aid, Instant Brands, Tops Markets, Endo Pharmaceutical, Millennium Health, and Alliance Health.


Kyle Lonergan

Jim Millar is the co-leader of Faegre Drinker’s corporate restructuring team. Mr. Millar has more than 25 years of experience advising bondholders, acquirers and other participants in corporate restructuring and bankruptcy litigation. He regularly represents bondholders in Chapter 11 cases, enforcing their rights under bankruptcy law, creditors’ rights law and contract law. Bondholders value his ability to develop novel and effective strategies to pursue their rights against well-funded debtors or other stakeholders elsewhere in the capital structure. 

In the Chapter 11 bankruptcy of Caesars Entertainment Corporation, Mr. Millar developed and advanced the legal theory under the Trust Indenture Act during his representation of a group of unsecured bondholders. Other law firms subsequently adopted his theory, which heavily influenced the outcome of the case on bondholders’ challenge to Caesar’s attempt to release guarantees of the bonds without their consent. On a related issue in a precedential case, Mr. Millar obtained a favorable reversal from the New York Court of Appeals on behalf of certain minority bondholders on a legal issue under an indenture that incorporated the Trust Indenture Act as a matter of contract. 


Jim Millar

James Newton is a partner in the Business Restructuring + Insolvency Group of Morrison & Foerster, based in the New York office. He focuses on advising individual and ad hoc groups of financial creditors in connection with distressed debt investments, distressed M&A transactions, and other special situations and restructuring matters.  He routinely advises financial institutions, alternative investment advisors, and other clients in connection with in- and out-of-court workouts and restructuring matters involving existing stressed and distressed investments. He is also regularly called upon by clients seeking to develop and implement creatively structured and bespoke financing or asset purchase transactions, including in connection with stressed and distressed refinancings and capital raising transactions, exchange offers, swap and hedging transactions, structured finance transactions, and receivables financing transactions undertaken in the bankruptcy and restructuring contexts.


James Newton

Mr. Sandler is a member of the firm's Management Committee and Long-term Planning Committee, and serves as a co-Chair of the firm’s Committee Practice Group.

He has substantial experience representing debtors, equity and creditors’ committees, acquirers, fiduciaries, and other significant parties in interest in complex reorganizations and financially distressed situations, both in and out of court. While acknowledging that bankruptcy is often a viable business tool to manage liability, Mr. Sandler believes that it is a tool of last resort, and many of his company-side representations are out-of-court. His recent committee representations include Party City, Cineworld, Sungard, Ascena, J Crew, Ditech Holdings, Corsicana Bedding, Rockdale Marcellus, Tuesday Morning, Gymboree II, Payless I and II, Shopko, the Weinstein Company, Bon-Ton Department Stores, Woodbridge Group, BCBG Max Azria, Aeropostale, and Sports Authority. He is ranked among the nation’s top Bankruptcy/Restructuring attorneys by Chambers USA, which states that “he’s exceptionally good at what he does and is unbelievably hard-working” and that “he’s a superb bankruptcy lawyer.”


Bradford J. Sandler

Jennifer Selendy is a founding partner of Selendy Gay Elsberg. Ms. Selendy’s leadership has been recognized by Corporate Counsel, which named her 2020’s “Managing Partner of the Year,” and the New York Law Journal, which lists her among 2020’s "Distinguished Leaders." National Law Journal named Jennifer one of 2022's Elite Women of the Plaintiffs Bar, a small and highly selective list. Crain’s has twice named her one of the “100 Notable Women in Law.”

Ms. Selendy represents both plaintiffs and defendants in high-stakes disputes. In her plaintiffs practice, she is increasingly called on to help clients in disputes related to so-called liability management transactions, such as uptiering transactions, when they are seeking to vindicate their rights as creditors by going to trial. Ms. Selendy also specializes in complex defense work and is frequently tapped for sensitive internal and governmental investigations into antitrust, financial misconduct, and employment-related matters. She has represented private equity and investment companies in precedent-setting litigation, represents renewable energy companies and related interests in cutting edge litigation aimed at protecting competition in power generation for the benefit of consumers, and has extensive expertise in bankruptcy disputes.


Jennifer Selendy

Daniel Shamah is a Partner in Cooley sought by clients for his experience in complex restructuring and insolvency matters. His skill set is unique among peers not only for his depth of experience at conventional bankruptcy and restructuring proceedings, but also for his demonstrated success as an experienced litigator handling disputes of complex commercial and financial instruments. Daniel’s representations span a broad range of industries and practices, where he brings sector knowledge to advise clients on their legal needs. Before joining Cooley, his work included representing a private equity fund and individual former directors in fraudulent transfer and breach of fiduciary duty claims brought by the litigation trustee for Tops Friendly Markets, along with defending Wilmington Trust in breach of fiduciary duty claims arising out of foreclosure sales following the bankruptcy filings of LATAM Airlines and Norwegian Airlines. He also recently led an ad hoc group of lenders in the widely followed restructuring of nationwide gym chain 24 Hour Fitness. Daniel also has helped multiple private equity firms and other financial institutions in claims brought by litigation trustees arising out of their former portfolio companies and other investments.


Daniel Shamah

Paul Silverstein is a Partner and Co-head of the Business Practice Group of Hunton Andrews Kurth. He has served multiple terms as a member of legacy Andrews Kurth's Policy Committee, Executive Committee and head of its bankruptcy/corporate restructuring practice.

Mr. Silverstein is a seasoned expert in the bankruptcy/financial restructuring and distressed investing space.

His practice includes the representation of official and ad hoc creditors and stockholders committees, significant strategic and financial investors and debtors/issuers in complex Chapter 11 reorganizations and out-of-court restructurings. He also regularly represents post-reorganization litigation trusts and similar vehicles. He is experienced in the representation of purchasers and sellers of assets, claims and equity interests in distressed and special situations, both strategic and financial, and represents activist investors in both proxy contests and related matters. He has been profiled in multiple publications as a leading corporate restructuring lawyer.


Paul Silverstein

Clifford J. White III is the former head of the Justice Department’s United States Trustee Program (USTP), known as the “watchdog” of the bankruptcy system. Before retiring in 2022, Cliff served as the USTP’s Director for 17 years. During his tenure, the USTP implemented key provisions of the comprehensive Bankruptcy Abuse Prevention and Consumer Prevention Act of 2005 and the Small Business Reorganization Act of 2019. He also developed new enforcement strategies to uphold chapter 11 requirements limiting executive bonuses, policing professional conflicts of interest and fees, and scrutinizing improper third-party releases and other controversial practices. Cliff received two Presidential Rank Awards, the highest awards given to career government senior executives, from President George W. Bush and President Barack Obama. Cliff currently serves as an executive with a company that provides data management and business process services to the banking and lending industry.


Clifford J. White III

The views of our Contributors should not be attributed to their respective firms or the Creditor Rights Coalition. In addition, the Coalition may take positions as part of its Advocacy efforts that do not necessarily reflect the view of Contributors and should not be attributed to any Contributor.

Sign up here
for our newsletter

Here’s What the Contributors have to say

Click to Print

Red River Talc Finally Says Good-Bye to Bankruptcy

Red River Talc Finally Says Good-Bye to Bankruptcy

By Cliff White1

After surviving heated litigation challenging venue, and completing a lengthy trial on the merits of confirmation, the Red River Talc LLC (RRT) case was finally dismissed by the bankruptcy court in the Southern District of Texas on March 31st.2 Perhaps recognizing that if you cannot make it there, then you cannot make it anywhere,3 parent company Johnson & Johnson (J&J) announced in a news release that it will not appeal or refile another bankruptcy case.

RRT is a spin-off from goliath consumer products-maker J&J that was formed through a divisional merger under Texas corporate law for the purpose of holding the parent company’s mass tort liability and filing bankruptcy to resolve ovarian and other gynecological litigation. RRT filed late last year for chapter 11 relief in the Southern District of Texas after two previous bankruptcy cases filed by its predecessor shell company (LTL) were dismissed for bad faith by the United States Court of Appeals for the Third Circuit.

In an order and opinion that surprised many observers, the bankruptcy court denied plan confirmation and dismissed because of (1) irregularities in ballot solicitation and voting; and (2) plan provisions that would have granted involuntary non-debtor third-party releases and related plan injunctions and gatekeeping provisions in violation of 11 U.S.C. 524(g) and the Supreme Court’s ruling in Harrington v. Purdue Pharma. 603 U.S. 204 (2024) and the recent Highland Capital II case, No. 23-10534, 2025 U.S. App. LEXIS 6320 (5th Cir. Mar. 18, 2025) (“Highland II”).

The court was emphatic in not ascribing bad faith to any parties or professionals, and distinguished the case from previous iterations that the Third Circuit dismissed for bad faith. The court focused on the peculiar facts of the case. Judge Christopher Lopez’s carefully crafted 57-page opinion contained many noteworthy findings of facts and conclusions to law. Parties will debate if the Opinion marks a turning point in creative lawyering in the Southern District of Texas, but the Opinion also did nothing to discourage other mass tort cases from filing in the district as long as they learn certain lessons from the RRT three-times-a-loser case.

Solicitation and Voting

The court found fatal flaws in the ballot solicitation and voting process. Judge Lopez determined that “over 90,000 votes were cast, but at least half of them cannot count.” Slip op. at 23. Finding that the pre-petition vote could not be certified, the court denied confirmation. In this case, the debtor needed approval from 75 percent of claimants because the plan sought a channeling injunction and releases under Bankruptcy Code’s section 524(g) governing asbestos-related claims. (After denying that its talc products contained asbestos, the debtor reversed course for purposes of seeking confirmation.)

The short-comings in balloting and related procedures were somewhat stunning, including:

  • An unseemly fight between co-counsel over thousands of tort victims whose votes were switched after the debtor reached a deal with one of the co-counsel.
  • Tort lawyers claiming they could vote on behalf of their clients based on boilerplate language in the retention agreement pertaining to prosecution of claims. The court cited the requirement that counsel cannot vote with a client’s claim without a power of attorney, as provided in FRBP 9010(c) and elsewhere in case governing documents.
  • Tort lawyers provided their clients with inadequate notice of their voting rights, including by providing negative notice and unreasonable response times. According to the court, one group of “women with cancer had two business days and a weekend to respond and indicate their votes.” Slip op. at 42.

The lawyers’ fundamental errors in trying to round-up the necessary votes in favor of a plan they struck with the debtor should perhaps cause policy-makers to consider whether reforming the tort system is preferable to inviting mass tort cases into bankruptcy. It is clear that tort lawyers do not always get it right for their victim-clients, in or outside bankruptcy.

Third-Party Releases

The court also rejected confirmation because the involuntary non-debtor third-party releases provided in the $7 billion tort settlement plan exceeded the permissible boundaries set forth under section 524(g). Three aspects of the bankruptcy court decision are worth noting in future cases nationwide:

  • The court found that releases granted under 524(g) only apply to derivative claims and not direct claims that a creditor may have against a third-party. The court agreed with other courts that “liability of the [released] third party must essentially be a claim against the debtor.” The court further found that the obligation of a debtor to indemnify the third-party who was found liable to a creditor does not render the claim as derivative.
  • The court rejected the debtor’s assertion that this was a “full pay” case (i.e., victims will receive the full value of their claim) that may be an exception to the Supreme Court’s proscription against third-party releases. Bankruptcy Judge Lopez concluded that RRT was not a full pay case, in part, because the debtor’s assertion was based on an analysis of settlements reached in tort litigation even though J&J was found liable in one case for $2.52 billion. The judge also suggested that Fifth Circuit law against third-party releases may preclude releases even in “full pay” cases.
  • In several places in its opinion, the court noted that the debtor never sought consent for the releases.4 Even if releases in the plan exceeded section 524(g), the debtor could cure the problem by voluntary consent. Given the liberality with which the bankruptcy court in S.D. Tex. finds consent, such as by requiring dissenters to affirmatively “opt out” of the release provisions, this may be easy advice to follow in a more typical non-tort case.

The plan injunction and gatekeeper provisions were also thrown out following the 5th Circuit’s recent decision in Highland Capital II. This decision is still reverberating by potentially empowering creditors to choose their own forum for bringing viable direct claims against third parties post-confirmation.

Dismissal

The court decided to dismiss the case instead of allowing the debtor to revise its plan and re-solicit votes because the case was not about reorganizing a debtor company to save jobs, but solely to reach a deal with tort claimants, which J&J has repeatedly been unable to do. The court concluded that “[t]he entire construct of the Plan requires re-thinking” and the stay against tort litigation had lasted enough. Slip op. at 56.

While the bankruptcy court opinion sets down markers for future litigants, it also shows that there are limits to creative lawyering even in perceived debtor-friendly venues like the Southern District of Texas.

Copyright 2025 Creditor Rights Coalition

1 Cliff White served as Director of the Justice Department’s United States Trustee Program for 17 years before retiring in 2022. Cliff is currently employed by a financial and technology services firm with clients in the banking and lending industry.

2 In re Red River Talc LLC, case no. 4:24-bk-90505 (Bankr. S.D. Tex. filed Sept. 20, 2024). The slip opinion is found on the docket at document number 1425.

3 Apologies to the composers for mashing the lyrics of the famous Sinatra song, “Theme from New York, New York”.

4 The court said it “disagrees with silence equaling consent” under the balloting requirements. Slip op. at 34. That may run a bit counter to the same court’s expansiveness in inferring consent in favor of involuntary third-party releases.

Recent Posts

Red River Talc Finally Says Good-Bye to Bankruptcy

Treatment of “Double Dips” in Bankruptcy

Quick Takes on the Serta & Mitel Decisions

Two Unanswered Questions for 2025

Third Party Releases – Purdue and Beyond

2024 Year in Review

Reassessing Merit Management

How Genesis Solved the Dollarization Cap Dilemma for Crypto Creditors

Contributors Speak Up on Purdue Pharma

Special Feature: Professor Nancy Rapoport on Recent Disqualification Decisions

Special Feature: Professor Ed Altman on Where We Are In The Credit Cycle and Outlook for 2024

Women in Credit: Jamie Zimmerman

Special Feature: Liability Management Whack-a-Mole

Women in Credit

Let’s Examine Examiners

CRC Reports on Purdue Pharma in AIRA Journal

Special Feature: Committee Standing

Andrew Dunlap & Samuel Kwak Speak on Incora decision shocker

Dan Kamensky Speaks on Incora decision shocker

Special Feature: Disqualified Lender provisions in the Spotlight

Contributors

Rachel Albanese Phil Anker Jeffrey Cohen David Feldman Elliot Ganz Marc Heimowitz Dan Kamensky Evan Lederman Sidney Levinson Jim Millar Hon. Richard Schmidt Brian Resnick Damian Schaible Paul Silverstein