Was international counsel to Chinese coffee chain Luckin, helping it complete a Cayman-US restructuring
|Global heads of restructuring and insolvency:||Donald Bernstein, Marshall Huebner, Damian Schaible and Timothy Graulich|
|Partners in restructuring team:||26|
|Restructuring lawyers in Who’s Who Legal:||4|
|Active cross-border restructuring and insolvency matters:||15|
History of the practice
Davis Polk & Wardwell can trace its origins back to 1849, when it went by the name Guthrie Bangs & Van Sinderen and served as a professional berth for US President Grover Cleveland between his two non-consecutive terms in the White House.
The cross-border insolvency practice dates back to the 1970s, when it conducted seminal work in settlement risk in international finance and (at the time, novel) cross-border asset freezes, including in relation to the 1979 Iranian crisis. Among Davis Polk’s then-clients was JP Morgan predecessor Morgan Guaranty Trust Company, which it advised on the collapse of Herstatt Bank. The firm also worked on some of the first international cases to involve court cooperation across jurisdictions, such as the restructuring of Robert Maxwell’s media empire, which saw its partners negotiate cross-border protocols long before the drafting of Chapter 15.
Its role in international insolvency developed dramatically during the 1980s and 1990s, when it became a key player in major developments including the International Bar Association’s Cross-border Insolvency Concordat. Donald Bernstein, New York partner and current chairman of the firm’s restructuring group, also served as an official delegate to the insolvency working group of the United Nations Commission on International Trade Law (UNCITRAL) ahead of its production of the Model Law and was a founding director of the International Insolvency Institute (III).
Since 2008, the firm has continued to advise Western banks and major financial institutions in restructurings, as well as helping them to comply with new regulations enforced as a result of the global financial crisis.
Bernstein is currently chairman of the restructuring group, which also has two global co-chairs in New York, Marshall Huebner and Damian Schaible, plus a head of international restructuring in Timothy Graulich – an III member and INSOL fellow, who was promoted to that specialist role in January 2021.
Davis Polk’s insolvency team spans four continents. The firm’s Manhattan office hosts the most partners, who work with colleagues in London, São Paulo, Hong Kong and Tokyo.
Who uses it?
Fulcrum creditors, especially ad hoc groups of lenders and noteholders that usually end up owning restructured companies.
The firm advised all eight US global systemically important financial institutions (G-SIFIs) on their “living wills” required under the US Dodd-Frank Act. It is the leading US-based global firm working with international regulators on the “too big to fail” problem.
Some other important client names include Ford Motor Company; the administrators and liquidators of UK and European Lehman Brothers affiliates; and UK retail conglomerate Tesco.
Davis Polk’s offices in Brazil, Hong Kong and Japan have led to instructions in several large-scale Latin American and Asia-Pacific restructurings.
Historic track record
In the early 1990s, Bernstein represented three bank lenders to Robert Maxwell’s business empire in protocol negotiations between a US examiner and PwC in the UK. Now-senior counsel Karen Wagner also acted for them in a preferential transfers litigation, which was thrown out of the English courts because the US had superior jurisdiction. That litigation ended up in the US Second Circuit Court of Appeals, where the banks prevailed, and is still cited in cross-border cases today.
At around the same time, Davis Polk represented Irish commercial aircraft leasing company Guinness Peat Aviation in a US$10 billion restructuring, leading an exchange offer.
It also acted as US counsel to Telecom Argentina – which was restructuring in its native country – in a New York litigation to address the claims of non-consenting debt holders. The case established an important choice of law precedent in America.
The firm also represented an international banking group in one of the first cross-border pre-packaged cases: the 1992 bankruptcy of Memorex-Telex, a US electrical goods manufacturer.
Davis Polk’s work with large banks saw it act for the joint administrators and liquidators of Lehman Brothers International Europe (LBIE) and its UK-based affiliates in litigation worth US$100 billion against its US entities, and then in a complex settlement resolving billions of dollars’ worth of claims among more than 80 Lehman entities. Later, it helped LBIE’s administrators reach a US$38 million settlement with Lehman Brothers Inc and Lehman’s US broker in what was one of the largest inter-company settlements in history and the largest case to engage the US Securities Investor Protection Act.
Davis Polk acted for the Federal Reserve Bank of New York and the US Department of the Treasury in connection with the successful US$180 billion restructuring and recapitalisation of American International Group.
The firm managed to get Chapter 15 recognition of computer parts manufacturer Elpida’s Japanese plan of reorganisation – the first time a US court recognised a Japanese plan under Chapter 15.
More recently, it also oversaw the successful Chapter 15 recognition of Curaçao insurer ENNIA’s restructuring under emergency regulations, in the face of objections from a shareholder – the first time a Curaçao insolvency process was recognised in the US.
Davis Polk worked on the bankruptcy of American toy retailer Toys “R” Us, advising the administrative agent and book runner on a US$2.3 billion debtor-in-possession (DIP) facility. In the same case, it advised Fung Retailing, the former minority partner in Toys “R” Us’ Asia joint venture (JV), on its acquisition of a greater stake in the JV via a settlement with the majority partner in December 2018. The settlement allowed Toys “R” Us to exit Chapter 11 weeks later.
The firm further advised Volkswagen on its worldwide multibillion-dollar exposure to defective airbag maker Takata. After pleading guilty to wire fraud and agreeing to pay US$850 million to car manufacturers, Takata entered into civil rehabilitation in Japan and Chapter 11 proceedings in Delaware. A February 2018 global settlement paved the way for approval of Takata’s Chapter 11 plan and the sale of the viable parts of its business to a competitor.
On the sovereign debt side, the firm represented Citigroup as paying agent for Argentine bonds in a high-profile litigation with Argentina over holdout creditors. The litigation concerned the enforceability of pari passu clauses in Argentina’s sovereign bond contracts, after a US court told Citibank not to pay other bondholders until the state had paid holdouts. Argentina had threatened to expropriate Citi’s local assets if it complied with the US court ruling.
Adam Shpeen in New York was promoted to partner in July 2021, and Stephen Piraino became counsel on 1 January 2022.
The III invited associate David Schiff in New York to join its NextGen leadership programme in 2021.
Top cases of the research period
Davis Polk was appointed lead restructuring counsel to opioid producer Purdue Pharma in March 2018, ahead of its infamous Chapter 11 proceedings filed in September the following year, after the group faced more than 2,900 civil actions in the first government mass tort in US history. Against a backdrop of negative media publicity and scrutiny from the US Congress, the Department of Justice, 50 state governments and other public and private entities, Davis Polk facilitated the resignation of the group’s former owners, the Sackler family; oversaw a governance overhaul; and reached a settlement with around half the state plaintiffs that would see the group transfer its assets to a public benefit trust to help people with opioid addictions. Following a court-ordered mediation and several other settlement agreements, in March 2021, the group submitted a Chapter 11 plan under which the Sacklers agreed to contribute US$4.3 billion towards the bankruptcy estate and divest its ownership, in return for immunity from further civil litigation. After a long and heavily contested sanction hearing, New York bankruptcy Judge Robert Drain approved Purdue’s plan in September 2021. But as soon as it was approved, the US Department of Justice and several states appealed to a Manhattan district court, stating the Sacklers’ releases were unconstitutional, which led to the plan being overturned that December. Another round of mediation ensued and the Sacklers increased their contribution to US$5.7 billion as well as making other concessions, which led the objecting states to withdraw their opposition as Purdue and other plan supporters appealed the plan’s cancellation. Purdue’s bankruptcy was recognised in Canada in February 2020.
Mexican airline Aeroméxico tapped a team from the firm led by Graulich to help it see through its Chapter 11 proceedings filed in June 2020. The team helped Aeroméxico secure US$1 billion in debtor-in-possession funding from Apollo and an ad hoc group of unsecured noteholders, US$800 million of which was convertible into equity in the reorganised debtors, with a junior lien priority. Davis Polk says the combined traits of the financing were “virtually unprecedented” in a free-fall Chapter 11. Aeroméxico overhauled, its fleet of aircraft during the proceedings, resulting in almost US$2 billion in savings on ongoing obligations. Its Chapter 11 plan was eventually confirmed in January 2022, after a largely consensual process (the contested confirmation hearing was settled on the second day of trial).
Davis Polk was also international counsel to beleaguered Chinese coffee chain Luckin, both advising on a restructuring and working to settle various litigations against it concerning alleged violations of US securities law, after Luckin was accused of overstating its 2019 sales volumes. The litigations include a claim for fraudulent misrepresentation by subscribers of New York law-governed convertible bonds issued in January 2020. Luckin entered provisional liquidation in the Cayman Islands at its own application in July 2020 with a view to implementing a scheme of arrangement, having entered an agreement with the convertible senior noteholders with the firm’s help. Those Cayman proceedings were recognised in Hong Kong in October 2020 and Davis Polk also helped Luckin seek recognition in the US too, five months later. In October 2021, a US district court preliminarily approved an agreement for the settlement of a US class action filed by investors that acquired Luckin Coffee American depository shares, and at the beginning of 2022, the Cayman scheme was sanctioned. Davis Polk also helped Luckin reach a settlement with the US Securities and Exchange Commission to offset a US$180 million civil penalty on the coffee chain.
Partners Bernstein, Graulich and Elliot Moskowitz in New York are continuing to advise lender HSBC in the restructuring of industrial fishing group China Fishery’s valuable Peruvian anchovy business. In 2015, HSBC commenced insolvency proceedings against China Fishery in the Cayman Islands and Hong Kong, but it withdrew them after a successful challenge against the Hong Kong liquidators and agreed to a deed of undertaking that the group would sell its Peruvian business by July 2016. Instead, China Fishery filed a Chapter 11 case. During the research period, Davis Polk helped HSBC enter a restructuring support agreement for the Peruvian business and settle a US$245 million adversary suit that was brought against by the Peruvian business’ Chapter 11 trustee, as well as helping it agree a global release of claims with several debtors in the proceedings. A Chapter 11 plan was finally approved in June 2021, which was recognised in Singapore in a landmark decision departing from the UK Supreme Court’s findings in Rubin that September. The group finally secured the sanction of a UK restructuring plan to complete a creditor takeover envisaged in the Chapter 11, in September 2022.
Since April 2019, Davis Polk has also been assisting noteholders and lenders to Brazilian miner Samarco with the restructuring of US$4 billion in funded debt, after a serious and fatal 2015 dam accident left it facing environmental, regulatory, operational and financial headwinds. The firm represented the Bank of New York Mellon as notes trustee in a litigation in against Samarco, which, alongside bondholder suits in Brazil, spurred the beleaguered company to enter judicial reorganisation in April 2021, followed by Chapter 15 recognition in May. Davis Polk appeared in the US recognition proceedings for an ad hoc group of bondholders, citing concerns about Samarco’s lack of negotiation with creditors. At the time of writing, unsecured creditors had rejected three different restructuring plans filed by Samarco in Brazil, saying they placed shareholders’ interests ahead of creditors. Under Brazil’s new Bankruptcy Law that came into force in 2021, creditors now have an opportunity to submit their own plan. Davis Polk’s clients hold approximately two-thirds of Samarco’s US$4.75 billion third party financial debt.
Also, during the research period, Davis Polk acted for an ad hoc group of debtor-in-possession (DIP) lenders in the Chapter 11 bankruptcy of Latin American airline Avianca, as well as its miles rewards program, LifeMiles – one of Avianca’s most valuable assets. The DIP lender provided Avianca with an exit facility that helped it put forward a confirmable plan and emerge from Chapter 11 in late 2021, Davis Polk says.
The firm was also counsel to LATAM airlines’ shareholder and post-petition lender Delta Air Lines in the former’s heavily contested but ultimately successful Chapter 11 restructuring. Like Avianca, LATAM secured a hefty, US$5.4 billion exit facility backstopped by its shareholders and creditors – one of the largest ever sought for approval in a Chapter 11 case.
Frauke Eßer, legal counsel for crises, insolvencies and antitrust at Volkswagen Group Purchasing, describes the Takata case as “of major importance for Volkswagen”.
“We have never experienced a better law firm on the restructuring side. Their knowledge on economics and law provides substantive criteria to distinguish them from their competitors,” she says.
In particular, Eßer highlights New York partner Darren Klein, who is “not only a magnificent lawyer, but… has also studied economics at university and worked as an economic consultant for four years”. She describes him as “extremely smart, creative and an influencer”, and says that he helped Volkswagen to succeed in nearly all its negotiations.
Graulich also gets the thumbs-up from VW: “Timothy is a real expert for cross-border cases and is very experienced in Japan and other jurisdictions.”
Davis Polk & Wardwell LLP is a global law firm with 10 offices strategically located in key business centers and political capitals around the world. For more than 170 years, we have advised industry-leading companies and global financial institutions on their most challenging legal and business matters.
We are widely recognized as one of the world’s premier law firms for restructuring. We represent companies, financial institutions, committees, hedge funds, investors, acquirers, trustees, administrators and receivers in connection with:
- Insolvencies and Restructurings
- Rescue and Debtor-In-Possession Financings
- Exchange Offer and Debt/Equity Conversions
- Distressed Mergers and Acquisitions
We are a firm of choice for cross-border insolvency and restructuring matters, particularly in Asia, Brazil and other parts of Latin America. In addition, we regularly represent non-U.S. companies in connection with their distressed U.S. subsidiaries.
Recent Cross-Border and International Thought Leadership
- INSOL: Former Co-Chair and current Member of G-36 Committee, former INSOL Fellow, Moderator at Singapore Conference
- Global Restructuring Review: Editorial Board Member, Co-Chair of GRR NY Live, Speaker at Latin Lawyer-GRR Live Restructuring Summit
- IBA: Former Co-Chair of Insolvency Legislation and Policy Subcommittee, Member of Latin American Regional Forum, Speaker at Annual IBA Conference
- International Insolvency Institute: Founding Director, former President and current full and NextGen Members, Speakers at Annual III Conference
- UNCITRAL: Member of Official U.S. Delegation to the Insolvency Working Group of the United Nations Commission on International Trade Law
- International Insolvency Review: Managing Editor and Contributing Author
- Continually ranked Band 1 for Bankruptcy/Restructuring (Chambers, Legal 500, IFLR1000)
- Continually ranked a Leading Cross-Border Restructuring and Insolvency Practice (Global Restructuring Review)
- 2022 Bankruptcy Law Firm of the Year, Chambers USA Awards (Davis Polk)
- 2022 Deal of the Year: Restructuring, Latin Lawyer (Avianca)
- 2021 Bankruptcy Practice Group of the Year, Law360 (Davis Polk)
- 2021 Law Firm of the Year Award, American Lawyer (Davis Polk)
- 2021 Deal of the Year: Banking & Finance, Latin Lawyer Awards (LATAM Airlines)
- 2021 New York Law Firm of the Year, IFLR1000 (Davis Polk)
- 2021 Mega Company Turnaround/Transaction of the Year Award, The Turnaround Management Association (Murray Energy)
- 2021: Deal of the Year: Banking & Finance (Latin Lawyer |LATAM Airlines)
- 2020: Restructuring Advisory Firm of the Year (The Deal Awards New York)
- 2020: Restructuring Deal of the Year (IFLR Americas Awards | McDermott)
Recent Notable Assignments
- AEROMÉXICO – Advising Grupo Aeroméxico regarding its restructuring under chapter 11.
- ALPHA LATAM MANAGEMENT – Advised Cerberus South American Investments in successful campaign to become stalking horse bidder for substantially all assets in Alpha Latam Management chapter 11 cases.
- ALTO MAIPO – Advised Cerberus South American Investments, LLC, one of the largest senior secured lenders to Chilean hydroelectric project operator Alto Maipo SpA, in Alto Maipo’s chapter 11 cases.
- AVIANCA – Advised ad hoc investor group regarding Avianca’s A-1 $1.05 billion DIP-to-exit financing.
- BALLANTYNE – Advised Ballantyne Re plc and foreign representative regarding Irish scheme and chapter 15 recognition of same.
- CHINA FISHERY – Advising major lender in connection with China Fishery Group’s chapter 11 cases and related litigation and insolvency proceedings.
- ENNIA – Advising Central Bank of Curaçao and Sint Maarten regarding chapter 15 recognition of ENNIA Group’s Curaçao insolvency proceedings.
- LATAM – Advising Delta Air Lines, Inc., shareholder and business partner of LATAM Airlines in LATAM’s restructuring under chapter 11.
- LUCKIN – Advising Chinese coffee retailer Luckin Coffee Inc. in its multi-jurisdictional restructuring, including U.S. securities litigations, SEC settlement and chapter 15 recognition of Cayman Islands provisional liquidation.
- OI – Advised multiple key stakeholders in Oi’s Brazilian restructuring and follow-on transactions.
- PURDUE – Advising Purdue Pharma L.P. regarding its US$10+ billion restructuring under chapter 11.
- SAMARCO – Advising ad hoc group of creditors in cross-border restructuring of Brazilian mining company Samarco Mineração S.A.
- SCHAHIN – Advised indenture trustee on debtor-in-possession rescue financing facility for Schahin II Finance Company (SPV) Limited implemented through Cayman scheme.
- SIFI RESOLUTION ADVISORY – We remain the leading U.S.-based global law firm working with global financial institutions and regulators to solve “too big to fail.”