Litigation > Supreme Court and Appellate: Bankruptcy

Overview

Akin Gump seamlessly combines its award-winning financial restructuring and Supreme Court and appellate practices—both of which were recently named Law360’s practice groups of the year and are consistently recognized in Chambers USA—to provide a top-of-the-market practice focused on bankruptcy appeals.

Akin Gump’s financial restructuring team is widely recognized as one of the world’s leading restructuring groups, with unparalleled bench depth and experience. Akin Gump attorneys have been involved in some of the largest and most complex restructurings in recent history, including Sears, iHeart Media, Avaya, SunEdison, Washington Mutual and Eastman Kodak. They also have a long track record of advising official and informal creditors’ committees, companies, and institutional investors in formal and out-of-court restructurings, in financing and strategic transactions, and on distressed and special situations.

Akin Gump is uniquely situated to blend that broad array of restructuring experience with a nationally renowned appellate practice. Corporate Counsel recently ranked it one of the top three appellate practices nationwide, and The National Law Journal has made Akin Gump a mainstay on its annual “Appellate Hot List.” Listed by Chambers and Legal 500 as a leader in the field, our appellate practice was also recognized nationally in Tier 1 in the U.S. News & World Report and Best Lawyers’ sixth annual joint ranking of America’s Best Law Firms. 

Akin Gump regularly leads appeals from bankruptcy court matters in the district courts, courts of appeals and the Supreme Court on cutting-edge issues that companies and creditors face today—often in closely watched, precedent-setting cases. Our integration of bankruptcy know-how and top-flight appellate advocacy skills ranges from collaboration in the bankruptcy court on strategy and tactical matters to ensure that all applicable arguments and appropriate records have been developed; to deploying our extensive and hands-on experience in intermediate appellate tribunals; to seeking or preventing Supreme Court review. The depth, breadth and quality of experience in the intricacies of bankruptcy law possessed by Akin Gump’s appellate practice is such that clients from around the country seek out our lawyers on high-stakes matters.

Our Team

Leading our Supreme Court and appellate team on financial restructuring matters is Pratik Shah, who has argued 15 cases (prevailing in all but three) before the U.S. Supreme Court and has filed over 150 merits or certiorari-stage briefs in that Court. Mr. Shah is ranked among the country’s top appellate litigators by a number of leading publications. He has been noted as “practicing before the highest court in the land on some of the most groundbreaking cases of the 21st century” (Washington Business Journal) and described as “incredibly intelligent with a total command of appellate issues” (Chambers USA).

Mr. Shah has extensive experience in Supreme Court and appellate cases involving financial restructuring matters. During his tenure as an Assistant Solicitor General in the U.S. Department of Justice, Mr. Shah successfully argued Hall v. United States, a case concerning the dischargeability of federal tax debt under Chapter 12 of the Bankruptcy Code. Since joining Akin Gump, he has successfully served as lead appellate counsel to debtors and creditors in several high-profile bankruptcy cases in the courts of appeals and the Supreme Court.

Among others in Akin Gump’s appellate practice, comprised of former law clerks from the U.S. Supreme Court and the courts of appeals, partner Julius Chen brings a wealth of knowledge and insight to a wide range of procedural and substantive aspects of bankruptcy litigation. In addition to spearheading appeals, Mr. Chen has appeared in bankruptcy court to argue motions and regularly provides strategic advice in advance of appeal on high-value bankruptcy disputes

The appellate team works closely with Akin Gump’s seasoned bankruptcy litigators—including Marty Brimmage, Lacy Lawrence, Abid Qureshi, Joseph Sorkin and David Zensky (among others)—who bring ample appellate experience of their own.

Bankruptcy Appeals

Akin Gump’s appellate practitioners frequently brief and argue bankruptcy cases before the courts of appeals and participate in bankruptcy cases before the Supreme Court. Those representations span the gamut of bankruptcy law.

Akin Gump has handled appeals involving preliminary injunctions and the automatic stay, asset sales, rejection of executory contracts, fraudulent transfers, post-petition interest, administrative expense claims, substantive consolidation, adequate protection for secured creditors, and plan confirmation issues such as cram-downs. Akin Gump has also developed special appellate experience with respect to the equitable mootness doctrine and procedural rules governing the appealability of bankruptcy court order, including under 28 U.S.C. § 158.

Most recently, Akin Gump’s appellate and financial restructuring attorneys secured a significant victory in the U.S. Court of Appeals for the 6th Circuit arising out of FirstEnergy Solutions Corp.’s multi-billion-dollar Chapter 11 proceeding. Bringing its appellate advocacy and bankruptcy capabilities to bear in a case at the intersection of the Bankruptcy Code and the Federal Power Act, the team persuaded the Sixth Circuit that the Federal Energy Regulatory Commission cannot veto a bankruptcy court’s approval of a debtor’s decision to reject an executory power-purchase agreement. The team then defeated en banc review.

Beyond directly participating in bankruptcy litigation, Akin Gump’s appellate attorneys are regularly called upon to arm creditors and investors with a deeper understanding of appellate-related issues. That advice often entails evaluation of potential appeal outcomes and/or the timing of future proceedings—accounting in particular for the complexities involved in Supreme Court review. For example, Akin Gump appellate attorneys have advised on litigation concerning Argentina’s 2001 depression and issuance of billions of dollars of bonds, as well as the restructuring of the Puerto Rico government’s debt under the Puerto Rico Oversight, Management, and Economic Stability Act.

Representative Matters

  • In re Sears Holdings Corp. (S.D.N.Y.). Represent Official Committee of Unsecured Creditors in nine plan confirmation appeals, including successfully defeating motions to certify direct appeals.
  • In re Purdue Pharma, L.P. (S.D.N.Y.). Represent Official Committee of Unsecured Creditors in appeals from preliminary injunction barring pursuit of thousands of pending civil actions against debtors.
  • In re PG&E Corp. (N.D. Cal.). Successful dismissal of appeal from order determining post-petition interest rate as non-final and not appropriate for interlocutory appeal on behalf of ad hoc committee of senior unsecured noteholders.
  • In re FirstEnergy Solutions Corp., 945 F.3d 431 (6th Cir. 2019). Successful representation of debtor seeking to reject executory power-purchase agreements without Federal Energy Regulatory Commission veto.
  • Tuttle v. Allied Nevada Gold Corp., 138 S. Ct. 481 (2018). Successfully defeated petition for certiorari challenging equitable mootness doctrine.
  • BOKF, N.A. v. Momentive Performance Materials, 138 S. Ct. 2653 (2018), and Wilmington Trust, N.A. v. Momentive Performance Materials, Inc., 138 S. Ct. 2653 (2018). Successfully defeated petitions for certiorari concerning favorable Second Circuit decision on “make-whole” clauses.