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Kevin J. Walsh

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[email protected]

+1.617.348.1622

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Kevin is an accomplished bankruptcy attorney whose practice encompasses restructurings, workouts, and commercial financing transactions. He has more than two decades of experience working with debtors and creditors, including bondholders, trustees, financial institutions, and insurers. He represents parties in bankruptcy cases in courts around the country and handles out-of-court workouts and receivership matters. Lenders and borrowers rely on his counsel with regard to working capital and asset-based financings, acquisition loans, syndicated credit facilities, and debtor-in-possession financings. Kevin also advises corporate boards on fiduciary duty issues around insolvency.

Kevin’s practice focuses on all aspects of bankruptcy and commercial law, workouts, restructurings, and commercial lending transactions, including negotiating and documenting commercial loans and credits. For over 20 years, he has represented debtors and creditors, including bondholders, trustees, financial institutions, and insurers. Kevin's experience includes out-of-court workouts, ABCs, receivership, and bankruptcy proceedings in courts and around the country.

His lending experience includes the representation of lenders and borrowers, in matters involving working capital and asset based financings, acquisition loans, syndicated credit facilities, and debtor-in-possession financings. Kevin also advises corporate boards on fiduciary duty issues during and approaching insolvency.

Kevin has written articles and lectured in a variety of legal and business forums, including Massachusetts Continuing Legal Education, on various topics related to bankruptcies, restructurings, and commercial lending, including bankruptcy sales (both buyer and seller perspectives), recharacterization of equity and equitable subordination, recognizing bankruptcy risks in second lien lending situations, negotiating credit agreements, and enforcing guaranties. He is the editor of the Distressing Matters blog.

During law school, he was an articles editor of the New York Law School Law Review and a national finalist in the Judge Duberstein Bankruptcy Moot Court Competition.

Education

  • New York Law School (JD)
  • Trinity College (BA)

Experience

  • Represented Time, Inc., an American mass media company in a so-called strict foreclosure under Article 9 of the Uniform Commercial Code in California and Delaware. Our team represented Time in a number of jurisdictions across the country and was able to defeat each such claim or settle a handful of claims for a nominal amount.
  • Represented the indenture trustee for convertible note holders retaining the largest, single unsecured notes claim in the Energy XXI bankruptcy case, which had in excess of $3 billion of secured and unsecured debt .Our team litigated issues concerning: misrepresentations and misstatements in the debtors’ disclosure statement and plan of reorganization; undervaluing of the debtors’ assets; failure of the plan to provide the minimum amount of distributions to creditors; and the improper release of claims against the debtors insiders all for the purpose of forcing the debtors plan to be terminated and the unsecured creditors plan of reorganization to be confirmed.

Recognition & Awards

  • Best Lawyers in America: Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law (2013 – 2019)
  • Chambers USA: Massachusetts – Bankruptcy/Restructuring (2006 – 2016)
  • Included on the Massachusetts Super Lawyers: Bankruptcy & Creditor/Debtor Rights list (2006 – 2017)
  • Included on the Massachusetts Super Lawyers: Rising Star – Bankruptcy & Creditor/Debtor Rights list (2005 – 2006)
  • Madison’s Who’s Who Honors Edition (2006 – 2007)

Viewpoints

A recent Ninth Circuit Court of Appeals decision provides insight into “bad faith” claims-buying activity; specifically whether a creditor’s purchase of claims for the express purpose of blocking plan confirmation is permissible.
The Massachusetts Supreme Judicial Court recently held that the Massachusetts Wage Act does not impose personal liability on board members or investors acting in their normal capacities.
Refusing to rely on “equitable principles” when interpreting the Delaware Uniform Fraudulent Transfer Act (DUFTA), the Third Circuit (2-1 decision) in Crystallex Int’l Corp. v. Petroleos De Venezuela, S.A, et als. held that a transfer by a non-debtor cannot be a fraudulent transfer.
In In Re Lexington Hospitality Group, LLC, the United States Bankruptcy Court for the Eastern District of Kentucky thwarted a lender’s efforts to control whether its borrower could file bankruptcy.
The Delaware bankruptcy court recently decided that a debtor could not assign a trademark license absent the consent of the licensor. The court concluded that federal trademark law and the terms of the license precluded assignment without consent.
Exculpation provisions in operating agreements must be carefully crafted in order to protect members, managers, directors and officers for breaches of fiduciary duties. In In re Simplexity, LLC, the Chapter 7 trustee sued the former officers and directors (who were also members and/or managers) for failing to act to preserve going concern value and exposing the debtors to WARN Act claims. 
As noted in a recent Distressing Matters post, the United States Supreme Court in In re Jevic Holding Corp. held that debtors cannot use structured dismissals to make payments to creditors in violation of ordinary bankruptcy distribution priority rules. 
One of the most powerful and oft used devices in bankruptcy is the sale of assets “free and clear” of liens, claims and interests. One issue a buyer at a bankruptcy sale must consider, however, is whether due process has been met with respect to parties whose liens, claims and/or interests are released through such sale. 
A recent opinion issued by the United States District Court for the Northern District of Illinois reminds us that corporate veil-piercing liability is not exclusive to shareholders. Anyone who is in control of and misuses the corporate structure can be found liable for the obligations of the corporation. 
Shareholders who received nearly $8 billion from the Tribune Company leveraged buyout (LBO) do not have to give back that money as a constructive fraudulent transfer.

News & Press

Bay Point Advisors has expanded its footprint in the coal sector as the firm advanced a $6.6 million term loan to Coking Coal Financing, LLC.  The loan provides funds to acquire and stockpile coal for resale, and to launch its receivables factoring program. Mintz served as Bay Point’s legal team.
Best Lawyers named 85 Mintz attorneys to its 2018 list of The Best Lawyers in America. In addition, Mintz attorneys Matthew J. Gardella and Samuel M. Tony Starr were named “Lawyer of the Year” in their respective practice areas.
Fifty-three Mintz attorneys have been named Massachusetts Super Lawyers for 2016 and thirty-one have been named Massachusetts Rising Stars. The findings will be published in the November 2016 issue of Boston Magazine and in a stand-alone magazine, New England Super Lawyers. 
Best Lawyers named 73 Mintz attorneys to its 2017 list of The Best Lawyers in America. Mintz attorneys selected for inclusion in this year’s list span 44 practice areas. 
Firm’s National Healthcare Practice, NY Corporate/M&A and Litigation: General Commercial Among Newest Rankings
The 2015 Chambers USA: America's Leading Lawyers for Business guide names 52 Mintz, Cohn, Ferris, Glovsky and Popeo, P.C.  attorneys as “Leaders in Their Fields.”

Events

Faculty
Jun
17
2015