About Theresa A. Foudy

Over her career, Theresa Foudy has worked on many of the biggest and most complex bankruptcy cases in the nation. In that time, she has gained valuable experience with bankruptcy courts across the country, formed valuable relationships with other premier bankruptcy practitioners and developed a keen understanding of what motivates players in restructurings. Wherever possible, she works to find compromises that maximize value for all parties. Where it isn't, she is prepared to litigate contested matters "to the mat" through all phases, from pleadings through trial and appeal.

A proactive approach that solves complex, costly challenges

Theresa represents Chapter 11 debtors, creditors' committees, indenture trustees, secured and unsecured creditors, independent directors and distressed investors through all stages of bankruptcy litigation. She helps these clients with all types of bankruptcy-related disputes, including suits by or against a bankrupt company, investigations into what led to a bankruptcy filing, avoidance actions and litigation over whether a plan of reorganization should be confirmed. To all these matters, she brings detailed knowledge of the nuances of Chapter 11 cases, from fraudulent conveyances to inter-creditor disputes to valuation.

Clients rely on Theresa's knowledge of the bankruptcy process and law to help them solve potentially costly challenges. Often, her understanding of bankruptcy proceedings, including the key players' motivations and tendencies, allows her to address issues with maximum efficiency. For the private equity sponsor of a company in bankruptcy, for example, Theresa anticipated potential claw-back claims for $350 million. Before the action was even brought, she reached a swift, favorable and comprehensive settlement. In a similar situation, Theresa proactively neutralized a creditors' committee attempt to claw back allegedly excessive compensation from her clients, former directors, officers and employees of a Chapter 11 debtor.

Theresa's years working on high-profile bankruptcies gives her insight into the motivations driving each side of a case. Frequently, that insight helps her clients reach resolutions that are more efficient than litigation. When litigation is necessary, she is well versed in all aspects, having tried contested matters and adversary proceedings in numerous bankruptcy courts and having argued more than 100 appeals before state and federal courts.

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Practice Focus

  • High-stakes bankruptcy litigation, both trials and appeals
  • Large corporate Chapter 11 cases
  • Internal investigations
  • Bankruptcy plans and reorganizations, including confirmation proceedings
  • Bankruptcy Code compliance
  • Responding to Bankruptcy Rule 2004 examinations

Representative Experience

  • Lead trial counsel for defendants, wholly owned subsidiaries of a multinational commodity trading and mining company, in four-day bench trial. Seek declaratory judgments as to numerous property rights and contractual damages associated with the rejection of a lease to a power plant in an adversary proceeding before the US Bankruptcy Court for the Southern District of Texas.
  • Lead trial counsel for defendant directors in 15-day bench trial on motion of the Official Committee of Unsecured Creditors for standing to assert claims against directors for breach of fiduciary duty and aiding and abetting breach of fiduciary duty in connection with their approval of a merger transaction. After prevailing in the US Bankruptcy Court for the Southern District of New York, also handled successful defense of subsequent appeals by the Creditors' Committee to the District Court and US Court of Appeals for the Second Circuit. *
  • Conflicts counsel for plaintiff Chapter 11 debtor, a leading provider of residential mortgages. Participated in all aspects of litigation and trial of adversary proceeding against junior secured noteholders. Argued motion to dismiss counterclaims and cross-examined witness at trial in the US Bankruptcy Court for the Southern District of New York.
  • Lead trial counsel for creditor, a state-owned oil and natural gas company, in evidentiary hearing in connection with motion to dismiss bankruptcy case pending in the US Bankruptcy Court for the Southern District of Florida.
  • Lead trial counsel for defendant, an alternative investment manager, in 16-day bench trial of creditors' committee complaint. Seek equitable subordination, recharacterization and disallowance of transferee noteholders' claims in adversary proceeding pending in the General Motors Chapter 11 case in the US Bankruptcy Court for the Southern District of New York.
  • Conflicts counsel for Official Committee of Unsecured Creditors. Conducted cross-examination of witness in contested evidentiary hearing on debtors' motion to extend exclusivity in Chapter 11 cases pending in the US Bankruptcy Court for the Southern District of New York.
  • Represent co-chair of Official Committee of Unsecured Creditors for global paper and packaging company during contested confirmation hearing trial. Equity holders challenged valuation of bankruptcy estate in cases pending in the US Bankruptcy Court for the District of Delaware. Responsible for preparing examinations of witnesses, and opening and closing statements.
  • Counsel for plaintiff, the exclusive distributor for brand-name clothing products in Latin America, suing for breach of contract for premature termination of license agreement. Prevailed in jury trial, resulting in permanent injunctive relief precluding termination of license agreement. Responsible for all aspects of litigation from complaint through jury verdict in client's favor, including discovery, dispositive motions and pre-trial filings.
  • Argument before the US Bankruptcy Court for the Southern District of New York on behalf of plaintiff, a global financial services firm, in defense of summary judgment motion brought by defendant, a financial services multinational. Seek dismissal of claims for actual fraudulent conveyance arising from client's issuing guarantee to defendant of billions of dollars of intraday exposure days before filing for bankruptcy.
  • Brief and argument, on behalf of plaintiff, an institutional lender, as trustee for holders of $250 million of senior secured notes, oppositions to motion to dismiss complaint and amended complaint alleging breach of contract claims against junior noteholders for violations of intercreditor agreement in Chapter 11 cases pending in the US Bankruptcy Court for the Southern District of New York.
  • Briefed and argued successful motion to dismiss in the US District Court for the Southern District of New York on behalf of Panamanian financial institution. Obtained dismissal of claims alleging breach of fiduciary duty and conspiracy arising from sale of investment company under the terms of limited liability company agreement.
  • Briefed and argued successful motion to dismiss on behalf of global supplier of automotive seating systems and electrical systems in $264 million patent infringement claim brought in Chapter 11 cases pending in the US Bankruptcy Court for the Southern District of New York. Also successfully defeated motion by plaintiffs to lift the automatic stay to continue pursuing claims in state court.
  • Briefed and argued successful motions for summary judgment and sanctions in defense of $60 million claim for fraudulent inducement and breach of contract against provider of liquidation services.
  • Briefed and argued successful motion to dismiss on behalf of provider of liquidation services of claims for equitable subordination or recharacterization of debt brought by the Official Committee of Unsecured Creditors of Steve & Barry's in the US Bankruptcy Court for the Southern District of New York.
  • Briefed and argued successful motion to dismiss on behalf of accounting firm of third-party complaint brought by investment bank seeking contribution and indemnification from client in connection with claims for fraud brought by the Enron bankruptcy estate in the US Bankruptcy Court for the Southern District of New York.
  • Argued more than 100 appeals before the New York Appellate Division First Department, New York Court of Appeals and US Court of Appeals for the Second Circuit as a member of the Appeals Bureau for the New York County District Attorney's Office and the Office's Civil Litigation Coordinator.
* Experience prior to Katten

Publications

Presentations and Events

  • ABA Section of International Law Fall Meeting
    November 2006