Representative Bankruptcy / Creditors' Rights Matters

James H. Lister

(BHBC D.C. Office)

Extensive experience in bankruptcies in the telecommunications industry. Represented creditor coalitions or individual creditors as trade creditors of telecom industry debtors including WorldCom, Global Crossing, e.spire, Touch America, ICG, Nortel and others. Many of these cases have been in the District of Delaware and Southern District of New York.

Obtained enhanced creditor recoveries in Chapter 11 cases through objecting to confirmation of plans or reorganization, prosecuting contested administrative claims, seeking “cure” payments where debtor or its buyer desire continued service from the client, and obtaining authority to set-off amounts owed to the debtor against amounts owed by the debtor.

Negotiated settlement of major commercial claim involving a failed telecommunications outsourcing project where the vendor entered bankruptcy during contract implementation.

Outside of bankruptcy, negotiated work-out and payment over time of substantial debt owed by carrier client to FCC’s universal service program.

Member of team representing national airline as debtor in two Chapter 11 cases, focusing on defending against priority claims asserted by tax authorities and other governmental entities.

Represented Chapter 11 creditors’ committee consisting of personal injury claimants. The debtor was a pool and spa industry trade association that set standards for pool depth.

Represented clients in the D.C. area bankruptcy courts (Eastern District of Virginia, District of Maryland, and District of Columbia).

Defended many demands and lawsuits by debtors and trustees seeking return of alleged preferential payments made by the debtor to the client in the 90-day period prior to the bankruptcy filing. Experienced with utilizing less-commonly-seen defenses (e.g. lack of antecedent debt, mechanics’ liens, contract assumption) as well as the routine defenses (e.g., ordinary courses of business, subsequent new value).

Represented national bank in defending multiple suits by debtor consumers in Chapter 7 and Chapter 13 cases alleging failure to update credit reports to reflect discharge of debt. Consumers alleged violation of the automatic stay or discharge injunction.

Prosecuted and defended various suits in bankruptcy court seeking to quiet title to land or determine lien priorities, or obtain judicial recognition of disputed liens.

Energy Law

Birch Horton Bittner & Cherot energy law practice is led by veteran attorneys who have in-depth knowledge about this specialized field. They also have broad experience in related environmental, legislative, natural resource and utility law and financing fields that makes representation more efficient and effective.
BHBC’s energy clients include entities engaged in oil, gas, mining, pipeline transportation and utility service businesses. Subject areas include:

• Representation of both public and private entities pursuing natural gas pipeline projects, including obtaining and exercising rights-of-way, permits and commercial agreements.
• Representation of oil, gas and mining interests in obtaining state and federal permits and analyzing impacts of federal and state regulation.
• Representation of private entities in negotiating and maintaining relationships with various federal and state government agencies.
• Representation of landowners and Native regional corporations with respect to oil and gas leases, exploration agreements, transfers and property matters. 
• Representation of oil and gas pipeline companies in obtaining regulatory approvals for acquisitions of pipeline interests, and in negotiating and drafting pipeline connection and operating agreements and easements.
• Representation of electric utilities in financing generation projects, including renewable energy.

In its longstanding regulatory practice, BHBC represents electric and gas utilities and pipeline carriers before state public utilities commissions in certification, rate, rate design and tariff proceedings, as well as energy policy rulemakings. We handle complex appeals of state utility and pipeline rate decisions, and provide assistance on related business issues such as acquisitions and other corporate and transactional matters. We also represent clients before the Federal Energy Regulatory Commission on hydroelectric licensing and other issues.

Our energy practice includes representation of renewable energy companies that use resources as diverse as wind, hydro, geothermal and biomass. We advise on state and federal regulatory rules, negotiate power purchase and other interconnection agreements, assist in environmental and natural resource permitting, and handle other business issues.

As an added dimension, BHBC furthers energy clients’ interests through its legislative practice. A number of BHBC attorneys have worked in senior capacities on the Hill and at administrative agencies where legislative strategies can be key to project success. BHBC accomplishes client goals through legislative solutions, not only through the passage of legislation, but also through legislative oversight of administrative agency proceedings.

Attorneys

• Kathryn A. Black
• Jon M. DeVore
• Douglas S. Fuller
• Tina M. Grovier
• William P. Horn
• Cortney Kitchen
• Thomas F. Klinkner
• David E. Lampp
• Elisabeth H. Ross
• Holly C. Wells

Representative Natural Resources / Wildlife Matters

James H. Lister

Represented national and state associations of trappers and sportsmen as defendant intervenors in Endangered Species Act (ESA) lawsuit against the State of Maine.The suit sought to enjoin the State from allowing land trapping in Northern Maine, and alleged occasional accidental trapping of Canada lynx in traps regulated by the State.The case resulted in several significant precedential opinions at both the district and appellate level.

Represented national association of off-road vehicle manufacturers as defendant intervenors in defending suits by environmental group seeking to end off-road vehicle (ORV) riding in the National Park System. Represented national association of personal watercraft manufacturers as defendant intervenors in similar suit.

Represented national association of hunters as defendant intervenors in defending suit against the U.S. Fish and Wildlife Service seeking to end hunting on National Wildlife Refuges.

Prosecuted many motions by users of natural resources (e.g., hunters, recreational vehicle manufacturers, trappers) to intervene as defendants in lawsuits by environmental groups against federal or state agencies.Worked in these cases to maintain a productive relationship with the attorney representing the federal or state government defendant.Experienced in avoiding unduly harsh remedies in those cases where plaintiffs do establish liability.

Obtained partial dismissals of environmental lawsuits affecting multiple units (parks) in the National Park System by showing plaintiffs had not recently visited some of those units and so lacked standing to sue as to those units.

Endangered Species Act matters have included both cases involving allegations of prohibited “take” of endangered or threatened species and cases involving the listing and delisting of species under the Act. Other statutes frequently encountered include the National Environmental Policy Act, the National Park Service Organic Act, the Alaska National Interests Lands Conservation Act (ANILCA), and the Administrative Procedure Act (APA).

Commercial Transactions

BHBC has had substantial experience in commercial transactions through its representation of a number of Alaska banks, public agencies, and private Native and non-Native business corporations.  BHBC is preeminent among Alaska firms in its representation of financial institutions.  The firm has represented lenders in both good and bad economic times, thereby developing a complete and thorough understanding of commercial and financial issues.  BHBC is knowledgeable on complex and commercial issues and the newest statutes, regulations, and court decisions which substantially affect the firm's clients.

BHBC's attorneys have negotiated, drafted, and interpreted all types of agreements associated with commercial loans, from the loan commitment through the preparation of the loan agreement, security agreements, deeds of trust, promissory notes, deed of trust notes, assignments of deeds of trust, assignments of leases, and escrow instructions.  Several financial institutions entering the Alaska market sought the BHBC's expertise for guidance in establishing operations that conform to Alaska law concerning lending practices, consumer protection, and creditor remedies.

BHBC also has substantial experience with inter-creditor relationships, including the negotiation, preparation, and review of servicing and participation agreements.  Representative experience includes:

• KeyBank National Association.  The firm has represented KeyBank and other qualified banks in the State of Alaska, including the multi-million dollar Mt. Roberts tramway financing in Juneau, Alaska, which involved many unique issues including security interests in air rights and other assets specific to the tramway operation.
• Alaska Communications Systems.  The firm represented ACS in its acquisition of ATU (the Anchorage Telephone Utility).  This was a substantial project which included conducting the due diligence review of the ATU assets.
• Petro Star Valdez Refinery.  The firm represented Petro Star Refinery in construction and financing of an oil refinery, including the negotiation and drafting of the documents for numerous lines of credit.
• KeyBank National Association.  The firm has represented KeyBank in long-term loans and multi million dollar lines of credit to Alaska Native Corporations including Arctic Slope Region, Inc., which loans involved the analysis of special issues relative to the Alaska Native Claims Settlement Act ("ANCSA") and the Alaska National Interest Lands Conservation Act ("ANILCA"), particularly as those acts impact real estate lending.
• Municipality of Anchorage.  The firm represented the Municipality of Anchorage in the due diligence analysis of oil and gas leases to be purchased by Municipal Light and Power in the Beluga Field, and the preparation of the title opinion for that purchase.
• Cornell Corrections, Inc.  The firm represented Cornell Corrections in the due diligence review on all real property to be purchased or leased in Alaska by this operator of private prisons, including advice on title exceptions, zoning compliance, survey issues and encroachment.
• Seward Association for the Advancement of Marine Science.  The firm represents SAAMS, the developer and operator of the Alaska SeaLife Center, including negotiations of the Agreement for Financing, Lease, Construction, Operation and Maintenance of the Alaska SeaLife Center by and between City of Seward and SAAMS.
• The firm represented the lender in connection with three housing projects located on military reservations; these projects were developed by private developers under Section 801 of the Federal Procurement regulations and involve long-term leases with the U.S. Government.  Each of the loans on these projects was in excess of $30 million.  The representation involved all aspects of construction financing and documentation, including negotiation with the Government on the terms of the long-term leases, and perfection of the lender's interests through deeds of trust, assignments of the leases, and assignments under the 1940 Assignment of Claims Acts.
• The firm represented the purchasers in purchase and financing of four mobile home parks and two medical buildings in Anchorage, Alaska.

As previously stated, BHBC has represented lenders and developers both in prosperous times and in recessions.  Therefore, in addition to commercial and real estate loan documentation, the firm's attorneys have negotiated, drafted, and interpreted documents related to loan restructurings, loan modifications, workouts, deeds in lieu of foreclosure, and have analyzed legal issues associated with those documents. BHBC has assisted lenders in establishing a strategy with regard to dealing with defaulting borrowers and dealing with loan participants.

Attorneys

• Suzanne Cherot
• Kathryn A. Black
• Thomas F. Klinkner