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Mark E. Felger

Co-Chair, Bankruptcy, Insolvency & Restructuring; Office Managing Partner

: Wilmington
1201 North Market Street
Suite 1001
Wilmington, DE 19801
P: (302) 295-2087
F: (302) 295-2013

Mark E. Felger

Recent Publication:
Adviser-Consultants Held Not 'Other Professionals' for Purposes of Section 327(a) of the Bankruptcy Code
Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Delaware Bankruptcy Court that address whether persons providing services to debtors relating to the disposition and monetization of real estate, intellectual property, and other estate assets are “professionals.”
More

Mark is the managing partner of the Wilmington office and co-chair of the firm's Bankruptcy, Insolvency & Restructuring Practice.

Mark has a broad commercial practice, focusing in the areas of Chapter 11 reorganization and general insolvency law for almost 30 years. He has represented all constituencies in corporate restructurings both in and out of Chapter 11, including debtors, unsecured creditors' committees, plan trustees, secured creditors, trade creditors, landlords, equipment lessors, reclamation creditors, insurance companies, and equity security holders, as well as acquirers of troubled businesses.

Mark’s practice includes, in large part: (i) counseling debtors through non-judicial restructurings and Chapter 11 proceedings; (ii) advising unsecured creditors’ committees in Chapter 11 proceedings; and (iii) representing trustees in complex Chapter 7 cases.

Mark is a certified mediator for the U.S. Bankruptcy Court for the District of Delaware and maintains an active mediation practice. He has been appointed to serve as mediator in several hundred proceedings over the past dozen years and has successfully mediated more than 100 matters, including WARN litigation, fiduciary duty litigation, avoidance litigation, and claim litigation.

Mark is certified by the American Board of Certification in business bankruptcy and is AV-rated by Martindale-Hubbell. He has been designated as a Super Lawyer in both Delaware and Pennsylvania, and has been listed in Chambers & Partners USA as a leading bankruptcy lawyer in Delaware since 2005. He is also included in The Best Lawyers in America for Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law. Mark is a co-author and editor of Representing the Creditors’ Committee: A Guide for Practitioners, published by the American Bankruptcy Institute. In addition, he is a chapter board member for the Turnaround Management Association and serves as the co-chair of the TMA’s Mid-Atlantic Regional Symposium for 2017 and 2018. Mark is on multiple committees for the American Bankruptcy Institute and recently served as the co-chair of the Unsecured Trade Creditors’ Committee. Mark also serves on the Board of the American Board Certification.

Mark graduated from Rochester Institute of Technology, with high honors in 1985, and received his J.D. in 1989 from Boston University.

Experience

Represented Unilife Corporation and its affiliates as lead bankruptcy counsel in Chapter 11 proceedings in the District of Delaware. The case involved the sale of the debtors’ assets through a Court-sanctioned section 363 auction sale process to four separate buyers; the wind-down of the debtors’ Australian affiliates; the negotiation and settlement of derivative claims, which created a fund for distribution to creditors; and the negotiation and confirmation of a consensual plan of liquidation with the creditors’ committee.

Represented Wolverine Tube, Inc. and various affiliates in their Chapter 11 cases in the District of Delaware. Wolverine is a leading producer of enhanced copper tubing and related products for commercial applications with worldwide operations. The case resulted in a confirmed plan of reorganization within eight months of the petition date. The plan provided for full payment to unsecured creditors, a debt for equity exchange with the debtors’ bondholders, and a negotiated resolution with the PBGC of its $100+ million pension underfunding claim. Shortly after the plan went effective, the firm handled the refinancing of the debtors’ tolling arrangements with a new working capital facility.

Represented Aluminum Shapes, LLC and various affiliates in their Chapter 11 proceedings in the District of New Jersey. The cases were filed with a pre-negotiated plan with the debtors’ plan sponsor and secured creditors. The cases were hard fought with the creditors’ committee and resulted in a confirmed plan within six months of the petition date – with the committee’s consent. The plan sponsor was replaced mid-way through the case by a party that offered financing on better terms and a larger recovery for unsecured creditors.

Represented Foamex International, Inc. and certain affiliates in their Chapter 11 cases that were filed in the District of Delaware. These cases involved a sale of substantially all of the assets of the debtors through a two-phased auction process. The auction process yielded significant additional value for creditors, and the cases were concluded through a structured dismissal that saw all administrative and priority creditors paid in full and a significant amount of the unsecured trade debt paid through debt and contract assumption and critical vendor payments.

Represented the Official Committee of Unsecured Creditors in the 1031 Tax Group cases that were commenced in the Southern District of New York, which involved widespread fraud perpetrated by the debtors’ principals. The committee worked with the Chapter 11 trustee to confirm a consensual plan of reorganization that in the end will result in a recovery to unsecured creditors in excess of 70 cents on the dollar.

Represented the Official Committee of Unsecured Creditors of a manufacturing company that filed a Chapter 11 petition in the District of Delaware. The case involved three separate sales of the debtors’ business divisions and real estate and the investigation and settlement of claims against the debtors’ directors and officers. The case resulted in a consensual confirmed plan and a 45 cent recovery for unsecured creditors.

Represented Chapter 7 trustees, committees, and debtors in the investigation and pursuit of litigation against the debtor’s former directors and officers for breach of fiduciary duty and related claims in the following cases: Affirmative Holdings, Hashfast, Scoreboard, Starter Corporation, Glass Group, TVC/OPUS, Archway Cookies, Capitol Infrastructure, Advanced Interactive Systems, and 38 Studios.

Represented Chapter 7 trustee as special counsel to develop and implement auction process to sell substantially all of the assets of the estates under Section 363 of the Bankruptcy Code in the following cases: Advanced Interactive System, Synova Healthcare, Peregrine I, Pixel Optics, Polymedix, Pursuit Capital, Impact Services, A Voce, Lyton Partnership, and Thompson River Power.

News

126 Cozen O’Connor Attorneys Named to the Best Lawyers in America

August 22, 2018

One hundred twenty-six Cozen O’Connor lawyers from 20 of the firm’s national offices have been selected for inclusion in the 2018 edition of The Best Lawyers in America.

100 Cozen O’Connor Lawyers Named to the Best Lawyers in America

August 23, 2017

Lawyers were selected for inclusion in the 2018 edition based on a rigorous peer-review that has been developed and defined for more than 30 years.

Cozen O'Connor Bankruptcy Attorneys Receive Court Approval for Sale of Unilife

July 19, 2017

Mark Felger, in conjunction with Erik Schmidt and Keith Kleinman, received court approval for three sale transactions for Unilife Corp., a company which makes wearable medication devices.

Cozen O’Connor Earns Client Recognition in 2017 Chambers USA Rankings

May 26, 2017

Chambers USA recognized 47 Cozen O’Connor lawyers as leaders in their respective fields; 14 attorneys were recognized nationally and 11 were ranked in the top band.

Sixty-Two Cozen O’Connor Lawyers Named to the Best Lawyers in America

August 15, 2016

Sixty-two Cozen O’Connor lawyers from 13 of the firm’s national offices have been selected for inclusion in the 2017 edition of The Best Lawyers in America.

Cozen O’Connor Earns Client Recognition in 2016 Chambers USA Rankings

May 27, 2016

Chambers USA recognized 41 Cozen O’Connor lawyers as leaders in their respective fields; 12 attorneys were recognized nationally and 11 were ranked in the top band.

Fifty-Two Cozen O’Connor Lawyers Named to the Best Lawyers in America

August 17, 2015

The current edition is based on more than five million detailed evaluations by the top lawyers of the country. This list will be included in dozens of city and regional publications in the United States including The Wall Street Journal, The New York Times, and The Washington Post.

Cozen O’Connor Earns Client Recognition in 2015 Chambers USA Rankings

July 06, 2015

Chambers USA recognized 37 Cozen O’Connor lawyers as leaders in their respective fields; 12 attorneys were recognized nationally and 10 were ranked in the top band.

Cozen O’Connor Earns Client Recognition in 2014 Chambers USA Rankings

May 30, 2014

Chambers USA recognized 29 Cozen O’Connor lawyers as leaders in their respective fields; six attorneys were recognized nationally and eight were ranked in the top band. Stanley Sher was named a “Senior Statesman” in the “Transportation: Shipping: Regulatory (outside New York)” industry, for the pivotal role Sher plays in the firm’s continued success in the transportation industry.

Cozen O’Connor Earns Client Recognition in 2013 Chambers USA Rankings

May 26, 2013

PHILADELPHIA – May 26, 2013 – Chambers USA has recognized 29 Cozen O’Connor lawyers as leaders in their fields; five attorneys were recognized nationally and five were ranked in the top band.

Cozen O’Connor Earns Client Recognition in 2012 Chambers USA Rankings

June 11, 2012

Chambers USA has recognized 28 Cozen O’Connor lawyers as leaders in their fields; five attorneys were recognized nationally and three were ranked in the top band.

Barry Klayman and Mark Felger Quoted in Delaware Business Court Insider

January 18, 2012

Barry Klayman and Mark Felger were quoted in the Delaware Business Court Insider article entitled ''Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern'' regarding Judge Christopher S. Sontchi's views on the significance of the Supreme Court's decision in Stern v. Marshall.

Mark Felger quoted in Turnarounds & Workouts

December 01, 2011

Mark Felger quoted in Turnarounds & Workouts

Mark Felger quoted in The News Journal

October 30, 2011

Mark Felger quoted in The News Journal

Barry Klayman and Mark Felger Featured in Delaware Business Court Insider

August 10, 2011

Barry Klayman and Mark Felger featured in Delaware Business Court Insider

Cozen O’Connor Earns Client Recognition in 2011 Chambers USA Rankings

June 16, 2011

Chambers USA has recognized 27 Cozen O’Connor lawyers as leaders in their fields.

Cozen O’Connor Earns Client Recognition in 2010 Chambers USA Rankings

June 18, 2010

Chambers USA has recognized 18 Cozen O’Connor lawyers as leaders in their fields. The annual rankings are based on client and peer references, as well as information gathered from Chambers’ own independent research. Given both nationally and regionally, the rankings are based on qualities including technical legal ability, professional conduct, and client service.

Cozen O’Connor Attorneys Named 2009 Pennsylvania Super Lawyers By Law & Politics

May 28, 2009

Cozen O’Connor is proud to announce that 52 attorneys from the firm’s Philadelphia and West Conshohocken offices have been named 2009 Pennsylvania Super Lawyers by Law & Politics, and will appear in the June 2009 issues of Philadelphia magazine and Pennsylvania Super Lawyers.

Cozen O'Connor and Select Firm Attorneys Recognized by Chambers USA 2008

June 26, 2008

Cozen O'Connor and Select Firm Attorneys Recognized by Chambers USA 2008

Cozen O’Connor Attorney Designated A 2008 Delaware And Pennsylvania Super Lawyer By Law & Politics

June 09, 2008

Cozen O’Connor Attorney Designated A 2008 Delaware And Pennsylvania Super Lawyer By Law & Politics

Cozen O’Connor Attorneys Named Pennsylvania Super Lawyers By Law & Politics

May 29, 2008

Cozen O’Connor is proud to announce that 42 attorneys from the firm’s Philadelphia and West Conshohocken offices have been named 2008 Pennsylvania Super Lawyers by Law & Politics, and will appear in the June 2008 issues of Philadelphia magazine and Pennsylvania Super Lawyers.

Adviser-Consultants Held Not 'Other Professionals' for Purposes of Section 327(a) of the Bankruptcy Code

November 07, 2018

Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Delaware Bankruptcy Court that address whether persons providing services to debtors relating to the disposition and monetization of real estate, intellectual property, and other estate assets are “professionals.”

Decisions to Clarify Time to Seek Attorney Fees for Frivolous Appeal

October 10, 2018

Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a pair of decisions from the Court of Chancery and the Delaware Supreme Court.

Bankruptcy Court Enforces Anti-Assignment Clause and Rejects Assignee’s Proof of Claim

September 05, 2018

Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider discussing a recent case from the Delaware Bankruptcy Court holding that an anti-assignment clause in a promissory note was enforceable under Delaware law.

Court Denies Public Access to Unfiled Discovery Materials

August 06, 2018

Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent case from the Delaware Court of Chancery holding that materials developed during the pretrial discovery process and not filed with the court are not part of the public record.

Creditors Committee Dissolves Upon Conversion of Chapter 11 Cases [Delaware Business Court Insider]

June 27, 2018

Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider discussing a recent case from the District of Delaware holding that a creditors committee automatically dissolved when a Chapter 11 case was converted to Chapter 7.

Former Client Entitled to Attorney’s Entire Litigation File Including Internal Work Product [Delaware Business Court Insider]

June 07, 2018

Barry Klayman and Mark Felger co-authored an article in the Delaware Business Court Insider, discussing a recent Delaware Court of Chancery case.

Bankruptcy Court Enjoins Creditor From Pursuing Claims in Chancery in Chapter 11 Trust Liquidation [Delaware Business Court Insider]

May 09, 2018

Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in the Delaware Business Court Insider, discuss a recent Delaware Bankruptcy Court case enjoining a creditor from pursuing breach of fiduciary duty claims and other claims against a debtor’s former officers and early round investors in the Court of Chancery based on provisions of the debtor’s Chapter 11 plan of liquidation.

Chancery Addresses Subrogation Rights in the Context of Claims for Indemnification [Delaware Business Court Insider]

April 04, 2018

Barry Klayman, a member of Cozen O’Connor’s Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, and Mark Felger, co-chair of the Bankruptcy, Insolvency & Restructuring Practice Group, co-authored an article in Delaware Business Court Insider on a recent Court of Chancery case dealing with the rights of a putative subrogee in the context of a claim for indemnification of defense costs.

Financial Distress Is a Prerequisite to Good-Faith Bankruptcy Filing [Delaware Business Court Insider]

March 07, 2018

Mark Felger, co-chair, and Barry Klayman, a member of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice Group, co-wrote an article in Delaware Business Court Insider about the In re Rent-A-Wreck of America, Case that was dismissed by the district of Delaware.

Stockholders Agreement Interpreted to Not Run Afoul of DGCL [Delaware Business Court Insider]

February 14, 2018

Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware Court of Chancery case, Schroeder v.Buhannic in the Delaware Business Court Insider.

Bankruptcy Judge Applies Anti-Forfeiture Statute to Save Debtor's Exercise of Option to Renew Lease [Delaware Business Court Insider]

January 17, 2018

Barry Klayman and Mark Felger, members of Cozen O'Connor's Commercial Litigation and Bankruptcy, Insolvency & Restructuring Practice Groups, discuss a recent Delaware bankruptcy case, In re Fresh-G Restaurant Intermediate Holding, in Delaware Business Court Insider.

Receiver's Disallowance of Creditor's Claim Subject to De Novo Review [Business Court Insider]

December 06, 2017

Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss case B.E. Capital Management Fund v. Fund.com in Delaware Business Court Insider.

Bankruptcy Court Affirms Authority to Approve Nonconsensual Third-Party Releases [Delaware Business Court Insider]

November 08, 2017

Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice Group, discuss the significant decision reached in In re Millennium Lab Holdings II, in Delaware Business Court Insider.

Corporation Is Not Precluded From Contradicting Its Own 30(b)(6) Witness [Delaware Business Court Insider]

October 11, 2017

Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency, & Restructuring Practice Group, discuss, in the Delaware Business Court Insider, a recent case in which the Delaware Court of Chancery refused to preclude a defendant corporation from offering evidence at trial that contradicted or was otherwise inconsistent with the deposition testimony of its Rule 30(b)(6) witness, although the plaintiffs would be able to rely on the earlier 30(b)(6) testimony and use it for impeachment.

Bankruptcy Court Predicts Del. Will Recognize Existence of De Facto LLCs [Delaware Business Court Insider]

September 06, 2017

Barry Klayman and Mark Felger, members of Cozen O’Connor’s Bankruptcy, Insolvency & Restructuring Practice, discuss a recent case in which the Bankruptcy Court for the District of Delaware predicted that the state’s courts would recognize the existence of de facto limited liability companies, just as they recognize de facto corporations, in Delaware Business Court Insider.

Drop Shipped Goods Failed to Qualify for Administrative Expense Priority in Bankruptcy [Delaware Business Court Insider]

August 09, 2017

Barry Klayman and Mark Felger, members of the Cozen O’Connor Bankruptcy, Insolvency & Restructuring Practice Group, discuss in the Delaware Business Court Insider a recent case in which the Bankruptcy Court for the District of Delaware held that goods delivered directly to the debtor's customers within 20 days prior to the bankruptcy petition, even though at the debtor's direction and utilizing the debtor's account with the shipper, will not qualify for administrative priority treatment under section 503(b)(9) of the Bankruptcy Code because the debtor never had physical possession of the goods.

Standing in Foreclosure Actions Requires Holding Both Mortgage and Note [Delaware Business Court Insider]

July 05, 2017

Barry Klayman and Mark Felger, members of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Practice, discuss in the Delaware Business Court Insider a recent case in which a divided Delaware Supreme Court held that a mortgage assignee must be entitled to enforce the underlying obligation that the mortgage secures in order to foreclose.

Court Lacks Personal Jurisdiction Over Nonresident Blogger, Website Host [Delaware Business Court Insider]

June 07, 2017

Barry Klayman and Mark Felger discuss a case from the Delaware Superior Court dealing with the issue of an allegedly defamatory article that caused injury to a Delaware corporation hosted on a website outside of Delaware.

Tribal Sovereign Immunity of Casinos in Preference Actions [Delaware Business Court Insider]

May 10, 2017

Mark Felger and Barry Klayman discuss a recent case from the Delaware Bankruptcy Court in The Delaware Business Court Insider.

Delaware’s Anti-SLAPP Statute Limited to Land Use Disputes [Delaware Business Court Insider]

April 05, 2017

Mark Felger and Barry Klayman discuss a recent case from the Delaware Court of Chancery in The Delaware Business Court Insider.

U.S. Supreme Court Significantly Limits Structured Dismissals [Bankruptcy, Insolvency & Restructuring Alert]

March 27, 2017

Mark E. Felger and Gregory F. Fischer discuss the U.S. Supreme Court’s recent decision in Czyzewski v. Jevic Holding Corp., that structured dismissals must now either comply with the Bankruptcy Code’s basic priority scheme or have the consent of creditors that the structured dismissal seeks to avoid.

Dollar Cap on Committee Professional Fees Under Confirmed Plan [Delaware Business Court Insider]

March 08, 2017

Mark Felger and Barry Klayman discuss a case involving the effect of a DIP financing order cap on professional fees after a Chapter 11 plan is confirmed in the Delaware Business Court Insider. .

Directors Are Public Figures for Election-Related Communications Among Investors [Delaware Business Court Insider]

February 08, 2017

Mark Felger and Barry Klayman discuss a case of first impression from the Court of Chancery in The Delaware Business Court Insider.

Post-Confirmation Examinations Pursuant to Bankruptcy Rule 2004 [Delaware Business Court Insider]

January 18, 2017

Mark Felger and Barry Klayman discuss a recent bankruptcy court decision in The Delaware Business Court Insider.

Ninth Circuit Clarifies Which Landlord Claims are Subject to Section 502(b)(6) Cap [Bankruptcy, Insolvency & Restructuring Alert]

January 12, 2017

Mark E. Felger and Simon E. Fraser discuss a recent opinion from the Ninth Circuit that sets out a clear and seemingly easy to follow test to determine whether a given claim held by a landlord is subject to the cap section 502(b)(6) of the Bankruptcy Code imposes.

Turnover Order Cannot Trump Prohibition on Disclosure of ESI by Email Service Provider [Delaware Business Court Insider]

December 21, 2016

Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision regarding the federal Stored Communications Act.

Bankruptcy Court Holds Class-Action Waiver in Arb Agreement Violates NLRA [Delaware Business Court Insider]

November 09, 2016

Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision in The Delaware Business Court Insider.

Vendor’s Reclamation Rights Survive Lien of Post-Petition DIP Loan [Delaware Business Court Insider]

October 12, 2016

Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy court decision in The Delaware Business Court Insider.

Post-Confirmation Noncore Claim Defeats Bankruptcy Court Jurisdiction [Delaware Business Court Insider]

September 07, 2016

Mark Felger and Barry Klayman discuss a decision that limits jurisdiction over post-confirmation, noncore claims by the trustee of a liquidating trust.

Bankruptcy Judge Allows Filing of Class-Based Proof of Claim [Delaware Business Court Insider]

August 10, 2016

Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy decision allowing the filing of a class-based proof of claim.

Use of ‘Golden Share’ to Block Voluntary Bankruptcy Violates Federal Laws [Delaware Business Court Insider]

July 06, 2016

Mark Felger and Barry Klayman discuss a recent Delaware bankruptcy decision in their Delaware Business Court Insider article.

Champerty and Maintenance Redux [Delaware Business Court Insider]

June 08, 2016

Mark Felger and Barry Klayman discuss the status of champerty and maintenance actions in Delaware in their DBCI article, “Champerty and Maintenance Redux.”

Supreme Court Rejects Fear of ‘Super-Director’ [Delaware Business Court Insider]

May 11, 2016

Mark Felger and Barry Klayman discuss a Delaware Supreme Court case addressing the issue of honesty and fair dealing among directors.

Third Circuit Court of Appeals Upholds Carrier’s “Extended” Maritime Possessory Liens [Bankruptcy, Insolvency & Restructuring Alert]

May 09, 2016

Mark E. Felger and Simon E. Fraser discuss the U.S. Court of Appeals for the Third Circuit decision that maritime carriers and their customers may contractually extend the carrier’s common law possessory liens on cargo, securing payment of shipping charges, so as to cover not only the particular cargo for which shipping charges are outstanding, but all cargo belonging to the customer in the carrier’s possession.

Production of Metadata Ordered on Showing of Particularized Need [Delaware Business Court Insider]

April 06, 2016

Mark Felger and Barry Klayman discuss the showing of particularized need required to compel the production of metadata in The Delaware Business Court Insider.

Representing the Creditors' Committee: A Guide for Practitioners

March 31, 2016

Mark Felger co-authored and edited a practical guide on how to maximize the value of a debtor's assets as well as every step of the Chapter 11 process.

Judge Rejects Fee Defense Provisions in Retention Applications [Delaware Business Court Insider]

March 09, 2016

Mark Felger and Barry Klayman discuss two decisions from the U.S. Bankruptcy Court for the District of Delaware in the Delaware Business Court Insider.

Complex Unsettled Foreign Law Issues and Forum Non Conveniens [Delaware Business Court Insider]

February 17, 2016

Mark Felger and Barry Klayman discuss the impact of complex, unsettled issues of foreign law in the dismissal of cases on forum non conveniens grounds.

Superior Court Reaffirms Strong Public Policy In Favor of Arbitration

January 13, 2016

Mark Felger and Barry Klayman, both members of Cozen O’Connor’s Bankruptcy group, discuss mandatory arbitration provisions and a recent Delaware decision.

WARN Act Violation States Fiduciary Duty Breach [Delaware Business Court Insider]

December 09, 2015

Mark Felger and Barry Klayman, both members of Cozen O’Connor’s Bankruptcy group, discuss a recent case in which a judge came to the conclusion that a knowing violation of the law by a fiduciary is a breach of duty.

Limiting Reach of Section 205: An Exercise in Statutory Interpretation [Delaware Business Court Insider]

November 11, 2015

Barry Klayman and Mark Felger discuss the Court of Chancery's recent decision limiting the scope of DGCL Section 205 to declaring the validity of, but not the invalidity of, a defective corporate act

Chancery Rejects Controller's Conspiracy Claims [Delaware Business Court Insider]

October 14, 2015

Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the finding that the plaintiffs' conduct was "prejudicial to the administration of justice" in the OptimisCorp v. Waite case.

Advancement Claims Not Entitled to Priority in LLC Receivership [Delaware Business Court Insider]

September 09, 2015

Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the cases of Andrikopoulos v. Silicon Valley Innovation LLC and Henson v. Sousa. The main dispute between the parties in both cases was whether, in the context of LLC receiverships under Delaware law, advancement claims are administrative expenses or unsecured creditor claims.

Forum Selection Clause Held Waiver of Removal Right [Delaware Business Court Insider]

August 12, 2015

Barry M. Klayman and Mark E. Felger published an article in the Delaware Business Court Insider discussing the case of Interdigital v. Wistron, which answers the question of whether a forum selection clause in an agreement constitutes a waiver of a party’s right to remove the case to federal court if the other party files suit in a Delaware state court.

The Supreme Court Affirms Bankruptcy Court Jurisdiction for “Stern” Claims Based Upon Implied Consent [ABA Business Bankruptcy Committee Newsletter]

July 31, 2015

Mark Felger and Keith Kleinman discuss the Supreme Court’s decision in Wellness Int’l Network, Ltd. v. Sharif, in which it was affirmed that bankruptcy courts have jurisdiction to issue final judgments on Stern claims if the parties consent to the bankruptcy court adjudicating such claims.

Derivative Standing in Bankruptcy Proceedings [Delaware Business Court Insider]

July 07, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider discussing the case of In re Optim Energy LLC (Walnut Creek Mining v. Cascade Investment LLC) and why the opinion in this case is noteworthy.

Section 220 Demand Doesn't Extend to Non-employee Directors' Private Email [Delaware Business Court Insider]

June 10, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider discussing the case of In re Lululemon Athletica 220 Litigation and whether a corporation can search the personal email accounts of its non-employee directors under Section 220.

Supreme Court Affirms Bankruptcy Court Jurisdiction and 3rd Circuit Approves Structured Dismissals [Bankruptcy, Insolvency & Restructuring Alert]

June 04, 2015

The U.S. Supreme Court affirms jurisdiction of Bankruptcy Courts to enter final judgment on “Stern Claims” based on consent of parties; 3rd Circuit affirms approval of structured dismissals that violate absolute priority rule.

Automatic Stay Doesn't Apply to Right to Compel Annual Meeting [Delaware Business Court Insider]

May 13, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled ''Automatic Stay Doesn't Apply to Right to Compel Annual Meeting.'' The article discusses the case of In re SS Body Armor I and if a stockholder has the right to compel a debtor to hold an annual meeting for the purpose of electing a new board of directors continues during the pendency of a Chapter 11 proceeding, and that the automatic stay does not apply to the exercise of that right.

Non-signatory May Enforce Forum Selection Clause to Defeat Removal [Delaware Business Court Insider]

April 08, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled "Non-signatory May Enforce Forum Selection Clause to Defeat Removal." The article discusses the case of Carlyle Investment Management LLC v. Moonmouth, and how the case can be instructive for its application of Delaware law to the question of when a non-signatory to an agreement will be bound by its forum selection clause and whether the forum selection clause can be enforced by another non-signatory.

Court Adopts Narrow View of Exception to Borrowing Statute [Delaware Business Court Insider]

March 10, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled "Court Adopts Narrow View of Exception to Borrowing Statute." The article discusses Delaware's borrowing statute and statute of limitations, and specifically the case of Saudi Basic Industries v. Mobil Yanbu Petrochemical, 866 A.2d 1 (Del. 2005).

Proceeds of Insurance Policy Are Property of Estate [Delaware Business Court Insider]

January 14, 2015

Barry M. Klayman and Mark E. Felger, members in the firm's Wilmington office, published an article in the Delaware Business Court Insider titled ''Proceeds of Insurance Policy Are Property of Estate.'' This article discusses the case of Chartis Specialty Insurance v. Tri-Valley (In re Tri-Valley), Adv. No. 12-51243 (MFW) (Bankr. D. Del. Nov. 25, 2014) and third-party insurance policies in bankruptcy cases.

'Own Counsel' Defense Rejected in Awarding Class Counsel Fees [Delaware Business Court Insider]

May 14, 2014

Can a party that retains its own counsel be liable to pay a fee to another party's counsel or to class counsel? The answer, according to the recent Court of Chancery opinion in Smith, Katzenstein & Jenkins v. Fidelity Management & Research, C.A. No. 8066-VCL (Del. Ch. April 16, 2014), is a resounding yes. The court rejected the defendants' "own counsel" defense in an action to recover attorney fees and costs for benefits conferred as a result of the plaintiffs' prosecution and settlement of a class action as contrary to longstanding Delaware precedent dealing with shared causation in the award of fees and expenses when an attorney creates a common fund for, or confers a common benefit upon, a readily ascertainable group.

The Interpretation of Contractual Survival Clauses [Delaware Business Court Insider]

March 12, 2014

Barry Klayman and Mark Felger, members of Cozen O'Connor's Bankruptcy, Insolvency & Restructuring Department, continue their discussion of the interpretation of survival clauses for contractual representations and warranties under Delaware law with a second article on the subject in The Delaware Business Court Insider. They note the court's surprising view on reps and warranties that the parties expressly agree are to survive indefinitely.

No Safe Harbor Protection for Triangular Setoff Under Swap Agreement [Delaware Business Court Insider]

December 18, 2013

Does the Bankruptcy Code allow for triangular setoffs in swap and repurchase agreements after commencement of the debtor's bankruptcy case? In Sass v. Barclays Bank (In re American Home Mortgage Holdings), Adv. Proc. No. 11-51851 (CSS) (Del. Bankr. Nov. 8, 2013), the court held that the Bankruptcy Code does not allow parties to set off non-mutual obligations, regardless of whether the agreements are subject to the safe harbor provisions of 11 U.S.C. §§ 559-661.

Electricity Not a Good for Administrative Priority Claims [Delaware Business Court Insider]

November 13, 2013

Is electricity a good for purposes of establishing an administrative priority claim under Section 503(b)(9) of the U.S. Bankruptcy Code? That is the question that U.S. Bankruptcy Judge Christopher Sontchi of the District of Delaware answers in In re NE Opco, Case No. 13-11483 (CSS) (Bankr. D. Del. Nov. 1, 2013). Faced with a split in authority from other jurisdictions and no written opinions on the subject in the U.S. Court of Appeals for the Third Circuit, Sontchi, in a fascinating opinion, holds that electricity is not a good for purposes of Section 503(b)(9).

Relations-Back Doctrine Applied in Adversary Actions [Delaware Business Court Insider]

August 15, 2013

Two recent bankruptcy cases decided on the same day by the same judge dealt with motions to amend the complaints in preference actions. Both cases illustrate the court's application of the relation-back doctrine, with differing results. Along the way, the court addressed the requirements for proper service and equitable tolling of the statute of limitations

Single Employer Test Emphasizes De Facto Control Factor [Delaware Business Court Insider]

July 10, 2013

Barry Klayman and Mark Felger of the Wilmington office authored an article titled, "Single Employer Test Emphasizes De Facto Control Factor," in the most recent edition of The Delaware Business Court Insider. The article discusses two recent decisions from the Delaware district and bankruptcy courts on a parent corporation's liability under the federal WARN Act for a subsidiary's failure to provide advance notice of employee layoffs. To read the full article, click here.

Definition of Property Limited Under Bankruptcy Code [Delaware Business Court Insider]

June 12, 2013

Barry Klayman and Mark Felger discuss the recent bankruptcy court decision in The Majestic Star Casino LLC v. Barden Development, specifically the case's expansive view of what constituted property of the debtor's estate.

Bankruptcy Court for District of Delaware Approves Use of Post-Petition Lock-Up Agreements and Permits Release of Non-debtor Parties by Non-voting Creditors [Bankruptcy, Insolvency and Restructuring Alert]

February 22, 2013

The Delaware Bankruptcy Court recently issued an opinion in the Indianapolis Downs Chapter 11 case that is worth reading in its entirety for its impact on numerous plan confirmation issues. This article will address the court's endorsement of post-petition lock-up agreements and, secondarily, the court's approval of a plan's third-party release provision that provides for the deemed consent of non-voting creditors.

Administrative Priority Status Given to Indemnification Obligation Claim [Delaware Business Court Insider]

February 13, 2013

In WM Inland Adjacent LLC v. Mervyn's LLC...the U.S. Bankruptcy Court for the District of Delaware faced a question of first impression: whether a claim arising from an indemnification provision in a nonresidential commercial lease with the debtor, which the debtor rejected post-petition, was entitled to administrative priority under §365(d)(3), or was a pre-petition, general unsecured claim under §502(g).

Bankruptcy Court Finds No Subject Matter Jurisdiction Over Post-Confirmation Declaratory Judgment Action

November 21, 2012

How far will the bankruptcy court go in exercising post-confirmation jurisdiction in an adversary action based on a pre-petition state law claim?

Chancery Court Blocks Suit to Void Completed Merger as Ultra Vires [Delaware Business Court Insider]

October 10, 2012

Chancery Court Blocks Suit to Void Completed Merger as Ultra Vires - Delaware Business Court Insider - In Southeastern Pennsylvania Transportation Authority v. Volgenau, 2012 WL 4038509 (Del. Ch. Aug. 31. 2012.), Vice Chancellor John W. Noble dismissed a direct action challenging a consummated merger transpiration on the grounds that the merger violated the company's certificate of incorporation and was ultra vires, but left standing a claim for breach of fiduciary duty against the directors of the company for approving the transaction in violation of the certificate of incorporation.

Bankruptcy Court Holds Mechanic's Liens Trimp DIP Liens [Delaware Business Court Insider]

September 12, 2012

Bankruptcy Court Holds Mechanic's Liens Trimp DIP Liens - Delaware Business Court Insider - The bankruptcy court is frequently called upon to consider the priority between and among liens held by debtor in possession (DIP) lenders and pre-petition secured lenders and holders of other pre-petition perfected liens. In , Adv. No. 09-51074 (KJC), decided August 30, the court faces such a conflict.

Third Circuit Extends Grossman's Test for when a 'Claim' Arises but Declines Discharge of Claims on Due Process Grounds [Bankruptcy, Insolvency & Restructuring Alert]

June 29, 2012

Third Circuit Extends Grossman's Test for when a 'Claim' Arises but Declines Discharge of Claims on Due Process Grounds - Bankruptcy, Insolvency & Restructuring Alert - Confirmation of a plan of reorganization generally discharges all pre-confirmation “claims.” However, in some instances, a plaintiff’s claim against a debtor does not manifest itself until after a plan has already been confirmed.

Safe Harbor Unavailable for Payments to Collateralize Letter of Credit in Bond Redemption [Delaware Business Court Insider]

May 09, 2012

Safe Harbor Unavailable for Payments to Collateralize Letter of Credit in Bond Redemption - Delaware Business Court Insider -

Bankruptcy Court for the District of Delaware Denies Cramdown of Liquidating Plan Because Approving Classes Were "Artificially Impaired" [Bankruptcy, Insolvency & Restructuring Alert!]

April 11, 2012

Bankruptcy Court for the District of Delaware Denies Cramdown of Liquidating Plan Because Approving Classes Were "Artificially Impaired" - Bankruptcy, Insolvency & Restructuring Alert! - When a debtor is unable to obtain acceptance of its chapter 11 plan of reorganization or liquidation by all impaired creditor classes, it may attempt to “cramdown” the plan upon certain rejecting classes.1 One of the requirements in
order to obtain confirmation of a plan through a cramdown is that at least one class of impaired claims must approve the plan, determined without including the votes of insider creditors.

Nondebtor Parent's Revocation of S Corporate Election Held To Be Void [Delaware Business Court Insider]

March 28, 2012

Nondebtor Parent's Revocation of S Corporate Election Held To Be Void - Delaware Business Court Insider -

Bankruptcy Court Holds Equitable Tolling Doesn't Apply to Look-Back Period [Delaware Business Court Insider]

February 08, 2012

Bankruptcy Court Holds Equitable Tolling Doesn't Apply to Look-Back Period - Delaware Business Court Insider -

Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern [Delaware Business Court Insider]

January 18, 2012

Delaware Bankruptcy Court Expounds on Meaning and Significance of Stern - Delaware Business Court Insider -

Bankruptcy Court Asserts Jurisdiction to Determine Debtor's State Tax Liability [Delaware Business Court Insider]

November 23, 2011

Bankruptcy Court Asserts Jurisdiction to Determine Debtor's State Tax Liability - Delaware Business Court Insider - At a time when practitioners debate the reach of bankruptcy court jurisdiction, the Delaware court continues to assert its jurisdiction in the face
of new challenges. In In re Indianapolis Downs LLC, the U.S. Bankruptcy Court for the District of Delaware held that it had jurisdiction to decide whether a state taxing authority could continue to collect a state tax on part
of the debtor’s revenue from slot-machine wagering. In doing so, the court turned back

Bankruptcy Court Rejects Challenge to Personal Jurisdiction in Preference Case [Delaware Business Court Insider]

July 13, 2011

Bankruptcy Court Rejects Challenge to Personal Jurisdiction in Preference Case - Delaware Business Court Insider - In a June 22 decision in a case of first impression, the Delaware Bankruptcy Court turned back a due process challenge to the exercise of the court's personal jurisdiction over a preference defendant. In In re DBSI Inc., the trustee sought to avoid and recover pre‐petition transfers made to various insiders and
pre‐petition transfers made on behalf of the insiders to the IRS and other taxing authorities.

Bankruptcy Court Rejects Bright- Line Rule for Substantially Contemporaneous Exchange [Delaware Business Court Insider]

June 21, 2011

Bankruptcy Court Rejects Bright- Line Rule for Substantially Contemporaneous Exchange - Delaware Business Court Insider - Bankruptcy Court Judge Kevin Gross, in In re J. Silver Clothing Inc., a 2011 case
out of the District of Delaware, rejected an argument that the 10-day (now 30-
day) period in Bankruptcy Code Section 547(e)(2) provides a bright-line limit as
to whether a transfer is "substantially contemporaneous"

Bankruptcy filings dip [Philadelphia Business Journal]

May 20, 2011

Bankruptcy filings dip - Philadelphia Business Journal - Local Chapter 11 business bankruptcy filings fell close to pre-recession numbers in the first quarter after spiking dramatically between late 2008 through the middle of last year. But a second wave of filings could come if interest rates rise without being accompanied by significant economic improvement, analysts and bankruptcy lawyers say. Business Chapter 11 filings in New Jersey and the Eastern District of

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Practice Areas

Bankruptcy, Insolvency & Restructuring

Education

Boston University School of Law, J.D., 1989
Rochester Inst. of Technology, B.A., 1985

Awards & Honors

Chambers & Partners USA

Best Lawyers in America

Super Lawyers (DE and PA)

Bar Admissions

Delaware
New Jersey
New York
Pennsylvania

Court Admissions

Affiliations

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