Micah E. Marcus

Recent Significant Trial Experience

• Intelsat S.A., et al.  (Case No. 20-3229).  Represented Intelsat S.A. at the direction of its independent directors in connection with the contested confirmation of Intelsat S.A. and its subsidiaries’ plan of reorganization.  The litigation revolved around a $15 billion dollar restructuring of its Intelsat S.A. and its debtor subsidiaries, collectively one of the largest owners and operators of satellite services in the world. The matter was successfully resolved following the close of evidence, with the objecting parties accepting less than 1% of their alleged claims.   

• Confidential Arbitration Matter.  I handled all aspects of an expert dispute in a week-long arbitration alleging a breach of fiduciary duty owed by a majority shareholder regarding the sale of a business – focusing on purported damages relating to the appropriate valuation of the company sold.  Following the close of evidence, the arbitrator issued an award dismissing claimant’s claims based upon the failure to show damages, without the need to address liability.

• Consultants in Pathology, S.C. v. Kalisha Hill, M.D., AHLA DRS: Claim #4273.  I served as lead counsel and first chair at arbitration seeking claims against Dr. Hill relating to claims of breach of fiduciary duties owed to Consultants in Pathology and defending counterclaims brought by Dr. Hill, including claims of discrimination brought in a separate federal matter.  The arbitrator issued an award finding in favor of Consultants in Pathology with respect to both Dr. Hill’s breach of fiduciary duties, awarding damages to Consultants in Pathology regarding same, and dismissing her counterclaim of racial discrimination.

• Kelly Stapleton, Trustee of the SGK Ventures, LLC Liquidating Trust v. NewKey Group, LLC et al. (Adv. No. 13 A 01411, Adv. No. 14 A 00114). Represented the Liquidating Trustee of SGK Ventures (f/k/a as Keywell). I served as lead counsel and first chair at trial for various claims against Keywell’s former insiders seeking equitable subordination of in excess of $15 million in claims against the Liquidating Trust as well as: (i) potential recharacterization of the underlying secured claims as equity; and (ii) recovery of various transfers made from Keywell to the former insiders as fraudulent and/or preferential transfers. At trial, we successfully argued that the former insiders’ claims should be equitably subordinated to unsecured creditors, providing those creditors with an increase in available assets of somewhere north of $15 million based upon the former insiders’ calculation of outstanding principal and interest owed. Similarly, the court granted judgment in the Liquidating Trustee’s favor in a separate action brought by the former insiders (through two shell corporations set up to act as purported lenders) seeking enforcement of their secured claims and turnover of the Liquidating Trust’s assets, which we tried contemporaneously with the Liquidating Trustee’s affirmative claims. A copy of the opinion is available at Kelly Stapleton, Trustee of the SGK Ventures, LLC Liquidating Trust v. NewKey Group, LLC et al., Adv. No. 13 A 01411, Adv. No. 14 A 00114, 2015 WL 7755525 (Bankr. N.D. Ill., Nov. 30, 2015).

• The Liquidating Trust of TMP Directional Marketing, LLC v. General Yellow Pages Consultants, Inc. D/B/A Marquette Group (Arb. No. 51 147 Y 00826 12) (Jan. 28-31, 2013): Represented Deloitte/CRG as trustee for The Liquidating Trust of TMP Directional Marketing, LLC. I served as lead counsel and first chair at trial for claims of breach of contract, fraud and reformation arising out of a counter-party’s improper interpretation of its earn-out obligation relating to an asset purchase agreement. At trial, we successfully argued that, though the contract was ambiguous with respect to the inclusion of a specific type of revenue in the calculation of the defendant’s ongoing earn-out obligation, parol evidence supported TMP’s interpretation. An Interim Award was issued in our favor on February 26, 2013, awarding TMP past damages, future injunctive relief, and similarly finding TMP the prevailing party entitled to the recovery of its costs and fees (the total recovery exceeded $3 million based upon the ultimate collections and true-up calculations).

• In re Hawker Beechcraft, Inc., (Case No. 12-11873). Represented Hawker Beechcraft at a one-day trial on a contested matter against one of Hawker Beechcraft’s significant suppliers, NORDAM.  The case revolved around the proper interpretation of two Master Purchase and Support Agreements. In particular, whether the Master Agreements provided Hawker Beechcraft with the ability to reject particular purchase orders in the context of its bankruptcy (thereby assuming responsibility for only favorable contracts it wanted to retain) or whether assumption of the overarching Master Agreements required Hawker Beechcraft to assume all of the related purchase orders without the ability to pick and choose. At trial, we successfully argued that the Master Agreements were not requirement or installment contracts (as argued by NORDAM) and that Hawker Beechcraft had the ability to reject individual purchase orders, as divisible executory contracts, despite assumption of the Master Agreements. A copy of the opinion is available at In re Hawker Beechcraft, Inc., Case No. 12-11873, 2013 WL 2663193 (Bankr. S.D.N.Y., June 13, 2013).

• Black Flag Brands, LLC v. Bridgeview Aerosol, LLC (Arb. No. 61 181 Y 00257 08) (Sept. 2009): Represented Black Flag Brands. In this matter, Black Flag prevailed on its claims for breach of contract relating to the defendant’s defective production/filling of an insecticide product marketed by Black Flag. In particular, Black Flack obtained an award of approximately $4.6 million for past damages as well as the denial of Bridgeview Aerosol’s counterclaim for approximately $15 million. Following obtaining the award, Bridgeview Aerosol filed for bankruptcy, were I continued to represent Black Flag as lead counsel in connection with various contested matters in the bankruptcy and in connection with its role on the official committee of unsecured creditors.

• United Air Lines, Inc. v. UMB Bank, N.A., as Successor Trustee and the Regional Airports Improvement Corporation, (Adv. No. 03-A-977, Adv. No. 05-A-1884) (April 2007). Represented United Air Lines, Inc., valuing UMB’s security interest in portions of United’s leasehold in facilities at Los Angeles International Airport ("LAX") for purposes of liquidating UMB’s allowed secured claim against United pursuant to 11 U.S.C. § 506(a). The trial revolved around analysis of the various complex indenture agreements forming the basis of UMB’ s security interest as well as technical expert opinions regarding the valuation of the underlying collateral and appropriate discount rates. The Bankruptcy Court found in favor of United’s valuation analysis, finding, consistent with our approach, that UMB’s collateral was valued at $33,455,055.00. A copy of the opinion is available at In re UAL Corp., 374 B.R. 625 (Bankr. N.D. Ill. 2007).

• UAL Corporation v. The City of Los Angeles and Los Angeles World Airports (Adv. No. 05- A- 2806) (May 2008). Represented UAL Corporation at trial seeking injunctive relief against the City of Los Angeles to preserve United Air Line’s right to continue flying "turbo-props" out of its leased facilities at LAX. The Bankruptcy Court found in UAL’s favor, ruling that LA’s attempted prohibition of United’s use of turbo-props from its leased facilities constituted a breach of contract. A copy of the opinion is available at In re UAL Corp., 391 B.R. 791 (Bankr. N.D. Ill. 2008).

• In re Chemtura Corporation, No. 09-11233 (contested confirmation hearing). Represented Chemtura Corporation and its debtor affiliates. The trial revolved primarily around the valuation of Chemtura upon its emergence from bankruptcy. The Bankruptcy Court ruled in Chemtura’s favor. A copy of the opinion is available at In re Chemtura, 439 B.R. 561 (Bankr. S.D.N.Y. 2010).

Recent Appellate Experience

• O’Halleran v. Harder, No. 1-15-1990. Represented Sean O’Halleran on appeal to Illinois Appellate Court, First Judicial District (trial handled by prior counsel). The case related to a state judge imposing restrictions on a father’s visitation rights with his minor daughter. Following obtaining leave for an expedited appeal of the trial court’s order, we successfully argued to the Illinois Appellate Court that the lower court’s action in restricting the father’s visitation rights: (i) exceeded the trial court’s jurisdiction when he entered the order sua sponte without a pending request for relief; and (ii) erroneously deprived Mr. O’Halleran of his parental rights without a finding of “serious endangerment”, as required under prevailing Illinois law. The court reversed the trial court without oral argument and ordered the immediate restoration of the parties’ respective custody and visitation rights in place prior to the lower court’s erroneous actions. A copy of the opinion is available at O’Halleran v. Harder, Case No. 1-15-1990, 2016 WL 283651 (Ill. App. Crt. 1st Cir., January 15, 2016).

• Barron v. BP America Production Company, No. 14-60066. Represented BP America Production Company on appeal to the Fifth Circuit. Following obtaining summary judgment in favor of BP before the District Court for the Southern District of Mississippi, I served as lead counsel in drafting BP’s appellate briefs in support of the underlying judgment. The Fifth Circuit affirmed the District Court without oral argument. The case related to a personal injury action brought by an individual performing clean-up in response to the April 2010 Deepwater Horizon incident. In particular, the individual claimed he was significantly injured while being transported back to land on a vessel chartered to BP under what was commonly referred to as the Vessel of Opportunity program (a program that entered into charters with local residents to utilize their personal vessels to assist in the Gulf Coast clean-up efforts). We successfully argued to the Fifth Circuit that BP was not liable to Mr. Barron under applicable maritime law because the underlying vessel lease was “non-demise”, meaning the charterer, BP, could not be liable for the negligence of the vessel captain under prevailing 5th Circuit precedent. We likewise successfully argued that BP was not liable under general negligence theories, because the plaintiff failed to present admissible evidence supporting his basic premise that the vessel utilized by BP for the particular task at hand-transportation in the gulf-was unfit for its intended purpose. A copy of the opinion is available at Barron v. BP America Production Co., 590 Fed.Appx.294 (5th Cir. 2014).

• Chapman Kelley v. Chicago Park District. Nos. 08-3701, 08-3712. Represented Chapman Kelley on appeal to the 7th Circuit and Supreme Court (trial handled by prior counsel) with respect to argument regarding the District Court’s erroneous interpretation of copyright law and the Visual Artists Right Act, 17 U.S.C. § 106A ("VARA"). In particular, we argued that the District Court: (i) erroneously interpreted the concept of "originality" required under the Supreme Court’s seminal opinion in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991); and (ii) mistakenly adopted the First Circuit’s erroneous analysis from Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st. Cir. 2006)-holding that so- called "site-specific art," like Chapman Kelley’s Wildflower Works, was not entitled to protection under VARA. Following oral argument, the Seventh Circuit took a year and a half to rule, ultimately issuing the landmark opinion of Chapman Kelley v. Chicago Park District, 635 F.3d 290 (7th Cir. 2011). In that decision, the Seventh Circuit held in our favor with respect to our challenges to the District Court’s opinion, including rejecting the First Circuit’s analysis in Phillips. However, the court found against Chapman on other grounds. In particular, the court ruled, as a matter of first impression, that Wildflower Works (a garden), lacked the kind of authorship and stable fixation normally required to support copyright protection (a necessary pre-condition to protection under VARA). Following that decision, I acted as lead counsel in Chapman’s appeal to the United States Supreme Court, where, despite garnering five amicus supporters, the Supreme Court denied cert. A copy of the opinion is available at Chapman Kelley v. Chicago Park District, 635 F.3d 290 (7th Cir. 2011).

• Bridgeview Aerosol, LLC v. Black Flag Brands, LLC, No. 09-3370. Represented Black Flag Brands. This appeal related to representation of Black Flag Brands in its successful litigation with Bridgeview Aerosol. In particular, at the outset of the parties’ litigation, Black Flag engaged in certain self-help measures by attempting to set-off certain undisputed obligations owed to Bridgeview under a separate contract relating to Bridgeview’s filling of other Black Flag products. Bridgeview filed an unopposed claim for recovery of that obligation, which was approved by the arbitration panel on an interim basis. Bridgeview sought to immediately execute upon the debt prior to the trial on the remaining claims between the parties. We filed an appeal based upon the impropriety of enforcement of an interim award where additional claims remained to be resolved between the parties and obtained a stay of enforcement upon posting a bond for the value of Bridgeview’s undisputed claim. Upon confirmation of the ultimate arbitration award in favor of Black Flag, I negotiated the set-off of the parties’ competing claims (thereby elevating Black Flag’s claim to the status of secured creditor in Bridgeview’s bankruptcy case) as well as an agreed entry of satisfaction of the underlying judgment, thereby mooting the appeal and resulting in the release of Black Flag’s liability on the bond securing the judgment.

• In re UAL Corp. (Regen Capital I, Inc. v. UAL Corporation, et. al), No. 10-1524. Represented UAL Corp. In Regen, the appellant argued that it was entitled to a $4 million "cure claim" from UAL because: (i) Regen had purchased ATT’s pre-petition claims against UAL; and UAL’s confirmed plan of reorganization had sought to assume the pre-petition executory contracts to which those claims related. The Seventh Circuit held in UAL’s favor, ruling that, despite several years passing from the date of its emergence from bankruptcy: (i) UAL never actually assumed the respective AT&T contracts; and (ii) pursuant to a provision in UAL’s confirmed plan, it retained the right to reject those agreements post-emergence in the case of a dispute regarding cure-a provision which the court found UAL rightfully invoked in the present case. A copy of the opinion is available at In re UAL Corp. (Regen Capital I, Inc. v. UAL Corporation, et. al), 635 F.3d 312.

• United Air Lines, Inc. v. Regional Airports Improvement Corporation et al., Nos. 08-2736, 08- 2751, 08-2752, 08-2824, 08-2905. Represented United Air Lines.

Recent Notable Non-Trial Litigation Work

Independent Director Investigations

• Intelsat S.A.: Conducted investigation in potential claims against corporate affiliates and insiders, at direction of independent directors, into potential claims against debtor affiliates and insiders relating to negotiation of a consensual plan of reorganization.

• Independent Pet Partners: Conducted pre-petition investigation into potential claims against insiders at direction of independent director in contemplation of potential bankruptcy filing.

• Pipeline Health Systems: Conducted post-petition investigation into potential claims against insiders at direction of independent directors in contemplation of approval of contemplated releases under the debtors’ confirmed plan of reorganization.

• Rentpath: Conducted investigation into potential claims against corporate insiders at direction of independent directors in contemplation of potential bankruptcy filing.

Litigation counsel

• Aearo Technologies LLC et al.:  Serve as lead litigation counsel, at direction of independent directors, of all conflict matters arising between Aearo and its debtor subsidiaries and their ultimate parent, 3M Corporation, with respect to their pending bankruptcy proceedings in the Bankruptcy Court for the Southern District of Indiana, Case No. 22-02890.

• Alix v. McKinsey & Co, et al.: Serve as lead litigation counsel for individual defendant relating to RICO action asserted by Jay Alix against McKinsey & Co., certain affiliates and related individuals, currently pending in the United States District Court for the Southern District of New York.   

• BP plc and affiliates: Served as national lead counsel with respect to all tort actions asserted by post-incident responders alleging non-MDL based personal injuries stemming from clean-up efforts in the Gulf Coast following the April 2010 incident involving the Deepwater Horizon. In connection with this position, I have successfully defended BP in matters throughout the Gulf Coast, including, Texas, Louisiana, Alabama, Mississippi and Florida at the state, federal and appellate levels.

• TMP Directional Marketing, LLC (Del.): I served as lead litigation counsel, handling all aspects of litigation leading up to the filing of TMP’s chapter 11 petition, including handling the defense of numerous claims and collection actions brought around the county on account of delinquent account receivables. I also handled all litigation matters relating to the bankruptcy case, including the preparation and presentation of witnesses in connection with the first day hearing, various contested motions, and in support of confirmation of TMP’ s confirmed bankruptcy plan.

• Insight Imaging (Del.): I served as lead litigation counsel, handling all litigation matters relating to the bankruptcy case, including the preparation and presentation of witnesses in connection with the first day hearing, various contested motions, and in support of confirmation of TMP’ s confirmed bankruptcy plan. In particular, I was the lead trial counsel in a contested confirmation of Insight’s plan of reorganization when certain key votes sought to amend their votes previously placed in favor of the plan at the eleventh hour. The objection was withdrawn on the eve of trial following my obtaining dispositive admissions at the objecting parties’ depositions the day before the hearing on confirmation.

• Hawker Beechraft Corporation, et al. (S.D.N.Y): I served as part of the litigation team covering all aspects of litigation relating to HBC’ s bankruptcy proceedings. In that role I prepared numerous witnesses in support of the first day hearing as well as various contested matters throughout the proceedings. I also handled the research and drafting of a potential complaint against HBC’s pre-petition lenders resulting in significant portions of HBC’s assets being declared unencumbered by pre-petition debt and available for distribution to HBC’s general unsecured creditors.

• The Great Atlantic & Pacific Tea Company, et al. (S.D.N.Y): I served as part of the litigation team responsible for covering all aspects of litigation relating to A&P’s bankruptcy filings. I prepared and defended numerous witnesses at depositions in connection with various contested matters throughout the proceedings as well as prepared witnesses for testimony on those matters. Additionally, I drafted and filed various adversary complaints relating to enforcement of the automatic stay and assisted in A&P’s obtaining of extensive union concessions in connection with potential litigation under § 1113 of the Bankruptcy Code. My work on § 1113 matters included participation in union negotiations as well as extensive work with experts developing the economic analysis requiring concessions and the relevant market conditions for A&P’s business.

• Global Aviation (S.D.N.Y): In this matter, I assisted in Global Aviation’s obtaining of extensive union concessions in connection with potential litigation under § 1113 of the Bankruptcy Code. My responsibilities in this matter primarily included extensive work developing and drafting Global’ s expert report regarding the financial necessity of such relief.

• Lauth Investment Properties, LLC, et al. (S.D. Ind.): I served as part of the litigation team responsible for covering all aspects of litigation relating to Lauth’s bankruptcy proceedings, including the preparation of numerous witnesses in support of various contested matters throughout the proceedings. In particular, I served as second chair for a trial regarding the principal creditor’s attempted appointment of a chapter 11 trustee, in which I was responsible for cross examination of numerous of the movant’s key witnesses. The matter was settled in chambers at the outset of the trial, with the movant’s request being withdrawn with prejudice. In addition, I presented Lauth’s evidentiary case in support of the approval of a global settlement allowing for Lauth’s successful emergence from bankruptcy.

• Corus Bankshares, Inc. (N.D. Ill.): I served as part of the litigation team covering all aspects of litigation relating to Corus Bankshares’ bankruptcy proceedings. In addition to arguing several motions before the Bankruptcy Court, I prepared numerous witnesses in support of the first day hearing as well as various contested matters throughout the proceedings. Similarly, I was on the trial team for potential litigation with the FDIC where we were litigating on behalf of Corus’ bankruptcy estate over the ownership interests in approximately $260 million of tax refunds owed under Corus’ consolidated tax filings with its subsidiary bank (the bank was seized and placed in receivership by the FDIC shortly before Corus Bankshares’ bankruptcy petition).

• Lear Corporation (S.D.N.Y): I served as part of the litigation team responsible for covering all aspects of litigation relating to Lear’s bankruptcy proceedings. In particular, I handled various litigation matters relating to contract and lease counterpart.

Selected for inclusion in Illinois Rising Stars (2012, 2013)

Benchmark Litigation, Future Star (2009)

Named a Thomson Reuters Stand-Out Lawyer (2023)

Education

DePaul University College of Law

University of Arizona

Admissions – Court

Admissions – State

External News & Publications

You’re Right, But Can You Prove It: Reliance on a Debtor’s Business Records in Litigation, NABTalk, Fall 2013, Volume 29, Issue 3, pgs. 40-43

“Privacy Concerns and Safeguards in the Governmental Dissemination of Bankruptcy Data on the Internet,” American Bankruptcy Institute Journal, May 2000