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MARK N. BERMAN

Mark Berman is a seasoned bankruptcy attorney. He is a member of the firm's Financial Restructuring & Bankruptcy practice group, as well as the Banking & Finance, Public Finance and Leveraged groups. He has represented virtually every kind of client that might be impacted by a financially challenged business and provides insolvency analysis at the time a financing is put together in order to arrive at a predictable result should something go wrong.

What do you focus on?

When the deal is originally being negotiated and documented I focus on how a participant’s future bankruptcy might impact the expectations of others. That gets me involved in structuring and documenting the deal as well as dealing with bankruptcy opinions required by rating agencies and lenders. My work has included working on stadium (Yankees, Mets, Twins, Jets, Giants, Cubs, Patriots) and other project financings.

If we are dealing with a business that is already financially challenged I will be using my experience to develop practical solutions including alternatives to formal bankruptcy. I’ve assisted in the out of court liquidation of businesses in a variety of industries including energy, media and retail.

If the business is the subject of a bankruptcy case I will be working in court to achieve the best outcome for the client. My experience spans a variety of industries including retail, real estate, manufacturing, aviation and credit card processing. I’m particularly proud of the number of cases where the results have included full payment of creditor claims.

What do you see on the horizon?

Today municipal bankruptcies are grabbing the spotlight and my experience in public finance has put me in a great position to assist. Tomorrow may see an increase in interest rates and more pressure on businesses that are interest rate sensitive to make ends meet.

Publications

  • “Chapter 9: Lessons Learned and What to Disclose,” Municipal Finance Journal, April 2014.
  • “Restructuring Your Strategies as a Bankruptcy Attorney in Today’s Economy,” chapter in Bankruptcy and Financial Restructuring Law in 2012, Thomson Reuters, 2012.
  • “"The Enforceability in Bankruptcy Proceedings of Waiver and Assignment of Rights Clauses Within Intercreditor or Subordination Agreements," Norton Journal of Bankruptcy Law & Practice, vol. 20, #6, 2011 (coauthor).
  • “An Update on Second-Lien Financings and Intercreditor Agreements: Part III,” American Bankruptcy Institute Journal, May, 2011.
  • “An Update on Second-Lien Financings and Intercreditor Agreements: Part II,” American Bankruptcy Institute Journal, March, 2011.
  • “An Update on Second-Lien Financings and Intercreditor Agreements: Part I,” American Bankruptcy Institute Journal, December/January, 2010.
  • “Response to Vacating Chrysler,” Norton Journal of Bankruptcy Law & Practice, vol. 19, #3, 2010. (Author)
  • “Handbook on Second Lien Loans & Intercreditor Agreements,” American Bankruptcy Institute, 2009 (coauthor).
  • “Bankruptcy Sales Prior to Plan Confirmation Do Not Qualify for Tax Exemption,” Bloomberg Law Reports, Vol. 2, No. 26, June 30, 2008.
  • “The Dura Decision: Junior Creditors Again Strike Out Interpreting the Elusive X-Clause,” American Bankruptcy Institute Journal, March 2008 (coauthor).
  • “District Court Provides Further Clarification That Equitable Subordination and Disallowance Risk Will Not Pass to Buyer Who Acquires Claims in a Good Faith Open Market Purchase,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 21, October 15, 2007.
  • “District Court Decides that Equitable Subordination Runs with Claimant Not with Claim,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 17, September 17, 2007, republished in Vol. 1, No. 32, December 31, 2007.
  • “Hedge Funds Meet the Bankruptcy Process,” Pratt’s Journal of Bankruptcy Law, Vol 2, Number 3, July/August 2007.
  • “The Tale of Northwest Airlines: Will the Sunlight of Disclosure Chill Hedge Funds?” American Bankruptcy Institute Journal, May 2007.
  • “Hedge Funds: Lessons Learned from the Radnor Decision,” American Bankruptcy Institute Journal, February 2007.
  • “Second-Lien Financing: Part V: Who Gets What?” American Bankruptcy Institute Journal, July/August 2006.
  • “Second-Lien Financings: Part IV: Good, Bad and Ugly,” American Bankruptcy Institute Journal, June 2006.
  • “Second-Lien Financings Part III: Anecdotes—the Good, the Bad and the Ugly: Atkins—the Good,” American Bankruptcy Institute Journal, May 2006.
  • “Second-Lien Financings, Part II: Anecdotes and Speculation—the Good, the Bad and the Ugly,” American Bankruptcy Institute Journal, March 2006.
  • “Second-Lien Financings: Part I: Enforcement of Intercreditor Agreements in Bankruptcy— More Questions than Answers,” American Bankruptcy Institute Journal, February 2006.
  • “Second Lien Financings and the Intercreditor Agreement,” Credit Investment News, September 2005.
  • “Protecting a Lessee’s Section 365(h) Right to Possession after Rejection From a Sale of the Underlying Real Estate Free and Clear of Interests,” ABI World, June 2005.
  • “Not So Fast! Delaware Court Reigns in Creditor Suits Against Ds & Os,” American Bankruptcy Institute Journal, May 2005.
  • “Buying and Selling a Distressed Business,” chapter in Buying and Selling a Privately Owned Business, Massachusetts Continuing Legal Education, 2005.
  • “Plain Meaning and the Assumption (or Not) of a License of Copyrighted Software,” ABI World, May 2004.
  • “Top Ten Things to Know If You Are an Investor in or Director of a Failing Business,” February 2004.
  • “LLC Member Interest and Bankruptcy: Courts Begin to Sort Things Out,” ABI World, November 2003.

Media Clips

  • Stockton's amended plan of debt adjustment could wipe out Franklin's secured claim
    Debtwire | June 11, 2014
    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses the city of Stockton’s efforts to wipe out the secured claim of Franklin Templeton Investments, the city’s only dissenting creditor, through its amended plan of debt adjustment (PDA).
  • SIFMA: Detroit's LTGO Treatment Would "Shatter" Muni Industry
    The Bond Buyer | May 12, 2014
    This article notes Nixon Peabody’s representation of the Securities Industry and Financial Markets Association in an amicus brief urging the rejection of Detroit's bankruptcy exit plan. Bankruptcy & Financial Restructuring partners Mark Berman and Robert Christmas are SIFMA’s counsel.
  • Lessons Learned and What to Disclose
    Municipal Finance Journal | April 1, 2014
    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses lessons learned from court decisions issued in recent chapter 9 municipal bankruptcy cases and what information about the potential consequences in bankruptcy analysts should be looking for when deciding whether or not to purchase a municipal security.
  • . . . View all . . .
  • Detroit Seeks to Undercut Muni Bondholders' Creditor Priority
    Bloomberg News | February 20, 2014
    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses the issue of presumption by municipal bond investors.
  • Eastern Massachusetts Bankruptcies Off Sharply in 2013
    Boston Business Journal | December 31, 2013
    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses bankruptcies, including personal filings and business reorganizations, which were down in 2013.
  • Pension Threats in Illinois, Detroit Rattle Government Workers
    Bloomberg News | December 5, 2013

    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses how bankruptcy and financial restructuring efforts in Indiana, Michigan and Wisconsin are impacting state and government workers.

  • A Crack in the Armor of the Special Revenue Bond
    Real Estate Finance Journal | October 1, 2013
    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses the implications of a decision dealing with efforts by a bankrupt municipality to invade special revenues incurred during a Chapter 9 bankruptcy case.
  • Wall Street Swaps Claim Detroit Cash over Retirees: Muni Credit
    Bloomberg News | August 23, 2013

    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses how banks that sold interest-rate swaps to Detroit could be paid ahead of other creditors in the city’s record bankruptcy.

  • Bankruptcy Bar Fighting Off ‘Unfair' Fee Proposal
    Massachusetts Lawyers Weekly | June 18, 2012

    Boston Bankruptcy & Financial Restructuring partner Mark Berman provides commentary in this article discussing the controversial fee proposal from the Executive Office for U.S. Trustees and how it could impact bankruptcy attorneys.

  • Harrisburg’s Unkovic Says was in “untenable position”
    Reuters | April 2, 2012

    Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses the uncertainty of Harrisburg, PA’s financial plans following the resignation of the city’s receiver amid efforts to find a solution to the city’s financial crisis.

  • U.S. Judge Clears Way for Alabama County Bankruptcy
    Reuters | March 5, 2012

    This feature story discusses a ruling by a U.S. Bankruptcy Judge allowing for Alabama’s Jefferson County to move forward with its $4.23 billion bankruptcy case, the biggest ever by an American municipality. Boston Bankruptcy & Financial Restructuring partner Mark Berman provides third-party commentary.

  • Chapter 7 Filings Decline Sharply in Mass.
    Boston Business Journal | December 30, 2011

    This feature story discusses bankruptcy industry trends and issues. Boston Financial Restructuring & Bankruptcy partner Mark Berman provides third-party commentary.

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Mark N. Berman