Morgan C. Nighan

What do you focus on?

Health Care

I frequently advise clients in the health care industry and represent them in litigations, government investigations, and restructurings across the country. I’ve delivered successful results to hospitals and hospital associations in New Hampshire, New York, and Texas through administrative agency litigation against the Centers for Medicare & Medicaid Services (CMS) and the Department for Health and Human Services (HHS).

COVID-19

As a member of Nixon Peabody’s COVID-19 Client Response team, I’ve counseled hundreds of companies on compliance with the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Economic Aid Act, and American Rescue Plan programs, including the Paycheck Protection Program (PPP) and the Provider Relief Fund (PRF). I provide advice about risks for distributing COVID-19 vaccines and the immunity protection available pursuant to the Public Readiness and Emergency Preparedness (PREP) Act.

Restructuring and Bankruptcy

I represent Chapter 11 debtors, creditors, and other parties in complex bankruptcy litigation. My work includes contested confirmation trials of Energy Future Holdings Corp. in Delaware, where I litigated and tried claims for $1 billion in principal and interest, and a contested adversary proceeding in Lehman Brothers Holdings, Inc. I frequently represent clients in the health care industry as both debtors and creditors.

Complex Financial Disputes

I represent companies in connection with contract disputes, business torts, employment claims, and other commercial and financial matters.

Government Investigations and White Collar

I defend companies and individuals under investigation by governmental agencies, including U.S. and state attorneys general’s offices, the Securities and Exchange Commission (SEC), and the Financial Industry Regulatory Authority (FINRA).

Trusted Advisor and Connector

I draw on nearly ten years of experience at Nixon Peabody and the experience and talent of more than 600 attorney colleagues to develop strategic legal solutions for clients. If I can’t answer your question, I know the attorney who can. As a practice group ambassador, I work with the firm’s Move the Needle Fund program to develop and utilize a pipeline of diverse talent and build pathways to success for these attorneys.

What do you see on the horizon?

Many companies who accessed COVID-19-related federal stimulus funding through the Families First Coronavirus Response Act (FFCRA), the CARES Act, the Economic AID Act, or the American Rescue Plan will be audited or investigated by Congress or federal agencies. Using our experience in the early months of the pandemic, my colleagues and I have created a playbook of best practices and defense strategies to mitigate the consequences of these inquiries on our clients.

Representative Experience

COVID-19

• Provide compliance advice to hundreds of companies related to the PPP loan program and represent borrowers in potential litigation and pre-suit negotiations with the Small Business Administration (SBA).
• Represent providers in connection with compliance advice and disputes with HHS related to the PRF.
• Counsel public company in COVID-19-related “pump and dump” SEC investigation.
• Advise laboratory in Massachusetts regarding risk mitigation related to COVID-19 vaccine storage and immunity available pursuant to the PREP Act.
• Represent skilled nursing facility in civil and criminal investigation in Massachusetts regarding false positive COVID-19 test results received from a laboratory.
• Advise digital health care company regarding risk mitigation, related to COVID-19-testing supply chain, and perform extensive compliance analysis regarding PREP Act.

Health Care

• Represent a hospice care company in SEC False Claims Act investigation regarding Medicare and Medicaid reimbursements.
• Counsel to hospitals in New Hampshire, Connecticut, and New York in litigation against the CMS regarding the calculation of disproportionate share payments under the Medicaid statute; secured injunction against CMS regarding enforcement of illegally enacted policies, which was upheld by the United States Court of Appeals for the First Circuit. Won fee award pursuant to the Equal Access to Justice Act.
• Represent a large hospital in complex civil litigation and a government investigation related to a Hepatitis C outbreak, with a complex privacy law and privilege overlay.

Health Care Restructurings

• Represent nonprofit New Hampshire hospital in restructuring. The deal negotiated allowed the hospital to continue its charitable mission of providing health care to its community.
• Advise on restructure of group of nursing homes in Chapter 11 proceedings in Massachusetts.
• Represent St. Francis Hospital in Chapter 11 restructuring in New York.

Financial Institutions, Banking Services, Restructuring

• Represent many companies in connection with accessing CARES Act funding, including PPP funds, the Main Street Lending Program, and the PRF.
• Counsel to the indenture trustee for bondholders of an energy company in one of the largest bankruptcy litigations in U.S. Bankruptcy Court, including three contested confirmation trials of complex intercompany liabilities, corporate governance, and rights to post-petition interest and “make-whole” premiums.
• Represent Lehman Brothers Holdings Inc. in a bankruptcy adversary proceeding against J.P. Morgan Chase Bank.
• Represent State Street bank in various employment and compliance-related litigation.
• Represent several companies in fraudulent transfer and preference actions.
• Advise on restructure of a for-profit school in Chapter 11 proceedings in Massachusetts.
• Represent a banker involved in municipal bond financing of 38 Studios video game company against SEC fraud claims.
• Represent a bank in two FINRA arbitrations regarding language in U5 disclosures.
• Represent a registered representative in FINRA arbitration regarding suitability of annuity products.
• Represent Canadian bank in international check kiting scheme. Secured an attachment and trustee process in Massachusetts Superior Court.
• Defeated preliminary injunction in the Business Litigation Session of Massachusetts Superior Court on behalf of life insurance company in cost-of-insurance litigation.

Complex Commercial Disputes

• Won successful jury verdict for a fitness franchisor, after a six-day jury trial in Massachusetts Superior Court regarding the violation of non-compete agreements.
• Represent a music technology company in suit against former CEO for fraud and corporate theft. Secured a preliminary injunction and trustee process in Massachusetts Superior Court.
• Obtained successful outcome for real estate developer in mechanic’s lien litigation, with decision affirmed by the Massachusetts Supreme Judicial Court.
• Represent real estate developer in commercial dispute regarding radiant heat flooring installation; defeated motion to attached real estate in Massachusetts Superior Court.
• Counsel to companies in shareholder disputes related to merger transactions and books and records demands under Delaware law.
• Represent a fitness franchisor in purported class-action lawsuit related to allegations that membership agreements violate New Jersey consumer protection laws.
• Represent the founder and majority shareholder of a technology company in shareholder dispute regarding a breach of fiduciary duty in connection with a company asset sale.

Government Investigations and White-Collar Defense

• Counsel a multinational corporation in a Foreign Corrupt Practices Act (FCPA) investigation.
• Represent a company in investigation regarding alleged violations of Massachusetts bribery and gratuity statutes.
• Represent a global manufacturer in multiple SEC investigations.

Pro Bono

• Represent a Virginia death row inmate in the United States Supreme Court.
• Represent a political party in a First Amendment case in the United States Court of Appeals for the First Circuit.
• Preserved New York State women prisoners’ access to prison nursery programs by successful appeal to the New York Court of Appeals.
• Volunteer hundreds of hours with the Lawyers’ Committee for Civil Rights Election Protection program.
• Represent Chelsea Housing Authority in fraud litigation against its former executive director.