Morgan C. Nighan

What do you focus on?

Complex Commercial Disputes

I represent companies in connection with contract disputes, business torts, employment claims, and other commercial and financial matters. I have extensive experience representing hospitals and health care institutions in litigations and investigations. For example, I currently represent several DSH hospitals in New Hampshire and New York in litigation against the Centers for Medicare & Medicaid Services.

I co-lead a team of attorneys that is counseling clients regarding their ability to secure funding or other relief in response to COVID-19-related financial distress, including through the Paycheck Protection Program (“PPP”) made available through the CARES Act.

Bankruptcy Litigation

I represent Chapter 11 debtors, creditors, and other parties in complex bankruptcy litigation. Representative matters include the 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.

Government Investigations and White Collar Defense

I defend companies and individuals being investigated by governmental agencies, including U.S. Attorneys’ Offices, the Securities and Exchange Commission (SEC) and the Financial Industry Regulatory Authority (FINRA).

What do you see on the horizon?

Many companies who accessed funding through the CARES Act will be audited or investigated by the Small Business Administration (“SBA”), the Department of Justice, or Congress. The firm has developed a play-book of best practices and defense strategies to assist companies that are audited or investigated after accessing stimulus funds.

Representative Experience

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 hospitals in New Hampshire, Connecticut and New York in litigation against the Centers for Medicare & Medicaid Services 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
• Represent many companies in connection with accessing CARES Act funding, including the Paycheck Protection Program (PPP)
• Represented a large hospital in complex civil litigation and a government investigation related to a Hepatitis C outbreak
• Represented 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
• Represented Canadian bank in international check citing scheme; secured an attachment and trustee process in Massachusetts Superior Court
• Represented 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 on a pro bono basis by successful appeal to the New York Court of Appeals
• Represent a life insurance company in cost of insurance litigation; successfully defeated preliminary injunction in the Business Litigation Session of Massachusetts Superior Court
• Represent real estate developer in commercial dispute regarding radian heat flooring installation; defeated motion to attached real estate in Massachusetts Superior Court
• 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
• Represent a Virginia death row inmate on a pro bono basis

Bankruptcy Litigation

• Successfully represented 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
• Represented Lehman Brothers Holdings Inc. in a bankruptcy adversary proceeding against J.P. Morgan Chase Bank
• Represent companies in fraudulent transfer and preference actions
• Represent group of nursing homes as debtors in Chapter 11 restructuring in Massachusetts
• Represent St. Francis Hospital in Chapter 11 restructuring in New York
• Represent hospital in restructuring in New Hampshire
• Represent for-profit school in Chapter 11 restructuring in Massachusetts

Government Investigations and White Collar Defense

• Counsel to public company in COVID-19-related “pump and dump” SEC investigation
• Counsel to a multinational corporation in 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
• Represent a hospice care company in SEC false claims act investigation regarding Medicare and Medicaid reimbursements
• Represented 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