Madlyn Gleich Primoff is a Partner in Kaye Scholer’s Bankruptcy & Restructuring Department and a Member of the Firm’s Executive Committee. She has more than 25 years of experience representing lending groups, global financial institutions, creditors’ committees, private equity funds and hedge funds in out-of-court bankruptcies, workouts and restructurings, pre-arranged Chapter 11 cases, contentious Chapter 11 cases and related litigation matters. Madlyn brings a disciplined and highly intellectual approach to her matters, with a particular focus on energy and infrastructure, consumer products, structured products, project finance, entertainment, media, shipping, and health care (including device manufacturing and distribution).
She has substantial cross-border bankruptcy experience (including Chapter 15 cases and parallel proceedings) and regularly handles the accompanying litigation. In real estate-related bankruptcy and insolvency matters, Madlyn has represented secured lenders, mezzanine lenders, preferred equity holders, developers and funders of Chapter 11 plans.
Madlyn watches evolving trends closely and stays abreast of new structures to provide clients with innovative solutions to complex challenges. For example, in the $450 million U.S. Shipping Chapter 11 cases, where she represented the Administrative Agent on behalf of the syndicate of senior secured lenders, Madlyn implemented a complex warrant structure to address regulatory concerns regarding the lenders’ take-back of equity. This resolved previously untested issues concerning the intersection of the Bankruptcy Code, the UCC and the Jones Act.
Madlyn’s vast experience working with complex structures, combined with a deep understanding of the regulatory issues that industries such as transportation, energy, communications, infrastructure and financial services face, offers clients numerous benefits. Madlyn is considered an “Expert” in Insolvency and Restructuring, as evidenced by her inclusion in Legal Media Group’s Expert Guide: Women in Business Law 2013 and 2014, a guide determined exclusively by peer recommendations. She is recognized in New York by Chambers USA 2015 for Bankruptcy/Restructuring as well as Best Lawyers 2015 for her work in Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law.
- Represented an ad hoc committee of noteholders in restructuring €275 million of Ideal Standard’s indebtedness, which involves the intricate application of Luxembourg, English and New York law.
- Represented global financial institution as Administrative Agent, Arranger and Lender in Chapter 11 restructuring involving $13B of indebtedness incurred by major publication and broadcasting conglomerate.
- Represented Administrative Agent and Lender in proposing and confirming contested Chapter 11 plan of reorganization involving $300M in debt to ethanol manufacturer, related debt-for-equity conversion and entry into new financing facilities.
- In Chapter 11 cases involving pharmaceutical services company, represented the Administrative Agent and Lender in defending against lien challenges and fraudulent conveyance claims and in proposing and confirming contested bankruptcy plan.
- Representing the court appointed liquidators of Octaviar Administration Pty Limited (in liquidation), which is the subject of an Australian insolvency proceeding, in Chapter 15 case pending before the United States Bankruptcy Court for the Southern District of New York and appeal before the Second Circuit.
- Represented the liquidators of Univest Multi-Strategy Fund II, Ltd. in connection with complex litigation before the Supreme Court of the State of New York and related proceedings before the United States Bankruptcy Court for the Southern District of New York, concerning proceeds from a Cash Settled Equity Barrier Call Option. Defended clients’ interests in the Option proceeds and navigated through the complicated issues arising from this multi-jurisdictional and highly fact-intensive matter to structure settlements with each of the parties to the litigation, which settlements were then approved by courts in New York, the Cayman Islands, Canada, Barbados and the Bahamas.
- Represented a global financial institution in the Bear Stearns Cayman Islands hedge fund matters.
- Currently representing Australian court-appointed liquidators of Octaviar Administration Pty Limited in an action before the United States District Court for the Southern District of New York against Drawbridge Special Opportunities Fund, Fortress Investment Group and certain of their affiliates. The action seeks damages of approximately $350 million and involves various claims under New York law and Australian law, including fraudulent transfers, aiding and abetting breaches of fiduciary duty, unjust enrichment, conspiracy, conversion and tortious interference with contractual relations.
- Successfully defended global financial institution on summary judgment against intercreditor claims brought in action before the Supreme Court of the State of New York relating to the distribution of proceeds under a prepetition credit agreement, an exit facility and various equity documents.
- Successfully defended Syndication Agent and Lender with respect to fraud and other claims asserted by bondholders under an intercreditor agreement in an action commenced in the Supreme Court of the State of New York. Motion to dismiss was granted in favor of client on all claims asserted.
- Defended setoff effected by a global financial institution under a swap agreement in an action brought by UK court-appointed administrators of TXU Europe in New York for bad faith and breach of contract.
Distressed Structured Products
- Represented several global financial institutions in the restructurings of the Axon, Orion and Victoria SIVs (structured investment vehicles) and related restructurings of various CLOs (collateralized loan obligations) and CDOs (collateralized debt obligations).
- Advised several global financial institutions on swaps and repurchase agreements with Lehman Brothers and Bear Stearns.
- Represented money center bank in providing $500M of “rescue financing” to distressed asset-based lender.
- Represented General Electric Company, through its GE Power Systems Business, as the successful stalking horse bidder and in acquiring the assets of the Enron Wind Portfolio through a Section 363 sale conducted before the Bankruptcy Court for the Southern District of New York.
- Represented the acquirers in purchasing substantially all of the assets of Starter Corporation through a Section 363 sale conducted before the Bankruptcy Court for the District of Delaware.
- Represented the acquirers as the successful stalking horse bidder and in purchasing substantially all of the assets of Best Products Corporation through a Section 363 sale conducted before the Bankruptcy Court for the Eastern District of Virginia.
Publications and Speaking Engagements
“Determining Cramdown Interest Rates: Developments & Recommendations,” with Holly Martin, ABF Journal (May/June 2015).
Panelist, “Recent Decisions Affecting Secured Creditor Rights and the Potential Impact of Such Cases,” American Bankruptcy Institute’s 17th Annual Bankruptcy Conference (May 2015).
“Bankruptcy Jurisdiction: From Stern to Executive Benefits, Wellness International And Beyond,” with Neal Hampton, Bankruptcy Strategist (a Law Journal Newsletter) (August 2014).
Panelist, “The Great Venue Debate,” American Bankruptcy Institute’s 16th Annual Bankruptcy Conference (May 2014).
Member, Advisory Board, American Bankruptcy Institute New York Conference; Panelist, “Complex Cross-Border Bankruptcy Issues (Chapter 15)” (May 2013).
“Secrets of a Successful Restructuring,” with Neal Hampton, Infrastructure Investor (February 2013).
“Distressed Toll Roads: Opportunities and Challenges for Restructuring,” with Neal Hampton, Better Roads (January 2, 2013).
“Make Sure the Make-Whole Provision Is Favorably Drafted: Bankruptcy Court in American Airlines Rejects Make-Whole Premium Based on Indenture Language,” Kaye Scholer Client Alert (January 25, 2013).
Panelist, International Project Finance Association seminar on “Infrastructure Lifecycle - Owners & Capital Providers in an Evolving Market” (November 2012).
“Will the Supreme Court Protect Lenders on Collateral Bidding?,” American Banker (April 19, 2012).
“Stern v. Marshall: What the United States Supreme Court Has to Say About Bankruptcy Court Jurisdiction” with Seth Kleinman, New York Law Journal (September 21, 2011).
“In re DBSD North America, Inc.” with Marc Rosenberg, Association of Insolvency & Restructuring Advisors Journal (February/March 2011).
“SIVs, CDOs and Structured Products in Distress: Cross-Border and Other Issues for Lenders and Investors,” with David M. Eskew, The Americas Restructuring and Insolvency Guide 2008/2009 (Globe White Page).
“Structured Products in Need of Restructuring: Solutions for Issues Plaguing Distressed SIVs,” with Daniel J. Hartnett and David M. Eskew, New York Law Journal (March 3, 2008).
“E-Commerce and Dot-Com Bankruptcies: Assumption, Assignment and Rejection of Executory Contracts, Including Intellectual Property Agreements, and Related Issues Under Sections 365(c), 365(e) and 365(n) of the Bankruptcy Code,” American Bankruptcy Institute Law Journal (December 2000).