OVERVIEW

David M. Powlen

Of Counsel (Retired)

M 317-727-2211

David Powlen is a retired of counsel whose practice was primarily based in the firm’s Delaware office. His practice ranged from negotiating and documenting transactions to addressing actual or potential litigation. David was devoted to serving as a trusted adviser in all client assignments.

OVERVIEW
EXPERIENCE
EXPERIENCE
INSIGHTS & EVENTS

OVERVIEW

Experienced in business bankruptcy, insolvency and special situations, David was involved in Chapter 11 cases before the U.S. Bankruptcy Courts throughout the country. He represented a variety of creditors; investors; purchasers of assets; parties to leases, licenses and other agreements; defendants in actions to recover alleged preferences or other transfers; and a variety of other clients. Also, he was engaged in merger, acquisition, financing and restructuring transactions, documenting commercial loans and rendering opinions on enforceability, special purpose entities, substantive non-consolidation, true sale and other creditors’ rights matters.

David served multiple terms as chair of the firm’s Finance, Insolvency and Restructuring Department, and at various times was a member of the Management Committee, the Non-Legal Affiliates Committee and the Legal Personnel Committee. He opened the firm’s Delaware office in 2009 and was its managing partner until 2019 when family circumstances moved him to Houston, Texas. Reflecting the scope of his practice, he was also a member of the Corporate Department, the Litigation Department and several practice groups, and appeared in cases before the U.S. District Court for the District of Delaware, the Delaware Court of Chancery and the Delaware Superior Court.

While residing in Indianapolis earlier in his career with the firm, David was the first attorney there to develop a practice in creditors’ rights and bankruptcy law. Also, for eight years he worked full-time as a senior investment banker and financial advisor on merger and acquisition, recapitalization, reorganization, valuation and other assignments.

David has been a speaker at programs for and author in publications by the American Bar Association, American Bankers Association, American Bankruptcy Institute, Association of Insolvency & Restructuring Advisors, Commercial Law League, National Business Institute, National Association of Credit Managers, Turnaround Management Association, and other professional and industry associations.

Court Admissions

U.S. Bankruptcy Courts and U.S. District Courts:

D. Delaware
S.D. New York
E.D. Pennsylvania
N.D. Texas
S.D. Texas
W.D. Texas
S.D. Indiana

U.S. Court of Appeals:

Third Circuit
Seventh Circuit

Professional and Community Involvement

Former Board of Advisors, Mid-Atlantic States Conference of the American Bankruptcy Institute

Former Board of Advisors, Central States Conference of the American Bankruptcy Institute

Former Co-Chair, Financial Advisors & Investment Banking Committee of the American Bankruptcy Institute

Member, Business Bankruptcy Committee of the American Bar Association (Secured Creditors Subcommittee)

Master of the Bench, Delaware Bankruptcy Inn of Court

Former Governance Fellow, National Association of Corporate Directors

Former Board of Directors, Downtown Visions (non-profit organization focused on improving the central business district of Wilmington, Delaware)

Honors

The Best Lawyers in America, 1995-2024

Delaware Super Lawyers, 2018-2021

Top Lawyers 2022, Delaware Today

Martindale-Hubbell, AV Preeminent

EDUCATION

Harvard College, A.B.

Harvard Law School, J.D.

Bar Admissions

Delaware

Indiana

New York

Pennsylvania

Texas

Languages

English

EXPERIENCE

Advised and represented parties with a variety of claims and interests – including as secured creditors, lessors, statutory lien claimants, critical vendors, consignment sellers, and contract counterparties – in connection with the following significant bankruptcy-reorganization cases:
Abengoa Bioenergy Company
Aeromexico SAB de CV
Baldwin-United Corporation
Burlington Motor Carriers
Chrysler Corporation
Commonwealth of Puerto Rico
Dean Foods Company (Southern Foods Group)
General Motors Corporation
Hawker Beechcraft Inc.
Liberty Medical Supply, Inc.
Linens ‘N Things
Pacific Gas & Electric Company
Peabody Energy Corporation
RadioShack Corporation
Residential Capital (GMAC Mortgage)
Sports Authority Holdings Inc.
Tribune Company
Visteon Corporation
Verity Health System
Wabash Valley Power Association
Washington Mutual, Inc.
Successfully defended parties in adversary proceedings or with threatened actions to recover alleged preferential payments under Section 547 of the Bankruptcy Code or fraudulent transfers under Section 548 of the Bankruptcy Code, including dismissal by a liquidating trustee of a preference complaint for $5+ million (no settlement payment made) and no-suit determination by a special claims committee where liability of $2.5+ million for fraudulent transfers had initially been asserted
Experienced in all aspects of auctions and sales of assets and going-concern businesses pursuant to Section 363 of the Bankruptcy Code, and the related assumption and assignment of executory contracts under Section 365 of the Bankruptcy Code, including on behalf of prospective purchasers and non-debtor parties with agreements, claims and other interests affected by such proceedings
Represented landlords, suppliers, consignment vendors and other creditors in the Chapter 11 cases of different types of retail companies with nationwide operations and hundreds of stores, including a recent case where the debtor’s inventory items and proceeds thereof were subject to competing claims by suppliers, consignment vendors, secured lenders and other parties that had no guiding precedents, prompted a series of contested proceedings, and resulted in multiple decisions by the bankruptcy court
Served as counsel for manufacturers, retail companies and other parties in various Chapter 11 cases with respect to preservation and assertion of, and allowance and recovery on, claims for contribution or indemnity associated with product liability, warranty and other obligations or responsibilities of the debtors sought to be discharged or altered under plans of reorganization or liquidation
As counsel for originator and holder of $10+ billion in residential mortgages serviced by companies which became Chapter 11 debtors, undertook formal positions before the bankruptcy court and engaged in negotiations with the debtors and other interested parties to ensure that all new servicers of the mortgages would continue to conform to various customer accommodation and protection practices even though the debtors’ servicing rights were to be transferred by an order generally providing for the sale of all assets “free and clear” of liens, claims and interests
Represented a state government as owner of a toll road leased to an operator that entered a Chapter 11 case with over $5 billion of indebtedness, and assisted the state in successfully asserting and exercising its contractual and statutory authority to review and approve candidates to purchase the operator’s assets and become the successor lessee notwithstanding contrary incentives and opposing arguments by the operator and secured creditors in the Section 363 sale process
In Chapter 11 reorganization case of gas and electrical utility serving over 15 million customers, represented gas pipeline installation and repair company in asserting mechanic’s liens which resulted in treatment as critical vendor and obtaining payment of entire pre-petition indebtedness exceeding $3 million, and assisted primary subcontractor to the utility in energy-reduction and refurbishment projects for the United States government in achieving assumption of all executory contracts and full payment on pre-petition and post-petition claims
On behalf of primary secured lender to retail jewelry store chain in Chapter 11 case, filed comprehensive motion for judgment on the pleadings with multiple independent grounds that effectively defeated the debtor’s complaint seeking to stay collection action against individual owners-guarantors and resulted in a settlement enabling the lender to collect upon the full value of the guaranties
After a Section 363 sale early in automotive company’s Chapter 11 case under an order providing for transfer of substantially all assets “free and clear” of liens and claims, was retained and developed formal positions on behalf of county government with $20+ million unsecured tax claims, engaged in complex negotiations with new owner, United States agencies, and other parties, and achieved arrangement by which the claims were secured by a first priority lien on manufacturing facilities and fully paid with interest in a series of annual installments
In general receivership case involving two manufacturing companies, assisted the receiver in negotiating and obtaining restructured arrangements with primary customers, stabilizing the operations and financial performance of the companies, overcoming numerous objections by creditors raising issues that were unsettled under statutes and case law, and successfully completing separate going-concern sales of each company
For equipment lessor and supplier of products to a Chapter 11 debtor that provided medical supplies and testing equipment to end-users throughout the country, obtained recognition of recoupment and setoff rights, extinguishment of rebate obligations, and assumption of all executory contracts by the purchaser of the business with cure payments under Section 365 of the Bankruptcy Code exceeding $2 million
Designated by largest creditor-beneficiary of and served on three-member advisory board for litigation trust established under plan of reorganization for manufacturer and world-wide distributor of products utilized by military units as well as civilians, supervising and directing the trustee’s investigation, prosecution and resolution of claims against various third parties on behalf of the bankruptcy estate which produced substantial recoveries for creditors
After bank operating subsidiaries became subject to receivership by the Federal Deposit Insurance Corporation, represented their parent holding company in its Chapter 7 bankruptcy case and worked closely with the Chapter 7 trustee on a variety of complex and critical wind-down issues, including preservation of intangible as well as tangible assets, identification of potential causes of action, transition of officers and employees, and accommodation of their compensation and benefit claims
Assisted company in Chapter 15 case before United States bankruptcy court for the recognition of the company’s primary reorganization proceedings based in Brazil, and protection of assets and restructuring of obligations to creditors based in the United States
Developed and provided a series of formal opinion letters to federal regulatory authorities on behalf of a regional electric distribution and transmission operator addressing restructured business and contractual arrangements among the operator, utilities and other market participants, analyzing complex bankruptcy issues and distinguishing precedents with potentially adverse outcomes