Recent matters involving complex financial transactions and institutions include:
- Representation of large manufacturer in complex commercial dispute involving a “bet the company” case after alleged fraud and overcharge. Case involved a multi-decade time period of electronic and paper discovery, expert testimony and briefing. Case dismissed at summary adjudication prior to trial, with no settlement offer made or received.
- Representation of Luxury Hospitality brand in multi week arbitration in connection claims asserted by the owner of the company’s preeminent — and namesake — hotel. Damage claims exceeded $100 million, as well attempt terminate services contract. After multi week, international arbitration involving proceedings in two countries, arbitration panel unanimously found for his client.
- In cases spanning over a decade, representation of the nation’s largest mortgage originator and sponsor in a series of lawsuits by monoline insurers seeking repayment of $10 billion relating to Residential Mortgage-Backed Securities (RMBS) loan origination, securitization structure, rights and remedies of sponsor, trustee, noteholders and insurers. Cases have involved appeals to highest courts, and multiple reported decisions and every legal issue imaginable.
- Representation of real estate investors in series of development disputes involving real estate investments, hotel developments and management contracts.
- Representation of private equity funds in series of earn out disputes, commercial disputes and post-closing adjustments.
- Representation of RBS Securities and Greenwich Capital in repurchase and representation and warranty claims, and in cases brought both by trustees and by a monoline insurer. The representation produced a precedent setting opinion on damages recoverable when an insurer waived right to rescission in the underlying policy. Assured Guar. Mun. Corp. v. RBS Secs., Inc., 2014 U.S. Dist. LEXIS 63811, 2014 WL 1855766 (S.D.N.Y 2014).
- Representation of the largest equity holder and mezzanine holder in RadioShack bankruptcy in a claim brought by a last out creditor in a unitranche facility claiming that a restructuring had violated the relevant intercreditor agreement. Obtained dismissal. In re RadioShack Corp., 550 B.R. 700, 2016 WL 2865125 (D. Del. Bankr. 2016).
- Lead counsel in three-week trial in Delaware Chancery Court in representation of noteholders challenging buyout and financial restructuring to benefit a majority shareholder In re Loral Space and Communications Inc. Consolidated Litig., 2008 WL 4293781 (Del. Ch. 2008).
Disputes involving real estate lenders, joint ventures, partnerships, and mezzanine/junior lenders include:
- Representation of mezzanine lender in connection with senior lender’s efforts to enjoin a foreclosure sale by the mezzanine lender of the borrower’s pledged equity. After injunction and discovery, the client successfully exited the position. CSMSC 2007-C2 Broadway Portfolio II LLC v. OREP/Oxford HY Venture Funding, 4 L.P., No 652809/2011 (N.Y. Sup. Ct. Oct. 31, 2011).
- Representation of minority owners of real estate venture in litigation challenging profit allocations and distribution under LLC agreement in which assets consisted of joint venture were multiple New York properties operated under various operating agreements; matter settled through complex sale of assets to redeem interests.
- Representation of mezzanine lender in action challenging senior lender diversion of cash flow from waterfall used to pay mezzanine to fund other payments to senior lender. Matter settled after suit filed, and payments to mezzanine lender were resumed.
- Representation of purchaser of real estate assets out of bankruptcy in connection with litigation challenging plan and real estate value; sale and plan confirmed over objection of senior lenders and upheld repeatedly on appeal. Ad Hoc Group of Timber Noteholders v. Pacific Lumber Co. (In re Scotia Pacific Co., LLC), 508 F.3d 214, 217 (5th Cir. 2007); In re Pacific Lumber Co., 584 F.3d 229 (5th Cir. 2009).
Commercial litigation and contract disputes for business, companies, individuals and private equity sponsors include:
- Co-lead trial counsel for private equity portfolio company in connection with claims arising from industrial accident; trial resulted in largest damage award ever in Kentucky state court, including punitive and actual damages of $122 million, an NLJ Top 100 verdict for the year.
- Representation of successor entity that purchased assets of a predecessor corporation in a bankruptcy sales process pursuant to a sale of the assets under Section 363 of the U.S. Bankruptcy Code. Sale was subsequently collaterally attacked and alleged to be collusive and improper. In an issue of first impression, the court rejected the collateral attack and declined to disturb the underlying sale. Neogenix Oncology, Inc. v. Gordon et al., No. 2:2014cv04427 (E.D.N.Y. Mar. 30, 2017).
Mr. Hail also has an active pro bono practice, and has represented indigents and prisoners, including having the dismissal of a habeas petition reversed by the Second Circuit. He has served on the Second Circuit’s CJA panel and has been recognized by two federal courts for his pro bono efforts. In addition, Mr. Hail is involved with various conservation organizations, including representing The Nature Conservancy pro bono in connection with a development proposed by the Trump Organization.