James (“Jay”) W. Kapp III is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office. He focuses his practice on corporate bankruptcies and reorganizations, distressed financings and workouts, asset disposition and creditor rights representation.
In particular, Jay has represented distressed companies and interested creditors with respect to out of court restructurings and chapter 11 reorganizations (including both prepackaged and prearranged bankruptcy filings). In addition, Jay has experience in representing interested buyers in the acquisition of distressed companies (or the assets of distressed companies) both out of court and through bankruptcy proceedings (including 363 sales and related auctions and through plans of reorganization). Jay also has significant experience in advising board of directors of insolvent companies, including with respect to their shifting fiduciary duties as such companies infringe upon "the zone of insolvency."
Jay has been recognized by Legal 500 as one of the leading lawyers in his field.
Jay is admitted to practice in Illinois, Kansas and Missouri. He has appeared before various federal courts throughout the country, including the Third Circuit Court of Appeals. Jay has been designated an Illinois Super Lawyer and is a member of the American Bar Association.
Previous Selected Debtor Representations:
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Represented Performance Logistics Group, Inc., and 13 of its domestic affiliates, in connection with chapter 11 cases filed in the Western District of New York. The debtors are the second largest transporter of new automobiles in North America. These cases culminated in the negotiation (including with the debtors' unions) and confirmation of the debtors' plan of reorganization which provided the debtors' second lienholder majority ownership of the reorganized company. This matter also involved significant issues arising from the debtors' pursuit of a key employment retention program pursuant to the Bankruptcy Abuse and Consumer Protection Act of 2005.
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Represented Jillians Entertainment Holdings, Inc. (and certain of its affiliates) in its chapter 11 cases in the Western District of Kentucky (Louisville Division). The debtors operated clubs providing a combination of dining and entertainment. These chapter 11 cases were confirmed in approximately six months and involved the auction and sale of substantially all of the debtors' assets. This representation included filing an adversary proceeding alleging that certain leases should be recharacterized as secured financing agreements.
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Represented Neenah Foundry Company (and certain of its affiliates) in connection with its "prepackaged" chapter 11 cases in the District of Delaware. Neenah's plan was confirmed and deemed effective approximately sixty days after its filing date. The debtors manufacture iron castings and steel forgings for the municipal and industrial market.
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Represented DESA International, Inc. (and its affiliates) in its chapter 11 cases filed in the District of Delaware. This matter featured the sale of substantially all of the debtors' assets pursuant to section 363 of the Bankruptcy Code. Although objected to by the creditors' committee, such sale was ultimately approved by the court after a contested two day sale hearing. The issue as to whether prepetition lenders were entitled to receive post-petition interest at the default rate was also heavily contested in these chapter 11 cases and was ultimately resolved in DESA's favor by the bankruptcy court (and such decision was upheld upon appeal to the district court). DESA manufactures and distributes vent-free heating appliances and certain garden tools and other accessories
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Represented United Artists Theatre Company (and its affiliates) in connection with their prearranged plan of reorganization in the District of Delaware. United participated in prepetition negotiations with its lenders and certain holders of subordinated notes which established the framework for the consensual restructuring of United's obligations. This representation involved many issues pertaining to the rejection of leases and calculation of rejection damages. This matter also featured a dispute as to whether the debtors' financial advisors were entitled to indemnification. Both the bankruptcy court and the district court ruled on behalf of the debtors and the issue was ultimately argued before the Third Circuit Court of Appeals - I presented the argument on behalf of the debtor. The Third Circuit ultimately upheld the rulings of the lower courts and sided in favor of the debtors.
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Represented W.R. Grace, Inc. (a multibillion dollar international chemical manufacturer) and approximately sixty of its affiliates in their asbestos related chapter 11 cases in the District of Delaware.
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Represented Babcock & Wilcox, Inc. (and its affiliates) in connection with the preparation and filing of its chapter 11 cases in New Orleans, Louisiana. The company is an approximately $1.5 billion-revenue worldwide manufacturer of boilers and other products.
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Represented Goss Graphic Systems, Inc., a leading producer of newspaper and insert printing press systems and a major producer of commercial printing press systems with annual sales of $700 million, in connection with its prepackaged chapter 11 cases filed in the District of Delaware.
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Represented Collins & Aikman Corporation (and various of its affiliates) in the negotiation of debtor in possession financing in connection with the filing of its chapter 11 cases in the Eastern District of Michigan (Detroit).
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Represented Exide Technologies (and various of its affiliates) during the course of its chapter 11 cases filed in the District of Delaware.
Previous Selected Creditor and Out of Court Representations:
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Represented Terra Industries, Inc. in its acquisition of Mississippi Chemical Corporation. In particular, Terra negotiated a stock purchase agreement which provided for Terra to acquire ownership of Mississippi Chemical pursuant to a plan of restructuring filed in Mississippi Chemical's chapter 11 cases in Jackson, Mississippi. Ultimately, Mississippi Chemical's plan was confirmed within 120 days of the execution of the stock purchase agreement and Terra successfully acquired ownership.
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Represented Mowrey Elevator Service, Inc., a holding of Jupiter Partners LLC, in the potential acquisition of Delta Elevator, Inc. In particular, Mowrey was successful in receiving "stalking horse" status and "break-up fee" protection in Delta's chapter 11 cases in Orlando, Florida as it participated in a contested court-supervised auction.
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Represented Sun Capital Partners with respect to numerous investments and acquisitions of the assets of distressed companies in and out of chapter 11 proceedings.
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Represented the interests of China Three Gorges Project Development Corporation ("CTGPC") in the chapter 11 bankruptcy case of Rotec Industries, Inc. CTGPC was the largest unsecured creditor of Rotec. In particular, this matter entailed representing CTGPC in its capacity as a member of the unsecured creditor's committee and in negotiations to settle CTGPC's claims against both the debtor and its insurance provider.
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Represented Rogers Communications, Inc. in the chapter 11 bankruptcy case of At Home Corporation in San Francisco, California. In particular, Rogers contested At Home's attempt to reject various contracts and ultimately negotiated a transition agreement which provided Rogers sufficient time to provide for alternative services.
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Represented Fitigues, Inc. (a clothing retailer) in connection with its assignment for benefit of creditors conducted under various state statutes, including Illinois and Arizona.
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Defended Walton Street Capital, L.L.C. in connection with avoidance actions asserted by Global Crossing in its chapter 11 cases.
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Represented Loxley Public Company, Limited, a Thailand company, in the out of court restructuring of $205 million in convertible bonds, involving issues in the U.S., Great Britain, Thailand and Singapore.
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Represented Totes Isotoner Corporation in connection with its restructuring activities, which resulted in an out of court resolution involving the acquisition of new financing.
Education
- University of Minnesota Law School, J.D. (magna cum laude), 1994
- Northwestern University, B.S., 1991
