Mark W. Powers

Preserving bargained-for contractual benefits in bankruptcy

A client in the energy field entered into a series of purchase agreements to supply renewable energy credits to a counterparty that provided natural gas and electricity to its commercial and residential customers.  We successfully designated the purchase agreements as forward contracts under the Bankruptcy Code to permit our client to promptly terminate the purchase agreements and sell the energy credits to a third party at fair market value.

Overcoming an architect’s bankruptcy to expedite completion of a development project

A client was the owner/developer of a project for the construction of two-hundred residential apartment units.  In the middle of the project the architect ceased doing business and filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code.  The client anticipated significant delays, but we successfully leveraged the bankruptcy code’s protections given to licensees of intellectual property with the contract’s grant of a non-exclusive license on the project’s Instruments of Service to require the bankruptcy trustee to promptly turnover the project’s drawings and specifications in CAD format to permit the client to complete the project in a timely fashion.

Helping a client through a difficult financial strait

A client in the transportation field experienced financial difficulty. “After efforts to sell the company failed,” Mark noted, “I represented the company in its bankruptcy case and successfully negotiated a resolution of several critical issues that resulted in no liability to the company’s officers or board members, including claims arising from consumer prepayments for services never rendered, claims by the taxing authorities holding the officers of the company liable for unpaid taxes, and claims asserted by vendors who threatened to sue the company’s officers for alleged fraud and deception.”

A difficult case on behalf of a creditor

Mark’s client in this case was a regional bank that had lent to a condominium developer where the project was failing. As Mark described it, “the borrower went into default and filed for bankruptcy. The borrower thereafter asserted various lender liability claims against the bank.” While that suit was pending, the bank moved to lift the automatic stay and at trial won on the valuation issue, leveraged that victory to negotiate a settlement agreement that included a release of all claims against the bank and set an aggressive schedule that the borrower could not meet, causing it to soon default under the settlement agreement, thereby providing the bank with relief from the automatic stay. “This was an example of trying the case well and advising the client of the leverage it had obtained to negotiate a favorable agreement that released all claims against it.”

Other experience

Litigation and dispute resolution

• Counsel to regional passenger airline in bankruptcy proceeding in the U.S. Bankruptcy Court, District of Massachusetts
• Official Committee of Unsecured Creditors in Chapter 11 reorganization that resulted in a confirmed plan and a 50 percent distribution to unsecured creditors
• Dismissed a plaintiff’s Chapter 93A, consumer protection claim against a Massachusetts savings bank
• Opposed commercial tenant’s Motion to enjoin landlord from commencing eviction proceedings at an evidentiary hearing before the U.S. District Court, District of New Hampshire
• Obtained approval (as a proponent) of a third-party plan of reorganization in Chapter 11 bankruptcy case in the U.S. Bankruptcy Court, Northern District of New York
• Provided commercial contract review for institutions of higher education
• Foreclosed a $150 million first mortgage loan on a 100,000 square foot office building in MetroWest
• Obtained an order “surcharging” the proceeds from the sale of a debtor’s residence in a surcharge action

Contracts and transactions

• Negotiated and documented a solar lease covering 100-plus acres for a religious non-profit