DOV R. KLEINER

PARTNER

Dov Kleiner advises clients on bankruptcy and workout issues, focusing on transactional and credit matters. He has extensive experience representing investors, creditors, debtors and official and unofficial committees, with a particular focus on large, complex capital structures and highly leveraged enterprises. Dov also works closely with the Real Estate group on real estate workouts, as well as commercial and mezzanine loans.

Practices

Experience

Dov’s representations includes:

  • Representation of first and second lien lenders in distress situations;
  • Representation of borrowers in workouts with lenders.
  • Representation of purchasers in 363 bankruptcy sales.
  • Representation of assisted living business and skilled nursing facility borrowers.
  • Representation of mezzanine lenders in multi-site cross collateralized development loans.
  • Representation of lender in multi-loan real estate business loan funding facility.
  • Representation of multi-property nursing home facility real estate workout.
  • Representation of multiple investment funds in connection with distressed credit investments in the communications, real estate and retail industries.
  • Representation of buyers and sellers in bankruptcy and foreclosure sales.
  • Representation of Shinsei Bank in connection with its claims against Lehman Brothers Holdings, Inc. and in its service on the Official Committee of Unsecured Creditors in the Lehman Bankruptcy and in connection with litigation with Lehman US relating to the insolvency of a Japanese Lehman affiliate
  • Representation of the BI-LO supermarket chain, an operator of a 200+ grocery store chain, as debtor-in-possession in its Chapter 11 proceeding
  • Acted as bankruptcy counsel to Combined Coordinating Council, Inc. and its affiliates in connection with the bankruptcy and reorganization of The Brooklyn Hospital, the bankruptcy and sale of Our Lady of Mercy, and the dissolution and sale of Long Island College Hospital, each of which were member hospitals

Education

Columbia University (J.D., 1994)

Stone and Kent Scholar, Olin Fellowship in Law and Economics

Columbia University Graduate School of Business (M.B.A., Dean’s List, 1994)

University of Pennsylvania (B.A., cum laude, 1988)

Bar Admissions

1995, New York

Publications

New York Court Adopts Majority “Taint Travels” Rule

Journal of Bankruptcy Law, November 2020, Co-Authored with Matthew Gold and Michael Levine

Nine West Clawback Ruling Fortifies Bankruptcy Safe Harbor

Law360,  September 2020, Co-Authored with Matthew Gold and Marc Rosen

A Token Exception to Bankruptcy’s ‘Keep off the Grass’ Sign

Turnarounds & Workouts, July 2018

Town Center’s Impact On Real Estate Lenders And Borrowers

Law360, June 2017

Non-Bankruptcy Alternatives to Chapter 11 Restructurings and Asset Sales

Practical Law Bankruptcy, May 2017

Insights

Kleinberg Kaplan Partners Matthew Gold, Dov Kleiner and Michael Levine Published in Pratt’s Journal of Bankruptcy Law

November 11, 2020,

A recent client alert written by Kleinberg Kaplan partners Matthew Gold, Dov Kleiner and Michael Levine has been re-published in the November/December edition of Pratt’s Journal of Bankruptcy Law. The article, “New York Court Adopts Majority ‘Taint Travels’ Rule” highlights the Firestar Diamond, Inc. decision by the New York Bankruptcy Court which is the latest…

Kleinberg Kaplan Thought Leadership Featured in Law360

September 28, 2020

A recent client alert written by Kleinberg Kaplan partners Matthew Gold, Dov Kleiner and Marc Rosen, has been featured in Law360. The article, “Nine West Clawback Ruling Fortifies Bankruptcy Safe Harbor,” explains how the Nine West case decision reaffirms the use of bankruptcy Safe Harbor as defense against clawback actions in the aftermath of failed…

Safer Than Ever: Nine West Decision Buttresses Bankruptcy Safe Harbor

September 22, 2020

A recent decision by a New York district court confirms that the defendant-friendly holding of the Second Circuit’s Tribune decision (discussed in our prior alert) will be applied broadly to benefit defendants and rejects efforts by plaintiffs to work around Tribune. The decision, In re Nine West LBO Securities Litigation, reaffirms the vitality of the…

Taint What You Do: New York Court Adopts Majority Taint Travels Rule

September 14, 2020

A New York Bankruptcy Court has adopted the majority rule in holding that a transferred claim can be disallowed or subordinated based on actions of the initial claim holder, siding with the Third Circuit Court of Appeals and rejecting a contrary decision of a New York District Court. The decision, In re Firestar Diamond, Inc.,…

All’s Fair That Is Not Unfair: Third Circuit Refuses To Strictly Enforce Subordination Agreement In Cramdown

September 2, 2020

The Third Circuit Court of Appeals has affirmed the confirmation of a plan of reorganization that did not strictly enforce the subordination provisions of certain public debt issuances. The decision, In re Tribune Co., illustrates limits to the utility of subordination agreements and provides a new standard for the implementation of the “unfair discrimination” test…

Helping Clients Navigate COVID-19 (Updating)

August 18, 2020,

Kleinberg Kaplan is working closely with our clients to provide counsel and guidance during these unprecedented times. A selection of our recent thought leadership pieces related to the implications of COVID-19 includes: Corporate Considerations  The PPP Just Got Better (June 10, 2020): Chris Davis, Dov Kleiner, Uri Rosenwasser and Benjamin Goldman discuss the key highlights of the…

Triple Flip Flop: Safe Harbor Sinks Lehman Appeal

August 12, 2020

The Second Circuit has affirmed, on appeal, the dismissal of an attempt by the Lehman Brothers estate to unwind payments made in connection with a series of collateralized debt obligation (“CDO”) structures. The decision, Lehman Brothers Special Financing Inc. v. Branch Banking and Trust Company (In re Lehman Brothers Holdings, Inc.), marks the third time that…

The PPP Just Got Better

June 10, 2020

The Paycheck Protection Program Flexibility Act of 2020 (the “Flexibility Act”) was signed into law on June 5, modifying the terms of the Paycheck Protection Program (the “PPP”) created by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The full text of the law can be found here, and our previous coverage of…

Three for the Lenders

May 27, 2020

A series of recent decisions may provide boosts for the positions of lenders. Post-Petition Interest on an Oversecured Claim In re Family Pharmacy, Inc. held that Missouri law, like New York law, distinguishes between permissible default interest and impermissible penalties. However the case diverges from the majority view adopted by several circuit courts of appeal insofar…

Treasury Releases PPP Loan Forgiveness Application

May 18, 2020

Last Friday night, the Department of Treasury (“Treasury”) released the loan forgiveness application (“Application”) for the paycheck protection program (“PPP”). The Application is consistent with the CARES Act provisions and the Treasury’s guidance that Kleinberg Kaplan previously summarized in a client alert, available here. The form of Application can be found here. Applications must be completed by…

Treasury Adds Important FAQs and Responses for Paycheck Protection Program

May 7, 2020

On May 3 and May 5, 2020, the Department of Treasury (“Treasury”) updated its frequently asked questions (“FAQs”) related to the paycheck protection loan program (“PPP”) under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). You can find our previous client alerts on the program here and the full text of the…

Treasury Provides New Guidance on PPP Loans to Corporate Groups

May 6, 2020

Late last week, the Department of Treasury (“Treasury”) released a new interim final rule (the “Interim Final Rule”) relating to the administration of the paycheck protection program (“PPP”) under the CARES Act. The Interim Final Rule limits the amount any corporate group can receive under the PPP to $20,000,000. The full text of the Interim…

Fed Adds New Facility and Changes Terms of Main Street Lending Program

May 4, 2020

On April 30, 2020, the Federal Reserve Board (the “Fed”) released new term sheets for the $600 billion Main Street Lending Program, which was initially announced on April 9, 2020. In addition to changing terms to the two existing facilities, the Main Street New Loan Facility and the Main Street Expanded Loan Facility, the Fed…

Treasury Provides Material PPP Update for Hedge Funds and PE Firms

April 24, 2020

On April 24, 2020, the Department of Treasury (“Treasury”) issued a new interim final rule (the “Interim Final Rule”) and guidance, which materially changes portions of the existing guidance on the paycheck protection loan program (“PPP”) in a way meaningfully detrimental to hedge funds and private equity funds in particular. You can find our previous…

Kleinberg Kaplan Attorneys Quoted in Law360: “As Bankruptcy Storm Brews, Legal Pros Say Save Cash”

April 3, 2020

Kleinberg Kaplan’s Business Restructuring and Reorganization partners Matthew J. Gold and Dov R. Kleiner were quoted in a Law360 article: “As Bankruptcy Storm Brews, Legal Pros Say Save Cash.” In the article, Matt and Dov discuss the potential increase of bankruptcy filings across industries as COVID-19 continues to impact businesses. For those companies that seek…

Slo-Mo: Bankruptcy Court Suspends Modell’s Case

March 31, 2020

A recent decision by the Bankruptcy Court for the District of New Jersey, In re Modell’s Sporting Goods, Inc., illustrates the difficult problems caused by the COVID-19 pandemic, the ways that parties to a bankruptcy case may react and issues distressed companies, their creditors and stakeholders should consider in the current climate before a bankruptcy petition…

COVID-19: Considerations for Lenders and Credit Managers

March 20, 2020

During these stressful, uncertain and rapidly changing times, Kleinberg Kaplan’s thoughts go out to our clients and the welfare of their families and businesses. As we adjust to the continuously changing circumstances, we reach out to our many fund clients with a reminder that lenders and credit managers will need to be proactive in making sure…

COVID-19: Positioning Your Business to Survive this Season

March 19, 2020

The global outbreak of COVID-19 has reached the United States with significant impact. Right now, we are all doing what we need to do in order to keep our families and communities safe. But as we settle in to what experts say could be weeks, if not months, of slowdown, we also recognize that the business…

Hot Off The Press: Newest Tribune Decision Affirms Safe Harbor Defenses

December 23, 2019

The latest decision by the Second Circuit Court of Appeals in the long-running Tribune Company fraudulent conveyance litigation provides Court of Appeals endorsement of safe harbor defenses to clawback actions that had been considered potentially vulnerable following the Supreme Court’s decision in Merit Management Group LP v. FTI Consulting, Inc. The opinion amounts to a reconsideration and reaffirmation…

HSR Act Bringing Offshore Funds Home

November 18, 2019,

Earlier this month, the Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the U.S. Department of Justice, published in the Federal Register proposed changes to the Hart-Scott-Rodino Act (“HSR Act”) regulations regarding foreign entities. The proposed changes are intended to simplify the determination of whether an entity is a foreign person…

Difficult to Avoid: Supreme Court Leans Against Avoidance Actions

July 31, 2019

A review of the two bankruptcy law decisions issued by the Supreme Court in its most recent term (Mission Product Holdings Inc. v. Tempnology, LLC and Taggart v. Lorenzen) shows that the Court may be tilting against avoidance actions in ways that should provide comfort to avoidance defendants. Mission Product Holdings Inc. v. Tempnology, LLC…

Extra, Extra: Tribune decision bolsters Safe Harbor Defenses

May 1, 2019

The most recent decision in the long-running Tribune Company Fraudulent Conveyance Litigation multi-district case shores up safe harbor defenses to clawback actions that had been challenged following the Supreme Court’s Merit Management decision. The decision approves a broad reading of the statutory definition of “financial institution,” and thus extends the protection of the safe harbor…

Sears Trading Order

October 26, 2018

On October 16, 2018, the Bankruptcy Court overseeing the Sears bankruptcy cases entered an interim order relating to ownership and transfers of interests in the Sears debtors. Among other things, the interim order requires the filing of a notice by any entity (as defined in Treasury Regulations Section 1.382-3(a)) that is or will become a…

Bankruptcy Court Tells Claims Traders: “Do Your Homework!”

July 23, 2018,

Traders in claims of bankruptcy debtors should take note of a recent Delaware Bankruptcy Court decision that prevents the transfer of claims when the underlying debt instrument prohibited the transfer without the borrower’s consent. In In re Woodbridge Group of Companies, LLC, et al. No. 17-12560 (KJC), (Bankr. Del. June 20, 2018) (http://www.deb.uscourts.gov/sites/default/files/opinions/judge-kevin-j-carey/woodbridge-contrarian-opinion-and-order.pdf), the court…

Release Me!: New York Bankruptcy Court Enforces Third Party Releases by UK Debtor

May 15, 2018,

The United States Bankruptcy Court for the Southern District of New York recently entered an order enforcing a UK scheme of arrangement[1] that contained provisions – non-consensual third-party releases – that might not necessarily have been permissible under U.S. bankruptcy law. In re Avanti Commc’ns Group plc, No. 18-10458 (MG), (Bankr. S.D.N.Y. Apr. 9, 2018)…

Flip Flop: Safe Harbor Sinks Lehman Appeal

April 5, 2018,

A New York district court has affirmed, on appeal, the dismissal of an attempt by the Lehman Brothers estate to unwind payments made in connection with a series of CDO structures. The decision, Lehman Brothers Special Financing Inc. v. Bank of America N.A. (In re Lehman Brothers Holdings, Inc.), marks the second time that a…

Troubled Waters Ahead: Supreme Court Narrows Safe Harbor

March 6, 2018,

The United States Supreme Court has narrowed the scope of section 546(e), the Bankruptcy Code securities safe harbor for clawbacks, such that it may be available in many cases to only banks, large funds, and other large financial institutions. The case, Merit Management Group LP v. FTI Consulting, Inc., is the first Supreme Court test…

Storm Warning: Supreme Court to Rule on Safe Harbor

November 29, 2017,

A case currently before the United States Supreme Court could significantly restrict the scope of an important defense to clawback actions, limiting its usefulness for entities that are not major financial institutions or large funds. Based on recent oral argument, the Bankruptcy Code safe harbor for clawbacks may be given a narrow interpretation, leaving it…

Supreme Court Dismisses Structured Dismissals

March 24, 2017,

A recent decision by the United States Supreme Court, Czyzewski v. Jevic Holding Corp., curtails the controversial practice of concluding chapter 11 cases with “structured dismissals”. The decision narrows the range of options available to parties attempting to craft settlements resolving chapter 11 cases, and could increase the leverage available to holdouts. Background In 2008…

Stop the Presses: Court of Appeals Holds That Safe Harbor Blocks Creditor Fraudulent Conveyance Actions Against Tribune Shareholders

March 31, 2016,

A recent decision by the Court of Appeals for the Second Circuit, In re Tribune Company Fraudulent Conveyance Litigation, has emphatically rejected a controversial workaround strategy used by plaintiffs in several pending fraudulent conveyance cases brought against shareholders of public companies, providing clarity regarding the scope of the “Safe Harbor” defenses of Bankruptcy Code section…

Paved with Good Intentions: Court Explores Contours of “Actual Intent” Fraud

February 9, 2016,

A recent decision by New York Bankruptcy Judge Gerber has both raised the hopes of thousands of good faith shareholder defendants mired in long-running adversary proceedings and provided useful guidance to practitioners regarding the scope of “actual intent” fraudulent conveyance law. The cases, Weisfelner v. Fund 1, Weisfelner v. Reichman, and Weisfelner v. Hofmann, are…

Supreme Court Declines to Review Safe Harbor Victory for Madoff Defendants

June 24, 2015

In a significant victory for brokerage customers, the Supreme Court has declined to accept an appeal by Irving Picard, the Madoff Securities trustee, from a decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC) (analyzed in our previous alert), that…

Second Circuit Provides Safe Harbor for Madoff Defendants

December 15, 2014

A recent decision by the Court of Appeals for the Second Circuit, Picard v. Ida Fishman Revocable Trust (In re Bernard L. Madoff Investment Securities LLC), sharply limits the remedies available to trustees in brokerage liquidations, provides significant protections for innocent customers of fraudulent brokers, and further shapes the ongoing debate over Bankruptcy Code safe harbors. For former customers…

Taint Necessarily So: Third Circuit Holds that Taint Travels with Claim

November 21, 2013

A new decision by the Third Circuit Court of Appeals, In re KB Toys, Inc., may strongly influence the debate regarding whether a bankruptcy claim transferred on the secondary market is subject to disallowance based on acts of the original holder of the claim. As discussed in our prior alert, KB Toys concerned from objections…