Keith J. Cunningham - Pierce Atwood LLP

Keith J. Cunningham

Listed in Best Lawyers since 2006

Keith Cunningham chairs Pierce Atwood's Bankruptcy & Creditors' Rights team and has provided business and legal counsel to clients in bankruptcy and creditors' rights matters, debt financings and commercial transactions since 1988. "Praised by clients for his ‘very practical and strategic advice,'" (Chambers USA 2012), Keith's representation encompasses a wide range of interests, including secured creditors, trade creditors, public utilities, government agencies, forward contract merchants, lessors, licensors, licensees, and purchasers. Keith is particularly noted for his expertise in energy industry matters.  Keith has substantial experience in matters involving adequate protection, forward contracts and master netting agreements, setoff and recoupment, cash collateral, claims allowance and litigation, preference and fraudulent transfer risk management and defense, and Chapter 11 plan issues.

University of New HampshireBS 1983Emory UniversityJ.D. 1988
Maine Bar Association and American Bankruptcy InstituteSalvation Army of Greater Portland

Case History

California Department of Water Resources, et al. v. Calpine Corporation (In re Calpine Corporation), 337 B.R. 27 (S.D.N.Y. 2006) — Successfully represented California State agencies opposing efforts by Calpine Corporation to reject a multi-billion dollar wholesale power purchase agreement pursuant to Section 365 of the Bankruptcy Code.  The U.S. District Court for the Southern District of New York dismissed Calpine’s rejection motion, finding that the Court lacked jurisdiction to permit the rejection because the Federal Energy Regulatory Commission''s jurisdiction under the Federal Power Act over wholesale power contracts is exclusive.  At the time it sought rejection, Calpine asserted that the power contract in question was in excess of $700 million below market value.  This decision was contrary to the decision of the 5th Circuit Court of Appeals in the Mirant/PEPCO case, in which the court found that FERC''s jurisdiction was not exclusive.
$1.4 Billion Multi-Party Settlement with Enron Corporation (Bankr. S.D.N.Y.) — Represented the California Department of Water Resources in a multi-party bankruptcy settlement with Chapter 11 debtor Enron Corporation (Bankr. S.D.N.Y.) that resolved multiple contested claims arising from the 2000-2001 California energy crisis and resulted in cash payments to the Department and other settling participants in excess of $62 million, and general and subordinated unsecured claims in excess of $1.4 billion.
$750 Million Multi-Party Settlement with Mirant Corporation (Bankr. N.D. Tex.) — Lead counsel for the California Department of Water Resources in a $750 million multi-party settlement with Chapter 11 debtor Mirant Corporation (Bankr. N.D. Tex.) and certain of its affiliates ($172 million of which was paid to the Department of Water Resources) that resolved multiple litigation matters pending in federal court and before the Federal Energy Regulatory Commission and raised novel issues relating to the interplay between the Federal Power Act and the United States Bankruptcy Code.  Subsequent to obtaining bankruptcy court approval of the settlement, Keith worked closely with claims traders at Credit Suisse First Boston to sell the $89.25 million unsecured claim the Department of Water Resources obtained against Mirant Corporation, ultimately realizing the full amount of the claim, plus interest.

Client Comments

"Keith J. Cunningham is an exceptionally skilled and respected attorney and negotiator, capable of analyzing complex energy law matters. He is a diligent and conscientious advocate who exercises integrity at all times."

"Keith is a gem. He is smart, articulate, thorough, thoughtful, and responsive. His even and respectful demeanor is a quiet force that earns respect in negotiations and litigation."

"Keith has ably assisted the state of California in numerous complex negotiations. His legal and financial expertise has been extremely helpful, and he works well with diverse groups of attorneys, executives, and experts from the public and private sectors. He has consistently come up with creative options, and he has an excellent eye for crucial transactional details. We are very fortunate to work with him."

-Martin Goyette
California Attorney General

"Keith is an outstanding asset to my organization. What stands out most about Keith's representation is the personal interest he has taken in learning about my company's business, which has enabled him to provide excellent counsel. The level of expertise Keith provides with respect to bankruptcy and creditor's issues is exceptional, and he is a trusted partner of both our legal department and business leaders. As one might expect from quality outside counsel, Keith makes himself available as necessary for emergent issues and demonstrates a sharp intellect and calm demeanor under the most trying of circumstances. I recommend him without qualification."

"Keith and I are involved in representing different clients, who have similar interests as claimants in complex regulatory litigation and related settlements involving multiple defendants and billions of dollars. We have worked together closely over the past seven years. Keith brings his excellent core skills as a bankruptcy/transactional lawyer to the group's legal team. He is creative in his approach and careful on details. Others rely on him for his expertise as a negotiator and draftsman. He consistently demonstrates thoughtful, penetrating, and clear analysis on complex issues and works extremely effectively with others to accomplish both his own client's goals and the goals of the group. He is confident and decisive without being pushy. He takes deadlines seriously and consistently meets them. I give him my highest recommendation."

-Kevin McKeon
Hawke McKeon & Sniscak LLP

Office Location

Merrill's Wharf
254 Commercial Street
Portland, ME 04101
United States

Practice Areas

Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law (Chapter 12, Commercial, Creditors' Rights, Energy, Finance, Out-of-Court Workouts, Workouts and Restructurings)

Other Information

Gender: Male