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.
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.