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Duane J. Brescia

Member
Office

Austin

720 Brazos Street
Suite 700
Austin, TX 78701
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Fax: 512.536.5702
Education
J.D., Indiana University Robert H. McKinney School of Law, Indianapolis, Indiana, 1997
Notre Dame Law School, London, England, 1995
B.A., Miami University-Oxford, Oxford, Ohio, 1992
American University, Washington DC, 1992
State Bar Licenses
Indiana
Texas
Court Admissions
U.S. District Ct., N.D. of Texas
U.S. District Ct., E.D. of Texas
U.S. District Ct., S.D. of Texas
U.S. District Ct., W.D. of Texas
U.S. Court of Appeals, 5th Circuit
U.S. District Ct., N.D. of Indiana
U.S. District Ct., S.D. of Indiana

Duane J. Brescia

Member

Duane J. Brescia is a litigator and strategist who assists clients in all matters concerning insolvency risk, bankruptcy law, corporate reorganization, and business, fiduciary and insurance/surety litigation. His practice focuses on financial issues in the insolvency context for borrowers and creditors, as well as addressing all matters of Chapter 11 plan negotiation and financial restructuring, including cash collateral disputes and motions to lift the automatic stay. Duane has extensive experience with:

  • restructurings and workouts
  • business bankruptcies
  • asset acquisitions or sales in bankruptcy
  • protection of creditor's rights
  • fiduciary duty litigation involving professional liability and asset dissipation
  • stakeholder litigation
  • fraudulent transfer and voidable preference litigation
  • complex commercial litigation
  • banking institution litigation 

Duane represents individual and corporate clients involved in a broad range of industries, including oil and gas, mineral exploration, energy, commercial and residential real estate, banking and finance, highway and other construction projects, technology and software, biomedical, industrial and manufacturing, aviation, medical/hospital, and retail. He also regulary represents financial institutions and other secured lenders in the protection of thier lien rights  and in asset recovery. Duane is board certified in Business Bankruptcy Law by the Texas Board of Legal Specialization. 

EXPERIENCE

ENERGY, OIL & GAS

  • National representation of seismic data licensor and other providers in energy exploration and production bankruptcies: Sabine Oil & Gas Corp. (S.D. N.Y.)($3 billion in assets and liabilities); Magnum Hunter Resources, et al (D. DE) ($1.0+ billion in assets and liabilities); Swift Energy Co., et al. (D. DE) ($1.2 billion in liabilities); Samson Resources Corp. (D. DE)($4.3 billion in assets and liabilities); RAAM Global Energy Co. (S.D. Tex.)($250 million in liabilities); Sandridge Energy, Inc. (S.D. Tex)($4.0 billion in liabilities); Linn Energy, LLC (S.D. Tex) ($6.0 billion in assets and liabilities); Energy XXI, Ltd. (S.D. Tex)($2.7 billion liabilities); Linc USA GP (S.D. Tex.)($408 million in liabilities); Ultra Petroleum Corp. (S.D. Tex. $3.8 billion in liabilities); Halcon Resources Corp. (D.DE.)($3.2 billion in liabilities).
  • Publically-traded exploration and drilling company in Chapter 11 resulting in successful reorganization and sale of assets
  • Unsecured Creditors Committee in Chapter 11 case of a Texas drilling company bankruptcy where we negotiated an acquisition of the company, substantially increasing the payout to creditors
  • Representation of offshore and onshore oilfield services companies in Chapter 11 bankruptcy cases

INDUSTRIAL & MANUFACTURING

  • Representation of industrial construction, fabrication and staffing company in national energy and industrial bankruptcies, including representation as the largest unsecured creditor and Creditors Committee Chairman in Sherwin Alumina Co., LLC (S.D. Tex.), an aluminum oxide smelting plant with $150 million in liabilities
  • Defended rights of military and commercial aircraft sales and leasing, parts management, and financing company in Chapter 11 bankruptcy of aircraft supply chain provider (W.D. Tex.)
  • Representation of airline parts seller and leasing agent in purchase of assets in distressed sales and contract litigation
  • Marketing and sale of assets and licenses in Chapter 11 bankruptcy of aircraft parts manufacturer for military and commercial uses to foreign purchaser (N.D. Tex.)
  • Secured creditors in various manufacturing company bankruptcies
  • Litigation in collections and disputes over validity, priority and extent of M&M and other statutory liens of industrial and manufacturing companies

TECHNOLOGY & RESEARCH

  • National representation of software and enterprise resource planning licensor in numerous Chapter 11 bankruptcies and other commerical litigation, including gunmaker Colt Holding Co., LLC, et al. (D. DE); fashion retailers Cache, Inc. (D. DE) and dELiAs, Inc. et al (S.D. N.Y.)
  • Acquisition of intellectually property assets out of bankruptcy from technology and software companies
  • Representation of drug research and development company in Chapter 7 liquidation of national drug testing facility, including preservation and recovery of testing material, trade secrets (W.D. Tex.)
  • Medical products manufacturing and research company in its Chapter 11 bankruptcy case which resulted in successful reorganization and confirmed plan providing creditors 100% of their allowed claims
  • Unsecured Creditors Committee in Chapter 11 liquidation case of an internet-based retail furniture company; representation included successful prosecution of claims against officers and directors
  • Defended owners/investors in litigation related to liquidation of cellular distribution company; representation included restructure of unrelated business for asset protection
  • High-profile Austin technology start-up that resulted in a successful reorganization in less than four months

SURETY & INSURANCE

  • Representation of suretys rights with $40 million in performance and payment bond claims in national pipeline construction company (N.D. Okla.)
  • Obtained first-priority priming lien for post-petition secured lender/surety with $50 million in performance bond clams in Chapter 11 case of large Central Texas construction company; included liquidation of significant heavy-equipment assets (W.D. Tex.)
  • Representation of suretys rights with $25 million in performance bond claims in Chapter 11 case of large South Texas highway construction company (S.D. Tex.)
  • Protection of insurers with statutory workers compensation liens and other priority rights

FINANCIAL, BANKING & INVESTING

  • Representation of $1.0+ billion investment fund in commercial litigation and bankruptcy cases related to aircraft sales and leasing
  • Stakeholder representation in wrongful lockout/deadlocked funding intermediary startup company, including preservation of assets and prosecution of fraudulent transfer claims
  • Bankruptcy counsel for indenture trustee of $100 million in international bonds issued by Brazilian company that filed for bankruptcy in Brazil and a U.S. Chapter 15 Foreign Bankruptcy Proceeding
  • Secured lenders in bankruptcies involving large equipment financed assets
  • Banking institutions and other secured lenders in workouts, restructures collection of claims, recovery of collateral and foreclosure

REAL ESTATE

  • Super-regional enclosed retail mall in Houston in Chapter 11 case
  • Section 363 sale of assets in bankruptcy of 240-room hotel in southern Texas (S.D. Tex.)
  • Texas coffee shop franchisee in Chapter 11 case which resulted in confirmed plan and successful prosecution against California-based franchisor for breach of covenants in the franchise agreement
  • Residential real estate developer in Chapter 11 case resulted in confirmed plan of reorganization
  • Secured creditors and asset purchasers in single asset real estate bankruptcies

COMMERCIAL LITIGATION

  • Representation of stakeholder and former CEO in wrongful termination lawsuit, fraudulent lien filing lawsuit and recovery of investments against South Texas oilfield services and energy investment companies and related principals
  • Defended principal/guarantor of nursing home chain in five contemporaneous lawsuits involving non-dischargeability of claims, fraud and defalcation asserting $15 million in claims that resulted in take-nothing judgments on all claims
  • Prosecuted claims of beneficiary of family trust for misappropriation and breach of trust by trustee requiring recovery of assets through fraudulent transfer and forensic accounting efforts
  • Representation of trustees and trust beneficiaries where fiduciary in charge of assets is accused of various types of misconduct and misappropriation
  • Defense of numerous equity holders in litigation where guaranty of insolvent companys debts threatened investment recovery or other assets
  • Secured transaction disputes between lenders and borrowers concerning the validity, priority and extent of contractual liens, statutory liens and other encumbrances
  • Various creditors and vendors sued by bankruptcy estates for bankruptcy preference and fraudulent transfer claims
  • Debtors and creditors in objections to the dischargeability of claims in bankruptcy and objections to discharge

HEALTHCARE

  • Representation of doctor groups and other investors in acquisition of hospital assets through Chapter 11

PRESENTATIONS

  • Construction Law Issues in Bankruptcy, Austin Bankruptcy Bar 
  • Basic Contract Law for Credit Managers, Indiana Association of Credit Managers 
  • ABC's of Credit Management, Indiana Association of Credit Managers 
Awards/Achievements
Named Texas Super Lawyers' Rising Star by Thomson Reuters (2004, 2006-2007)
Memberships
State Bar of Texas, Member
Austin Bar Association, Bankruptcy Section, Council Member (2002-2008)
Indiana State Bar Association, Member
American Bankruptcy Institute, Member
Larry E. Kelly American Inn of Court, Barrister