Russell Silberglied is “a brilliant litigator” who is “very conscientious, hard-working, detail-oriented and really smart” (Chambers USA).
Russ’s bankruptcy practice includes both core chapter 11 work and litigation. His litigation practice includes breach of fiduciary duty suits, equitable subordination and recharacterization litigation, valuation fights, and contested plan confirmation and DIP financing hearings.
In core bankruptcy matters, Russ represents debtors and creditors in chapter 11 and chapter 15 cases, and also advises troubled companies on non-bankruptcy solutions. His peers consider him “one of these guys who knows everything—an encyclopedia for case law” (Chambers USA).
In addition, Russ regularly advises boards of directors of troubled companies concerning their fiduciary duties and corporate governance issues. He frequently lectures and publishes articles on these topics.
- Represented WMC Mortgage, LLC, one of the largest subprime lenders, as debtor’s counsel. As part of this representation, also represented the special committee of WMC’s board of directors in investigating and settling possible claims against its parent.
- Represented Phoenix Payment Systems, Inc., a/k/a EPX, as debtors’ counsel in the $50 million sale of substantially all of its assets to EPX Acquisition Company, LLC, an affiliate of North American Bancard, LLC. The purchase price exceeded all expectations at the commencement of the marketing process and the transaction was named the 2014 M&A Advisor “Distressed M&A Deal of the Year ($25mm to $100mm).”
- Represented F-Squared Investment Management as debtor’s counsel in a Section 363 sale.
- Represented Homer City Generation in its prepackaged chapter 11 case.
- Represented Velocitel, Inc. in complex, multi-party litigation in the Open Range Communications bankruptcy case resulting in a favorable settlement with the United States (among others).
- Represented Tennenbaum Capital Partners in its successful defense at trial of claims brought by a creditors committee for breach of fiduciary duty, recharacterization and equitable subordination in the Radnor Holdings bankruptcy case.
- University of Pennsylvania Law School, J.D., 1995
- Cornell University, B.S., with honors, 1992
Protecting Mediation Communications in Bankruptcy Cases
Norton Journal of Bankruptcy Law and Practice | August 2022
Over the past decade, some of the most important aspects of Chapter 11 reorganizations have been sent to mediation with increased frequency. Headline-grabbing cases like The Weinstein Companies, Purdue Pharma and Boy Scouts of America have all turned to mediation to attempt to achieve consensus concerning significant tort, personal injury and abuse claims, while smaller and/or…
Determining Whether or Not to Seek Court Approval of a Sale in a Delaware Assignment for the Benefit of Creditors Case
DailyDAC | August 4, 2021
For many small insolvent companies, an assignment for the benefit of creditors (ABC) can be more attractive than a federal bankruptcy case to maximize value and sell or liquidate a business. Depending on the state—this article will focus on Delaware ABCs—special rules may apply that can make an ABC more or less preferable, especially in an…
Can a Lower Bid for a Debtor’s Assets Be Approved as “Better” Because It Saves More Jobs than the Higher Bid?
The Business Lawyer | Summer 2021
Bidding procedures orders entered by bankruptcy courts typically state that offers attempting to top a stalking horse bid must be “higher and better” than any competing bids. Offers have been found to be “better” even though they have a lower cash “headline” dollar value, where (1) the lower cash offeror also agrees to assume certain liabilities;…
Court of Chancery Permits $4.3 Billion Interim Distribution in Altaba Dissolution
Delaware Business Court Insider | November 4, 2020
In In re Altaba, the Delaware Court of Chancery, ruling at a preliminary stage of the dissolution process, authorized Altaba Inc. to make an interim liquidating distribution of up to $4.3 billion to its stockholders. Vice Chancellor J. Travis Laster’s opinion is noteworthy because it is one of the few opinions to authorize an interim distribution…
Asset Purchase Agreements in Section 363 Sales Should Address Who Controls the Attorney-Client Privilege and Whether the Privilege Is Waived Post-Sale
Norton Journal of Bankruptcy Law and Practice | June 2020
It has been eleven years since a leading bankruptcy journal published an article entitled “Who Owns Privileged E-Mails in a § 363 Sale Case? Is Ownership Waived When the Debtor’s Computer Servers are Sold?” (the “2009 Article”). The 2009 Article suggested that parties should carefully address in the asset purchase agreement (a) who owns the attorney-client…
Questions Remain About When to Appeal an Order, Citing Debtor’s Need for a Breathing Spell
American Bankruptcy Institute Journal | April 2020
On Jan. 14, 2020, a unanimous U.S. Supreme Court held in Ritzen Group Inc. v. Jackson Masonry LLC that “when the bankruptcy court unreservedly grants or denies relief” from the automatic stay, its order is final and therefore immediately appealable. Thus, a creditor’s appeal of a denial of stay relief was untimely because it was filed…
Claims Trading of Notes of a Debtor Might Become More Difficult After Woodbridge
DailyDAC | November 1, 2019
When a debtor files for Chapter 11 or Chapter 7 bankruptcy, often a creditor’s only remedy is to wait for a sale or reorganization, the claims resolution process and other actions to be taken before the debtor or trustee can make distribution on the claim. Unsecured noteholders often do not want to wait for the resolution…
Happy Jack’s Opinion Adds to Split of Authority Over Who Holds Priority Between a DIP Lender’s Superpriority Claim and Administrative Expenses Incurred in a Subsequently Converted Chapter 7 Case
Norton Journal of Bankruptcy Law and Practice | August 2019
Creditors’ Committee Cannot Obtain Derivative Standing to Sue Fiduciaries of an LLC
American Bankruptcy Institute Journal | April 2018
In 2011, the Delaware Court of Chancery surprised many in CML v. Bax by holding that creditors of a limited liability company (LLC) cannot be granted derivative standing to sue members, managers or controllers for breach of fiduciary duty — even if the LLC is insolvent. This created a different regime for LLCs than what…
Was ATP Oil Correctly Decided? Fifth Circuit Affirms Dismissal of Challenges to Dividends Declared on Eve of Bankruptcy
American Bankruptcy Institute Journal | February 2018
Consider this situation: A corporation isactively considering bankruptcy, yet it neverthelessasks counsel whether it can dividend$7 million to Series B stockholders. Counseladvises against the dividend, but the board of directorsapproves it anyway, and the company pays itonly six weeks before filing a bankruptcy case. This sounds like a bad idea, right? Surprisingly,perhaps not. The Fifth Circuit…
AE Liquidation: WARN Act Comfort for Debtors Attempting a 363 Sale, or Just the ‘Vladimir Putin Exception’?
The Bankruptcy Strategist | October 2017
In In re AE Liquidation, 2017 WL 3319963 (3d Cir. Aug. 4, 2017) (the “Third Circuit Opinion” or “AE Liquidation”), the Third Circuit held that a WARN Act notice only must be given when mass layoffs are probable, not when merely foreseeable. As a result, a debtor that was attempting to effectuate a going concern sale…
When Are Goods “Received by the Debtor” for a Section 503(b)(9) Claim?
DailyDAC | August 7, 2017
The World Imports and SRC Liquidation Opinions Section 503(b)(9) of the Bankruptcy Code[i] allows a creditor an administrative expense claim (i.e., a claim with payment priority over other pre-bankruptcy claims) for the value of goods that the debtor “received” within 20 days before filing for bankruptcy. But what precisely does “received” mean in this…
Can an Executive Exert Control of Corporate Attorney-Client Privilege?
DailyDAC | April 17, 2017
What exactly does it mean when a company’s attorneys represent the company, not the company’s executives? Suppose an executive consults with company attorneys to determine if the company’s course of action is legally permissible. Months after receiving the legal advice, the company files for bankruptcy. The executive is also criminally prosecuted over the very actions for…
Delaware’s Long-Form Dissolution Statute: An Underutilized Alternative
MorrisAnderson | September 1, 2015
Many companies are “too broke to go bankrupt.” As the “ABI Commission to Study the Reform of Chapter 11” notes, “anecdotal evidence suggests that Chapter 11 has become too expensive (particularly for small and medium size enterprises),” and more companies are liquidating without attempting to reorganize under federal bankruptcy laws. Those companies often seek alternatives to…
Litigating Fiduciary Duty Claims in Bankruptcy Court and Beyond: Theory and Practical Considerations in an Evolving Environment
Journal of Business & Technology Law | March 27, 2015
Litigation against directors and officers is ubiquitous in bankruptcycourts. Indeed, charges of director malfeasance and breach of fiduciary duty areleveled at the outset of many bankruptcy cases—whether in the hallways outside offirst day hearings or creditors committee formation meetings, in early hearings, orin pre-petition letter writing campaigns aimed at encouraging or discouragingspecific board actions. These charges…
Second Circuit and Delaware Bankruptcy Court Take Different Views of Whether a Foreign Debtor Must Have Assets in the United States to Be Eligible for Recognition under Chapter 15
Commercial Insolvency Reporter | April 2014
Courts in the two circuits, which saw the majorityof 2013’s Chapter 15 recognition proceedings,recently addressed—and came to oppositeconclusions about—a novel issue: whether anentity is required to have property in the UnitedStates to qualify for relief as a debtor underChapter 15 of the United States BankruptcyCode. Chapter 15 is the equivalent of a proceedingunder Part IV of…
Is a Foreign Debtor with No Assets in the U.S. Eligible for Chapter 15 Relief?
The Bankruptcy Strategist | February 2014
This article first sets forth the statutory provisions that led to the differing results in Barnet and Bemarmara and then explores the reasoning of the two opinions.
In What State Is the Harm Felt When a Derivative Suit Is Pursued By Creditors?
The Bankruptcy Strategist | December 2013
Can a trustee of a litigation trust created under a plan sue in a U.S. bankruptcy court the directors and officers of a non-debtor Canadian parent, when many of the defendant D&Os had rarely set foot in the forum state? According to a recent Tenth Circuit opinion, the answer is yes. Newsome v. Gallacher, 722 F.3d…
TOUSA, USACafes, and the Fiduciary Duties of a Parent’s Directors Upon a Subsidiary’s Insolvency
Norton Annual Survey of Bankruptcy Law | November 2011
In this article, we examine the TOUSA opinion, and the doctrines it relies on, in an attempt to understand how these doctrines should be treated together.
“Don’t Say They Didn’t WARN You”: Bankruptcy Court’s High Threshold for Corporate Affiliates’ WARN Act Liability
Delaware Business Court Insider | June 1, 2011
In two recent decisions, the Delaware Bankruptcy Court rejected the imposition of WARN Act liability on corporations affiliated with debtors.
LLC’s Are Different: Creditors of Insolvent LLC’s Do Not Have Standing to Sue for Breach of Fiduciary Duty, But Can a Creditors’ Committee Be Granted Standing?
Norton Journal of Bankruptcy Law and Practice | April 2011
Almost four years ago, the Delaware Supreme Court held that while creditors of an insolvent Delaware corporation do not have the right to assert direct claims for breach of fiduciary duty against officers and directors, they may obtain derivative standing to enforce the company’s claims.
Don’t Throw Away Your Deepening Insolvency Materials Just Yet…Damages Under Thabault v. Chait, and Harmonizing Brown Schools with Radnor Holdings and Post-CitX Case Law
Norton Journal of Bankruptcy Law and Practice | August 2009
In the wake of opinions such as the Delaware Court of Chancery’s Trenwick America Litigation Trust v. Ernst & Young, L.L.P., the Third Circuit’s In re CitX Corp., Inc., and the Delaware Bankruptcy Court’s In re Radnor Holdings Corp., many had proclaimed the controversy theory of deepening insolvency to be “dead.”
Who Owns Privileged E-Mails in a §363 Sale Case? Is Ownership Waived When the Debtor’s Computer Servers Are Sold?
American Bankruptcy Institute Journal | February 2009
While Postorivo is one of the first cases addressing who owns the privilege in these scenarios, it will not be the last. In a world where 90 percent of the important documents in discovery are electronically stored information, and in an environment where asset sales are far more common than true debt-to-equity reorganizations, this issue…
- Jewish Federation of Delaware, Chair of the Board of Directors
- Jewish National Fund/Delaware Chapter, Board of Directors and Lawyers for Israel Co-Chair
- Lex Mundi, Bankruptcy, Insolvency and Restructuring Group, Former Chair
Pro Bono Activities
Russ serves as the chair of Richards Layton’s Pro Bono and Community Service Committee. His pro bono and community services activities include:
- The Mariano Rivera Public Foundation, Board of Directors
- Jewish Federation of Delaware, Chair of the Board of Directors
- Jewish National Fund/Delaware Chapter, Board of Directors
- Brandywine Youth Club – Baseball, former Commissioner (i.e., President) of an approximately 700-player Babe Ruth/Cal Ripken youth baseball league
- Chambers USA, since 2009
- The Best Lawyers in America, since 2013; Wilmington, DE Bankruptcy Litigation Lawyer of the Year, 2022
- Delaware Today Top Lawyer, 2022, 2021
- Super Lawyers
- Who’s Who Legal
- “Outstanding Young Restructuring Lawyer – 2005,” Turnaround and Workouts
- United States Court of Appeals, Third Circuit, 2002
- United States District Court, District of Delaware, 1996
- Delaware, 1996
- Pennsylvania, 1996