The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Kevyn Orr, Partner—Bankruptcy
Throughout his more than 30 years in practice, Kevyn Orr has demonstrated the ability to handle all aspects of complex and precedent-setting matters in the areas of business restructuring, financial institution regulation, and commercial litigation and has provided strategic advice regarding crisis management situations. Kevyn’s diverse experience includes several years of government service, including positions as the chief government legal officer of a failed financial institution and as a special master to oversee the operations of a real estate development firm. His most notable role in government was as the Emergency Financial Manager to the City of Detroit, charged with restructuring the city’s finances and operations. During his tenure, he oversaw the largest and most complicated municipal bankruptcy proceeding in the nation’s history. As a result of that proceeding, the city successfully restructured $18 billion in debt, reduced overall debt by $7 billion, developed and implemented a multiyear $1.7 billion revitalization plan for city services and operations, streamlined key city operations, helped improve public safety, put the city’s art in a perpetual public trust, and avoided drastic cuts to pension and related retiree benefits. Kevyn currently serves as Partner-in-Charge of Jones Day’s Washington office.
Please provide an overview of what, substantively, your practice area entails.
I have experience in all facets of restructuring, including secured lender groups, ad hoc committees, chapter 11 debtor reorganizations, distressed litigation, distressed mergers and acquisitions, investors, financial institutions, and strategic acquirers. This has included complex cases in a wide range of industry sectors, among them manufacturing, automotive, retail, telecommunications, finance, real estate, and health care.
What types of clients do you represent?
I have been substantively involved in matters for many large corporations in various industries, such as Chrysler and Dana Corporation in the automotive industry; Hostess Brands and Harry & David in the food industry; Alpha Natural Resources and Peabody Energy in the coal industry; the City of Detroit and the City of Stockton, California, in their municipal bankruptcies; the retail bankruptcies of RadioShack and Federated/Macy’s; and numerous other industries and businesses.
What types of deals and/or cases do you work on?
The most recent and notable matter I worked on was serving as the Emergency Financial Manager to the City of Detroit in its chapter 9 bankruptcy case. The city filed for relief with approximately $18 billion in debt. In conjunction with Jones Day lawyers, we were able to reduce the debt burden by almost $7 billion, restoring the city’s financial solvency. I also worked on the Chrysler case, litigating the state proceedings brought by a number of dealerships wherein we prevailed in the Second Circuit appeal. In addition, I handled lawsuits against medical providers across the country in the National Century Financial Enterprises case; acted as lead debtors’ counsel in the Kaiser Aluminum bankruptcy, resolving more than 100,000 asbestos cases; and defended H&R Block against a plaintiff pursuing five counts of false advertising and seeking $100 million in damages.
How did you decide to practice in your area?
I began as a trial lawyer in private practice with a Miami law firm. The head of my then firm’s bankruptcy practice occasionally needed to bring in a litigator. The bankruptcy bar was very sophisticated, and it was also very welcoming, so I quickly grew to enjoy the subject matter; the speed with which the practice moved; and the camaraderie amongst practitioners, the judiciary, and other bankruptcy-related professionals, such as investment bankers and financial advisors. I enjoyed the academic stimulation required to solve issues and tasks relatively quickly and the feeling of satisfaction I got from doing that successfully. When I started my career, there were very few diverse practitioners in bankruptcy. Despite my initial concerns about this lack of broader diversity in the practice, I found that many bankruptcy practitioners, whether they were at my law firm, other firms, or opposing counsel, embraced me, respected my skills, and encouraged me to pursue a career in this area. Frankly, if it were not for many of these mentors and professionals, I probably would not be a restructuring professional today.
What is a typical day or week like in your practice area?
A typical week for me includes activities such as trial preparation; negotiations with interested parties (including creditor groups, committee counsel, critical vendors, financial interests such as DIP lenders, and others); preparing for court hearings; presenting cases before the bankruptcy and appellate courts; and negotiating with oversight parties such as the U.S. Trustee, the DOJ, the SEC, or other parties. On major matters it can literally be a day-to-day footrace trying to manage the number of different interests, parties, tasks, issues, and concerns that should be addressed. Other activities include more routine desk work, such as writing and editing papers or briefs, coordinating case presentations and strategies with associates and other team members, fielding conference calls, and counseling associates on the best way to present a matter to the court or a counterparty.
What is the best thing about your practice area?
The best thing about it is the number of different skills and challenges you need to employ to develop a stratagem so that you maximize the probability of a successful outcome for your client. It involves a combination of technical knowledge and understanding of the Bankruptcy Code and critical negotiation and advocacy skills. But it is also important to me that I create an environment where I can mentor associates as they develop their skills and a broader understanding of the bankruptcy practice. I deeply believe that I have an obligation to pay it for- ward because I have had such a rewarding experience in this area, and I would like to see more talented young people con- sider it as a career choice, particularly diverse young lawyers.
What is the most challenging aspect of your practice area?
The most challenging aspect of bankruptcy practice is the need to ramp up on any given matter, subject area, or crisis in an industry, in a relatively short time frame. In the business bankruptcy world, companies tend to put off as long as they can any talk of a bankruptcy filing or the realization that they are on a trajectory towards bankruptcy. While this is entirely understand- able, it often takes a certain level of critical stimulus to get the governance structure of an organization to the point where they can seriously accept the fact that a bankruptcy or some other form of non-ordinary-course restructuring is essentially the only alternative. By the time that occurs, a number of different actions which could have been taken are usually no longer viable alternatives. So I am often left with a fairly narrow bandwidth of opportunities, and I must determine which of these remaining alternatives offers the greatest likelihood of a successful plan of reorganization or enhances the probability of a feasible, sustain- able emergence from bankruptcy.
What training, classes, experience, or skills development would you recommend to someone hoping to enter your practice area?
The bankruptcy practice is very much an apprenticeship process. You draw your skills, strengths, and experience from other practitioners, typically from within your own firm, but also from observations at the bench and the bar. The process actually begins with the job interview. During the interview, it is important to explore the opportunities available for you to reach your highest potential. And because bankruptcy is principally based on the U.S. Bankruptcy Code and related case law, a deep understanding of the Code, its provisions, and its historical development is important to becoming a successful bankruptcy practitioner. Successful bankruptcy lawyers immerse them- selves in the practice by studying the law, reading and writing in scholarly journals, participating in bar associations, and attending meetings of various bankruptcy-related organizations. It is also important to observe and read about restructurings that are ongoing in the public record and the popular press, in order to understand not only the background of a given matter, but also the give-and-take that occurs. Fortunately, in this era, there are many online resources that provide law students with real-time access to ongoing developments in the bankruptcy and broader financial communities.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
Bankruptcy is truly unique to the United States. Many laypeople do not recognize the critical function that the bankruptcy process and the bankruptcy courts play in our economic system. The Bankruptcy Code provides individuals, small companies, and major institutions with what some commentators have called the “freedom to fail and be resurrected.” If you look back in recent history at bankruptcies such as those of Chrysler, the City of Detroit, Caesars Entertainment, Pea- body, WorldCom, and Lehman, these organizations represent multibillions of dollars of interest that must be restructured and addressed in a way which allows the debtor and other interested parties the opportunity to emerge, thrive, and preserve jobs and financial interests. Without the bankruptcy system that we have today, many of these organizations would be mired in litigation or some form of uncontrolled crisis, and the jobs they provide and the interests they address would be tied up and unresolved for many years. It would also mean that on a human level, the individuals who depend on these institutions for their livelihoods would be left in a state of instability and chaos for a similar period of time.
I wish I had gained a deeper understanding of the interplay between our bankruptcy practice and the U.S. economic and financial systems earlier in my career. To understand the interrelationship of these issues is critical to the business structures and capital markets of the United States. That understanding would have helped me appreciate early on just how crucial our bankruptcy system is to our economic system. We live in a great country that has been the economic engine of the world for a long time. While the economic system of the U.S. is comprised of many components, the one constant is that the system depends upon the rule of law. Our bankruptcy system is crucial to the administration of those laws for large and small companies—and individuals, for that matter. It keeps this engine humming along while lessening its fits and starts. It has been a privilege to play a very small part in this process.
What is unique about your practice area at your firm?
Bankruptcy interacts with many areas of the law: litigation, antitrust, health care, transportation, banking and finance, investigations, and white-collar crime, to name just a few. While the bankruptcy process has a heavy procedural bent, the subject matter spans many different areas. The best testament to the evolution of this practice at Jones Day has been the significant matters we have handled and for which we achieved successful outcomes in many areas against a number of different parties and at very long odds for success. Our success against these odds is a testament to the creativity, flexibility, and intellectual curiosity that has led us to craft solutions that yield successful outcomes for the benefit of our clients.
What activities do you enjoy when you are not in the office, and how do you make time for them?
I enjoy a number of activities, such as water and snow skiing, boating and sailing, fitness, cycling, and motorcycling. I also enjoy mentoring young people and community service. However, at this point in my life, the No. 1 activity that I enjoy is spending time with my wife and my two young children. Nothing gives me greater pleasure or provides me with greater meaning in life than to see my children do well in school, or my son hit a home run and my daughter score a goal in soccer. As with any other profession, personal time can sometimes be in short supply, and it presents a challenge to find time to do all of the things you would like to do. Nonetheless, it is critically important that young professionals understand from the outset that they simply must maintain a balance amongst the work-life triangle of work, rest, and play, because at the end of the day, your family, your health, and your professional development are all important. No one wants their epitaph to be “She was a great lawyer who did not enjoy life.”