Duston K. McFaul

The breadth of Duston’s practice is reflected by his involvement in the following sample of representations:

Debtors/Company

• Counsel to Legacy Reserves and affiliates in SDTX Chapter 11 proceedings with approximate $2 billion issued debt, massive deleveraging consummation and successful emergence with rights offerings
• Representation of Texas headquartered OFS provider and midstream affiliates in transactions culminating in global private take-outs of lenders and preferred holders
• Counsel to Trinity River Resources including Chapter 11 plan confirmation, relief for operations control and relief for challenged sale transactions
• Representation of Colorado-based E&P in private distress transactions leading to development JV’s and complete balance sheet restructuring
• Restructuring team leading to pre-packaged Chapter 11 for Key Energy Services (confirmation and deleveraging of over $1 billion debt within six weeks)
• Representation of Energy XXI independents and post-emergence company including with Cox Oil merger
• Successful recap and full avoidance of Chapter 11 on behalf of public upstream producer through rare distressed PIPE transaction with hardship exemption and global take-outs 
• Out of court restructuring for Permian-based E&P discharging first lien and second lien lender groups with affiliate and third-party transfer and contribution transactions
• Representation of midstream companies implementing strategy for long-term sustainability and alternative restructuring transactions
• Represented debtors in Chapter 11 bankruptcy case of Energy Partners, Ltd., Houston, Texas; plan of reorganization, including an exchange of approximate $.5 billion in debt for equity confirmed within 90 days
• Represented OFS client in out of court ownership restructuring through marketed debt purchases staging planned take-out transactions
• Represented Chapter 11 telecom service providers with annual revenues exceeding $1 billion, including the contested rejection of more than 100,000 contracts and successful transactions over UCC litigation
• Represented debtors in Chapter 11 bankruptcy case of Integrated Electrical Services, Inc., pre-negotiated plan of reorganization based on a debt for equity exchange confirmed within 75 days of case filing
• Counsel to ownership group of national retailer, Beauty Brands, 2018–2019 Delaware bankruptcies and sale consummations
• Assisted onshore/offshore E&P with proposed second lien debt for equity swap out of court transactions
• Counsel for transition and wind-down strategy and executions for My Fit Foods

Fund and Investment Bank

• Represented 100 percent of Class B Unit Holders in Southcross Holdings Chapter 11 cases, including procuring confidential settlement for clients to allow pre-packaged Plan of Reorganization
• Advisor to Opco fund lenders related to 2019 restructuring of Preferred Sands ($1.4 billion debt) and creation of Signal Peak Silica
• Counsel to Ad Hoc Committee of the holders of over $1.5 billion of notes in ATP off-shore upstream Chapter 11 case, Houston, TX
• Represented Ad Hoc Committee of Noteholders,in Tri-Union Chapter 11 complex bankruptcies, including numerous contested matters, dismissal of third-party lender liability claims against client, and plan acquisition of assets leading to 380 percent return to clients
• Represented the largest fund claimants of off-shore publicly traded E&P Harvest/Saratoga as Chapter 11 debtors, including prosecution of multi-week valuation trial as well as treatment litigation; achieved terms for Plan of Reorganization supported by clients and confirmed
• Represented two substantial bondholders of Vitro SAB and U.S. Subs with litigated venue proceedings relating to Chapter 11 and 15 cases
• Represented investment bank as underwriter and holder of high-yield bond offering and terms with Chapter 11 California and Texas O&G debtors to provide exit financing under Plan of Reorganization; confirmed
• Represented preferred equity holder successfully obtaining sole debt distribution through Chapter 11 cases of upstream producer Cano Petroleum

Commercial Lender

• Represented agent/lenders relating to M&G Chemicals plastics/desal support plant and Chapter 11 proceedings in Wilmington, with full recovery to client and complete dismissal of claims against it
• Represented agent accomplishing prompt par recovery from junior creditors with California-based oil and gas producer, Kern River, post-default out of court 
• Advised agent bank in Nevada power plant restructuring, 2019
• Assisted out of court acquisition by lender of oil and gas assets and enterprise takeover of major on-shore producer
• Represented agent bank for restructured credit facilities to major producer
• Represented Agent and Senior Banks in LHCE, ethanol refinery Chapter 11 debtors with proceeds to client through client-backed 363 auction and sale, and successful opposition to debtor-supported JV deal
• Represented successful DIP lender (overcoming objections and competitor-based attacks) to Seahawk Drilling (HAWK) as Chapter 11 debtor to accomplish acquisition by Hercules Offshore (HERO)
• Counsel to 1L Agent lender in NBC/Austin Windbridge Chapter 11 proceedings, including successful trials leading to clients’ prompt lifting of stays on multiple Chapter 11 project developments to allow client foreclosures, as well as defeating all of debtors’ claims in subsequent injunctive trials
• Representation of secured lender in Metals USA steel fabricator Chapter 11 bankruptcies 
• Represented lead lender, including for cash collateral order and client-driven sale process, with all proceeds to client, in alloys manufacturer bankruptcy

Acquisition

• Heavily negotiated Delaware acquisition, on behalf of private equity client, of wholesale supply and hardware distribution enterprise via client-backed Chapter 11 plan of reorganization with support of two official committees and both lender groups
• Successful acquisition of gas generating plants from affiliates of NRG arising from GenOn Chapter 11 proceedings
• $1.7 billion successful consolidated acquisition of oil and gas assets relating to three separate Chapter 11 reorganizations 
• Assisted LBO firm with contested purchase in Chapter 11 bankruptcy of assets of major food conglomerate debtor with successful closing for $370 million 
• Counsel to client bidders in Chapter 11 bankruptcies such as Sears, Reagor Dykes, Buccanneer and Delta Petroleum
• Assisted in the successful acquisition of golf course, country club and real estate development through confirmed bankruptcy plan 

Bankruptcy Litigation — Debtor

• Headed litigation team for the debtors in EPL’s complex Chapter 11 public energy restructuring, including for valuation challenges, contest on feasibility; examined and presented all expert and lay witnesses throughout course of bankruptcy proceedings on behalf of debtors, successfully overcoming committee and party challenges and confirming client’s Plan of Reorganization
• Plan, disclosure and valuation litigation on behalf of debtors in service roll-up Chapter 11s against claims and objections prosecuted by Official Equity Committee; examinations of Chairman; client’s plan confirmed as proposed and all objections/challenges defeated 
• Litigation on behalf of Chapter 11 debtor against official committee, including trial on multi-level marketing contracts and judgment in client’s favor
• Served as bankruptcy and litigation counsel to TexCal Energy for operator adversary, claims litigation, plan implementation and O&G accounting litigation

Additional Bankruptcy Litigation

• Federal trials over 3 months in Virgin Islands bankruptcy cases with creditor claims in excess of $700 million; prosecuted trials for insider fraudulent transfers, turnover, as well as trial on purported exemptions claimed by international telecom mogul debtor; handled trial examinations of the debtor CEO/Chairman and expert and insider witnesses; bankruptcy court opinions in client’s favor detailed bad faith debtor conduct, intentional destruction of evidence, pervasive dishonesty, abuse of process and in support of denial of all exemptions including those claimed on estates and assets in Palm Beach, New York, and V. I.; 727 discharge trial; handled extended closing arguments for contested sale of mass communications enterprise
• Served as lead bankruptcy lawyer in court obtaining successful emergency lifting of automatic stay within 8 days of bankruptcy filing, enabling trial in state court and $20 million fraud jury verdict for client; secured conversion and dismissal of bankruptcies of debtors 
• Valuation and treatment litigation in Louisiana on behalf of largest secured creditor of upstream producer with claim over $125 million, handled trial examinations of valuation and investment banking experts, CFO and internal head of reserve engineering
• Served as lead lawyer with successful defense and resolution of fraudulent transfer and turnover claims against Australian energy concerns with international/foreign owned crude E&P venture and domestic Chapter 11 proceedings

Business Litigation

• Tried multi-week arbitration arising from power plant explosion to three-member panel over several weeks in St. Louis under Federal Rules, resulting in unanimous decision denying plaintiff’s claims against client, including $35 million actual damage claim and won judgment on client’s counterclaim (recovered in full); handled the extensive technical examinations of four expert witnesses as well as lay witnesses
• Served as lead Texas trial lawyer for lender plaintiffs in adversary patents case, obtaining trial verdict against borrower and debtor on all claims, including for torts and malicious acts, defamation, non-dischargeability of debts under eight separate grounds and procuring injunction covering all of U.S. and Canada for 11 years; also handled extended closing arguments of trial
• Represented defendant, major bank, obtaining dismissal at trial court of lender liability claims against bank filed by plaintiff/corporate borrower; plaintiff appealed; handled oral appellate arguments; take-nothing judgment affirmed
• Director/officer litigation on behalf of defendants in recent cases such as Buccaneer Resources and Black Elk Resources (each alleging damage claims over $100 million)
• Served as a member of a team in defense of Ponzi fraud and security violation allegations by Trustee seeking over $400 million in damages against client relating to Provident Resources
• Served as part of a team in defense of litigation filed by Trustee asserting hundreds of millions of dollars of damages relating to pre- and post-merger allegations in Friede Goldman Halter bankruptcy, Mississippi 
• Litigation defense of class action alleging silent data corruption against major computer manufacturer 
• Handled bench trial and successful removal of lis pendens to secure closing of major project development transaction for client
• Represented Indianapolis Racing League (IRL) team, Panther Racing, and its principals as defendants against business tort claims by competing team; summary judgment granted dismissing damage claims against defendants weeks before trial
• Represented Steel Corporation in litigation defense of business tort claims by industry competitor

Creditor and Lessor

• Representations of Rockies Express Pipeline with substantial regulated claims in Linn/Berry Petroleum, Vanguard Natural Resources and Ultra Petroleum ($300+ million)
• Representation of Crowley Maritime Corp., Committee Chair, with EMAS Chiyoda Subsea Chapter 11 reorganizations involving Subsea 7, relief/payment in full to client after litigated objections and contested proceedings  
• Represented substantial maritime creditor interests in publicly traded off-shore shipping Chapter 11,Trailer bridge, et.al., filed in Florida; and related emergence transactions
• Representation of major railway interests with Hanjin Shipping, South Korea, and domestic Chapter 11’s
• Represented major party in Chemicals and Refinery Chapter 11s, Bigler, successfully prosecuting sale objections leading to resolution involving client Buckeye’s receipt of specially funded multi-million dollar court-approved payment and full release from lawsuit alleging disguised financing transaction and other claims against client
• Represented largest claim-holder in multi-billion dollar Crescent Resources related Chapter 11 bankruptcies, including with priority contest and ultimate unimpairment and flow through of substantial predecessor interests
• Represented Marathon Oil in Global Geophysical Chapter 11 cases, including with resolution outside of Chapter 11 of significant Kurdistan controversy
• Served as lead bankruptcy lawyer for Eni Petroleum in Panaco Chapter 11 reorganization, successfully contesting rejection of deep-water off-shore production, platform and handling agreements 
• Represented largest interest owner in Quicksilver Resources, Chapter 11 Wilmington, successfully obtaining payment in full soon after case commencement
• Part of a team advising significant party relating to Moscow-based Yukos Oil Chapter 11 bankruptcy and related matters 
• Represented The Museum of Fine Arts, Houston in cross-border insolvency proceedings of international exhibitor (pro bono)
• Represented high officer interests in compelling arbitration and obtaining allowed administrative claims in Sterling Chemicals bankruptcy 
• Represented South American litigation and claim interests in Tower Tech, Inc. bankruptcy, Oklahoma

Committee and Trustee

• Representing TRR Liquidating Trust and legal management of assets and administration
• Represented Unsecured Creditors Committee composed primarily of international energy concerns in Gas Producers Liquids, Inc. Chapter 11 bankruptcy, with, after objections to first plan, Committee-backed plan confirmed by court; recovered all pre-petition costs and fees entirely from estate with court approval
• Represented Chapter 11 Trustee of multi-national media conglomerate debtor; largest Chapter 11 case ever filed in U.S. Virgin Islands 
• Served as lead lawyer for Litigation Trust Committee of insolvent energy derivatives trading firm, including management of suits against officers, traders and debtor counterparties, as well as general counsel to Trust and administration with Plan Trustee

• 2019 Planning Committee for State Bar Bankruptcy Conference; 2020 Planning Committee for SDTX Conference
• Recognized as a “Life Fellow” by the Texas Bar Foundation (2007), Sustaining Life Fellow (2008) and Nominating Committee (2010–2011)
• Board of Directors: T.M.A.S.D. (2011–2020)
• Member: American Bankruptcy Institute; American Bar Association; Bankruptcy Section and Professionalism Committee, Houston Bar Association; State Bar of Texas Bankruptcy Pro Bono Committee; Duke Alumni Advisory Committee; Bar Association of the Fifth Federal Circuit; The College of the State Bar of Texas; MFAH; Houston World Affairs Council and HBF Fellow; Bankruptcy American Inns Of Court