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Brian F. Kenney practices in the areas of bankruptcy and creditors' rights and commercial litigation. He holds a certification in Business Bankruptcy Law from the American Board of Certification*. Mr. Kenney represents creditors, creditors’ committees and corporate debtors in the U.S. Bankruptcy Courts for the Eastern District of Virginia and the District of Columbia. He is experienced in all aspects of bankruptcy cases, including cash collateral hearings, debtor in possession financing, court-approved asset sales, motions for relief from the automatic stay, plan confirmation hearings, motions to convert or dismiss and preference and fraudulent conveyance litigation. Mr. Kenney has recently been involved in the following cases: In re: Forde (U.S. Bankruptcy Court for the Eastern District of Virginia). In this case, Mr. Kenney represented a Chapter 7 bankruptcy trustee in multiple adversary proceedings, including fraudulent transfer and unauthorized post-petition transfer (Section 549) claims, as well as a legal malpractice case against former debtor’s counsel In re: Teleglobe, Inc. (U.S. Bankruptcy Court for the District of Delaware). Mr. Kenney represents Teleglobe USA, Inc., a former tier one telecommunications voice and data carrier, as conflicts counsel under Section 327(e), in multiple preference recovery adversary proceedings. In re: Barry Wood (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney represents the debtor, the owner of two radio stations in Mobile, Alabama, in this Chapter 11 reorganization case. PSINet, Inc. (U.S. Bankruptcy Court for the Southern District of New York). In this case, pending in the Southern District of New York, Mr. Kenney and Miles & Stockbridge represented a major equipment lessor/secured creditor. Mr. Kenney filed a motion to compel the debtor to pay adequate protection payments to his client, and for relief from the automatic stay, which motion was resolved successfully by a Court-approved settlement. In re: Commander Aircraft Company (U.S. Bankruptcy Court for the District of Delaware). Mr. Kenney represents the primary secured creditor of this debtor, a manufacturer of high-performance single-engine aircraft. Ceyoniq, Inc. (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney represented the Official Committee of Unsecured Creditors in this case. The debtor, a Northern Virginia software company, recently completed a multimillion-dollar sale of substantially all of its assets to a third-party purchaser, with the consent and approval of the Committee. Aleron, Inc./ TA Acquisition Corp. (formerly known as Telia Internet, Inc.) (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney served as debtor’s counsel in this case, in which the debtors successfully sold their primary assets, an Internet fiber ring and related telecommunications and computer equipment. iDEFENSE, Inc. (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney acted as counsel for the debtor, an Internet security firm. He successfully moved, and obtained Court permission, for a sale of substantially all of the company’s assets pursuant to Bankruptcy Code Section 363. The sale was accomplished over the objections of a software vendor that claimed title to the software that was at the core of the company’s business. Ibis Corporation (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney served as the post-confirmation plan trustee for the creditors of Ibis Corporation. The Bankruptcy Court upheld Mr. Kenney’s claim as the trustee to a $300,000 fund over which the reorganized debtor claimed ownership as unclaimed funds under Bankruptcy Code Sections 1143 and 347(b), which ruling was upheld on appeal. Nycal Corporation (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney served as Chapter 11 trustee for the bankruptcy estate of Nycal Corporation. Nycal had a number of subsidiaries, which in turn, owned diverse assets, such as cobalt and nickel mining claims, offshore oil and gas leases and insurance. The case was resolved with the confirmation of a plan of reorganization and the establishment of a liquidating trust for the benefit of the creditors. Fastcomm Corporation (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney acted as counsel for the Unsecured Creditors Committee in this case. The case was resolved with the confirmation of a consensual plan of reorganization. Steven C. Evans (U.S. Bankruptcy Court for the Eastern District of Virginia). Mr. Kenney is currently serving as counsel for the Unsecured Creditors Committee in this case, which involves an alleged Ponzi scheme involving tens of millions of dollars. Notable published opinions: Old Republic National Title Insurance Company v. Tyler (In re: Dameron), 155 F.3d 718 (4th Cir. 1998). Successfully imposed a constructive trust on proceeds of real estate settlements in settlement company’s trust accounts, in favor of four mortgage lenders, over the objections of the bankruptcy trustee. In re: Jeffrey Bigelow Design Group, Inc., 956 F.2d 479 (4th Cir. 1992). Successful defense of bank in a preference case, on ordinary course of business grounds. Also successfully defended the bank on a related fraudulent transfer claim, on the ground that there was indirect benefit to the debtor in exchange for the payments at issue. This was the first time that the Fourth Circuit recognized the indirect benefit rule in fraudulent transfer cases. In re: John A. Andrews, 186 B.R. 219 (Bankr. E.D. Va. 1995). Fraudulent transfer litigation brought by Mr. Kenney on behalf of a financial institution against the debtor. The court permitted the bank to pierce the attorney-client privilege, to depose the debtor’s lawyer and discover the lawyer’s work file, when the debtor’s lawyer advised the debtor with respect to the transfers at issue, under the crime-fraud exception to the attorney-client privilege. * There is no procedure in the Commonwealth of Virginia for approving certifying organizations. Practice Areas: Bankruptcy & Creditors' Rights Bankruptcy & Creditors’ Rights Litigation Commercial Foreclosures Committee Representation Debtor Representation Distressed Loan & Asset Acquisitions Secured Creditor Representation Trustee Appointments & Representation Commercial & Business Litigation Commercial Litigation Corporate Governance & Disputes Disputes Over Business Dispositions Financial Institution Litigation Real Estate Litigation & Title Insurance Defense Bar Admissions/Court Admissions:District of Columbia Virginia D.C. Superior Court Supreme Court of Virginia United States Bankruptcy Court for the District of Columbia United States Bankruptcy Court for the Eastern District of Virginia United States Court of Appeals for D.C. Circuit United States Court of Appeals for the District of Columbia United States Court of Appeals for the Fourth Circuit United States District Court for the District of Columbia United States District Court for the Eastern District of Virginia United States District Court for the Western District of Virginia United States District Court for the Western District of Virginia United States Supreme Court Education:University of Virginia, J.D. 1983. Virginia Commonwealth University, B.A. 1980, Magna Cum Laude. Affiliations, Associations and Special Achievements: American Bankruptcy Institute Law & Politics Magazine: Listed as a "Virginia Super Lawyer" (2007) Law & Politics Magazine: Listed as a "Washington, DC Super Lawyer" (2007) Northern Virginia Bankruptcy Bar Association: Director (1997-present); President (2001-2002) Virginia State Bar: Bankruptcy Section, Board of Governors (2004-Present) Walter Chandler American Inn of Court for Bankruptcy Practice: Secretary/Treasurer (1999-2000) Publications: Constructive Trusts, A Response [Sections 544(a)(1) and (2) and Interests in Personalty vs. Section 544(a)(3) and Interests in Real Property], American Bankruptcy Institute Journal (January 2001). Speaking Engagements: Breaking the Code Bankruptcy Reform Legislation, Bankruptcy Section, Virginia State Bar, Fairfax, Virginia (July 2005). Jurisdiction, Practice and Procedure, Bankruptcy Section, Virginia State Bar, McLean, Virginia (June 1999).Representation of Creditors Committees, Bankruptcy Section, Virginia State Bar, Virginia Beach, Virginia (June 2001).
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