Sean C. Kulka

Partner

Fax: 404.873.8683

Biography

Sean is a partner in the Bankruptcy, Creditors’ Rights & Financial Restructuring practice. He focuses on bankruptcy and commercial litigation. He counsels debtors, creditors’ committees, secured and unsecured creditors, and fiduciaries through intricate legal matters. Sean has handled some of the most significant Chapter 11 cases across the country, including the historic Enron Examination. Sean’s experience spans industries including the retail, restaurant, hospitality, real estate, telecommunications, manufacturing, gaming, farming and insurance. He is deeply involved in matters related to complex franchise agreement negotiations, including for a Fortune 100 telecommunications company in negotiating cable television franchise agreements throughout New York. Sean advises clients across all aspects of the franchising process including negotiating and lobbying franchise agreements with municipalities and appearances at contested public hearings.

Experience

  • Represented secured creditor in connection with the bankruptcy case of a hotel owner and operator. Successfully negotiated adequate protection payments for the lender, negotiated a settlement of the Debtor’s claim objection against the lender under very favorable terms, and negotiated an agreement that provided the lender with relief from the automatic stay.

  • Represented five highly distressed affiliated Debtors comprising the largest dairy farm in the Southeastern United States with operations in Georgia, Florida, Mississippi, and Texas. A plan was confirmed in January 2012.

  • Represented the owner of a multi-family, low-income housing project located in Fulton County, Georgia as Debtor’s counsel. The Debtor entered into a settlement agreement with its senior secured creditor, which enabled the Debtor to confirm a liquidating plan in March 2012. The plan provided for a material distribution to all non-insider unsecured creditors.

  • Represented four affiliated entities, in their jointly administered Chapter 11 bankruptcy proceedings in the Middle District of Georgia Bankruptcy Court. The companies each owned retail shopping centers with a collective value of approximately $30 million.  The debtors’ cash collateral motion was successfully prosecuted, and successfully defeated a motion to dismiss and multiple stay relief motions filed by the debtors’ secured creditor. After extensive briefing, the bankruptcy court conducted an exhaustive three-day evidentiary hearing on the various motions before the court. The bankruptcy court held another hearing on the multiple motions before the court, and pursuant to Rule 7052 of the Bankruptcy Rules, made detailed findings of facts and conclusions of law that resulted in the bankruptcy court granting the debtors’ cash collateral motion and denying all of the secured creditor’s motions. The result of this hearing was a huge win for the clients as the denial of the cash collateral motion or the approval of any of the secured creditor’s motions would have eliminated any prospect of reorganization of the debtors’ income generating properties. The debtors subsequently filed a Chapter 11 plan of reorganization, which provided for for the modification of the secured creditor’s loan and the substantive consolidation of the debtor’s assets and liabilities. The debtors subsequently entered into a global settlement agreement with their secured creditor, which lead to a court approved structured dismissal of the debtors’ bankruptcy cases in May 2013. As a result of their successful bankruptcy cases the debtors were able to refinance their properties on extremely favorable terms.

  • Represented franchisor of restaurant trademark and concepts in connection with an individual Chapter 11 case. Assisted the client in reaching a global settlement with the Debtor and obtaining Court approval of the rejection and termination of the debtor’s development agreement, exercise of setoff rights, assumption of the Debtor’s obligation under various guaranty agreements, and approval of the assignment of one of the Debtor’s individually held franchises to an affiliated corporate entity.

  • Represented secured creditor in connection with a single asset real estate case. Successfully negotiated adequate protection payments for the lender and obtained relief from the automatic stay to allow the lender to foreclose on its mortgage and security interest in the Debtor’s property. In November 2011.

  • Represented a Fortune 100 telecommunications company in negotiating cable television franchise agreements throughout New York. Involved in all aspects of the franchising process including negotiating and lobbying franchise agreements with municipalities and appearances at contested public hearings.

  • Successfully represented Chapter 11 Trustee in multiple avoidance actions resulting in meaningful recoveries to the debtors’ bankruptcy estates.

  • Represented indenture trustee in Tom’s Foods, Inc. bankruptcy case.

  • Represented the owner of a performance sports flooring manufacturing company as Debtor’s counsel. The Debtor conducted a successful Section 363 sale.

  • Represented the client in connection with Bradlees Stores, Inc. bankruptcy case. Successfully resolved a complicated claim objection under very favorable terms to the client.

  • Represented Mr. Neal Batson, the Court appointed Examiner in the Enron Corp. bankruptcy cases. Assisted Mr. Batson in examining all aspects of Enron Corp. and its affiliates, including the investigation of various off balance sheet transactions and assisting Mr. Batson in drafting reports to the court.

  • Represented a large cable company in the Adelphia Communications Corp. bankruptcy cases. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.

  • Represented a large cable company in the WorldCom, Inc. bankruptcy cases. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.

  • Represented a large cable company in the Aladdin Gaming LLC bankruptcy case. Successfully assisted the client in excising setoff rights and in procuring adequate assurance of payment as a utility provider.

  • Represented the owner of a hardwood flooring manufacturing facility as Debtor’s counsel. The Debtor entered into a Court approved settlement agreement with the Debtor’s former owner, which enabled the Debtor to confirm a liquidating plan that provided a significant distribution to unsecured creditors. In connection with the settlement, successfully briefed and argued an appeal to the District Court, the Eleventh Circuit Court of Appeals, and the Georgia Supreme Court related to whether under Georgia law an insolvent limited liability company has exclusive standing to assert an alter ego claim against its parent or owner. The Eleventh Circuit certified the question to the Georgia Supreme Court, which answered the issue in the affirmative.

  • Represented the franchisor of hotel trademark and concepts client in connection with In re The Finova Group, Inc. bankruptcy case.

  • Represented client in connection with the bankruptcy cases of Mariner Post-Acute Network, Inc. Successfully enabled the client to recover several million dollars in accounts receivables in the possession of the Debtors that the client had purchased from the Debtors prior to their bankruptcy filings under a constructive trust theory.

  • Represented a large poultry company in connection with the Ameriserve Food Distribution, Inc. bankruptcy cases. Successfully defended the client against a preference claim with a demand well in excess of $10 million. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion to dismiss the complaint on the basis that the Debtors had failed to preserve the right to assert the preference claim against the client in their plan of reorganization on the basis of res judicata, collateral estoppel, and judicial estoppel.

  • Successfully defended large insurance company in avoidance action in connection with the RDM Sports Group, Inc. bankruptcy case. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion for summary judgment under recoupment and setoff theories.

  • Successfully defended large insurance broker in connection with the RDM Sports Group, Inc. bankruptcy case. The adversary proceeding was settled under very favorable terms after the client presented the plaintiff with a motion for summary judgment under a mere conduit theory.

  • Represented Fulton County, Georgia in connection with the County’s franchise agreement negotiations with a large cable company.

  • Represented eight affiliated Debtors in their jointly administered Chapter 11 bankruptcy proceedings in the Northern District of Georgia Bankruptcy Court. The Debtors’ owned an amateur/youth sporting tournament vacation facility. The Debtors were able to confirm a prearranged Chapter 11 Plan in 2018, which kept current equity holders in place.

  • Represented secured creditor in connection with two bankruptcy cases of affiliates involving hotels.  Successfully negotiated adequate protection payments for the lender and a structured dismissal of both cases, which resulted in payment in full, including payment of make whole provision.

  • Represented the Official Committee of Unsecured Creditors and the Liquidating Trustee in the healthcare bankruptcy proceedings of Pioneer Health Services, Inc. et al. in the Southern District of Mississippi Bankruptcy Court. The Debtors confirmed a Chapter 11 Liquidating Plan in 2018, which was co-sponsored by the Debtors and Committee. The Plan provided a material carve-out for unsecured creditors.

Credentials

  • University of Mississippi, Juris Doctor — 1998,

    cum laude

    • Mississippi Law Journal
    • Recipient, American Bankruptcy Institute Medal of Excellence
  • Michigan State University, Bachelor of Arts — 1994,

    cum laude

  • State of Georgia 1998
  • United States Court of Appeals for the Eleventh Circuit 2004
  • United States District Court for the Middle District of Georgia 2001
  • United States District Court for the Northern District of Georgia 1998
    • Atlanta Bar Association—Section of Bankruptcy
    • American Bankruptcy Institute
    • Turnaround Management Association

Recognition

  • Certificate of Excellence in Bankruptcy, American Bankruptcy Institute, 1998

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