Duston K. McFaul

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

Debtors/Company

• Counsel to AES Puerto Rico in successful comprehensive company-side restructuring with rights offering, conversion of municipal debt to preferred, restructured bond terms and restructured offtake terms with the commonwealth of Puerto Rico and approvals in coordination with four regulatory agencies.
• Counsel to Colorado-based Ursa Piceance Holdings and affiliates in Chapter 11 proceedings with toggle plan of reorganization for debt equitization and dual-track marketing process, with successful cramdown confirmation proceedings, midstream deal terms, and property-of-estate litigation.
• Counsel to Legacy Reserves and affiliates in SDTX Chapter 11 proceedings with approximate US$2 billion issued debt, massive deleveraging consummation, and successful emergence with equity rights offerings, prevailing over all UCC and third-party litigation.
• Counsel to midcon refining, processing, and midstream operations in out-of-court workout and recap.
• Representation of Texas-headquartered OFS provider and midstream affiliates in transactions culminating in global private take-outs of lenders and preferred holders, avoiding court proceedings.
• Counsel to Trinity River Resources, WDTX, including Chapter 11 plan confirmation, relief for operations control, and successful relief for closure of challenged sale transactions.
• Representation of predominant gas producer E&P in private distress transactions leading to development JV’s and complete balance sheet restructuring with new sponsor, avoiding court proceedings.
• Restructuring team leading to pre-packaged Chapter 11 of Key Energy Services (confirmation and deleveraging of over US$1 billion debt within six weeks).
• Representation of Energy XXI independents and post-emergence company including with Cox Oil merger.
• Representation of a publicly traded upstream producer in the successful recap and avoidance of Chapter 11 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, restructured MVCs, and alternative restructuring transactions.
• Representation of debtors in Chapter 11 bankruptcy case of Energy Partners, Ltd., SDTX, Houston, Texas; plan of reorganization, including an exchange of approximately US$5 billion in debt for equity confirmed within 90 days.
• Representation of OFS client in out-of-court ownership restructuring through marketed debt purchases staging planned take-out transactions.
• Representation of Chapter 11 telecom service providers, VarTec, in NDTX, with annual revenues exceeding US$1 billion, including the contested rejection of more than 100,000 contracts and successful transactions over UCC litigation.
• Representation of debtors in the Chapter 11 bankruptcy case of Integrated Electrical Services, Inc., in NDTX, pre-negotiated plan of reorganization based on a debt for equity exchange confirmed within 75 days of case filing.
• Counsel to sponsor and ownership group of national retailer Beauty Brands, in Delaware Chapter 11 bankruptcies and sale consummations.
• Assistance in onshore/offshore E&P with second lien debt for equity swap out of court transactions.
• Counsel for transition strategy and executions for My Fit Foods, national health-based eateries.

Fund and Investment Bank

• Represented 100% of Class B Unit Holders in Southcross Holdings Chapter 11 cases, including procuring confidential settlement for clients to allow pre-packaged Plan of Reorganization.
• Advised Opco fund lenders related to 2019 restructuring of Preferred Sands (US$1.4 billion debt) and creation of Signal Peak Silica.
• Counseled Ad Hoc Committee of the holders of over US$1.5 billion of notes in ATP off-shore upstream Chapter 11 case, SDTX.
• 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 a 380% 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, NDTX domestic proceedings, 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

• Representing major revolver lender, LC, and swap counter-party in Chapter 11 proceedings of Brazos Electric, SDTX.
• Representing RBL Agent, DIP Agent and Exit Agent (over US$5 billion of total credit facilities) in Chapter 11 proceedings of Chesapeake Energy and affiliates, SDTX.
• 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 Holdings, post-default out-of-court.
• Advised agent bank in Nevada power plant restructuring.
• 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, avoiding court proceedings.
• 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.
• Represented secured lender in Metals USA steel fabricator Chapter 11 bankruptcies, SDTX.
• Represented lead lender, including for cash collateral order and client-driven sale process, with all proceeds to client, in alloys manufacturer bankruptcy.

Acquisition

• Counsel to client bidders in Chapter 11 bankruptcies such as Cogentrix/Lincoln Power, Cox Operating, Alpine Summit, Lilis Energy, Sears, Reagor Dykes, Fieldwood Energy, Alta Mesa/Kingfisher Midstream, Buccaneer Resources, and Delta Petroleum.
• Heavily negotiated Delaware acquisition, on behalf of private equity client, of wholesale supply and hardware distribution enterprise via client-backed Chapter 11 plan 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.
• Counsel for US$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 a major food conglomerate debtor with successful closing for US$370 million.
• Successful acquisition of golf course, country club, and real estate development through confirmed bankruptcy plan.

Bankruptcy Litigation — Debtor

• Managed operatorship litigation, and affiliate litigation for Chapter 11 debtors TRR, as company counsel, successful confirmation, as well as post-effective date recovery litigation.
• Two week valuation and plan contest trial on behalf of debtors in Legacy Reserves, with all rulings favorable to client debtors.
• Priority litigation with RIO claimants in Ursa Resources Chapter 11 proceedings, favorable rulings for client debtors and in support of clients’ proposed plan and treatment, as well as appellate proceedings.
• Headed litigation team for the debtors in EPL’s complex Chapter 11 public energy restructuring, including for valuation challenges and 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, IES, in service roll-up Chapter 11s against claims and objections prosecuted by official equity committee; examinations of sponsors; client’s plan confirmed as proposed; and all objections/challenges defeated.
• Litigation on behalf of VarTec Chapter 11 debtors against official committee, including trial on multi-level marketing contracts, cross-examinations of chairperson, and procured judgment fully in client’s favor.
• Bankruptcy and litigation counsel to TexCal Energy for operator adversary, claims litigation, plan implementation, and O&G accounting litigation, handling all witnesses and evidence.

Additional Bankruptcy Litigation

• Represented major shareholders existing governance in trial against UCC & UST attempting to supplant board with Trustee, and related proceedings, in SDNY 2024.
• Lead lawyer in successful defense of major financial institution against bankruptcy claims of improper derivatives settlements, with ISDA intervening to support propriety of client terminations.
• Handled federal trial in court over three months in innovative communications Virgin Islands complex bankruptcy proceedings on behalf of Chapter 11 trustee; prosecuted trials for insider fraudulent transfers, turnover, and trial on exemptions claimed by international telecom mogul debtor; handled trial examinations of target defendant CEO/chairman, experts, and insider witnesses; bankruptcy court opinions in client trustee’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 homestead estates and assets in Palm Beach, New York, and the Virgin Islands; 727 discharge trial; handled extended closing arguments for highly contested sale of mass communications enterprise.
• Lead bankruptcy lawyer in successful defense of major Japanese conglomerate against lawsuit and fraud/fiduciary duty claims by trustee in bankruptcy via judicially mediated withdrawal.
• Lead bankruptcy lawyer obtaining successful emergency lifting of automatic stay within eight days of bankruptcy filing, enabling trial in state court and US$20 million fraud jury verdict for client; secured conversion and dismissal of bankruptcies of debtors.
• Valuation trial and related litigation in Lafayette, Louisiana on behalf of the secured creditor/lenders of upstream producer, handled trial direct and cross-examinations of valuation experts, reserve engineer, investment bankers, and CFO.
• 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, Richland Resources, and domestic Chapter 11 proceedings in NDTX.

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, and winning judgment on client’s counterclaim (recovered in full); handled the extensive technical examinations of four expert 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; handled extended closing arguments of trial.
• Represented defendant, a major bank, in 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 (non-Platinum Partners officers) (each alleging damage claims over US$100 million).
• Defense counsel for Ponzi fraud and security violation allegations by trustee of Provident Resources seeking over US$400 million in damages against major producer in NDTX.
• 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, in Mississippi.
• Handled 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 team, Panther Racing, and its principals as defendants against business tort claims by their former team; summary judgment granted dismissing damage claims against all defendants weeks before trial.
• Represented steel corporation in litigation defense of business tort claims by industry competitor.

Creditor and Lessor

• Representation of operations and personnel affiliates of non-op Echo Energy with terms for pay-down of inter-company balances and deal for notes guarantee claims, SDTX.
• Representation of Rockies Express Pipeline with substantial regulated claims in Linn/Berry Petroleum, Vanguard Natural Resources, and Ultra Petroleum (US$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 cases.
• Represented major party in chemicals and refinery Chapter 11 bankruptcies, Bigler, successfully prosecuting sale objections leading to client Buckeye Resource’s receipt of specially funded multi-million dollar court-approved payment and full release from lawsuit alleging disguised financing transaction and other claims.
• 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 Kurdistani 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 case in Wilmington, Delaware, successfully obtaining payment in full soon after case commencement.
• Part of a team advising a 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 with an 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, in 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 cases ever filed in U.S. Virgin Islands.
• Represented Crowley Maritime Corporation as Chair of UCC in contested plan and claims litigation.
• Counsel to Litigation Trust Committee of insolvent energy derivatives trading firm, including managing suits against traders and debtor counterparties, as well as general counsel to trust and administration with plan trustee.

• Planning Committee for State Bar Bankruptcy Conference (2019, 2021, and 2022); Planning Committee for SDTX Bench-Bar Conference (2020–2022)
• Recognized as a “Life Fellow” by the Texas Bar Foundation (2007), Sustaining Life Fellow (2008), and Nominating Committee (2010–2016)
• Board of Directors: T.M.A.S.D. (2011–2021)
• 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; Keeton Fellows Society; and HBF Fellow