When Your Client’s Customer Files Bankruptcy: Defending Clawback Claims

Gregory G. Hesse, Partner | Hunton Andrews Kurth LLP

For the past 35 years, Greg has focused his practice on searching for pragmatic solutions to complex problems in the context of restructuring, insolvency, and bankruptcy. He represents borrowers, debtors, secured creditors, trade creditors, contract counterparties, unsecured creditors’ committees, equity holders, and trustees on all sides of insolvency situations, with an emphasis on representing creditors of all types. Although Greg’s practice is industry agnostic, adapting to fluctuations in the business cycle, his matters often occur within the retail and consumer products, real estate, and consumer finance industries.

In addition to his bankruptcy practice, Greg advises financial services clients on consumer protection compliance and litigation. With the advance of technology resulting in new payment methods, new business platforms, and new means of conducting business with consumers, Greg provides guidance to financial institutions as they navigate the legal issues relating to the developing payment options.

• Education & Credentials

JD, The University of Texas, with honors, Order of the Coif, Chancellor at Large, 1988; BBA, Southern Methodist University, cum laude, 1986. Admissions: Texas; Delaware. Courts: US Supreme Court; US Court of Appeals, Second Circuit; US Court of Appeals, Fifth Circuit; US Court of Appeals, Seventh Circuit; US Court of Appeals, Eleventh Circuit; US District Court and Bankruptcy Court, Eastern District of Texas; US District Court and Bankruptcy Court, Northern District of Texas; US District Court and Bankruptcy Court, Southern District of Texas; US District Court and Bankruptcy Court, Western District of Texas; US District Court and Bankruptcy Court, District of Delaware; Texas Supreme Court; Delaware Supreme Court.

• Recognition & Leadership

Recommended for Finance: Restructuring (including Bankruptcy): Corporate, Legal 500 United States, 2026; named Best Lawyer in Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, The Best Lawyers in America, 2024-2025; 2014 Top 100 Turnaround & Restructuring Atlas Award Winner – Consumer Goods Turnaround of the Year; 2013 Section 363 Sale of the Year ($100 million to $1 billion) award by the M&A Advisors at its 8th Annual Turnaround Awards; inducted into the Rossville High School Hall of Fame; recipient of the Distinguished Board Service Award and the Diane Payne Shaw Memorial Volunteer Award from Promise House, Inc.

• Professional Involvement

Member, Law360 Bankruptcy Editorial Advisory Board (2025); Member, American Bankruptcy Institute; Contributing Editor, American Bankruptcy Institute Journal; Member, American Bar Association; Member, Dallas Bar Association.

• Experience

Represented Official Committee of Unsecured Creditors in fractional life settlement company bankruptcy case in the Southern District of Texas. Represented specialty retail company in its prepackaged Chapter 11 bankruptcy proceedings in the Eastern District of Virginia. Represented national bank that issues private label and cobranded credit cards in restructurings and bankruptcies of retail companies. Represented grocery distribution and trucking company in Chapter 11 bankruptcy cases of customers and suppliers. Represented primary vendor in the bankruptcy cases of numerous convenience store chains. Represented subprime lender in its Chapter 11 bankruptcy in the District of Delaware and confirmed a plan of liquidation that resulted in creditors receiving near payment in full. Represented secured and unsecured creditors, including banks, securitized trusts, and trade creditors in Chapter 7, 11, and 13 bankruptcy proceedings.

Gary M. Kaplan, Partner | Farella Braun + Martel LLP

Gary Kaplan is chair of Farella’s Restructuring, Insolvency and Creditors Rights practice group. He has decades of experience representing debtors, creditors, creditors’ committees, trustees, and receivers in a wide range of bankruptcy and nonbankruptcy matters. Gary’s practice includes both out of court and Chapter 11 restructurings, and advising clients regarding pre- and post-bankruptcy strategy, debt collection, judgment enforcement, and provisional remedies. He represents lenders and borrowers in a wide range of financing transactions, including debtor-in-possession financing, as well as lease and guaranty matters. He also has extensive litigation experience in bankruptcy and non-bankruptcy courts, at trial and appellate levels, including in the U.S. Supreme Court.

Gary represents both secured and unsecured creditors, creditors’ committees, landlords, and equity holders in creative recovery solutions in and outside of bankruptcy. He has proved adept at protecting landlord’s rights in retailer bankruptcy cases nationwide through negotiation and litigation when necessary. He has extensive experience in insolvency-related litigation, including preference and fraudulent transfer claims, as well as defending guarantors, owners, directors and officers.

Gary is Board Certified in Business Bankruptcy Law by the American Board of Certification and a Certified Legal Specialist in Bankruptcy Law by the State Bar of California.

• Education & Credentials

University of California, Los Angeles School of Law (J.D., 1991); University of Pennsylvania, Wharton School of Business (B.S., 1986), magna cum laude. Bar Admissions: California (California Bar No. 155530); District of Columbia. Court Admissions: U.S. Supreme Court; 9th U.S. Circuit Court of Appeals.

• Recognition & Leadership

The Best Lawyers in America, Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law, Corporate Law, Litigation–Bankruptcy (2025-2026); Northern California Super Lawyers in Bankruptcy (2004-2006, 2009-2025); “Recommended” in the San Francisco Bay Area by PLC’s The Restructuring and Insolvency Handbook; Corporate LiveWire Lawyer of the Year for 2014 in the category Bankruptcy & Restructuring – San Francisco; Corporate LiveWire Global Awards in Insolvency Law Firm of the Year in 2017; “Outstanding Volunteer in Public Service” award from the Bar Association of San Francisco (ten times); Certificate of Recognition as an “Outstanding Volunteer in Public Service” from the California State Senate based on his consumer bankruptcy work.

• Professional Involvement

Member, Commercial Transactions Committee, California Lawyers Association; Member, Insolvency Law Committee, Business Law Section, California Lawyers Association; Member, American Bankruptcy Institute; Past President, Board of Directors, Bay Area Bankruptcy Forum; Past Chair, Bankruptcy Law Advisory Commission, California State Bar (2013-2014); Past member, Insolvency Committee, California State Bar; Past chair, Legislative Subcommittee, California State Bar; Past chair, Bankruptcy Section, San Francisco Bar’s Barristers Club; Past member, Bench-Bar Liaison Committee, U.S. Bankruptcy Court (Northern District of California).

• Experience

Represented Visa in various litigation in bankruptcy cases throughout the U.S., including defending numerous preferential and fraudulent transfer claims in the Brookstone, American Apparel, Sears, Limited Stores, Gordmans and Charlotte Russe cases and defeating efforts to enjoin processing of large scale international transactions in the Galileo Learning and smarTours cases. Defended a smart meter technology company in a federal bankruptcy court bench trial against billion-dollar damage claims asserted by a technology licensor. Represented landlords in myriad large retail and other chain bankruptcy cases throughout the U.S., such as Toys “R” Us, GNC, Forever 21, Payless Shoes, Circuit City, Borders, 24 Hour Fitness & Shopko, including negotiating favorable sales or restructurings to continue leases and settlements of related substantial, complex claims. Represented Intuitive Surgical in various litigation matters in bankruptcy cases throughout the U.S., including the Astria Health, Southern Regional Medical Center and Forest Park Medical Center bankruptcy cases. Represented First Solar, a major creditor in multi-billion dollar bankruptcy cases of FirstEnergy Solutions and affiliates, including complex litigation appealed to 6th Circuit Court of Appeal, leading to favorable settlements.

SESSION 1 – Defending the 90-Day Preference Clawback | 1:00pm – 2:00pm

This session equips attorneys who represent trade creditors, landlords, and service providers to defend preference avoidance actions arising under Bankruptcy Code Section 547. Attendees will learn how to evaluate a trustee’s demand letter, assert the ordinary course of business defense in light of the 2025 Fred’s Inc. ruling, maximize the subsequent new value offset under Section 547(c)(4), and challenge complaints on due diligence pleading grounds. Attorneys will leave with a practical defense framework applicable from the moment a clawback demand arrives through motion practice and trial preparation.

BREAK | 2:00pm – 2:10pm

SESSION 2 – Defending Fraudulent Transfer Clawbacks Going Back Years | 2:10pm – 3:10pm

This session equips attorneys who represent trade creditors, landlords, and service providers to defend preference avoidance actions arising under Bankruptcy Code Section 547. Attendees will learn how to evaluate a trustee’s demand letter and lawsuit to recover allegedly preferential transfers, assert applicable defenses, including the “ordinary course of business defense” and “subsequent new value” defenses, and challenge complaints on due diligence pleading grounds. Attorneys will leave with a practical defense framework applicable from the moment a clawback demand arrives through motion practice and trial preparation.