Erika L. Morabito is a partner, litigator, trial attorney, and restructuring lawyer at Foley & Lardner LLP. For several years, Erika served as the national department vice chair for Litigation, as well as the vice chair of the firm’s Business Litigation & Dispute Resolution practice. For nearly a decade, she also served as the hiring partner for general practice for the firm’s Washington, D.C. office. Erika concentrates her practice in bankruptcy, creditors’ rights, debtor reorganizations, and out-of-court restructurings. She regularly represents chapter 11 debtors, creditors' committees, Chapter 7 and Chapter 11 Trustees and Federal Court appointed Receivers, and she frequently advises and represents clients in creditors’ rights litigation, avoidance actions, claims disputes, out-of-court restructurings, and the purchase and sale of assets under the Bankruptcy Code.
Erika is a member of the firm’s Bankruptcy & Business Reorganizations and Business Litigation & Dispute Resolution Practices, as well as the Automotive and Airport & Aviation Industry Teams. In addition, she is a member of Foley’s Innovation Committee, Recruiting Committee, and Alumni Advisory Counsel. Erika also serves as the co-chair of the Women’s Retention Initiative, which supports an increase in women in leadership positions throughout the firm.
Erika has extensive experience representing individuals, officers and directors, businesses, financial institutions, corporations, partnerships and other entities involved in commercial transactions, large bankruptcy and litigation matters, including retail, airline, automotive, coal, health, fraud, and Ponzi scheme matters. Additionally, she has represented debtors, creditors’ committees, and secured and unsecured creditors before many Federal Bankruptcy and District Courts, as well as clients in loan workouts, lender liability claims, domestic and international arbitrations, foreclosure proceedings, and contractual dispute resolutions. She also frequently advises purchasers and sellers in transactions involving insolvent entities in anticipation of a future bankruptcy filing. This advice includes fiduciary duty responsibilities and liability as it relates to directors and officers, environmental claims, and the rights of licensees and licensors to intellectual property.
In addition to her bankruptcy and restructuring work, Erika has been involved in a wide variety of complex commercial litigation cases in both state and federal courts throughout the country, and international arbitration matters, including business tort, breach of contract, D&O litigation, employment, large commercial collection, FDA, construction litigation, and non-compete actions. Additionally, she routinely achieves large multi-million dollar awards from national insurance carriers. She regularly practices in the state and federal courts of the Commonwealth of Virginia and actively litigates in several courts throughout the country.
- Serves as lead counsel to the largest ad-hoc group of administrative vendors in In re Sears Holding Corp, currently pending in the Bankruptcy Court for the Southern District of New York.
- Served as lead counsel to the largest ad-hoc group of administrative vendors in In re Toys R Us, currently pending in the Bankruptcy Court for the Eastern District of Virginia. Before its liquidation, Toys “R” Us was the world’s leading dedicated toy and baby products retailer, with nearly 65,000 employees worldwide with approximately 1,900 locations in 38 countries. Erika’s representation included negotiating with senior secured lenders, DIP lenders, the debtor, and the Unsecured Creditors’ Committee to establish and fund a substantial administrative claims pool to benefit the ad-hoc group of vendors. Without such a pool, these vendors would have likely received no monetary recovery on their administrative claims totaling approximately $800 million. In addition, Erika represents some of the largest individual creditors in the case.
- Served as lead counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy cases of GST Autoleather, Inc. and its affiliated entities in the United States Bankruptcy Court for the District of Delaware. GST is a premier supplier of leather upholstery to nearly every major automaker, with a presence in North America, China, Japan, Korea, Germany, India, and Mexico. As counsel to the Committee, Erika was integral in assisting the Company and its creditors/vendors with a court-supervised going concern sale of the Company and its assets that provided for a significant benefit and distribution to all general unsecured creditors. This sale won Special Situation M&A Deal (mid-market) of the Year from the prestigious Turnaround Atlas Awards.
- Represented one of the largest unsecured creditors (and former member of the Unsecured Creditors’ Committee) in the J&M Sales (National Stores) bankruptcy, in pursuing state law causes of action against the Company’s CEO in the United States District Court for the Southern District of New York.
- Served as lead counsel to the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Samuels Jewelers, currently pending in the United States Bankruptcy Court for the District of Delaware. As counsel to the Committee, Erika negotiated a global settlement with the Debtor and Lenders, which provided a litigation sharing mechanism that provides for potential recoveries for unsecured creditors, where such creditors otherwise anticipated little to no recovery.
- Represented the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Heritage Home Group, currently pending in the United States Bankruptcy Court for the District of Delaware.
- Represented the Official Committee of Unsecured Creditors in the Chapter 11 bankruptcy case of Velocity Holding Company, in the United States Bankruptcy Court for the District of Delaware.
- Represented the indenture trustee and largest unsecured creditor on the Official Committee of Unsecured Creditors in In re Alpha Natural Resources, Inc., a large coal case in the Bankruptcy Court for the Eastern District of Virginia.
- Represented National Heritage Foundation, a large non-profit organization, in Chapter 11 proceedings in the Eastern District of Virginia (In re National Heritage Foundation). Representation includes Chapter 11 post-petition claims and defending the Reorganized Debtor in various appeals arising out of the bankruptcy proceedings before the U.S. District Court for the Eastern District of Virginia, the Fourth Circuit Court of Appeals, and the United States Supreme Court.
- Represented a Federal Court Appointed Receiver for a large international bank, who was appointed by the United States District Court for the Eastern District of Virginia. The receivership arises out of approximately $34 million owed to the bank. Also represents the Receiver in a multi-million dollar national arbitration claim regarding a construction dispute arising out of the NSA’s building of the Utah Data Center.
- Served as lead counsel to M&P Patent, a Lichtenstein pharmaceutical corporation, in a contractual dispute with a large, multi-national corporation, concerning rights under an intellectual property agreement. Successfully resolved the dispute in multiple forums, including in international arbitration in Switzerland, the United States District Court for the Eastern District of Virginia, and the U.S. Court of Federal Claims.
- Served as special counsel to Ray Yancey in his capacity as the Chapter 7 Trustee for the estate of MS Grand, Inc. and in his capacity as the Chapter 11 Trustee for the estates of Min Sik Kang and Man Sun Kang. As special counsel to the Trustee litigated against the former Examiner, his attorneys, and his financial analyst regarding the disallowance and claw-back of significant administrative fees sought by the Receiver from the two estates. Successfully negotiated a settlement that resulted in an almost 7 figure dollar amount in savings to the estates.
- Served as lead counsel in representing a reorganized debtor against its insurance company for bad faith claims resulting in the bankruptcy filing. Achieved a multi-million dollar settlement, well in excess of policy limits, on the first day of trial.
- Served as lead counsel in defending Texas Capital Bank in an adversary proceeding filed in the U.S. Bankruptcy Court for the Eastern District of Virginia (In re Taneja). The complaint alleged damages of $8.5 million dollars for actions arising out of a Ponzi scheme and included fraudulent conveyances and preference actions. The case was settled for $162,000, less than 2% of the demand in the complaint.
- Serves as outside general counsel to Airlines Reporting Corporation (ARC), advising on numerous issues involving litigation and arbitrations, compliance with OFAC, data privacy, data security, FTC, and tax regulations, trademarks, e-commerce, bankruptcy, and drafting and enforcing contracts. In addition, Erika has represented ARC in numerous complex commercial litigation and arbitration matters throughout the country, including in the U.S. District Court for the Eastern District of Virginia, the Supreme Court of New York, and Arlington Circuit Court.
- Served as lead co-counsel on behalf of Distinctive Apparel Inc., a DIP Lender and stalking horse bidder, in In re Women’s Apparel Group LLC in U.S. Bankruptcy Court for the District of Massachusetts.
- Represented secured and unsecured creditors, including landlords, in connection with large bankruptcy filings in the Eastern District of Virginia, including In re Circuit City Stores, Inc, In re Land America, and In re Movie Gallery, Inc.
- Served as lead counsel to a consortium of some of the nation's major airports in In re US Airways, In re United Airlines, In re Aloha Airlines, In re Delta Airlines, and In re Northwest Airlines, the last two of which were mega-cases filed in the Southern District of New York.
- Served as lead counsel to Arcadia Aviation WEY, LLC, a leading charter and aircraft management firm, in proceedings in In re Southlake Aviation, LLC, a case in the U.S. Bankruptcy Court for the Northern District of Texas.
- Advised unsecured and secured creditors in connection with various bankruptcy filings of airlines, including In Re US Airways Group, Inc., In re American Airlines, Inc., In re Mesa Air Group Inc., In re Ambassadors International, Inc., In re Japan Airlines Corporation, In re EOS Airlines, Inc., In re Compania Mexicana de Aviacion, S.A. de C.V., and In re Air Baltic.
- Served as counsel to troubled holding companies, including Intermet Corporation and Venture Holdings, LLC.
- Served as counsel to the debtors in several chapter 11 bankruptcy cases pending in the District of Delaware, including In re ProxyMed Transaction Services, Inc. and In re Diamond Glass, Inc.
- Served as counsel to the Official Committee of Unsecured Creditors in chapter 11 cases pending in the District of Delaware, including In re Fluid Routing Solutions, Intermediate Holding Corp.
- Served as counsel for the Official Committee of Unsecured Creditors in In re Lancer Partners LP, a hedge fund chapter 11 bankruptcy case pending in the Southern District of Florida.
- Served as lead counsel to various members of Official Committees of Unsecured Creditors in several large bankruptcy proceedings throughout the country, such as In re Federal Mogul and In re Touch America.
Erika was recognized in Chambers USA: America's Leading Business Lawyers from 2016 through 2019 for her work in bankruptcy/restructuring. The publication recognized that "She is outstanding in her representation; she is very strategic, responsive and connected."
Erika was also selected for inclusion in the 2014 – 2019 Washington, D.C. Super Lawyers® lists.
Erika has also been recommended by The Legal 500 in 2015 for her work in the area of corporate restructuring, including bankruptcy, where she is described as a ‘brilliant mind and a savvy lawyer.'
In 2018, Erika was also honored as a recipient of the “Women in Law Awards” by Lawyer Monthly and in 2019 by the Global M&A Network as a Top USA Women Dealmaker winner-nominee in the restructuring category.
- Recognized, The Best Lawyers in America©
- Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law (2020)
Erika frequently lectures on various bankruptcy and litigation topics for the American Bankruptcy Institute, Arlington Bar Association, the Virginia Bar Association, the District of Columbia Bar, and various national bar associations. Her publications and presentations include:
- Upcoming Panelist, “The Shifting Sands of Corporate Fiduciary Duties in Insolvency: Best Practices & Potential Pitfalls in D&O Insurance Litigation,” 34th Annual Mid-Atlantic Institute on Bankruptcy and Reorganization Practice September 15, 2019
- Panelist, “Bankruptcy Litigation – Topics, Trends, Practice Pointers,” 2019 ABI Mid-Atlantic Conference, August 3, 2019
- “A Primer on the Uniform Voidable Transactions Act: Substance, Implementation, and Legal Interpretation,” American Bankruptcy Institute Annual Spring Meeting, April 20, 2018
- Quoted, “GST Autoleather Cleared For Ch. 11 Bidding, Borrowing,” Law360, November 2017
- Quoted, “GST AutoLeather Wins Court Approval of Bankruptcy Sale Process,” WSJ Pro Bankruptcy, November 2017
- Panelist, “Eye on Bankruptcy,” American Bankruptcy Institute, October 26, 2017
- “You Thought Claims Were Simple: Recent Issues in Commercial and Consumer Cases Regarding Proof of Claims,” Bankruptcy Section of the Richmond Bar Association, November 2015
- "Recent Developments for Advanced Bankruptcy Practitioners," Virginia Mid-Atlantic Institute on Bankruptcy and Reorganization Practice Conference, September 2015
- Co-author, “How To Determine Whether a Debtor’s Interest in a Decedent’s Estate is (Or May Become) Part of the Debtor’s Bankruptcy Estate,” NABTalk, Fall 2014
- “Fraudulent Transfers and Ponzi Schemes,” Georgetown Views from the Bench, October 24, 2014
- “Convoluted Pollution: The (Sometimes) Messy Collision of Bankruptcy and Environmental Issues,” Mid-Atlantic Bankruptcy Workshop, July 31-August 2, 2014
- “Chapter 11 Practitioners: Ponzi Scheme Bankruptcies,” 28th Annual Mid-Atlantic Institute on Bankruptcy and Reorganization Practice, September 20, 2013
- “Views from the Bench: Tips to New Bankruptcy Practitioners,” Mid-Atlantic Bankruptcy Workshop, August 8-10, 2013
- Quoted, “Lawyers Find Flexibility at Boutique Firms, Universities,” Dow Jones Daily Bankruptcy Review, May 22, 2013
- Quoted, “Law Journal: Companies in Chapter 11 Face Express Trip to Auction Block,” Wall Street Journal, January 14, 2013
- Quoted, “Bankruptcy Milestones Put Companies on Short Leashes,” Dow Jones Daily Bankruptcy Review, January 7, 2013
- “Post Petition Bankruptcy Financing,” Strafford seminar, February 23, 2012
- "Post-Petition Secured Financing," Central New York Bankruptcy Bar Association’s Sixteenth Annual Bankruptcy Conference, November 11-12, 2011
- "Debtor-in-Possession and Exit Financing in Today’s Market" a chapter in Aspatore Books’ Debtor-in-Possession and Exit Financing; Leading Lawyers on Securing Funding and Analyzing Recent Trends in Bankruptcy Financing (Inside the Minds), February 2010
- "Poker and Chapter 11 Plan Stonewalling: Know When to Hold’Em and Know When to Fold ‘Em," Bloomberg Law Reports – Bankruptcy Law, September 2010
In addition, Erika served on several judicial interview panels and made recommendations for future appointments of judges in the Commonwealth of Virginia.
Erika currently serves on the advisory boards for the Georgetown Views from the Bench and the ABI's Mid-Atlantic Workshop. She is also the current Chair of the Bankruptcy Section of the Virginia State Bar and is a member of the American Bar Association, the American Bankruptcy Institute, the Virginia Bar Association, the Arlington County Bar Association, the Fairfax County Bar Association, the Walter P. Chandler American Inn of Court, the Northern Virginia Bankruptcy Bar Association, the Northern Virginia Women's Bar Association, the District of Columbia Bar, and the Federal Bar Association.
Erika participates in volunteer activities for Nation’s Capital CARE (Credit Abuse Resistance Education) Program. CARE educates young adults on the responsible use of credit and the potential consequences of credit card abuse.
Erika is admitted to practice in the District of Columbia, Virginia, and Maryland, and before the United States Supreme Court, the U.S. Court of Appeals for the Fourth and Federal Circuits; the Supreme Court of Virginia; the U.S. District Courts for the Eastern and Western Districts of Virginia; the U.S. Bankruptcy Court for the Eastern and Western Districts of Virginia; the U.S. Court of Appeals for the District of Columbia; and the U.S. District Court for the District of Columbia.
Erika received her law degree from Syracuse University College of Law (J.D., cum laude, 1999) and her undergraduate degree from Oswego State University (B.A., magna cum laude, 1995), where she was also an NCAA scholar-athlete.