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Biography
Duston McFaul is a business bankruptcy practitioner with extensive commercial litigation experience. He has been named one of the “Best Houston Lawyers Under 40” as well as a Texas “Rising Star” Super Lawyer in bankruptcy. He takes a deal-oriented approach to bankruptcy engagements but often relies on his litigation background when consensus may not be reached. While focusing on the representation of creditors, debtors, lenders, bondholders, committees and trusts in corporate reorganization cases, he has experience prosecuting and defending a broad base of contested matters, adversaries, trials and arbitrations involving matters such as priority, avoidance, fraud, insider and officer usurpation, valuation, breach of contract, lifting of stay, plan and disclosure objections, rejection and assumption, conversion, lender liability, breach of fiduciary duty, post-petition obligations, tortious interference, forfeiture, cramdown, bankruptcy claims resolution, and bad faith filing.
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Representative
Experience
- Assisted LBO firm with contested purchase in chapter 11 bankruptcy of assets of major food conglomerate debtor for $370 million
- Tried energy generation arbitration to three member panel over several weeks in St. Louis to a unanimous decision denying the actual damage claims of over $30 million against the firm’s client and awarding counterclaim to client of $6.2 million; judgment recovered in full
- Represented investment bank as underwriter in high yield bond offering and terms with chapter 11 debtor for exit financing under plan of reorganization; confirmed
- Litigation and support in VarTec Telecom, Inc. chapter 11 bankruptcy on behalf of debtors, including rejection of over 100,000 contracts contested by official committee of counter parties and tried to court; all rejected
- Lead bankruptcy lawyer for Eni Petroleum in Panaco chapter 11 bankruptcy, successfully contesting rejection of off-shore production agreements; lead bankruptcy counsel for separate adversary in Panaco bankruptcy relating to cost allocations
- 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 Steering Committee fees as well from estate
- Lead counsel for client in three breach of service agreement lawsuits as well as breach of brokerage agreement case
- Represented Ad Hoc Committee of Noteholders, comprised of leading investment banks with claims over $130 million in Tri-Union chapter 11 bankruptcy, including numerous contested matters and issues with spin-off litigation leading to client's successful acquisition of oil and gas properties through confirmed bankruptcy plan
- Plan, disclosure and valuation litigation on behalf of debtors in Integrated Electrical Services chapter 11 bankruptcy against Official Equity Committee; debtors' plan confirmed as proposed
- Assistance to firm client with successful acquisition of golf course and real estate development through confirmed bankruptcy plan
- Lead lawyer representing firm client, potential pre-bankruptcy purchaser of assets, in Delta R LLC bankruptcy; client’s claim paid in full with interest and attorneys’ fees
- Team assistance with counseling to large corporations on bankruptcy matters arising with mass tort claims
- Representation of Litigation Trust Committee of insolvent energy trading firm including suits against insiders, officers, traders and debtor counterparties, as well as general counsel to Trust and administration with Plan Trustee
- Represented defendant, major bank (as sole court advocate) procuring dismissal of all claims against it in lawsuit filed by business contractor plaintiff for finance obligations; plaintiff appealed; handled appeal and oral argument; judgment affirmed
- Lead counsel for major bank in bankruptcy proceedings resulting in reaffirmation of bank’s debt in full with interest by debtor
- Part of team advising significant party relating to Yukos Oil bankruptcy and related matters
- Lead bankruptcy lawyer in court for successful emergency lifting of automatic stay, enabling trial in state court and $19 million fraud jury verdict for firm client; conversion and dismissal of bankruptcies of debtors
- Bankruptcy and litigation counsel to TexCal Energy for operator adversary, claims litigation, plan implementation, and controversy issues
- Lead and team representations in defense of avoidance actions in numerous bankruptcy cases
- Part of 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, Mississippi
- Part of team for defense preparation of class action alleging silent data corruption against major computer manufacturer
- Assisted debtor representation in Vectrix Business Solutions bankruptcy
- Representation of high officer interests in compelling arbitration and obtaining allowed administrative claims in Sterling Chemicals bankruptcy
- Representation of Indianapolis Racing League (IRL) team and its five principals (including NFL quarterback Jim Harbaugh) as defendants against business tort claims by competing team; summary judgment granted dismissing major claims against defendants two weeks before trial
- Representation of clients with obtaining pre-judgment remedies such as writs of sequestration, injunctive relief, and receiverships
- Lead bankruptcy lawyer representing South American litigation and claim interests in Tower Tech, Inc. bankruptcy
- Part of team for secured creditor in Tandycrafts, Inc. bankruptcy and related adversaries, Wilmington, DE
- Bench trial and successful removal of lis pendens for closure of major development transaction for client
- Represented secured creditor (as sole court advocate) through cash collateral order and sale proceedings, with all proceeds going to client, in Corralloy Inc. bankruptcy
- Part of team representing major bank and secured creditor in Metals USA chapter 11 bankruptcy
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Activities and Affiliations
- Member: American Bar Association; Turnaround Management Association; Bankruptcy Section, Litigation Section and Professionalism Committe, 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; MFAH; Houston World Affairs Council and HBF Fellow
- Listed: "Texas Rising Star" in bankruptcy, Texas Monthly, 2005, 2006; "Lawyers on the Fast Track," H Texas, 2004
- Author and Speaker: Contracting Out of a Jury Trial, Continuing Legal Education Presentation
- Co-Author and Speaker: National Petroleum Energy Credit U.S. Conference, Inverness, Colorado, Business Bankruptcy Topics
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Education and Professional Background
- Duke University, A.B. with honors, 1993 (Anderson Scholar; Phi Eta Sigma)
- The University of Texas School of Law, J.D., 1997 (Presidential Scholarship; National Moot Court Team; Judging Director, The Board of Advocates; President, Federalist Society for Law & Public Policy Studies; Founding Member, Texas Review of Law & Politics)
- Admitted to practice: Texas, 1997; U.S. Court of Appeals for the Fifth Circuit; U.S. District Court for the Southern, Northern, Western and Eastern Districts of Texas
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