Jonathan Guy

Senior Counsel

Washington, D.C.


Read full biography at www.orrick.com

Jonathan Guy has extensive experience as lead counsel in complex commercial litigation matters in trial and appellate courts throughout the United States. He has represented clients in numerous industries, including finance, commodity trading, energy, real estate, telecommunications, manufacturing and health care.

Chambers USA has variously described Mr. Guy as someone who is a "zealous advocate for his clients," is "valued for his quick and practical advice," "makes fantastically impressive presentations in court," is able to "listen to a large amount of information" in court and "reduce an argument to its essence," and is an "expert in commercial and bankruptcy-related litigation."

Mr. Guy is consistently ranked in Chambers USA as a leading lawyer for Bankruptcy/Restructuring in Washington, D.C., and in the Thomson Reuters Washington, D.C., Super Lawyers category for business litigation.  He is the Chair of the Community Responsibility Committee for the Washington, D.C., office and has long been active in numerous pro bono cases.

Posts by: Jonathan Guy

SDNY Holds Trustee Cannot Evade Section 546(g) Safe Harbor by Bringing Avoidance Action Under State Law

On June 11, 2013, Southern District of New York Judge Jed Rakoff dismissed the complaint of the Trustee for the SemGroup estate seeking to avoid a novation made to Barclays pre-bankruptcy under a swap agreement.  The Court held that the pre-bankruptcy transaction constituted a safe harbored transfer made in connection with a swap agreement and thus could not be avoided by the estate.  The Court held further that the safe harbor applied to actions brought under state law fraudulent transfer theories, not just those brought under federal law.  Judge Rakoff stated that to permit the trustee to proceed under state law would allow estates to evade the safe harbor by delaying litigation until post-bankruptcy.  Whyte v. Barclays Bank PLC, 12 Civ. 5318 (JSR), 2013 U.S. Dist. Lexis 82040 (S.D.N.Y. June 11, 2013).  Read More.

Lehman Court Finds Safe Harbors Protect Damage Calculation Provisions In Swap

Judge James M. Peck issued an important opinion in the Lehman Brothers bankruptcy late last month.  The opinion protects a non-debtor counterparty’s right to rely on a contractually agreed methodology for damages calculations upon the liquidation of a safe harbored swap agreement—even if the debtor’s bankruptcy triggers the provision. Because Judge Peck issued the opinion shortly before the holidays, the opinion has received scant attention.  However, it preserves important safe harbored rights.  In the opinion, Judge Peck attempts to distinguish his earlier rulings in the Lehman Brothers bankruptcy where the Court did not permit counterparties to enforce certain contractual rights triggered by the bankruptcy.  Mich. State Hous. Dev. Auth. v. Lehman Bros. Derivative Prods. Inc. (In re Lehman Bros. Holdings, Inc.), Adv. No. 09-01728 (JMP), 2013 WL 6671630 (Bankr. S.D.N.Y. Dec. 19, 2013).  Read More.

Fifth Circuit Holds that Supply Agreement is a “Forward Contract” for Bankruptcy Avoidance Protection

On August 2, 2012, the United States Court of Appeals for the Fifth Circuit issued a decision in the bankruptcy case for MBS Management Services, Inc. (the “Debtor”). The Fifth Circuit affirmed the district court’s opinion finding that an electric requirements agreement was a “forward contract” and, therefore, that payments made on the agreement were exempt from avoidance under the Bankruptcy Code. Read More.

Tousa Roller Coaster

The bankruptcy case of TOUSA, Inc. and its various subsidiaries (collectively “Tousa”) is one where lenders have seen their fortunes rise and fall. On March 15, 2012, they fell again when the Eleventh Circuit1 (the “Circuit Court”) reversed the District Court’s opinion and reinstated the Bankruptcy Court’s order, which had disgorged over $400 million from Tousa’s senior lenders and avoided certain guarantees and liens granted to them by the Conveying Subsidiaries (defined below). Specifically, the Circuit Court found: (i) the Tousa Bankruptcy Court did not err when it found the Conveying Subsidiaries did not receive reasonably equivalent value in exchange for the new liens provided to the New Lenders; and (ii) the Transeastern Lenders were the direct beneficiaries of the new liens and as such subject to the avoidance powers of section 550(a). Read More.

“Caveat Venditor — Ensure Debtor Has Authority To Pay”

(As published in Bankruptcy Law360 on April 20, 2010)

Imagine that you are the head of a major petroleum company that has a sales agreement with a distributor of motor fuel. Under the terms of the agreement, if the distributor wants your products, you are contractually obligated to deliver them. And the sales volume is significant, say $1 million per week. Assume further that the distributor, as is often the case, has pledged all of its personal property, including cash and inventory, to obtain financing. Read More.