Keith J. Cunningham

Keith Cunningham has provided business and legal counsel to clients in bankruptcy and creditors' rights matters, debt financings and commercial transactions since 1988. "Praised by clients for his ‘very practical and strategic advice,'" (Chambers USA 2012), Keith's representation encompasses a wide range of interests, including secured creditors, trade creditors, public utilities, government agencies, forward contract merchants, lessors, licensors, licensees, and purchasers. Keith is particularly noted for his expertise in energy industry matters. Keith has substantial experience in matters involving adequate protection, forward contracts , setoff and recoupment, cash collateral, claims allowance and litigation, preference and fraudulent transfer risk management and defense, and Chapter 11 plan issues.

In addition to his bankruptcy and creditors' rights practice, Keith is also regularly called upon by clients to help structure, negotiate and document complex secured and unsecured credit facilities and commercial agreements. Keith is Chair of the firm’s legal opinion committee and represents the firm at the biannual meetings of the national Working Group on Legal Opinions. He previously served as Chair of the firm's Business Practice Group.

Before joining the firm in 1996, Keith clerked for the Honorable Mark W. Vaughn of the United States Bankruptcy Court for the District of New Hampshire, and chaired the Bankruptcy/Creditors' Rights/Loan Workout Practice Group of a large New Hampshire firm.

Honors & Distinctions
  • Recognized by Chambers USA for Bankruptcy/Restructuring Law 
  • Listed in Best Lawyers in America® for Bankruptcy and Debtor-Creditor Law since 2006
  • Rated AV® Preeminent™ by Martindale-Hubbell
  • Named a top-rated bankruptcy attorney by New England Super Lawyers since 2012 
Professional Activities
  • Member, Maine Bar Association and American Bankruptcy Institute
Civic Activities
  • Treasurer, Board of Advisors, Salvation Army of Greater Portland, 2007-present

Practice Areas

Representative Experience
  • In re Pacific Gas and Electric Company (Bankr. N.D. Cal.). Lead bankruptcy counsel for the California Independent System Operator Corporation (CAISO) in PG&E’s recent Chapter 11 case. On behalf of the CAISO, Keith negotiated the terms of an order on a first day motion that authorized PG&E to, among other things, pay all unsecured, prepetition claims of the CAISO in full, and secure fully, as required by the CAISO’s tariff, all post-petition obligations of PG&E to the CAISO. In connection with confirmation of PG&E’s Chapter 11 Plan, Keith negotiated a provision in PG&E’s confirmation order which ensured that PG&E’s obligations to the CAISO, whether arising before or after its bankruptcy case was filed, would be wholly unaffected by PG&E’s bankruptcy filing.
  • In re SunEdison, Inc. (Bankr. S.D.N.Y.) Defended a solar power developer in a $3.5 million fraudulent transfer suit commenced against it by the litigation trust created pursuant to SunEdison, Inc.’s Chapter 11 Plan, ultimately obtaining a highly favorable mediated settlement outcome.
  • In re Red Shield Acquisition LCC (Bankr. D. Me.). Represented the purchaser out of bankruptcy of a pulp mill (200,000 tons annual capacity) and related assets, including its 16 MW power plant, 25 MGD waste water treatment facility and 400,000 square-foot warehouse facility.
  • In re Mirant Corporation (Bankr. N.D. Tex.), In re Enron Corporation (Bankr. S.D.N.Y.), and In re National Energy Gas Transmission, Inc. (Bankr. D. Md.). Lead counsel for the California Department of Water Resources in its bankruptcy settlements with Chapter 11 debtors Mirant Corporation, Enron Corporation and NEGT, resulting in allowed secured and unsecured claims for the Department totaling in excess of $2.4 billion.
  • In re Calpine Corporation (S.D.N.Y.). Lead counsel for the California Department of Water Resources in this precedent setting and widely cited bankruptcy case in which the Department successfully argued to the U.S. District Court for the Southern District of New York that bankruptcy courts lack jurisdiction to authorize the rejection of FERC-regulated power purchase agreements because authorizing rejection would constitute a collateral attack on the filed-rate and interfere with FERC’s exclusive jurisdiction over the rates, terms, conditions and duration of energy contracts.
  • In re Solar Trust of America (Bankr. D. Del.). Represented the CAISO in Solar Trust of America's 2012 Chapter 11 case in Delaware. The Consent Agreement negotiated between the debtors, CAISO and Southern California Edison paved the way for the debtors' assumption and assignment of two interconnection agreements that were essential to the successful sale by the debtors of their interests in two of the largest solar power projects then under development in the U.S.
  • In re AES Eastern Energy (Bankr. D. Del.). Represented New York State Electric & Gas Corporation (NYSEG) in AES Eastern Energy’s Chapter 11 case in Delaware and in related proceedings commenced at FERC, each involving the authority of the bankruptcy court to authorize rejection of various interconnection and other executory contracts that governed AES’s ongoing rights and duties with respect to critical transmission and distribution assets owned by NYSEG and located at four coal fired generating facilities slated for closure and demolition by AES.
  • Commodity Futures Trading Commission. Represented CAISO on bankruptcy matters with respect to its consolidated petition with certain other regional transmission organizations and independent system operators to exempt specified transactions from the provisions of the Commodity Exchange Act and Commodity Futures Trading Commission regulation.
  • In re Quebecor World (USA), Inc. (S.D.N.Y.). Successfully represented two defendants alleged to have received in excess of $18 million in preferential payments by the Litigation Trustee.
  • Power Plant Foreclosure. Lead counsel for a publicly traded mezzanine debt and private equity firm in the sale, at foreclosure, of an integrated 25.85 megawatt wood-fired power plant and associated woodchip operation.
Representative Experience
  • Represented privately held food producer in the negotiation and documentation of an $85 million accounts receivables purchase agreement and $400 million unsecured credit facility.
  • Represented retailer in the amendment and restatement of credit facilities totaling $375 million.
  • Regularly serve as local counsel in syndicated loan transactions involving extensions of credit of $50 million to hundreds of millions of dollars.
  • Represented a NYSE traded apparel and footwear manufacturer in a $300 million credit facility.
  • Represented U.S. subsidiaries of a privately held Canadian company, as borrowers, in a $90 million U.S. acquisition loan.
  • Represented agriculture industry client in a $70 million term loan.
  • Lead counsel in the negotiation and documentation of a collateral package for $540 million of settlement payments due under a multi-party antitrust settlement.
  • Represented a New England health care institution in the negotiation and documentation of $112 million of direct pay letters of credit to provide replacement credit enhancement and liquidity support for tax exempt bond issuance.
  • Represented information technology company in the amendment and restatement of credit facilities totaling $49 million.
Representative Experience
  • In re Pacific Gas and Electric Company. Lead bankruptcy counsel for the California Independent System Operator Corporation (CAISO) in PG&E’s recent Chapter 11 case. On behalf of the CAISO, Keith negotiated the terms of an order on a first day motion that authorized PG&E to, among other things, pay all unsecured, prepetition claims of the CAISO in full, and secure fully, as required by the CAISO’s tariff, all post-petition obligations of PG&E to the CAISO. In connection with confirmation of PG&E’s Chapter 11 Plan, Keith negotiated a provision in PG&E’s confirmation order which ensured that PG&E’s obligations to the CAISO, whether arising before or after its bankruptcy case was filed, would be wholly unaffected by PG&E’s bankruptcy filing.
  • California Department of Water Resources. In close collaboration with the California Attorney General, the Public Utilities Commission of the State of California, and lawyers representing California’s three investor owned utilities, Keith helped to recover in excess of $4.5 billion dollars in refunds for California’s ratepayers as a result of overcharges made by sellers of electricity in the California’s short-term energy markets during the historic 2000-2001 California energy crisis. Proceedings are currently pending before the Federal Energy Regulatory Commission to resolve all remaining 2000-2001 California energy crisis claims.
  • In re Mirant Corporation (Bankr. N.D. Tex.), In re Enron Corporation (Bankr. S.D.N.Y.), and In re National Energy Gas Transmission, Inc. (Bankr. D. Md.). Lead counsel for the California Department of Water Resources in its bankruptcy settlements with Chapter 11 debtors Mirant Corporation, Enron Corporation and NEGT, resulting in allowed secured and unsecured claims totaling in excess of $2.4 billion.
  • In re Calpine Corporation. Lead counsel for the California Department of Water Resources in this precedent setting and widely cited bankruptcy case in which the Department successfully argued to the U.S. District Court for the Southern District of New York that bankruptcy courts lack jurisdiction to authorize the rejection of FERC-regulated power purchase agreements because authorizing rejection would constitute a collateral attack on the filed-rate and interfere with FERC’s exclusive jurisdiction over the rates, terms, conditions and duration of energy contracts.
  • In re Solar Trust of America. Represented the CAISO in Solar Trust of America's 2012 Chapter 11 case in Delaware. The Consent Agreement negotiated between the debtors, CAISO and Southern California Edison paved the way for the debtors' assumption and assignment of two interconnection agreements that were essential to the successful sale by the debtors of their interests in two of the largest solar power projects then under development in the U.S.
  • In re AES Eastern Energy. Represented New York State Electric & Gas Corporation (NYSEG) in AES Eastern Energy’s Chapter 11 case in Delaware and in related proceedings commenced at FERC, each involving the authority of the bankruptcy court to authorize rejection of various interconnection and other executory contracts that governed AES’s ongoing rights and duties with respect to critical transmission and distribution assets owned by NYSEG and located at four coal fired generating facilities slated for closure and demolition by AES.
  • In re SunEdison, Inc. Defended a solar power developer in a $3.5 million fraudulent transfer suit commenced against it by the litigation trust created pursuant to SunEdison, Inc.’s Chapter 11 Plan, ultimately obtaining a highly favorable mediated settlement outcome.
  • Commodity Futures Trading Commission. Represented CAISO on bankruptcy matters with respect to its consolidated petition with certain other regional transmission organizations and independent system operators to exempt specified transactions from the provisions of the Commodity Exchange Act and Commodity Futures Trading Commission regulations.