They’ve Got Next: The 40 Under 40 - Erica Weisgerber of Debevoise & Plimpton

Please describe two of your most substantial, recent wins in practice.

“Creditor-on-creditor violence” has been a big trend in litigation recently, and I’ve represented several sponsors against claims asserted after their portfolio companies’ liability management transactions.

I represented Blackstone Tactical Opportunities in winning dismissal of claims relating to the TriMark transaction, which was one of the earlier “uptiering” litigations, and I recently defended another sponsor against similar claims in the Robertshaw bankruptcy. These cases have been important in establishing that sponsors generally should not be tagged with liability when they are actively trying to help a company avoid a potentially value-destructive bankruptcy.

I also represented D.E. Shaw and Madison Dearborn in obtaining dismissal of a $250 million action seeking to claw back transfers made as part of a complex transaction involving sale of a renewable energy company. In that case, we successfully asserted the securities safe harbor defense at the pleading stage.

The win was particularly meaningful to me because at the time, the contours of the safe harbor defense were still evolving. Without a clear road map, I pored over every case touching on the defense and spent significant time analyzing how the defense could apply in our case. It was incredibly gratifying to read the ruling adopting our arguments.

What is the most important lesson you learned as a first-year attorney and how does it inform your practice today?

When I was a first year, I poured myself into preparing a 30-page memorandum for a senior partner. After emailing it, I sat down to reread it before meeting with him to discuss it and was mortified to find an embarrassing typo buried on page 14. Hoping he had not yet read it, I fixed the typo on the system. At our meeting the next morning, the first thing he said was, “I hope you got around to fixing that typo.”

Fortunately, he said it with a laugh, but it still reinforced for me the importance of attention to detail. What I have found, again and again, is that attention to detail is a superpower—not only because it prevents embarrassing mistakes, but because it gives you deep insights and understanding you can leverage in the conference room and the courtroom.

When I was still a first year and put on the first Madoff-related matter that came into the firm, I was given much more responsibility than usual because of my grasp of the case.

More recently, I’ve had the rewarding experience of watching a judge change his mind in my client’s favor during a very intense oral argument because I had mastered not only the details of every case we had cited in our brief, but every case our opponent cited in their brief.

How do you define success in your practice?

Success is achieving the best goal and outcome for my clients in difficult and distressed situations. Bankruptcy litigation and other litigation involving distressed investments is different from most civil litigation.

When there’s a distressed or bankrupt company involved, sometimes litigation can be value destructive. As a result, at times, the goal in bankruptcy litigation isn’t to win at all costs—it’s to maximize value for all the stakeholders around the table and to use litigation as a tool to reach that outcome.

The interests of those stakeholders will naturally diverge at points, and those differences are often what everyone is focused on at the beginning, as the various parties are staking out their positions. Where a consensual resolution will be the optimal outcome, the challenge while litigating is to find common ground, get everyone focused on that, and then translate that common ground into terms and mechanics that are legally, commercially, and operationally sound.

That’s one type of success in bankruptcy litigation. Of course, there are times when, despite everyone’s best efforts, that’s not possible, and you end up fighting it out in court. Then, success is defined just as it is in other litigation.

What are you most proud of as a lawyer?

There are two things. The first is my ability to deliver for my clients in high-pressure situations. Recently, one of our firm’s German clients learned that one of their customers—to whom they had delivered some very rare, very expensive equipment and from whom they were waiting for payment—had filed for bankruptcy in the United States, and that the bankruptcy trustee was planning to auction off this irreplaceable piece of hardware.

I immediately contacted the trustee, who refused to remove the equipment from the auction, which was to be held in only two days. With the clock ticking, we sprang into action. Working overnight to parse the contract between the parties and the applicable statutes, we determined that under German law, the equipment still belonged to the seller because it had not yet been paid for. We filed a motion to block the auction of the equipment, which was granted by bankruptcy court just hours before the auction started.

Second, bankruptcy litigation exists at the very slender intersection of two large areas of law: Few bankruptcy lawyers are litigators, and few litigators focus on bankruptcy. I have worked hard to mentor junior litigators and build a bankruptcy litigation practice at Debevoise that extends beyond a handful of practitioners. It has been exciting to see my associates’ knowledge and skills in the area develop.

Who is your greatest mentor in the law and what have they taught you?

I’ve had many great mentors over the years, but two stand out. I probably would not have become a bankruptcy litigator were it not for SDNY Bankruptcy Judge Michael Wiles. He interviewed me for a summer position when he was still at Debevoise.

After I joined the firm, he suggested I consider bankruptcy litigation despite my never having taken bankruptcy in law school. In addition to being a tremendous teacher on law and strategy, I was always struck by how, no matter how many other attorneys we might be meeting with, everybody stopped and listened when he spoke. He never spoke to hear himself speak. I don’t know if I succeed, but I always try to follow his example.

I also owe a substantial debt to Natasha Labovitz, who co-chairs Debevoise’s Restructuring Group. While she has been a great mentor in the practice of law, perhaps even more importantly, she has been a real role model in how to build meaningful, lasting relationships with clients and professional peers.

When I go to a client dinner or a professional association event at the end of a long day, it’s not an obligation—it’s something I look forward to, because I get to see colleagues who have become friends. The traditional work-life conflict becomes much less stark when you genuinely enjoy the people with whom you work.

Tell us your two favorite songs on your summer music playlist.

“Texas Hold ‘Em’ by Beyoncé – In late May, I spent a couple of weeks in Houston for a trial on the liability management transaction in the Robertshaw bankruptcy, and this became an informal theme song for our time in Texas!

And “Reet Petite” by Jackie Wilson—my dad passed away earlier this year and this was our favorite song; I kept a picture of him in my pocket every day during my recent trial, and it is safe to say this song is playing on repeat for me this summer.

Erica Weisgerber of Debevoise & Plimpton at the 2023 NYC Marathon.

Credit: Courtesy of MarathonFoto and NYRR and Jonathan Hurtarte/Bloomberg Law