- Boston College Law School, J.D.
- Northwestern University, B.A.
- New York
- U.S. District Court, District of Massachusetts
- U.S. District Court, Southern District of New York
- U.S. District Court, Eastern District of New York
- U.S. Court of Appeals, First Circuit
- U.S. Supreme Court
Mark is a fellow of the American College of Bankruptcy and chair of its Educational Programs Committee. Mark has been selected by his peers every year for inclusion in The Best Lawyers in America from 1989 to present. Inclusion in Best Lawyers is based on a peer-review survey. He is also listed in Who’s Who in American Law; Who’s Who in America; Who’s Who in the World (Marquis Who’s Who), Who’s Who Legal USA: Insolvency & Restructuring and recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business for bankruptcy and restructuring work. Mark has been recognized in Chambers USA in previous years. He has also been recognized as a Massachusetts “Super Lawyer” in Bankruptcy & Creditor/Debtor Rights based on a peer-review survey by Thomson Reuters (2004–present). Mark is recognized by Corporate Counsel as one of the “Top Lawyers.” Markhas also received an AV Preeminent® Peer Review RatingTM from Martindale Hubbell®, the highest possible rating for ethics and legal ability.
Mark is an active member of the Boston Bar Association, where he served as chairman of the Business Law Section from 1995 to 1997; chairman of the Bankruptcy Law Committee from 1990 to 1992; a member of the Legislation Committee from 1999 to 2000; and is currently a member of the Bankruptcy Law Section’s Steering Committee. Mark is also a member of the American Bar Association, the Loan Syndication & Trading Association, the National Federation of Municipal Analysts and the Turnaround Management Association. He is a fellow of the American Bar Foundation, the Massachusetts Bar Foundation and the Boston Bar Foundation, and is active in the American Bankruptcy Institute, where he was a member of the ABI World Editorial Board and was co-chair of the 2003, 2004, and 2005 Northeast Bankruptcy Conferences. He has published articles in the American Bankruptcy Institute Journal, co-authored a handbook and made presentations at the American Bankruptcy Institute’s Winter Leadership Conference on the subject of intercreditor agreements used in second lien financings.
Mark was appointed by the Supreme Judicial Court of the Commonwealth of Massachusetts to serve a five-year term as a member of the Client Security Board from 1997 to 2002, where he also served as vice chairman, secretary, and treasurer. He currently reserves as the First Circuit Regent of the American College of Bankruptcy.
Mark has taught courses on business law and credit law for the New England Chapter of the National Credit Institute (an affiliate of the National Association of Credit Management) and currently teaches an online course in those subjects for the National Association of Credit Management. He regularly writes about and speaks on bankruptcy and commercial law subjects in various parts of the country. Mark was an adjunct professor at Boston College Law School during the spring semester of 2012, teaching a course in international bankruptcy law. He was a Joshua P. Guberman Fellow and lecturer at Brandeis University in Waltham, MA, in 2008 and 2009.
MARK N. BERMAN
Mark Berman is a seasoned bankruptcy attorney. He is a member of the firm's Financial Restructuring & Bankruptcy practice group, as well as the Banking & Finance, Public Finance and Leveraged groups. He has represented virtually every kind of client that might be impacted by a financially challenged business and provides insolvency analysis at the time a financing is put together in order to arrive at a predictable result should something go wrong.
What do you focus on?
When the deal is originally being negotiated and documented I focus on how a participant’s future bankruptcy might impact the expectations of others. That gets me involved in structuring and documenting the deal as well as dealing with bankruptcy opinions required by rating agencies and lenders. My work has included working on stadium (Yankees, Mets, Twins, Jets, Giants, Cubs, Patriots) and other project financings.
If we are dealing with a business that is already financially challenged I will be using my experience to develop practical solutions including alternatives to formal bankruptcy. I’ve assisted in the out of court liquidation of businesses in a variety of industries including energy, media and retail.
If the business is the subject of a bankruptcy case I will be working in court to achieve the best outcome for the client. My experience spans a variety of industries including retail, real estate, manufacturing, aviation and credit card processing. I’m particularly proud of the number of cases where the results have included full payment of creditor claims.
What do you see on the horizon?
Today municipal bankruptcies are grabbing the spotlight and my experience in public finance has put me in a great position to assist. Tomorrow may see an increase in interest rates and more pressure on businesses that are interest rate sensitive to make ends meet.
- “Chapter 9: Lessons Learned and What to Disclose,” Municipal Finance Journal, April 2014.
- “Restructuring Your Strategies as a Bankruptcy Attorney in Today’s Economy,” chapter in Bankruptcy and Financial Restructuring Law in 2012, Thomson Reuters, 2012.
- “"The Enforceability in Bankruptcy Proceedings of Waiver and Assignment of Rights Clauses Within Intercreditor or Subordination Agreements," Norton Journal of Bankruptcy Law & Practice, vol. 20, #6, 2011 (coauthor).
- “An Update on Second-Lien Financings and Intercreditor Agreements: Part III,” American Bankruptcy Institute Journal, May, 2011.
- “An Update on Second-Lien Financings and Intercreditor Agreements: Part II,” American Bankruptcy Institute Journal, March, 2011.
- “An Update on Second-Lien Financings and Intercreditor Agreements: Part I,” American Bankruptcy Institute Journal, December/January, 2010.
- “Response to Vacating Chrysler,” Norton Journal of Bankruptcy Law & Practice, vol. 19, #3, 2010. (Author)
- “Handbook on Second Lien Loans & Intercreditor Agreements,” American Bankruptcy Institute, 2009 (coauthor).
- “Bankruptcy Sales Prior to Plan Confirmation Do Not Qualify for Tax Exemption,” Bloomberg Law Reports, Vol. 2, No. 26, June 30, 2008.
- “The Dura Decision: Junior Creditors Again Strike Out Interpreting the Elusive X-Clause,” American Bankruptcy Institute Journal, March 2008 (coauthor).
- “District Court Provides Further Clarification That Equitable Subordination and Disallowance Risk Will Not Pass to Buyer Who Acquires Claims in a Good Faith Open Market Purchase,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 21, October 15, 2007.
- “District Court Decides that Equitable Subordination Runs with Claimant Not with Claim,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 17, September 17, 2007, republished in Vol. 1, No. 32, December 31, 2007.
- “Hedge Funds Meet the Bankruptcy Process,” Pratt’s Journal of Bankruptcy Law, Vol 2, Number 3, July/August 2007.
- “The Tale of Northwest Airlines: Will the Sunlight of Disclosure Chill Hedge Funds?” American Bankruptcy Institute Journal, May 2007.
- “Hedge Funds: Lessons Learned from the Radnor Decision,” American Bankruptcy Institute Journal, February 2007.
- “Second-Lien Financing: Part V: Who Gets What?” American Bankruptcy Institute Journal, July/August 2006.
- “Second-Lien Financings: Part IV: Good, Bad and Ugly,” American Bankruptcy Institute Journal, June 2006.
- “Second-Lien Financings Part III: Anecdotes—the Good, the Bad and the Ugly: Atkins—the Good,” American Bankruptcy Institute Journal, May 2006.
- “Second-Lien Financings, Part II: Anecdotes and Speculation—the Good, the Bad and the Ugly,” American Bankruptcy Institute Journal, March 2006.
- “Second-Lien Financings: Part I: Enforcement of Intercreditor Agreements in Bankruptcy— More Questions than Answers,” American Bankruptcy Institute Journal, February 2006.
- “Second Lien Financings and the Intercreditor Agreement,” Credit Investment News, September 2005.
- “Protecting a Lessee’s Section 365(h) Right to Possession after Rejection From a Sale of the Underlying Real Estate Free and Clear of Interests,” ABI World, June 2005.
- “Not So Fast! Delaware Court Reigns in Creditor Suits Against Ds & Os,” American Bankruptcy Institute Journal, May 2005.
- “Buying and Selling a Distressed Business,” chapter in Buying and Selling a Privately Owned Business, Massachusetts Continuing Legal Education, 2005.
- “Plain Meaning and the Assumption (or Not) of a License of Copyrighted Software,” ABI World, May 2004.
- “Top Ten Things to Know If You Are an Investor in or Director of a Failing Business,” February 2004.
- “LLC Member Interest and Bankruptcy: Courts Begin to Sort Things Out,” ABI World, November 2003.
- What Municipal Bond Investors Can Learn from Detroit
Law360 | November 26, 2014
Boston Bankruptcy & Financial Restructuring partner Mark Berman and Boston Global Finance associate Erik Schneider authored this column discussing what the municipal finance community can learn from analyzing the bankruptcy court’s formal written opinion of Detroit’s Chapter 9 plan.
- Stockton's amended plan of debt adjustment could wipe out Franklin's secured claim
Debtwire | June 11, 2014
Boston Bankruptcy & Financial Restructuring partner Mark Berman discusses the city of Stockton’s efforts to wipe out the secured claim of Franklin Templeton Investments, the city’s only dissenting creditor, through its amended plan of debt adjustment (PDA).
- SIFMA: Detroit's LTGO Treatment Would "Shatter" Muni Industry
The Bond Buyer | May 12, 2014
This article notes Nixon Peabody’s representation of the Securities Industry and Financial Markets Association in an amicus brief urging the rejection of Detroit's bankruptcy exit plan. Bankruptcy & Financial Restructuring partners Mark Berman and Robert Christmas are SIFMA’s counsel.