Donald S. Bernstein
  1. Partner

Mr. Bernstein, chairman of Davis Polk’s Restructuring Group, is globally recognized as among the leading restructuring lawyers in the world. He has received numerous honors, including being elected by his peers as the Chair of the National Bankruptcy Conference, the most prestigious professional organization in the field. Mr. Bernstein’s practice includes representing debtors, creditors, liquidators, receivers and acquirers in major corporate restructurings and insolvency proceedings, as well as advising financial institutions and other clients regarding credit risks involved in derivatives, securities transactions, and other domestic and international financial transactions.

Work Highlights

Representations
  • Lenders, bondholders and other creditors and trading counterparties in restructurings and bankruptcy proceedings, including those of AG Mortgage Investment Trust, MFA Financial, Murray Energy, China Fisheries, Tribune Companies, Delphi Automotive, Syncora, Lehman Brothers, Refco, C-BASS, Centro Properties, Enron, Conseco, Adelphia, Bethlehem Steel, McLeodUSA, Dow Corning, Memorex Telex, R.H. Macy, Morrison-Knudsen, Drexel Burnham Lambert, Crown Paper, U.S. Office Products and Toshoku America
  • Companies, sponsors, owners or acquirers in restructurings and reorganizations, including Toys R Us, Ford Motor Company, BCBG, Fresh & Easy Markets, U.S. Industries, LTV Steel, Lomas Financial, Liberte Investors, Allis-Chalmers and Johns-Manville
  • Liquidators or receivers in international insolvency proceedings, including those of L.J. Hooker and Princeton Economics/Cresvale International
  • Global financial institutions, such as JPMorgan Chase, Citibank, Morgan Stanley and Goldman Sachs, on credit exposures, global credit risk management and resolution planning

Recognition

Mr. Bernstein is listed as a leading lawyer in numerous legal industry publications, including:

  • Chambers Global – Senior Statesman, USA: Bankruptcy/Restructuring 
  • Chambers USA – Senior Statesman:
    • Nationwide: Bankruptcy/Restructuring
    • New York: Bankruptcy/Restructuring
  • Legal 500 U.S.  Leading Lawyer, Restructuring (including Bankruptcy): corporate
  • IFLR1000  "Highly Regarded"
  • Euromoney USA Best of the Best Expert Guide – named one of the top 30 practitioners of Restructuring and Insolvency in the world
  • Super Lawyers – "Top Rated Bankruptcy Attorney"
  • Practical Law Company’s Cross-Border Restructuring & Insolvency Handbook
  • Law Business Research’s Who’s Who Legal – Restructuring & Insolvency Thought Leader 2018, Who’s Who Legal – International Who’s Who of Business Lawyers and Who’s Who Legal – International Who’s Who of Insolvency and Restructuring Lawyers
  • American Lawyer Media’s Corporate Counsel: Annual Guide to the Bankruptcy and Creditor-Debtor Rights Law

In addition, Mr. Bernstein’s distinguished practice has earned him the following distinctions:

  • Lawyer Monthly Legal Awards – “Lawyer of the Year,” USA: Banking, 2017 
  • Law Business Research's Who's Who Legal: Insolvency & Restructuring:
    • "Most Highly Regarded Individual," 2014
    • "Lawyer of the Year"
  • Best Lawyers:
    • "Leading Bankruptcy Lawyer," 2014 
    • "Lawyer of the Year," Bankruptcy and Creditor-Debtor Rights/Insolvency and Reorganization Law, 2013  
    • "Lawyer of the Year," Bankruptcy, 2013
  • Turnaround & Workouts – "Outstanding Restructuring Lawyer," 2010
  • Euromoney’s Expert Guide to the World’s Leading Insolvency and Restructuring Lawyers – "Leading Insolvency and Restructuring Lawyer," 2010
  • The American Lawyer – "Dealmaker of the Year” (lead role in Ford's restructuring), 2010 
  • Super Lawyers survey – A Top 100 Lawyer, New York
  • K&A Restructuring Register Advisory Board – One of “America’s Top 100 Restructuring Professionals”
  • Lawdragon – One of the 500 Leading Global Restructuring & Insolvency Lawyers

Of Note

  • AJC Financial Services Division National Human Relations Award (2020)
  • UJA-Federation of New York Judge Joseph M. Proskauer Award (2015)
  • UJA-Federation of New York Lawrence P. King Award (2005)
CONGRESSIONAL EXPERT TESTIMONY
  • Senate Judiciary Committee, hearing on  “Big Bank Bankruptcy: 10 Years After Lehman Brothers and the Taxpayer Protection and Responsible Resolution Act” (November 2018)
  • House Judiciary Committee, hearing on Financial Institution Bankruptcy Act of 2015 (July 2015)
  • House Judiciary Committee, hearing on Financial Institution Bankruptcy Act of 2014 (July 2014)
  • House Judiciary Committee, hearing on “The Bankruptcy Code and Financial Institution Insolvencies” (2013)
  • Senate Judiciary Committee, hearing on “The Bankruptcy Code’s Effect on Religious Freedom and a Review of the Need for Additional Bankruptcy Judgeships” (September 1997)
CURRENT AND PAST PROFESSIONAL LEADERSHIP AND PUBLIC SERVICE
  • Board of Editors, Collier on Bankruptcy
  • Editorial Board, Global Restructuring Review
  • Chair and Conferee, National Bankruptcy Conference
  • President, Founding Director and Member, International Insolvency Institute
  • Treasurer and Member of the Executive Committee, New York City Bar Association
  • Director, City Bar Justice Center
  • Chair, Committee on Bankruptcy and Reorganization, New York City Bar Association
  • Chair, TriBar Opinion Committee
  • Commissioner, ABI Commission to Study the Reform of Chapter 11
  • Fellow and Director, American College of Bankruptcy
  • Member, Financial Stability Board, IMF Legal Advisory Panel 
  • Official U.S. Delegation to the Insolvency Working Group of the United Nations Commission on International Trade Law (UNCITRAL)
  • Director, New York County Lawyers Association
  • Founder’s Committee, University of Chicago Law School Center on Law and Finance
  • Chair, Visiting Advisory Committee, University of Chicago Law School
  • Chair, Advisory Committee, Program on Law and Public Affairs, Princeton University
Current Memberships
  • American Bar Association, including Business Bankruptcy Committee and the Committee on Legal Opinions
  • American College of Bankruptcy
  • National Bankruptcy Conference
  • American Bar Foundation
  • New York City Bar Association
  • New York County Lawyers Association
  • American Bankruptcy Institute
  • International Insolvency Institute
  • INSOL International
charitable ACTIVITIES
  • UJA-Federation of New York

    • Board of Directors

    •  Shared Society Committee

    • Chair, Bankruptcy and Reorganization Group (Lawyers Division)

    • Founders Committee

  • Altro Health and Rehabilitation Services

    • Board of Directors
SELECTED LECTURES AND PRESENTATIONS
  • Global Restructuring Review, Chair, “New York Live Conference” (2019)

  • Yale School of Mgmt. Prog. on Financial Stability, 2019 Financial Crisis Forum, “The Role of Bankruptcy in a Crisis” (2019)

  • Federal Judicial Center, Bankruptcy Judges Workshop (2019)

  • Bank Resolution: Key Issues and Local Perspectives (INSOL International, 2019)

  • American College of Bankruptcy/NYU School of Law Roundtable Presentation: To Skip or Not to Skip: When is the "Absolute Priority Rule" Not Absolute (2018)

  • U. Penn Law School, Institute for Restructuring Studies, “Lehman & WaMu — Ten Years Later: Lessons Learned and Planning Ahead” (2018)

  • American Bankruptcy Institute Conference - Too Big to Fail: 10 Years Later, “Resolution of Systemically Important Financial Institutions (SIFIs)” (2018)

  • Brooklyn Law School Zaretzky Roundtable onThe Market for Corporate Control in the Zone of Insolvency, “The Market for Corporate Control: Are Distressed Firms Different?” (2018)

  • Brooklyn Law School Center for the Study of Business Law and Regulation conference on The Treatment of Financial Contracts in Bankruptcy and Bank Resolution, “Too Big to Fail: Risk and Bank Resolution” (panelist, 2018)

  • INSOL 10th World Congress in Sydney, Australia, “The good, the bad and the ugly: national and regional insolvency law reforms” (Panel Chair, 2018)

  • Brookings Institution, “Financial Regulation – A Post-Crisis Perspective” (2017)

  • Wharton Financial Institutions Center, Too Big to Fail Conference (2017)

  • International Insolvency Institute, 17th Annual Conference, “Financial Institution Failure –What is Different Now and Will Resolution Work in Practice?” (Panel Chair, 2017)

  • Droit et Croissance/Banque de France, “Which insolvency law should apply to corporates in the European Union?” (2016)

  • National Bankruptcy Conference at the U.S. House of Representatives, Rethinking Chapter 11, “Reorganization Value and Option Value” (2015)

  • Princeton Program on Law and Public Affairs, “Are Financial Institutions Too Big or Too Big to Fail?”(2014)

  • VALCON 2014: Contested Valuation Issues in Bankruptcy, conference co-chair

  • University Pennsylvania Law School Institute for Law and Economics Corporate Roundtable (2013)

  • University of Chicago Booth School of Business Distressed Investing and Restructuring Conference, “Legal Panel: Credit Bidding, Insider Trading, and Regulatory Licenses as Collateral”, (moderator, 2012)

  • University of Chicago Booth School of Business Distressed Investing and Restructuring Conference, “Legal Panel: 363 Sales” (panel moderator, 2011)

  • University of Pennsylvania Law School Institute for Law and Economics Corporate Roundtable, Issues in Bankruptcy and Resolution (2011)

  • Valcon2010, “Playing to Win: Effective Valuation Analysis and Strategies for Restructurings, Reorganizations and Distressed Sales” (panel moderator, 2010)

  • American College of Bankruptcy International Insolvency Course (2010-present)

  • National Conference of Bankruptcy Judges, ABA Business Bankruptcy Committee Secured Creditor Luncheon, “Getting Money Off the Sidelines and Back Into Business: Priming the Pump or Good Money After Bad?” (2009)

  • Annual Meeting of the American Law and Economics Association, “Absolute Priority, Valuation Uncertainty and the Reorganization Bargain” (2006)

SELECTED PUBLICATIONS
  • Editor, The Insolvency Review
  • Editorial Board, Collier on Bankruptcy
  • Editorial Board, Global Restructuring Review
  • Bank Resolution: Key Issues and Local Perspectives, Chapter XI - United States (INSOL International, 2019)
  • Mandatory Contractual Stay Requirements for Qualified Financial Contracts (with Erika White, Harvard Law School Bankruptcy Roundtable, 2018)
  • Momentive Ruling May Pave the Road for Below-Market “Takeback Paper” Cramdowns of Secured Creditors (Harvard Law School Bankruptcy Roundtable,  2015)
  • Research Handbook on Crisis Management in the Banking Sector, Chapter 23 (Elgar, 2015, with R. Shani)
  • ABI Commission: Redemption Option Value Explained (with James Millstein), (ABI Journal June 2015)
  • Everything You Want to Know About Taking An Oral History and the National Bankruptcy Archives:  “The Archives Oral History Project and Taking Oral Histories (American College of Bankruptcy and National Conference of Bankruptcy Judges,  2013)
  • Blanket Liens and the Allocation of Value in Chapter 11 Sales (Workshop on Bankruptcy and Business Reorganization, New York University School of Law, 2013)
  • The Role of Creditors and the Fund under the SDRM; implications for the impact on capital markets (International Monetary Fund, Sovereign Debt Restructuring Mechanism (SDRM) Conference,  2003)
  • Is U.S. Government Debt Different, “A Comment on Professor Mooney’s Thought Experiment: Can U.S. Debt Be Restructured?” (Wharton Financial Institutions Center Press, 2012)
  • The Logic and Limits of Credit Bidding Under Section 363 of the Bankruptcy Code (with Brian Resnick and Hilary Dengel) (Workshop on Bankruptcy and Business Reorganization, New York University School of Law (2011)
  • A Creditor’s Guide to the FDIC’s Orderly Liquidation Authority  (with John L. Douglas, Marshall S. Huebner, Daniel J. Ehrman, Davis Polk & Wardwell LLP, 2011)
  • Toward a New Corporate Reorganization Paradigm (Journal of Applied Corporate Finance, 2007)
  • A (Breathless) History of American Insolvency Law, (INSOL International, INSOL World – Silver Jubilee Edition, 2007)
  • U.S. Chapter 11 Today: A Funny Thing Happened On the Way to the Courthouse (The International Comparative Legal Guide to: Corporate Recovery and Insolvency, 2007)
  • Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain, 115 Yale L. J. 1930 (with Douglas Baird, 2006)
  • A Reorganization Lawyer's Perspective on Professor Warren's Vanishing Trials: The New Age of American Law, 79 Am. Bankr. L.J. 943 (2005)

Professional History

  • Partner, 1986-present
  • Associate, 1978-1986

Practice Focus

Bar Admissions

  • State of New York
  • U.S. District Court, E.D. New York
  • U.S. District Court, S.D. New York

Education

  • A.B., Princeton University, 1975
    • cum laude
  • J.D., University of Chicago Law School, 1978