On September 14, 2008, Harvey Miller tried to talk his way out of a job. At a meeting that evening at the Federal Reserve Bank of New York, Miller, one of a handful of Weil lawyers in attendance, told government officials that their plan to have Lehman Brothers Holdings Inc. file for Chapter 11 protection that night was a huge mistake. Lehman, Miller said, was bound to the worldwide banking system through an impossibly complex web of derivative contracts. He knew that the investment bank’s failure would set off a chain reaction of unknown, but catastrophic, events. He told the officials that if Lehman were to fail tonight, in this way, without any preparation, it would be Armageddon for the financial sector.
Reasonable people could quibble about whether what happened next was truly apocalyptic, or merely an unmitigated disaster. But there is no denying that things got bad-and remain so-and would have probably been worse if not for Miller. Once Lehman filed, the 76-year-old shifted into high gear, stage-directing the most complex bankruptcy in American history [ see "A Moment's Notice"]. He supervised the swarm of Weil bankruptcy lawyers who had to get up to speed on Lehman’s business, having done almost no prep work. He worked with the M&A lawyers who started the very next morning hammering out a deal to sell Lehman’s brokerage unit, the core of its business, to Barclays Bank plc. And, most significantly, he rode that deal (earning $950 per hour) through U.S. Bankruptcy Court in Manhattan like a cowboy driving a herd of prized cattle to market through a dust storm.
Miller wanted speedy court and regulatory approval, and that is exactly what he got. U.S. Bankruptcy Court judge James Peck bought into Miller’s argument that the value of the brokerage diminished with every passing second, and signed off on a $1.35 billion sale in the early hours of Saturday morning, September 20. “This is the most momentous bankruptcy hearing I’ve ever sat through, either as a lawyer or a judge,” Peck said at the time. Miller agrees: “It’s never been done before.”
And, he hopes, will never be done again.
See all 25 of our Dealmakers of the Year, from the April 2009 issue of The American Lawyer.
Photo by Paul Godwin