Kirkland & Ellis defeated an attempt by the UCC and UST to prohibit it from representing Invitae in the company’s Chapter 11 case at a hearing held yesterday, 7 May. In addition, Invitae received approval of the sale of substantially all of its assets to Labcorp Genetics for a cash price of $239m plus the assumption of certain liabilities.

Both the UST and UCC objected to the debtors’ retention of Kirkland due to Kirkland’s past and current representation of Deerfield Partners in matters not related to Invitae’s bankruptcy case. Deerfield is a prepetition secured creditor of the company, and participated in a 2023 uptiering transaction with the debtors.

Kirkland denied that it was conflicted out of representing Invitae due to the fact that it had received waivers from Deerfield at the time it signed on as a client with Kirkland. In addition, Deerfield accounted for just 0.03% of Kirkland’s annual revenue in 2023. Mark McKane, who argued for the debtors, also pointed out that disqualifying Kirkland this late in the game would only result in harm to the company and its estate, especially considering that the company plans to file a plan and disclosure statement later this week.

Christopher Shore, of White & Case, argued on behalf of the UCC that the UCC did not want Kirkland completely disqualified. Instead, the UCC was just seeking to have some “guardrails” put in place with respect to the areas of the case that Kirkland could and could not work on due to the fact that the UCC believed that Kirkland had an actual conflict with respect to Deerfield.

Judge Michael Kaplan agreed with the debtors that Kirkland was disinterested and overruled objections to its retention application.

Also addressed at the hearing was the UCC’s emergency motion to extend the challenge period. The UCC is investigating the 2023 uptiering transaction and the challenge period currently runs on 15 May. While the UCC originally sought to argue the motion at the hearing, the judge scheduled a status conference to discuss the relief requested. The court and the parties will pick up the motion at a hearing on Tuesday next week.

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