Piercing the Corporate Veil: Historical, Theoretical and Comparative Perspectives

By Cheng-Han Tan, Jiangyu Wang, Christian Hofmann (National University of Singapore Law School)

Corporate personality is not absolute and this paper aims to compare and critically examine the circumstances under which veil piercing takes place against the objectives of incorporation. The countries examined are a mix of common law and civil law countries, including China, England, Germany, Singapore and the United States. We note that English and German courts have in recent years adopted a more restrictive approach to veil piercing, with Singapore courts appearing to be sympathetic to the current English position. On the other hand, courts in the United States and especially China seem to accept a more expansive approach to piercing even while recognising its exceptional nature. One reason for this is because veil piercing has been used loosely in instances which seem inappropriate and where the matters could have been determined by other legal principles.

We suggest that this is sub-optimal and that a narrower approach to veil piercing is preferable. For one, the need to look beyond the corporation is usually only necessary where insolvency has intervened. Direct claims by creditors against shareholders or management therefore potentially risk undermining the collective insolvency framework within which creditors are to have their claims adjudicated. Another reason is that veil piercing potentially overlaps with other legal doctrines, particularly the law of torts. As tort law is principally engaged with the issue of when civil wrongdoing arises, it will often provide a superior framework for determining whether shareholders or management should be directly responsible for alleged wrongdoing to a creditor.

The full article is available here.


The Roundtable will be off for two weeks. We’ll be back early after the New Year.

Director Bankruptcy Experience and Corporate Risk Taking

By Radhakrishnan Gopalan (Washington University in St. Louis – John M. Olin Business School), Todd A. Gormley (Washington University in St. Louis), and Ankit Kalda (Indiana University – Kelley School of Business – Department of Finance)

In our paper, we evaluate the extent to which a director’s past life experience affects the policies their firms follow. The specific experience we focus on is corporate bankruptcy. We identify a set of directors that experience a corporate bankruptcy. We then evaluate the extent to which this bankruptcy experience of the director is associated with the subsequent policies of other firms that these individuals serve as directors.

A corporate bankruptcy can be either a liberating or a traumatic experience. If the bankruptcy allows the firm to shed excess debt and obtain a fresh start, it can be a liberating experience. On the other hand, if the bankruptcy is prolonged and destroys significant value, then it can be traumatic. An inefficient bankruptcy can also affect the future career prospects of the director as the market may partially blame them for the bankruptcy. Either way, a bankruptcy is likely to be a significant life experience and affect the director’s outlook towards risk taking.

We find that, on average, firms take on more risk if they have a director who has experienced bankruptcy in the past. Specifically, such firms finance themselves with more debt, are less likely to issue equity, more likely to take up riskier projects, as reflected in the variability of cash flows, and less likely to diversify their business through acquisitions. These shifts, however, are only present when the original bankruptcy was a less expensive affair. That is, when the previous bankruptcy was quick, resulted in a restructuring of the firm, and was accompanied by a smaller stock price decline. We also find that directors who are associated with such bankruptcies do not experience any adverse career outcomes.

Overall, our results highlight that, on average, a past corporate bankruptcy experience might actually increase a director’s willingness to take on risk in the future.

The full article is available here.

The Anatomy of Distressed Debt Markets

By Edward I. Altman (New York University) & Robert Benhenni (Pole Universitaire Leonard de Vinci)

The market for investing in distressed securities, the so-called “vulture” markets, has captured the interest of increasing numbers of investors and analysts. These investors, sometimes categorized as “alternative asset” institutions, mainly hedge funds, now can convincingly argue that the market has matured into a genuine asset class, with a reasonably long history of data on return and risk attributes.

In earlier works, Professor Altman has helped to classify this market into two distinct categories: (1) “Distressed” debt, meaning bonds or loans whose yield to maturity (later amended to option-adjusted yield) was equal to or greater than 10% above the 10-year U.S. government bond rate (later amended to be the U.S. government bonds with comparable duration), and (2) “Defaulted” debt, referring to bonds or loans of firms who have defaulted on their debt obligations and were in their restructuring (usually Chapter 11) phase.

The purpose of this article is to document the descriptive anatomy of the distressed debt markets size, growth, major strategies, characteristics, and participants, and then to explore its performance attributes, reviewing the relevant 30-year period from 1987-2017.  The article notes a number of unique aspects which make this asset class attractive, especially to hedge fund managers who can move in and out of the securities depending upon the credit cycle.

The article is available here.

Fifth Circuit Adopts Flexible Approach to Collateral Valuation in Cramdown Chapter 11 Cases

posted in: Cramdown and Priority, Valuation | 0

By Peter S. Saba (Jones Day).

In In re Houston Regional Sports Network, L.P., 886 F.3d 523 (5th Cir. 2018), the U.S. Court of Appeals for the Fifth Circuit held that bankruptcy courts have flexibility in selecting the date on which to value collateral, “so long as the bankruptcy court takes into account the purpose of the valuation and the proposed use or disposition of the collateral at issue.”  In so holding, the Fifth Circuit rejected the proposition that a bankruptcy court must value collateral as of either the bankruptcy petition date or the effective date of a cramdown chapter 11 plan.  However, because the bankruptcy court failed to consider the proposed use of the collateral in assigning it a value, the Fifth Circuit remanded the case below for additional findings.

In declining to establish a bright-line rule mandating the valuation date for a creditor’s collateral in cramdown chapter 11 cases, the Fifth Circuit’s ruling, informed by section 506(a), gives bankruptcy courts the flexibility to consider an appropriate valuation date based on the actual use or disposition of a creditor’s collateral and the purpose of the valuation.  The principal benefit of this approach is that it recognizes that any valuation in this context should consider developments in a chapter 11 case which may have an impact on value.  Even so, secured creditors should be aware that consideration of the proposed or actual use of collateral under a plan may in some cases mean that collateral may be assigned a lower value as of plan confirmation or effectiveness than as of the bankruptcy petition date.

The article is available here.

Senate Judiciary Committee Hearing on Bankruptcy for Banks and Proposed Chapter 14

On November 13, 2018, the Senate Judiciary Committee held a hearing on “Big Bank Bankruptcy: 10 Years After Lehman Brothers,” in connection with the proposed “Taxpayer Protection and Responsible Resolution Act” (“TPRRA”). The TPRRA would add a new chapter 14 to the Bankruptcy Code, providing a recapitalization mechanism for bank holding companies or some other financial companies.

This version of chapter 14 would implement the “Single Point of Entry” financial company resolution model in bankruptcy. (The SPOE model contemplates that only a financial company’s top-level holding company would go into bankruptcy proceedings, with losses borne by its creditors, while material subsidiaries continue to operate as going concerns. For more, see here.) The bill contemplates a proceeding where the bank’s holding company would have a large amount of its long-term debt turned into equity over a 48 hour (likely weekend) period. The firm’s subsidiaries would continue to operate, but would be transferred over to a new, debt-free bridge company. The old holding company’s shareholders and creditors would have their claims handled through a bankruptcy process. The bill also included a 48 hour automatic stay on Qualified Financial Contracts (QFCs), but effectively requires their assumption by the new bridge company.

In his opening remarks, Senator Grassley noted that several similar bank bankruptcy proposals have been incorporated into bills introduced into both the Senate and House over the past several Congresses. (For Roundtable coverage of the 2016 and 2017 FIBA bills, click here, here, here, and here.) A principal difference, stressed by Senator Coons in his opening statement, was that the current bill would not affect Title II of the Dodd-Frank Act, as some prior provisions would have. The view that a special chapter 14 should complement, rather than replace the FDIC’s Orderly Liquidation Authority (OLA) is consistent with the U.S. Department of the Treasury’s report on OLA, recommending against its repeal, released earlier this year. (For Roundtable coverage of the OLA, click here and here.)

The Hearing featured testimony by Donald Bernstein (Davis Polk), Professor Mark Roe (Harvard Law School), and Stephen Hessler (Kirkland & Ellis).

Video and testimonies available here.


For previous Roundtable posts on the resolution of financial institutions, see Howell Jackson & Stephanie Massman, “The Resolution of Distressed Financial Conglomerates“; Stephen Lubben & Arthur Wilmarth, “Too Big and Unable to Fail“; Mark Roe’s “Don’t Bank on Bankruptcy”; Mark Roe & Stephen Adams, “Restructuring Failed Financial Firms in Bankruptcy: Selling Lehman’s Derivatives Portfolio”; David Skeel’s “Bankruptcy for Banks: A Tribute (and a Little Plea) for Jay Westbrook”; and, “Financial Scholars Submit Letter to Congress Opposing Repeal of Title II.”

(This post was authored by Ryan Rossner, J.D. ’19.)