By Jared A. Ellias (University of California Hastings Law) and Robert J. Stark (Brown Rudnick LLP)
We briefly survey the common law’s adventures with creditor protection over the course of American history with a special focus on Delaware, the most important jurisdiction for corporate law. We examine the evolution of the equitable doctrines that judges have used to answer a question that arises time and again: What help, if any, should the common law be to creditors that suffer losses due to the purported carelessness or disloyalty of corporate directors and officers? Judges have struggled to answer that question, first deploying Judge Story’s “trust fund doctrine” and then molding fiduciary duty law to fashion a remedy for creditors. In Delaware, the appetite of corporate law judges to protect creditors reached a high point in the early 2000s as judges flirted with recognizing a “deepening insolvency” tort cause of action. Suddenly, though, a new course was set, and Delaware’s judges effectively abandoned this project in a series of important decisions around the time of the financial crisis. In this “third generation” of jurisprudence, Delaware’s corporate law judges told creditors to look to other areas of law to protect themselves from opportunistic misconduct, such as bankruptcy law, fraudulent transfer law, and their loan contracts. However, the same question of whether the common law ought to protect creditors has arisen time and again and today’s “settled” law is unlikely to represent the end of history in creditor protection.
By Kristin van Zwieten (University of Oxford), Horst Eidenmüller (University of Oxford), and Oren Sussman (University of Oxford)
In a recent paper we argue that bail-outs or bail-ins are better than bankruptcy for the treatment of COVID-19 distress, even where there exists a reorganization procedure that functions well in normal conditions.
COVID-19 has severely disrupted the conduct of business around the globe. In jurisdictions that impose one or more “lockdowns,” multiple sectors of the real economy must endure prolonged periods of reduced trading or even total shutdowns. The associated revenue losses will push many businesses into bankruptcy. No public policy response can recover these losses. States can, however, act to reduce the amplification of the shock by the way in which they treat the cohort of newly bankrupt businesses.
In jurisdictions where a well-functioning reorganization procedure can produce value-maximizing outcomes in normal conditions, the temptation may be to subject this cohort to such procedures. This temptation should be resisted, not only because of the (significant) costs of these procedures, or because of concerns about institutional capacity to treat a high volume of cases, but also because such procedures are likely to be a poor “fit” for the treatment of COVID-19 distress. Distorting such procedures to accommodate the features of COVID-19 distress (or, in jurisdictions where there is not a reorganization procedure, introducing one designed with COVID-19 distress in mind) risks inhibiting the availability of credit for new projects in future, slowing the path to economic recovery.
The more attractive routes to relief are bail-ins (one-time orders to creditors or counterparties, or some class thereof, to forgive), bail-outs (offers to assume the debtor’s liabilities, or a class thereof), or some combination of the two.
In our paper, we explain why a public policy response is necessary to mitigate the amplification of the shock caused by trading shut-downs, and we compare treatment by the prevailing bankruptcy law with treatment by bail-ins or bail-outs along a range of dimensions. We conclude by developing principles to help guide the choice between bail-ins and bail-outs, and the design of either form of intervention.
We suggest that policymakers should intervene in ways that are proportionate, in the sense that they ought to confine themselves to that which is thought necessary to minimize the amplification of the economic shock caused by periods of trading shutdowns; that interventions should be designed to minimize distortions to efficient private bargains and private law rules; that transfers should be from the less financially constrained to the more financially constrained; that interventions should “fit” with the institutional apparatus responsible for administering them; and that the process of designing and delivering relief should be transparent.
We suggest these principles tentatively, mindful of the fact that policymakers may or may not be working with common conceptions of fairness and responsibility, and of the fact that some of our principles may only be able to be fully pursued at the partial expense of others. But we nevertheless hope that they offer a useful starting point for thinking about the design and delivery of novel forms of relief to debtors distressed by COVID-19 related revenue losses.
By Corinne Ball, George Cahill, Kay Morley, Jay Tambe, Bruce Bennett, & Heather Lennox (Jones Day)
A recent spate of decisions by the EMEA Determinations Committee (“DC”) has provided clarity on when a chapter 15 filing will trigger a “Bankruptcy” credit event under credit default swaps. Each of the relevant chapter 15 petitions sought recognition of an English scheme of arrangement, which is not a product of insolvency law and does not necessarily constitute a Bankruptcy, and each underlying scheme was considered narrow enough in scope to not be “with or for the benefit of its creditors generally” (triggering limb (c) of Bankruptcy). As such, the primary issue in each determination was whether the relief sought in the chapter 15 was similar to a “judgment of insolvency or bankruptcy” and independently triggered limb (d) of Bankruptcy.
The DC found that Thomas Cook’s 2019 petition for recognition of its scheme as a foreign nonmain proceeding, which expressly waived the benefit of the stay courts can impose in such cases, was not similar to an insolvency judgement and did not constitute a Bankruptcy. On the contrary, it held that Matalan’s August petition seeking recognition of a foreign main proceeding (involving an automatic stay) was similar and triggered a Bankruptcy. In its October determination regarding Selecta, the DC addressed the intermediate scenario, a petition seeking a stay in connection with a foreign main proceeding, finding that this also triggered a Bankruptcy. While every situation must be considered on its own facts, these determinations should prove instructive on when a chapter 15 filing will trigger a Bankruptcy credit event.
Disclaimer Statement: “The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firm with which they are associated.”
By Wai Yee Wan (City University of Hong Kong), Casey Watters (Bond University), and Gerard McCormack (University of Leeds)
The scheme of arrangement, brought to Singapore through a transplantation of English law, provides one of the most flexible debt restructuring tools for companies. In 2017, Singapore enacted substantial reforms to its insolvency laws, transplanting elements of US Chapter 11, including a moratorium, rescue financing, and cross-class cramdown, into the flexible Singapore restructuring regime. Our paper (published recently in the American Bankruptcy Law Journal) addresses the effectiveness of English-modelled schemes as debt-restructuring tools in Singapore, both pre-2017 reforms and as a hybrid with elements of Chapter 11.
The English scheme of arrangement has been spoken of as a model for ‘early stage’ restructuring procedures. Although the scheme functions as Singapore’s de facto debtor-in-possession restructuring regime, it does not have any bankruptcy or insolvency stigma since it is a procedure based on company law rather than insolvency law. It is activated by the filing of documents with the court and an application to the court to convene meetings of relevant creditors to approve the scheme. The meeting of creditors under schemes is substantially similar to those conducted in Chapter 11 cases under § 341 of the US Bankruptcy code. Creditors whose rights are altered by the scheme are grouped into classes with creditors holding similar legal rights.
This is the first empirical study to date that comprehensively examines schemes of arrangement, including non-reported schemes, over a period. To this end, it employs a mixture of quantitative and qualitative data. To assess the schemes framework in Singapore, we conducted a study of schemes in three parts based on data availability. First, we examine the filings in court-sanctioned schemes of arrangement for the period 1996–2004 (with reported judgments). This period covers the Asian financial crisis of 1997 and includes private and publicly traded companies. Second, similarly, we examine the filings for schemes of arrangement with reported judgments for the period 2006–2015. This period covers the global financial crisis of 2008. We extended the database by including filings in court-sanctioned schemes of arrangement for SGX-listed companies, including non-reported judgments. Third, we examined the filings in court-sanctioned schemes between January 1, 2016 and May 22, 2019. May 22, 2019 was selected as it is the second anniversary from the date that the 2017 reforms came into force. We are able to have a wider sample size because cases during the latter period were tracked by the Supreme Court Registry. On examining the filings, we coded a number of variables related to the schemes of arrangement, including financial information related to the companies, class composition and outcomes of the schemes. Such data were manually collected and coded from all the filings, which were provided by the Singapore Supreme Court.
From our analysis of the data, we identified multiple characteristics of successful schemes, the most significant of which are controlling shareholder support and availability of new financing, often provided by the controlling shareholder. When present, disputes have centred on insufficient disclosure, with informational asymmetry a substantial concern identified in the study. Liquidation values were often missing and, when present, lacked a detailed bases for the stated values.
The results of the empirical study demonstrate the effectiveness of schemes as a debt restructuring tool for large insolvent companies. The scheme reforms, along with other insolvency reforms in Singapore, including adoption of the UNCITRAL Model Law on Cross-Border Insolvency, recent common law developments, and removing a ring-fencing provision that protected domestic creditors at the expense of foreign creditors, provide additional tools and lower barriers to restructuring in Singapore. The flexibility of schemes coupled with Chapter 11 tools make schemes an attractive debt restructuring option for many insolvent companies.
On October 14, 2020, the honorable Christopher Sontchi, Chief Judge of the Delaware Bankruptcy Court, issued an opinion in the Extraction Oil and Gas bankruptcy case finding that certain oil, gas and water gathering agreements (the “Agreements”) did not create covenants running with the land under Colorado law and are thus subject to rejection in Extraction’s chapter 11 proceedings. The Bankruptcy Court applied Colorado law, which requires that the following three elements be satisfied: (1) the parties must intend to create a covenant running with the land; (2) the covenant must touch and concern the land with which it runs; and (3) there must be privity of estate between the covenanting parties. The Bankruptcy Court analyzed these elements relative to the debtor’s leasehold interest.
The Extraction decision is the Delaware Bankruptcy Court’s first published foray into a recent thicket of gathering agreement litigation that was reignited in 2016 with the Bankruptcy Court for the Southern District of New York authorizing the rejection of certain gathering agreements in the Sabine Oil & Gas bankruptcy case. Following Sabine, various oil and gas producers in chapter 11 attempted to use Sabine as a basis for invalidating dedications and shedding minimum volume and other commitments in their own gathering agreements. Such efforts were rebuffed in 2019 by the Colorado Bankruptcy Court in Badlands and by the Bankruptcy Court for the Southern District of Texas in Alta Mesa, each of which analyzed the elements of the asserted covenants running with the land relative to the debtor’s leasehold interest. The courts in Badlands and Alta Mesa each found that the agreements at issue created valid real property covenants under applicable state law and were thus not executory contracts that could be rejected in bankruptcy.
The Extraction case diverged from Badlands and Alta Mesa in its narrow holding, which analyzed the purported covenants in the context of only the debtor’s mineral estate, and ultimately concluded the midstream agreements did not contain an enforceable covenant running with the land. The Extraction rulings are currently on appeal before the Delaware District Court.
By Mitchell Mengden (Law Clerk, Delaware Court of Chancery)
In the past decade, private equity sponsors have taken a more aggressive stance against creditors of their portfolio companies, the most recent iteration of which has come in the form of collateral stripping. Sponsors have been using creative lawyering to transfer valuable collateral out of the reach of creditors. This Article delves deeper into the issue by examining the contract terms and litigation claims raised by these transactions.
The lack of protective covenants and ease of manipulating EBITDA and asset valuations are key conditions that permit collateral stripping. Each of these conditions were present in the past decade, primarily due to the protracted expansionary stage of the credit cycle. Lenders, however, can protect themselves from collateral stripping by negotiating stricter covenants and tighter EBITDA definitions, as well as pursuing ex post litigation for fraudulent transfers, illegal distributions, and claims for breach of fiduciary duty.
Contractual opportunism and creative lawyering will almost certainly continue to pervade credit markets. This Article provides a roadmap of ways that lenders can protect themselves from opportunism during contracting and throughout the course of the loan. As this Article concludes, ex post litigation claims are often an inadequate remedy, so lenders should seek to tighten EBITDA definitions and broaden protective covenants—even if to do so requires other concessions—to avoid litigation.
By Aurelio Gurrea-Martínez (Singapore Management University)
When a company becomes factually insolvent but it is not yet subject to a formal insolvency proceeding, the shareholders—or the directors acting on their behalf—may engage, even in good faith, in various forms of behaviour that can divert or destroy value at the expense of the creditors. For this reason, most jurisdictions around the world provide a variety of legal strategies to respond to this form of shareholder opportunism. One of these strategies is the imposition of special directors’ duties in the zone of insolvency.
In a recent article, I analyse the primary regulatory models of directors’ duties in the zone of insolvency observed internationally. From a sample of more than 20 countries from Asia, Australia, Europe, Latin America, Africa, and North America, I distinguish six primary regulatory models: (i) the imposition of a duty to initiate insolvency proceedings, generally found in Europe; (ii) the imposition of a duty to recapitalise or liquidate the company, typically existing in Europe and Latin America; (iii) the imposition of duties towards the company’s creditors, including the duty to minimise losses for the creditors existing in the United Kingdom; (iv) the imposition of a duty to prevent the company from incurring new debts, existing in countries like Australia and South Africa; (v) the imposition of a duty to prevent the company from incurring new debts that cannot be paid in full, existing in Singapore and New Zealand; and (vi) the imposition of a duty to keep maximising the interest of the corporation, as it exists in Canada and the United States.
After analysing the features, advantages, and weaknesses of these models, my paper argues that the desirability of each regulatory model of directors’ duties in the zone of insolvency depends on a variety of country-specific factors including divergences in corporate ownership structures, debt structures, level of financial development, efficiency of the insolvency framework, and sophistication of the judiciary. For instance, in small and medium-sized enterprises (SMEs) as well as large controlled firms, there is a greater alignment of incentives between directors and shareholders. Therefore, in the event of insolvency, the directors will have more incentives to engage in a series of opportunistic behaviour that will advance the shareholders’ interests even if it is at the expense of the creditors. As a result, a more interventionist approach to protect the creditors, such as the duty to initiate insolvency proceedings, may make more sense in countries with a significant presence of SMEs and large controlled firms, as it happens in most jurisdictions around the world. By contrast, in countries like the United Kingdom and the United States, where large companies usually have dispersed ownership structures and therefore the directors are less influenced by the shareholders, a more flexible approach for the regulation of directors’ duties in the zone of insolvency may be more justified. Therefore, a duty to keep maximising the interest of the company or a duty to take steps to minimise potential losses for the creditors may make sense.
Nonetheless, country-specific factors other than corporate ownership structures can also affect the desirability of each regulatory model of directors’ duties in the zone of insolvency. For example, in countries without sophisticated courts, the discretion of courts should be reduced. Therefore, the imposition of clear rules (e.g., duty to initiate insolvency proceedings) may be more desirable than the use of standards (e.g., duty to minimise losses for the creditors or duty to keep maximising the interest of the corporation). Similarly, in countries with inefficient insolvency frameworks, initiating an insolvency proceeding can do more harm than good for both debtors and creditors. Therefore, these countries should not impose a duty to initiate insolvency proceedings even if, as it happens in many jurisdictions with inefficient frameworks (e.g., emerging economies), this solution makes more sense from the perspective of the corporate ownership structure prevailing in the country.
Based on a comparative, interdisciplinary, and country-specific analysis, my articles provides various policy recommendations to enhance the regulatory framework of directors’ duties in the zone of insolvency across jurisdictions taking into account international divergences in corporate ownership structures, debt structures, level of financial development, efficiency of the insolvency framework, and sophistication of the judiciary.
By Anthony J. Casey (Professor of Law, The University of Chicago Law School), Joshua C. Macey (Assistant Professor of Law, The University of Chicago Law School)
On June 11, 2020, the Hertz Corporation attempted to become the first corporate debtor to finance a bankruptcy proceeding by issuing new shares of common stock to the public. Though many thought Hertz’s equity was worthless, its stock was trading at a positive value on the secondary markets, and Hertz was attempting to tap into that market value. When the bankruptcy court blessed the plan, many observers responded with outrage on behalf of retail investors who, they argued, were being duped into a worthless investment. They suggested that the law should prevent retail investors from buying these shares. Ultimately, the Securities Exchange Commission signaled that it had similar concerns and effectively killed the proposal.
This essay explores the questions raised by this incident. It argues that commentators were focused on the wrong bankruptcy problem. Contrary to the view of the commentators, Hertz’s bankruptcy does not show that retail investors require bankruptcy-specific protections. The Hertz maneuver does, however, highlight distortions created by bankruptcy law’s distribution rule, known as the absolute priority rule. That rule cuts off future opportunities for those holding equity (or junior claims) in a debtor firm and makes it difficult for stockholders and unsecured creditors to make long-term investments in the firm’s future value. From this perspective, existing proposals to alter bankruptcy’s priority rules begin to look like a form of investor protection that could facilitate investment in a firm’s long-term value.
By Vidhan K. Goyal (Hong Kong University of Science and Technology), Joshua Madsen (Carlson School of Management, University of Minnesota), and Wei Wang (Smith School of Business, Queen’s University)
Does having a lawyer who has previously interacted with the judge matter for bankruptcy outcomes? While knowledge obtained through past interactions about the judge’s views and preferences could improve the efficiency of court process, lawyer familiarity with the judge could also result in a capture of economic rents, leading to delays due to the difficulties in measuring lawyer efforts. Furthermore, connected lawyers could also exploit their connections to obtain biased outcomes in favor of their clients.
We examine these questions in the context of corporate bankruptcies by assembling a comprehensive dataset that contains detailed biographical information, professional experiences, and past in-court interactions of 162 bankruptcy judges overseeing 650 large Chapter 11 cases from 1996–2013, and 2,426 unique lawyers from 775 law firms representing those cases as debtor’s counsel. Our results show that cases with a lead counsel lawyer connected to the judge spend 16–21% less time in bankruptcy, a 2.6–3.5-month reduction in bankruptcy duration, translating into aggregated savings of $3.2–4.5 billion in professional fees for our sample firms.
Our empirical strategy exploits a setting where lead counsel lawyers are selected by the firm before the bankruptcy is filed and thus the assignment of a judge, minimizing concerns that connected lawyers are endogenously hired. The results are robust to the inclusion of controls for case complexity, industry effects, lawyer’s expertise, law firm quality, and judges’ fixed characteristics. Our specifications therefore ensure that any effect from having a connected lawyer is not due to unobserved heterogeneity that is specific to courts, judges, or lawyers.
We further document that the most effective lead counsel connections arise through previous clerkships and in-court interactions with the judge assigned to the case. The effects concentrate in cases with smaller legal teams where connected lawyers presumably have more influence. Having a connected non-lead counsel lawyers’ or connected lawyer representing the unsecured creditors committee only weakly affects case duration.
Lastly, we investigate other bankruptcy outcomes, including the probability of emergence, the bankruptcy refiling rate, operating performance post emergence, the likelihood of a Chapter 7 conversion, and the likelihood of loss of exclusivity extension. We find no evidence that the faster restructurings come at a cost of higher refiling rates or poorer operating performance after emergence. More importantly, there is no evidence that connections lead to judge favoritism or pro-debtor biases.
How do connected lawyers accelerate the bankruptcy process? The most likely explanation is connected lawyers’ knowledge of a judge’s preferences. Judges are extremely busy, and must devote enormous effort to keep straight all the facts and legal nuance under consideration. Connected lawyers are plausibly more familiar with the assigned judge’s preferences and expectations as well as the cases, legal precedents, and statutes that the judge will rely on. They can exploit this knowledge to help the “light shine through.” Idiosyncrasies across judges and their preferences imply that lawyers’ experience with other judges may not be as useful as a connection to the assigned judge and that there is likely no one “magic bullet” used by all connected lawyers. That is, lawyers’ knowledge of judges’ preferences are largely non-transferrable. These findings have implications for the design of bankruptcy institutions, where institutions that lead to lawyers’ increased awareness of a judge’s preferences could produce efficiency gains.
By Stephen J. Lubben (Seton Hall University School of Law)
Since 2017, the Commonwealth of Puerto Rico (and certain of its affiliated entities) have been in “bankruptcy” under Title III of the Puerto Rico Oversight, Management, and Economic Stability Act (“PROMESA”). PROMESA is a bankruptcy law, with various other bells and whistles, although Congress purported to enact it under its Article IV territories powers.
These cases are pending in the United States District Court for the District of Puerto Rico; however, Judge Laura Taylor Swain, of the Southern District of New York, was appointed by the Chief Justice to preside over the cases. My new paper – Puerto Rico; Act III – provides a concise overview of where things now stand in the PROMESA process, and where they might be heading.
In addition to its restructuring provisions, the law creates the Financial Oversight and Management Board for Puerto Rico. The Board frequently states that “the purpose of the Oversight Board is to provide a method for Puerto Rico to achieve fiscal responsibility and access to the capital markets.” In essence, the Board operates as a supra-governmental body for fiscal matters.
At present several members of the Board have stepped down, and President Trump bumped one member off the Board – former bankruptcy judge Arthur J. González – by appointing a new member to his slot. Congress and the president will have to fill out the Board, or devise a new path for the Commonwealth.
In the face of hurricanes, earthquakes, and COVID-19, the Board has attempted to push forward with a reorganization under Title III. The virus, however, might substantially delay the process and force a reconsideration of the present reorganization plan. It thus represents the opening of a third act in Puerto Rico’s debt drama.
Even before recent events, I had argued that the Board was being far too timid in its efforts to revamp Puerto Rico’s economy, given that the PROMESA process was presumably a one-time opportunity. In particular, the debt relief the Board was proposing was comparatively modest, and I worried that it might leave the Commonwealth with still too much debt to successfully restart its economy.
The problem is that the Board’s current plan has the support of almost nobody, making even “cramdown” of the plan extremely unlikely. Pensioners might be the most likely ally with the Board, although the government of Puerto Rico, and presumably many of the pensioners, object to the current offer. As Justice Sotomayor recently noted,
The Board’s decisions have affected the island’s entire population, particularly many of its most vulnerable citizens. The Board has ordered pensions to be reduced by as much as 8.5 percent… Other proposed cuts take aim at already depleted healthcare and educational services. It is under the yoke of such austerity measures that the island’s 3.2 million citizens now chafe.
Indeed, Justice Sotomayor’s recent opinion also provides a kind of roadmap for a challenge to PROMESA. She explains that she concurred in the Court’s result only because nobody had argued that Puerto Rico’s Commonwealth status was inconsistent with the creation of the Board. As she sees it, Congress made certain commitments to Puerto Rico in the 1950s when it created the Commonwealth, and Congress may not “take back” those commitments. Any litigation following her approach would presumably involve extensive appeals, but it looms as a threat to the PROMESA process.
At heart, the problem in Puerto Rico is not unlike the problem in many sovereign and municipal workouts. The bondholders want to recover as much as possible, of course, and are leery of settling claims only to see the debtor rebound shortly thereafter. The conundrum being that the rebound is unlikely to happen without serious debt reduction. Debt reduction is often not the only requirement for a rebound, but it is fundamental.
Either the Board needs to lead Puerto Rico out of this feedback loop, or Puerto Rico needs to extract itself from the PROMESA process. If not, the drama will continue for many more acts. Future acts could in theory include statehood for Puerto Rico, or some new restructuring process, or perhaps even both. Or the parties may simply reach a deal on a plan. At this point it is hard to say any particular outcome is more likely than another.
 Financial Oversight And Management Bd. For Puerto Rico v. Aurelius Investment, LLC, 590 U. S. ____ (2020), Sotomayor, J., concurring in judgment, slip opinion at page 7.