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.)
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.)
By Jared Ellias (University of California, Hastings)
In 2005, the perception that wealthy executives were being rewarded for failure led Congress to ban Chapter 11 firms from paying retention bonuses to senior managers. After the amendment became effective, Chapter 11 debtors could only pay executive bonuses through court-approved “Key Employee Incentive Plans,” which required managers to earn their pay by accomplishing specific performance goals, such as increasing revenue or moving the firm through the bankruptcy process.
In my article, I use newly collected data on the compensation practices of Chapter 11 debtors between 2002 and 2012 to examine how the reform changed bankruptcy practice. I find that relatively fewer firms used court-approved bonus plans after the reform, but the overall level of executive compensation appears to be similar. I hypothesize that three problems undermined the efficacy of the reform. First, the 2005 law asks bankruptcy judges to police the line between “incentive” bonuses and “retention” bonuses, which is extremely hard to do – judges are poorly equipped to assess the “challenging-ness” of a proposed performance goal. Second, creditors have limited incentives to police executive compensation themselves and help bankruptcy judges perform their inquiry, and the Department of Justice’s US Trustee program, while vigilant, lacks expertise in executive compensation. Third, gaps in the new regime make it easy for firms to bypass the 2005 law and pay managers without the judges’ permission. I support each of these hypotheses with empirical evidence. Further, there is also evidence that the reform significantly increased the litigation surrounding bonuses plans and, unsurprisingly, the attorneys’ fees associated with them. In many ways this paper examines what happens when Congress tries to change the balance of bargaining power between managers and creditors, and the result appears to be that firms found ways to get around a poorly written rule.
The full article is available here.
By David A. Skeel, Jr. (University of Pennsylvania Law School)
Over the past several years, Congress has considered various versions of a legislative reform that would amend the Bankruptcy Code to facilitate the prompt reorganization of systemically important financial institutions (“SIFIs”). The reform would adapt the “Single Point of Entry” strategy devised for use under Title II of the Dodd Frank Act to bankruptcy. In each context, the assets, short term liabilities, and secured debt of the troubled SIFI would be transferred to a newly created bridge institution, leaving behind its stock and long-term debt. The newly recapitalized bridge institution would be fully solvent, and could contribute liquidity to the troubled subsidiaries as necessary. Although the bankruptcy for banks legislation appears to have strong support in Congress, its reception among bankruptcy scholars has been mixed.
In this short essay, I take the opportunity of a celebration of the work and influence of Jay Westbrook to explore his and his fellow critics’ opposition to bankruptcy for banks. I begin the essay by surveying Jay’s wide-ranging contributions to bankruptcy scholarship. Jay’s functional analysis has had a profound effect on scholars’ understanding of key issues in domestic bankruptcy law, and Jay has been the leading scholarly figure on cross-border insolvency. After surveying Jay’s influence, I turn to the topic at hand: bankruptcy for banks. Jay has been a strong critic of the proposed reforms, arguing among other things that financial institutions need to be resolved by regulators and an administrative process, not bankruptcy. After addressing these and other objections, I ask Jay if he might reconsider his opposition if the legislation were amended to respond to several of his primary concerns.
The essay is available here.
By Rama Douglas (Kramer Levin Naftalis & Frankel LLP)
In Hargreaves v. Nuverra Environmental Solutions Inc. (In re Nuverra Environmental Solutions Inc.), 17-1024 (D. Del. Aug. 21, 2018), a Delaware district court upheld a bankruptcy court’s ruling that the secured creditors’ “gift” of cash and stock to holders of unsecured claims pursuant to a Chapter 11 plan did not violate the confirmation standards for approving a plan under Chapter 11, even though certain classes of unsecured claims (trade and business-related unsecured claims) received larger distributions from the gift than another class of unsecured claims (noteholders). The decision focuses on the permissible effect of “horizontal” gifting whereby the disparate treatment is among separate classes of the same priority level of creditors — here, separately classified general unsecured claims.
Debtors looking to pursue a reorganization may seek to provide a recovery to certain types of creditors (such as trade) within a class, but not others. Such discrimination is not permissible for value distributed by the debtor’s estate under a plan. Gifting has been a technique — subject to criticism (especially when class skipping is involved) — to provide disparate treatment. While the Third Circuit has not ruled on gifting, this latest Delaware district court decision supports the use of horizontal gifting. Such a decision will certainly be the focus of attention by supporters and critics of gifting.
The full article is available here.
By Mark A. Cody and Mark G. Douglas (Jones Day).
In a highly anticipated decision, the U.S. Court of Appeals for the Fifth Circuit affirmed a bankruptcy court order dismissing a chapter 11 case filed by a corporation without obtaining—as required by its corporate charter—the consent of a preferred shareholder that was also controlled by a creditor of the corporation. In Franchise Services of North America, Inc. v. Macquarie Capital (USA), Inc. (In re Franchise Services of North America, Inc.), 891 F.3d 198 (5th Cir. 2018), a Fifth Circuit panel ruled that: (i) state law determines who has the authority to file a voluntary bankruptcy petition on behalf of a corporation; (ii) federal law does not strip a bona fide equity holder of its preemptive voting rights merely because it is also a creditor; and (iii) the preferred shareholder-creditor was not a controlling shareholder under applicable state law such that it had a fiduciary duty to the corporation which would impact any decision to approve or prevent a bankruptcy filing.
However, to the disappointment of many observers, the Fifth Circuit declined to decide whether “blocking provisions” and “golden shares”—either generally or when wielded by a party that is both a creditor and an equity holder—are valid and enforceable. Such provisions have been increasingly relied upon by creditors, including private equity sponsors and other investors who take both equity and debt positions in a portfolio company, as a means of managing or limiting access to bankruptcy protection, but with mixed results in the courts. Franchise Services does little to remedy the unsettled state of bankruptcy jurisprudence regarding this important issue. Moreover, because the case involved a minority shareholder-creditor without any fiduciary obligations, the decision did not involve many of the more difficult questions posed by other cases involving these issues.
The article is available here.
By Christopher W. Frost (University of Kentucky – College of Law)
The historical and doctrinal development of secured transactions and bankruptcy law has created a priority system that is asset based. Secured creditor priority is tied to the value of specific assets that constitute the secured creditor’s collateral and not to the value of the debtor itself. And yet, in corporate bankruptcy cases, lenders and their attorneys often assert broad claims to the entire enterprise value of the entity – that is to the present value of the cash flows that the entity will generate as a going concern. The doctrinal basis for such claims is often unstated, however, and several commentators have criticized the breadth of those claims under existing laws.
This article responds to those views and argues that secured creditors can establish a broad enough security interest to create an “effective entity priority.” The argument is premised on the notion that the broad secured claim creates a closed system in which all of the assets acquired relate, and can be traced, to pre-bankruptcy collateral. The secured creditor’s priority therefore may extend to the value of the entity, rather than the value of specific assets within the entity. Although the doctrinal claim is plausible, the article notes that it can be difficult to maintain under the facts of particular cases. Thus the article suggests that changes to the Bankruptcy Code and the Uniform Commercial Code that recognize true entity priority may provide clarity and efficiency to the bankruptcy process.
The full article is available here. The article is forthcoming in the Connecticut Law Review.
By William R. McCumber (College of Business, Louisiana Tech University) and Tomas Jandik (Sam M. Walton College of Business, University of Arkansas)
A traditional view of creditors is that they are largely passive investors unless a borrower violates the terms of a loan agreement or misses a payment. However, like institutional shareholders, creditors hold concentrated positions in firm securities (loan shares), are sophisticated investors, and have access to senior management and non-public information. Since debt financing is much more common than equity financing, and because the great majority of credit agreements are honored, it is important to better understand how creditors advise and monitor portfolio (borrower) firms. We find that creditors play a significant role in corporate governance under normal circumstances, i.e. when firms are not in technical violation or default. Borrower firms are less likely than non-borrowers firms to file for bankruptcy in the intermediate future, and borrowers shift financial and investment decisions away from value-reducing policies and toward value-creating investments. Importantly, these changes are profitable for borrower firms since both cash flows and returns on assets improve at least three years after loan origination, which in turn decreases creditor portfolio risk. We also find that when creditors retain a larger proportion of the loan on their books, changes in borrower firm financials are more pronounced, providing evidence that creditors exert a greater governing force when more exposed to borrower risk.
The full article is available here.
By David Griffiths and Leonard Yoo (Weil, Gotshal & Manges LLP).
During a negotiation over a sale of claims, when parties agree to a price and preliminarily agree to enter into a final agreement, is there a binding agreement to negotiate in good faith towards a final agreement?
The bankruptcy court in Westinghouse addressed this very issue. In Westinghouse, Seaport, on behalf of its client, reached out to Landstar to purchase its claims against Westinghouse Electric Company LLC. An employee of Landstar negotiated with Seaport to sell the claims but explained to Seaport that, while she was authorized to negotiate a price, all other terms would need to be approved by Landstar’s legal counsel. Seaport and Landstar’s employee eventually agreed to a price for the claims that was “subject to” executed documentation. Two days after this agreement, Landstar informed Seaport that it decided to not go through with the sale. Seaport and its client litigated this matter arguing that there was a binding obligation to negotiate in good faith because it was customary in the claims trading industry for parties to agree on the price over email and negotiate the other terms towards a final agreement.
The bankruptcy court disagreed and held that a preliminary agreement to negotiate in good faith was not formed because, among other reasons, (i) Landstar reserved its right to not enter into a binding agreement and (ii) Seaport did not explicitly confirm with Landstar that there was an enforceable agreement as to the obligation to negotiate in good faith nor the purchase price.
The full article is available here.
By Charles Tabb and Tamar Dolcourt (Foley & Lardner LLP).
In July, the Seventh Circuit Court of Appeals issued a decision that appeared to upend the long-held understanding that an underwater secured creditor was entitled to all of the proceeds of a sale under Section 363 of the Bankruptcy Code. In our new article, we analyzed the decision in Illinois Department of Revenue v. Hanmi Bank in which the Seventh Circuit opened the door to a potential recovery for out-of-the-money junior creditors based on the theory that a free and clear sale under the Bankruptcy Code created a premium for the assets that the junior creditor may be entitled to share. Though Hanmi dealt explicitly with a state taxing authority and its particular rights under Illinois state law, there is nothing in the opinion which limits it to those facts or that type of creditor. Furthermore, even though the court ultimately valued the interest that the Illinois Department of Revenue was forced to give up through the free and clear sale at zero, that was simply a failure of proof in the particular case. We also consider the long-term ramifications of this opinion and its likely effect on future sales under Section 363, including the possibility of increased costs and delays of negotiating these sales with recalcitrant junior creditors.
The article may be found at Law 360: the original publication.
By John A. E. Pottow (University of Michigan Law School)
Few bankruptcy topics have bedeviled courts—and busied commentators—as much as executory contracts. Perhaps the most nettlesome challenge is the problem of defining “executoriness,” which serves as the statutory gatekeeper to Section 365 of the Bankruptcy Code and its extraordinary powers. Elite lawyers, who are the closest approximation to chapter 11 repeat players, have no ex ante incentive to fix a definition; in part succumbing to a vividness bias, they want to exploit executoriness’s inherent ambiguity to select the definition perceived to be most advantageous in any given case ad hoc. From Westbrook to Countryman before, authors have struggled to find a coherent and normatively defensible definition of executoriness (including Westbrook’s call for its abolition) that would stop this gamesmanship, and even the American Bankruptcy Institute’s Review Commission has now entered the debate.
This article takes a new approach. It suggests abandoning the bootless task of finding the right test and concedes that executoriness is here to stay. This new approach focuses on the residuum of the “non-executory contract.” Using the policies, structure, and text of the Code, it argues that many of Section 365’s provisions can be synthetically replicated elsewhere. Doing so will blunt the strategic incentive to invest resources fighting the absence or presence of executoriness ab initio by scuttling the payoff. Concomitant gains will accrue to all.
The full article is available here.