[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] A Different Look at Sec. 548 and Concluding Thoughts

Note: This is the eighth in a series of posts on the Texas Two-Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies. Styled as a coda of sorts, this double-post includes a new view on section 548 by Judge Judith Fitzgerald (ret.) and Adam Levitin, and some commentary on the other posts in the series by John Pottow.

Check the HLS Bankruptcy Roundtable periodically for additional contributing posts by academics and others from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts), here (by Jonathan C. Lipson), here (by Jared A. Ellias), here (by Anthony Casey and Joshua Macey), here (by David Skeel), here (by Ralph Brubaker), and here (by Mark Roe and William Organek).

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Post One: The Texas Two-Step: A Different Look at Bankruptcy Code Section 548

By Hon. Judith K. Fitzgerald (ret.) (Professor in the Practice of Law, University of Pittsburgh School of Law; Shareholder, Tucker Arensberg, P.C.) and Adam J. Levitin (Anne Fleming Research Professor & Professor of Law, Georgetown University Law Center; Principal, Gordian Crypto Advisors LLC)[^]

Hon. Judith K. Fitzgerald (ret.)
Adam J. Levitin

Is the divisive merger in a Texas Two-Step bankruptcy a fraudulent transfer?  To date, much of the analysis has focused on the question of the “transfer” of assets.  From this perspective, the application of fraudulent transfer law is an uncomfortable fit. In a divisive merger, OldCo disposes of assets and liabilities by assigning the valuable assets to GoodCo and dumping the disfavored liabilities on BadCo. Yet the  Texas divisive merger statute provides that “all rights, title and interest” in property are allocated in a divisive merger without “any transfer or assignment having occurred.”[1] If state law deems the divisive merger not to constitute any form of transfer, how can a fraudulent transfer have occurred?

As Roe and Organek rightly contend, the Supremacy Clause mandates use of the Bankruptcy Code  (“Code”) definition of “transfer” to the exclusion of contrary state law. Likewise, the Uniform Fraudulent Transfer Act has its own definition of transfer and indicates that the definitions are “[a]s used in this [Act],” such that even under state law the divisive merger statute’s definition of transfer would not control in a fraudulent transfer, voidable transactions, or § 544(b) action.

The key problem with viewing a divisive merger through the “transfer” lens is that Code § 548 requires the transfer to be one made by the debtor—BadCo—of its property or an interest it held in property. BadCo, however, did not exist at the time of the transfer and had no property at all. The transfer of the assets to GoodCo was not from BadCo, but from OldCo, which no longer exists. These seem to create impediments to attacking a divisive merger as a fraudulent transfer.

In order to bring the divisive merger within the ambit of § 548, a complainant might have to take an additional step, such as establishing that BadCo was the alter ego of the entity that transferred the property (as Roe and Organek note), or substantively consolidating BadCo and GoodCo. Without consolidation of BadCo and GoodCo, or an unwinding of the divisive merger altogether, a court could conclude that BadCo did not transfer property or an interest in property.

There is another part of § 548, however, that is a better fit for attacking a divisive merger.[2] Section 548 also permits the avoidance of an obligation incurred by the debtor, for which the debtor received less than reasonably equivalent value and/or was insolvent at the time or was made insolvent as the result of the obligation.

The Texas divisive merger statute presents no obstacle for this theory. That statute deals with allocation of assets and liabilities under separate provisions. The asset provision deems the allocation of assets not to be a transfer,[3] but there is no equivalent language in the liabilities provision.[4] That is, nothing in the Texas statute states that the allocation of liabilities is not the incurrence of an obligation.

Similarly, § 548 refers to incurrence of an obligation by the debtor, a concept that works much better than a focus on  transferring property of the debtor. Whereas the transfer provision implicitly requires the debtor to have had property to transfer in the first instance, the incurrence provision has no similar implication. All that is required is that the debtor, BadCo, incur an obligation that left it insolvent or insufficiently capitalized,  a description that fits the treatment of BadCo in a divisive merger to a tee.

For example, in the divisive merger that preceded the LTL Management LLC bankruptcy filing, the BadCo, LTL, was saddled with all of the talc liabilities of OldCo (Old JJCI), an unliquidated liability in the billions of dollars. As part of the same transaction, it was given royalty-producing assets worth enough to cover the anticipated professionals’ fees in the bankruptcy, and certain insurance policies. LTL was also allocated a funding agreement by which both GoodCo (New JJCI) and OldCo’s parent (J&J) were to cover talc liabilities inside or outside bankruptcy, up to the value of OldCo on the date of the divisive merger, provided that certain conditions to use are satisfied. All of OldCo’s other assets (valuable brands and the JJCI name) and other liabilities were allocated to New JJCI. If the talc claims against LTL exceed the value of OldCo, then LTL would be insolvent, and the incurrence of the talc liabilities would be avoidable under § 548.

The distinction between transfers and obligations may support a fresh look at § 548, but raises the question of the remedy. The Code’s remedial provision, § 550, deals solely with recovery for the benefit of the bankruptcy estate of any avoided transfers of property; it is not geared toward the incurrence of obligations. But § 550 may not be necessary as a remedial provision regarding incurrence of obligations. Section 548’s language that “[t]he trustee may avoid…any obligation incurred … by the debtor” may itself be all that is necessary.

So what does this mean in practical terms?  The avoiding of the incurrence of an obligation does not mean that the obligation disappears. Instead, its allocation follows normal state law successor liability principles. In the case of LTL, successor liability would likely put the talc liability squarely back on GoodCo through its continuation of OldCo’s business.

Focusing on obligations does not itself answer the valuation question about BadCo’s solvency, but it is a far better fit with fraudulent transfer law than trying to shoe-horn a divisive merger transaction into the definition of a “transfer” by a company that did not exist at the time property was transferred.

[^] Professors Fitzgerald and Levitin are both retained as consultants by certain talc claimants in the LTL bankruptcy; their opinions are their own.

[1] Tex. Bus. Org. Code § 10.008(a)(2).

[2] The authors do not address whether the divisive merger could be attacked as an actual fraudulent transfer under Code §§ 544 or 548.

[3] Tex. Bus. Org. Code § 10.008(a)(2)

[4] Id., § 10.008(a)(3).

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Post Two: Concluding Thoughts on the Series

By John A. E. Pottow (University of Michigan)

John A. E. Pottow

A series of excellent posts have probed the recent developments of the infamous Texas Two-Step, and so I have only three additional comments.

First, a threshold issue that hungers for resolution is the idiosyncrasy of Texas law.  As Jonathan Lipson points out, vertical forum shopping has suitors flocking to the bankruptcy court system, but what they specifically want is application of Texas corporate law.  Specifically, mass tort defendants must avail themselves of its Doublespeak divisional merger statute and its “non-transfer transfers.”  The issue is whether a transfer ordinarily susceptible to fraudulent conveyance scrutiny can be statutorily immunized by legislative pronouncement that it is an “un-transfer.”  While this might invite the sort of textualism disquisition that would enthrall some (can the legislature define the black, frequently granulated table spice as “salt” without offending well-socialized legal sensibilities?), I am thematically drawn to Mark Roe and William Organek’s supremacy argument mooting it all out: that the Bankruptcy Code’s definition of “transfer” may supersede Texas’s.  But I don’t think they get all the way there.  My hopefully congenial amendment to their position is that additional work must be done to get the ball over the finish line by making out a Butner argument—which ought not be heavy-lifting—that federal bankruptcy purposes (e.g., preserving all assets for collective creditor treatment) warrant overriding the presumptive deference to state law definitions of property entitlements.

Second, all substantive concern, e.g., expressed as upsetting bankruptcy’s “traditional bargain” in Jared Ellias’ words (and especially so if they are solvent, as Ralph Brubaker reminds), really boils down to this: Are they cheating?  And as Anthony Casey and Joshua Macey have noted, what that really means is: Are there enough assets left for the claimants?  And that, as the road-terminus Rome of so many bankruptcy matters, is ultimately a valuation question—of claims, assets, going-concern surplus…the whole nine yards.  Forests of trees have died in service of bankruptcy scholarship on valuation, and, just to make you, Dear Likely Reader, feel old, recall that North LaSalle well-preceded the birth of most current law students.  My two cents in these hyper-inflationary times is that whenever I distrust valuation, and Ken Ayotte notes elsewhere that we should be extra-distrustful with synthetic analogues to real assets, I revert to my instincts that it’s hard to beat having skin in the game.  Indeed, the elegance of the Code’s section 524(g) is in requiring the backstopping by half the equity of the company.  So a “funding agreement” is fine and dandy, as is an “extraordinarily large” contribution of capital, but it’s no pledging of cold, hard assets.  Third-party releases on demand?  Not so fast!  If debtors want to reap the bankruptcy system efficiencies of speedy aggregate litigation, they should have to backstop that benefit with the internalized risk of real, teethy underwriting.

Finally, and this point segues from the prior observation, the role of the discretion accorded bankruptcy judges stands front and center with the Two-Step.  As the presumable watchdogs of over-reaching-cum-under-endowing BadCo, the bankruptcy judges wield their power to dispatch for lack of good faith or for receiving lack of reasonably equivalent value.  (For the efficacy of bankruptcy judges in valuation matters, see Forests, supra.)  To feel comfortable with them, then, one requires a sense of attunement to the risks and issues at stake.  Yet as David Skeel reminded us, the gushing endorsement of the bankruptcy system dripping in the LTL opinion (or, perhaps by corollary, angst about the state tort system) may augur poorly for a critical eye being cast on these un-mergers.  Unless we see some pushback and demonstrated non-naivete, legislative intervention seems overdetermined, as Jin Lee and Amelia Ricketts have already flagged.

I am broadly sympathetic to modular usages of the bankruptcy system, but I have also been around enough blocks to know that one person’s more efficient resolution is another’s value-extracting cudgel.  To cheerily assume the riskless benefit (low risk, high returns!) of this latest bankruptcy innovation is not just blinkered but is a Siren call for legislative intervention.

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] The Texas Two-Step: The Code Says it’s a Transfer

By Mark Roe and William Organek (Harvard Law School)

Note: This is the seventh in a series of posts on the Texas Two-Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts), here (by Jonathan C. Lipson), here (by Jared A. Ellias), here (by Anthony Casey and Joshua Macey), here (by David Skeel), and here (by Ralph Brubaker).

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Mark Roe
William Organek

Considerable attention is now being paid to the Texas Two-Step in bankruptcy. The Two-Step anticipates the movement of assets and liabilities from one corporate entity to another, via a divisive merger that splits the assets and liabilities of the original entity. After the movement of the assets and liabilities, the liabilities sit in one entity (often a subsidiary of a larger enterprise). Meanwhile, the liabilities are separated from many of the assets (in the most controversial form of the Two-Steps), which sit in another entity. The entity with the bulk of the liabilities then files for bankruptcy. The Two-Step is central to the Johnson & Johnson (“J&J”) bankruptcy of a subsidiary, aiming to separate the talc liabilities from J&J’s extensive assets.

When assets are transferred from a firm that is thereby rendered insolvent, or when the assets are transferred with actual intent to hinder, delay or defraud creditors, the transferred assets can, of course, be recovered by the transferring firm as a fraudulent transfer.  Bankr. Code § 548.  Similar transactions are regularly accomplished under corporate structures as spinoffs: the firm moves assets into a subsidiary, for example, and then “spins” off the subsidiary’s stock to the firm’s stockholders. After the spinoff the old stockholders own two companies, one with the assets (and possibly some of the liabilities of the just-created subsidiary) and the other with the liabilities (and any remaining assets) of the original company.

The Texas divisive merger statute creates a fraudulent transfer conundrum, because it says movements of assets pursuant to a divisive merger are not transfers.  If there’s no transfer, there’s no fraudulent transfer liability, as there must first be a transfer for there to be liability.

If the bankruptcy process were ousted of power to control fraudulent transfers, then the debtor firm would have more freedom to move assets and liabilities in ways that would allow the firm to escape liability. No judge would get to the meaty issues (e.g., was the transferring firm insolvent? were the transfers done with intent to hinder, delay, or defraud creditors? is the bankrupt firm with the bulk of the liabilities an alter ego or successor of the original firm?) because there’d never have been a triggering transfer.

The Texas statute itself is clear on its face that there’s no transfer under Texas law:

When a merger takes effect . . . all rights, title and interests to all . . . property owned by each . . . party to the merger is allocated . . . as provided in the plan of merger without . . . any transfer or assignment having occurred . . .

Tex. Bus. Orgs. Code § 10.008(a) (emphasis added).

Commentators have noted that a Two-Stepping debtor might make such an argument. While it has not yet been explicitly raised in the LTL bankruptcy, the commentators anticipated correctly that such an argument was coming.  In another pending Texas Two-Step bankruptcy, In re DBMP, the debtor made this argument at length. In an oral ruling1 delivered a little more than a week ago, on July 7, Judge Craig Whitley agreed with the key plain meaning premises of the Two-Step argument but ultimately rejected it as facilitating “wholesale fraud.”

The court began by accepting the debtor’s interpretation that, under a plain meaning reading of the Texas statute, no transfer occurred; and under a plain meaning reading of section 548 of the Bankruptcy Code, a transfer is a necessary predicate for a fraudulent transfer to have occurred. Hence, a plain meaning construction of section 548 and the Texas statute means no fraudulent transfer exposure.

Judge Whitley saw where such a plain meaning reading led, but refused to go there, rejecting the debtor’s conclusion. Going down the plain meaning route would, he said, lead to absurd results, leaving plaintiffs with “no recourse whatsoever.” And such a reading would contradict another provision of the Texas statute, which states that a divisive merger is not meant to “abridge any . . . rights of any creditor under existing law,” Tex. Bus. Orgs. Code § 10.901. Finally, Judge Whitley went deep: such a plain language reading of the Texas statute would run contrary to longstanding general principles of Anglo-American fraudulent transfer law.

Judge Whitley’s conclusion was in our view correct. But the conclusion can be reached more directly—by a plain meaning reading of the Bankruptcy Code.

The bankruptcy courts have already been instructed by Congress not to pay attention to the Texas statute, even when the state statute declares that an asset disposition in a divisive merger is not a transfer.  True, considerable policy issues (e.g., supremacy of federal law, the extent to which state property and contract law is incorporated into the bankruptcy process) could well be brought to bear if the Bankruptcy Code were unclear here. But the most straightforward way to answer the question raised in DBMP comes from a parsimonious textual analysis of the Code.

Here’s the Bankruptcy Code’s two-step ouster of the Texas Two-Step:

Step 1:

The text of the fraudulent transfer statute, section 548, begins: “The trustee may avoid any transfer . . .  of an interest of the debtor in property . . . ” (emphasis added). If we stop there, a basis might be had for examining state law for whether a transfer cognizable under the Bankruptcy Code has taken place.  Property is, after all, transferred under state law.

But the Code does not say that state law governs whether a movement of property is a bankruptcy transfer. The Code itself defines the term “transfer” and does so independently of state laws’ appellations, leading to Step 2 of the ouster.

Step 2:

Section 101(54) defines what a “transfer” is for bankruptcy purposes, such as section 548 (governing fraudulent transfers).  It states: “The term ‘transfer’ means . . .  each mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with (i) property; or (ii) an interest in property.”

The Code thereby instructs bankruptcy courts to conclude that a transfer has occurred for each “mode . . . of disposing of . . . property . . . .”  A divisive merger under Texas law is surely a “mode . . . of disposing of . . . property. . . .”  As a result, for bankruptcy purposes a Texas two-step is a transfer, whatever the Texas authorities decide to call it.  And, therefore, the Texas Two-Step should have no import in bankruptcy for determining whether there’s been a transfer for bankruptcy purposes.  Property has been disposed of. Thus, for Code purposes there is a “transfer.”  The first statutory predicate to considering whether there has been a fraudulent transfer has been satisfied and the court could then go on to the other, meaty fraudulent transfer issues. The Texas Two-Step is a transfer because the Bankruptcy Code says it is.

While we reach an identical conclusion to that of Judge Whitley, and we do not fault his reasoning from the bench, our analytic path is better in the long run for bankruptcy decisionmaking. The court’s reliance upon the best way to interpret the potential contradictions of the Texas Business Organizations Code is a precarious foundation for the ruling. One could imagine another bankruptcy court, faced with the Texas statute’s contradictions (“it’s not a transfer” vs. “it’s not in derogation of any other right”), interpreting and concluding differently.2 Another judge might not consider such a result as absurd as Judge Whitley and we do. And yet another bankruptcy court could feel compelled to certify questions to the Texas Supreme Court on how to interpret the Texas divisive merger statute and its impact.

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The new mass tort bankruptcies present major issues of policy and statutory construction for which answers will not be assured and apparent. But the question of whether there is a transfer for bankruptcy purposes is clear. A divisive merger is a disposition of property and, hence, the Code says it’s a transfer, thereby triggering the opening prerequisite to there being a fraudulent transfer.

The Code says so. Plainly.

1: A recording of the hearing is embedded in the linked PDF, which PDF may need to be downloaded in order to access the recording; the relevant portion of the hearing begins around 20:15 in the recording.

2: See Curtis W. Huff, The New Texas Business Corporation Act Merger Provisions, 21 St. Mary’s L.J. 109, 122-25 (1989).

 

 

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] The Texas Two-Step and Mandatory Non-Opt-Out Settlement Powers

By Ralph Brubaker (University of Illinois College of Law)

Note: This is the sixth in a series of posts on the Texas Two-Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts), here (by Jonathan C. Lipson), here (by Jared A. Ellias), here (by Anthony Casey and Joshua Macey), and here (by David Skeel).

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Ralph Brubaker

All of the posts in this series have been incredibly thoughtful and incisive in illuminating what’s at stake with the innovative new Texas Two-Step bankruptcy strategy.

As Professors Casey and Macey point out, by isolating and separating Defendant’s mass-tort liability (in a new BadCo) from its business operations (in a new GoodCo) and subjecting only the former to the bankruptcy process, the value of Defendant’s business (which must ultimately pay the mass-tort obligations, under a funding agreement between GoodCo and BadCo) is enhanced by avoiding all of the direct and indirect costs that a bankruptcy filing would entail. At the same time, though, Defendant can nonetheless take advantage of bankruptcy’s beneficial claims resolution process, which consolidates all of the mass-tort claims, both present and future claims, in one forum—the Bankruptcy Court.

That mandatory, universal consolidation of all mass-tort claims, which is entirely unique to the bankruptcy process, is tremendously powerful and is a huge boon to facilitating an aggregate settlement of Defendant’s mass-tort exposure. Indeed, bankruptcy can produce aggregate settlement of mass tort obligations much more effectively and efficiently than the only available nonbankruptcy alternative, so-called multi-district litigation (MDL) under the federal MDL statute.

Professors Casey and Macey acknowledge that the Texas Two-Step bankruptcy is an unalloyed good, however, only if it does not leave tort victims worse off. I share the fear of many that it will, though, and my concern derives from one of the most fundamental differences between the bankruptcy and nonbankruptcy systems for aggregate resolution of mass torts, giving rise to the vertical forum shopping that Professor Lipson highlights.

The due process clauses of the Constitution give an individual tort victim a property right in a cause of action against Defendant. Consequently, that individual must consent to a settlement of that tort claim (i.e., a voluntary transfer or sale of the claim to Defendant). The only circumstance in which a mandatory “settlement” of a damages claim can be imposed upon a nonconsenting claimant (i.e., the claimant’s property can be involuntarily expropriated) is when there is sufficient danger of a common-pool problem, or so-called “tragedy of the commons,” of the kind extremely familiar to bankruptcy scholars and professionals.

Outside bankruptcy, that common-pool problem is the impetus for a so-called “limited fund” class action, which takes away claimants’ unfettered control over their individual claims (i.e., their property) by allowing a fiduciary representative to assert and settle in the aggregate all of the common claims against a limited fund, whether or not individual claimants consent to that aggregate settlement. As the Supreme Court made clear in its Ortiz v. Fibreboard decision, though, if a mass-tort defendant’s resources do not constitute a limited fund that is insufficient to fully satisfy its mass-tort obligations, individual claimants retain an absolute constitutional right to opt out of any aggregate resolution process, as part of their due process property rights in their individual claims.

Bankruptcy, of course, is also designed to address such a common-pool problem, and the binding distribution scheme effectuated by a confirmed plan of reorganization is functionally identical to the mandatory non-opt-out settlement at issue in Ortiz. Both systems enable a mass-tort defendant to impose a judicially-approved hard cap on their aggregate mass-tort liability, without any opt-outs by nonconsenting claimants. That mandatory non-opt-out settlement power works a dramatic change in a mass-tort defendant’s ultimate aggregate liability and the complex bargaining dynamics by which that ultimate liability is determined.

I thus share the concern expressed by Professor Ellias about the prospect of solvent mass tort defendants using Texas Two-Step bankruptcies to resolve their mass-tort liability. And Professor Skeel is right to point out that Judge Kaplan’s LTL Management decision gives too much encouragement to that strategy, for example, by opining that “[t]here is nothing to fear in the migration of tort litigation out of the tort system and into the bankruptcy system” and “maybe the gates indeed should be opened.” Bankruptcy poses a substantial risk of systematically undercompensating mass-tort claimants relative to a nonbankruptcy baseline, particularly for future claimants. Perhaps that risk is acceptable when the debt overhang from massive disputed obligations presents a clear and present threat to entity viability and full payment of all claimants, problems that bankruptcy is designed to address. Absent that, however, the bankruptcy gates should not simply be swung open wide in an attempt to “fix” the mass-tort system, however “broken” it may or may not be. The mass-tort bankruptcy system itself could use some fixing.

If you would like to receive a copy of my current work-in-progress exploring these issues, email me at rbrubake [at] illinois [dot] edu.

 

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] Is the Texas Two-Step a Proper Chapter 11 Dance?

By David Skeel (University of Pennsylvania Carey Law School)

Note: This is the fifth in a series of posts on the Texas Two-Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts), here (by Jonathan C. Lipson), here (by Jared A. Ellias), and here (by Anthony Casey and Joshua Macey).

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David Skeel

Are Texas Two-Steps ever a proper use of Chapter 11?  The argument that they aren’t—a view held by some scholars and reflected in proposed legislation in Washington—isn’t silly. Most current bankruptcy scholars grew up with Thomas Jackson’s creditors’ bargain theory of bankruptcy, which explains bankruptcy as a solution to creditor coordination problems that threaten to jeopardize the going concern value of an otherwise viable firm. The BadCo that files for bankruptcy in a Texas two-step does not have any going concern value. It’s just trying to manage massive liabilities. Why should this be allowed?

In rejecting a challenge to Johnson & Johnson’s recent two-step, the bankruptcy court supplied a forceful rejoinder to the view that preserving going concern value (or otherwise efficiently deploying a distressed company’s assets) is the only proper purpose for Chapter 11. Judge Kaplan points out that bankruptcy is often a superior mechanism for resolving tort liability as compared to the Multidistrict Litigation process or piecemeal litigation outside of bankruptcy. It is more orderly and can give more equitable and consistent treatment to victims. Judge Kaplan’s conclusion that LTL (the BadCo created by the J&J two-step) belongs in bankruptcy, and that a bankruptcy that involves mass tort liabilities but not the ongoing business that caused them is proper, is fully defensible in my view.

Where Judge Kaplan’s opinion goes off the rails is in too cavalierly dismissing the possibility that two-steps will be abused, as when he muses that “open[ing] the floodgates” to two-steps might not be such a bad thing. Those crafting future two-steps will be tempted to leave BadCo with inadequate ability to pay its victims, since nothing in the Texas divisional merger statute prevents this. Bankruptcy supplies two tools for policing these abuses, the good faith requirement [BRTsee this earlier Roundtable post on good faith and Texas Two-Steps] and fraudulent conveyance law. If courts are vigilant, these tools should be sufficient to discourage abusive two-steps. But if courts are cavalier about the potential abuses, the legislation pending in Washington will begin to seem a lot less ill-advised.

Perhaps the best thing that could happen for Texas two-steps would be for courts to bar the use of non-debtor releases outside of the asbestos context, where they are explicitly authorized by section 524(g) of the Bankruptcy Code. The Second Circuit may be poised to take this step in the Purdue Pharma opioid case, if it upholds the District Court’s conclusion that the releases of nondebtors in that case—most notably, the Sackler family—are not authorized by the Bankruptcy Code. If non-debtor releases were disallowed except where explicitly authorized, Texas two-steps would remain viable in asbestos cases such as J&J, but the floodgates would not open in other contexts, since the maneuver only works if the eventual reorganization includes a non-debtor release for GoodCo.

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] A Qualified Defense of Divisional Mergers

By Anthony Casey and Joshua Macey (University of Chicago Law School)

Note: This is the fourth in a series of posts on the Texas Two Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts), here (by Jonathan C. Lipson), and here (by Jared A. Ellias).

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Anthony Casey
Joshua Macey

One of the most important contexts in which Chapter 11 proceedings can facilitate the preservation of value is the resolution of financial distress related to mass tort claims. Over the last forty years, Chapter 11 has been invoked to facilitate settlement in dozens of large mass tort cases. Without Chapter 11, these value-preserving settlements would have never been possible.

Mass tort cases involve complex claims of multiple—often tens of thousands of—claimants looking to recover value from a business enterprise. The core provisions of Chapter 11, which are designed to coordinate behavior among claimants, address precisely these types of multilateral-claims situations. These provisions allow the quick, efficient, and fair resolution of claims and preserve value for the claimants and the other stakeholders of the business.

Providing a mechanism for the resolution of these mass tort cases is a quintessential function of bankruptcy law. Without bankruptcy resolution, the uncertainty of future liability in mass tort cases can prevent a debtor from productively carrying on its business and undertaking projects or asset sales that could create value and facilitate a cooperative resolution.

How do divisional mergers fit with this purpose? A divisional merger is a state-law transaction where a business entity divides itself into two new entities. It is attractive in some cases because it is simple and requires fewer steps than other methods for creating entity partitions. But the substantive outcome is no different. Any laws penalizing and prohibiting divisional mergers would therefore have little substantive effect. Rather they would simply channel transactions from one form of entity partitioning to another.

The important question, therefore, is whether a divisional merger—or any other form of entity creation—is being used to facilitate a socially valuable outcome consistent with the purpose of Chapter 11. When used appropriately, a divisional merger preceding a bankruptcy filing can facilitate a socially valuable resolution of mass tort claims, isolating (but not limiting) the mass tort liability for resolution independent of the other operations of the business.

To see why this is true, consider a large otherwise solvent business enterprise facing tens of thousands of potential tort lawsuits. One option would be for the entire enterprise to enter bankruptcy. But there are major costs to an enterprise-wide proceeding. The tools of Chapter 11 are blunt. The automatic stay applies across all creditors even those unrelated to the mass torts. Similarly, the filing triggers all sorts of enterprise-wide rules and restrictions. All creditors—including those with no connection to the mass tort litigation—must file their claims and can demand to be involved in the proceedings and in plan confirmation. The enterprise-wide filing brings extra parties and extra claims into the process and creates opportunities for those parties to take strategic litigation positions that can delay or prevent resolution.

The divisional merger structure reduces these enterprise-related complications. In the right situation, this structure can simplify the process and focus the proceedings on the specific mass tort resolution that is necessary for the preservation of value.

The proper way to address divisional mergers, in our view, is not to prohibit them altogether, but rather to make sure that they do not leave tort victims worse off. The transaction should therefore provide a source of adequate funding to resolve the tort liabilities. Consistent with this principle, recent cases that have utilized the divisional merger structure prior to a Chapter 11 petition have provided funding agreements that ensure that claimants have access to the same or more value in pursuing their claims against the business.

The bankruptcy proceedings that follow the merger should also provide meaningful disclosure and discovery about the merger, the funding agreement, and the underlying tort claims to allow a fair valuation of liability and a reasonable estimate of the number of claimants. Fortunately, bankruptcy judges are willing and able to provide these procedural safeguards.

The alternative of prohibiting divisional mergers will likely leave claimants worse off. Drawn out proceedings transfer value from tort claimants to bankruptcy professionals. It might also lead to unfair outcomes where some tort claimants receive large recoveries and others receive nothing at all. In turn, potential claimants will race to the courthouse chasing early judgments that leave the firm without funds to pay later claimants.

The purpose of Chapter 11 is not to reduce liability, but rather to reduce complexity and cost. And a well-designed divisional merger promotes that purpose while providing a fair and efficient system for resolving group claims.

 

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] Upending the Traditional Chapter 11 Bargain

By Jared A. Ellias (University of California, Hastings College of the Law; Harvard Law School)

Note: This is the third in a series of posts on the Texas Two Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Earlier posts in this series can be found here (by Jin Lee and Amelia Ricketts) and here (by Jonathan C. Lipson).

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In October 2021, Johnson & Johnson (“J&J”) executed a strategy to use the bankruptcy system to resolve a massive flood of personal injury lawsuits.  In doing so, J&J found a way to obtain the benefits of Chapter 11 without accepting the burden of operating a business under court oversight.  J&J achieved this outcome by executing a corporate law move dubbed the “Texas Two-Step.”  The Two-Step split J&J’s consumer division into two entities: (1) LTL Management LLC, which was allocated all of J&J’s baby powder-related tort liability; and (2) a second entity that contained the assets of its consumer businesses.  LTL Management subsequently filed for bankruptcy without the assets of the consumer business.  In a landmark recent opinion, Judge Michael B. Kaplan of the Bankruptcy Court for the District of New Jersey held that these maneuvers were not a bad faith bankruptcy filing.  As I argue below, Judge Kaplan’s ruling, which attempts to use bankruptcy law to ameliorate weaknesses in tort law, may inspire other wealthy firms to emulate J&J’s tactics.  It may also feed a potential backlash from higher courts and Congress that may make the bankruptcy system less useful to large firms.

In short, J&J’s bankruptcy strategy upends the traditional bargain that Chapter 11 offers to distressed corporations and their creditors.  Congress designed a bankruptcy system that provides companies with powerful protections, such as an automatic stay of non-bankruptcy litigation.  In exchange, companies must submit their assets to court oversight.  To be sure, a bankruptcy filing always undermines some of the bargaining power that mass tort claimants have outside of bankruptcy, such as the ability to bring many individual lawsuits.  However, the burden of court oversight also gives creditors bargaining power, as companies seek to exit bankruptcy quickly to escape the expense and distraction of a bankruptcy proceeding.  J&J argues it has found a better way of using the bankruptcy system: J&J would use a contract to make the assets of the consumer division available to pay any amounts owed to tort victims and its procedural machinations meant that those assets would not be depleted by wasteful court oversight.

As Michael Francus recently argued, J&J’s strategy is best understood as the latest move in the long-standing chess game of hardball bankruptcy tactics between the lawyers who represent tort victims and the lawyers who advise large companies with tort liability.  For example, in 2003, Pfizer resurrected a dead subsidiary and caused it to file for bankruptcy to obtain a judicial order halting all litigation against Pfizer, which potentially had its own liability associated with the subsidiary’s products.  Pfizer’s strategy involved taking a corporation that had been defunct for over a decade, giving it an “independent board of directors,” employees and office space.  By doing so, Pfizer was able to benefit from a bankruptcy court injunction for several years before reaching a settlement after a decade of scorched earth litigation.  Other high-profile companies, most prominently Purdue Pharma, have also tried to stretch bankruptcy law to resolve claims against third parties without those entities filing for bankruptcy themselves.

The “Texas Two-Step” strategy deployed by J&J takes these existing strategies a step further by surgically separating assets from liabilities to create a favorable bargaining environment.  In holding that this maneuver was not a bad faith use of the bankruptcy system, Judge Kaplan opens the door to other wealthy firms to engage in similar maneuvering to resolve mass torts problems. For example, will the next company with headline-grabbing tort liability, such as an unexpected oil spill, respond by “spinning off” its liabilities into a bankruptcy filing?  In the past, this only would have happened if the resulting liability rendered the polluter insolvent, but now even wealthy and solvent firms may decide that their fiduciary duty requires them to use the bankruptcy system to deal with their liability.

In his ruling, Judge Kaplan overruled the arguments of, among others, a group of bankruptcy scholars (including myself) that worry that the complexity of J&J’s maneuvers will undermine public confidence in the integrity of the bankruptcy system. To be sure, Judge Kaplan’s opinion makes persuasive arguments about the limits of the tort system.  The question, though, is whether the ultimate outcome of Judge Kaplan’s attempt to use bankruptcy law to rectify problems in the tort system will be to create new problems for the bankruptcy system as Congress explores new legislation and appellate courts issue rulings that respond to perceived overreach by reducing the power of bankruptcy judges and, as a result, the usefulness of bankruptcy law.

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] Vertical Forum Shopping in Bankruptcy

By Jonathan C. Lipson (Temple University-Beasley School of Law)

Note: This is the second in a series of posts on the Texas Two Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

The first post in this series can be found here.

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Jonathan C. Lipson

Forum shopping has long been an issue in chapter 11 reorganization, chiefly because liberal venue rules permit gamesmanship.  Section 1408 of the Judicial Code allows a corporate debtor to “bootstrap” into the bankruptcy court of any district where at least one entity in the group was formed.  If a forum is chosen “strategically,” Professors Lynn LoPucki and Bill Whitford first warned (in 1991), “the choice can have an important effect on the distribution of the losses emanating from a bankruptcy reorganization.”

They were describing what may be called “horizontal” forum shopping:  picking among the nation’s roughly 200 bankruptcy panels to find the one the debtor considers best for its situation.  Cases such as LTL Management and Purdue Pharma suggest there is another kind to think about, a variation on what proceduralists call “vertical” forum shopping.

Vertical forum shopping typically concerns competition between state and federal courts, and the rule of decision they apply (i.e., Erie v. Tompkins).  Bankruptcy has a similar state-federal dynamic, but also presents the potential for broader, and more problematic, competitions.

LTL involves the chapter 11 reorganization of Johnson & Johnson’s tort-feasing talc subsidiary.  The debtor had been formed shortly before bankruptcy in a controversial “divisive merger,” which many viewed as little more than a fancied-up fraudulent transfer.  Talc plaintiffs moved to dismiss the case on grounds that it was not commenced in good faith.

In a thorough and thoughtful opinion, U.S. Bankruptcy Judge Michael Kaplan denied the motion because he believed the economic benefits of reorganization appeared to outweigh alternatives.  But, the motion to dismiss also raised “a far more significant issue: which judicial system—the state/federal court trial system,” or chapter 11 “serves best the interests of th[e] bankruptcy estate, comprised primarily of present and future tort claimants with serious financial and physical injuries.”

This question—which system?—is bankruptcy’s version of vertical forum shopping.

On one hand, Judge Kaplan is probably right about the economics:  chapter 11 is likely to pay more to more talc claimants than litigation in other courts.  Nonbankruptcy litigation might produce a few outsize winners—billion-dollar verdicts or multi-million-dollar settlements—but there may be little left for most judgment creditors to collect.

On the other hand, chapter 11’s distributive benefits can trade off against what we might call “dignitary” interests, including individual rights to a “day in court” and a jury trial.  Congress intended to preserve some dignitary protections in chapter 11 cases, including the right to a jury trial of contingent and unliquidated personal injury and wrongful death claims.  But the rise of channeling injunctions and nondebtor releases has undermined those protections.

In Purdue Pharma, for example, the debtor’s controversial plan would give personal injury creditors a bare right to a jury trial against the company, and cap recoveries at about $48,000—surely not enough to cover the cost of the trial.  Worse, it would eliminate the right entirely as to the Sackler family, which owned and controlled the company when it committed two sets of confessed drug crimes.  The viability of those releases is pending before the Second Circuit Court of Appeals.

Vertical forum shopping in chapter 11 can threaten not only the role of other courts, but also other branches of government.  Again, while LTL spotted the issue, Purdue crystallized it.

A supplemental injunction at the beginning of Purdue halted administrative and regulatory actions against Purdue and the Sacklers.  While this left the possibility of criminal prosecution, the U.S. Department of Justice negotiated deals with the Sacklers and Purdue that made it practically impossible for states to prosecute (and, of course, many preferred to settle with the Sacklers rather than fight, anyway).

Purdue Pharma and LTL are likely to be very different cases.  The bankruptcy judge and the debtors in Purdue resisted important efforts to vindicate dignitary concerns, such as a bellwether trial of allegations against the Sacklers or a fulsome examination of them.  Tragically, the lack of those efforts may have undercut the Sacklers’ proposed payout, leading the judge to declare himself “bitter.”

In LTL, by contrast, Judge Kaplan and the debtors have signaled a willingness to deploy these types of mechanisms, should the case remain in bankruptcy.

At this point, it is too early to know.  Angered by the brazen nature of the divisive merger, the talc plaintiffs have appealed to the Third Circuit.

I discuss dignitary issues implicated by vertical forum shopping in chapter 11 in a draft paper, The Problem of Social Debt, which I can share if you email me (jlipson [at] temple [dot] edu).

[Texas Two-Step and the Future of Mass Tort Bankruptcy Series] Introduction to LTL Management’s Bankruptcy

By Jin Lee and Amelia Ricketts (Harvard Law School)

Note: This is the first in a series of posts on the Texas Two Step, the bankruptcy of LTL Management, and the future of mass tort bankruptcies.  Check the HLS Bankruptcy Roundtable throughout the summer for additional contributing posts by academics from institutions across the country.

Jin Lee
Amelia Ricketts

Judge Kaplan’s recent decision not to dismiss the LTL Management (LTL)/Johnson & Johnson (J&J) bankruptcy has further stirred controversy about the hotly debated Texas Two-Step Maneuver, and put an end to speculation on how the bankruptcy court would rule on J&J’s Texas Two-Step bankruptcy filing.  (The decision has been appealed directly to the Third Circuit).

The court rejected tort claimants’ arguments that LTL’s filing violated the good faith requirement for Chapter 11 filings or warranted “for cause” dismissal under Section 1112.  Judge Kaplan held that the filing was an appropriate use of the Bankruptcy Code to maximize value available to creditors, commenting that the bankruptcy court would be the “optimal” venue to resolve tort claimants’ treatment.  The judge emphasized compliance with the terms of the Texas divisional merger statute as evidence of J&J’s good faith.  He also viewed the funding agreement among LTL, J&J, and J&J’s consumer division subsidiary as providing LTL with appropriate capitalization to meet the talc claimants’ needs.  As a result, Judge Kaplan concluded that the talc claimants’ interests would be best served by the bankruptcy process and denied their motion to dismiss.

The full post discussing the case is available here: Introduction to LTL Management’s Bankruptcy.

 

Texas Two-Stepping Out of Bankruptcy

By Michael A. Francus (Harvard Law School)

Michael Francus

Johnson & Johnson’s use of the Texas Two-Step to manage its talc liabilities has put the company, and the Two-Step, front and center in the roiling debates over aggressive uses of the bankruptcy system. Those debates have led to scholarly criticism, congressional hearings, and proposed legislation that would curtail debtors’ ability to so use the bankruptcy courts.

My Essay details the mechanics of the Two-Step. Beginning with the Texas divisive merger, the funding agreement, and forum shopping for the Fourth Circuit, the Essay fleshes out precisely how the Two-Step boxes in tort claimants. Like other scholarship, this Essay identifies the risk that such maneuvering effects a fraudulent transfer. It also goes a step further, arguing that the point of the Two-Step is not to succeed, but to delay. Fraudulent-transfer litigation in a bankruptcy consumes time because it requires an adversary proceeding, and that delay pressures tort claimants to settle. So the Two-Step can succeed as long as claimants cannot wait out the course of the bankruptcy, even if a court never declares the particular Two-Step to be a proper use of divisive merger law rather than an improper fraudulent transfer.

Instead of playing into this delay game, this Essay argues, courts should evaluate the Texas Two-Step for good faith. Tort claimants can raise such challenges as a motion to dismiss (as some have) and thus avoid the need for a fraudulent-transfer adversary proceeding. And under current doctrine, the Two-Step likely qualifies as a bad-faith filing: In most cases, the Two-Step is a litigation tactic. And the Two-Step, invariably, is filed by an entity created solely to file for bankruptcy. Both of those are doctrinal hallmarks of bad-faith bankruptcies.

More broadly, the Essay explains, the Two-Step and good-faith challenges to it underscore the continuing role of common law in bankruptcy. The Code does not define good-faith filing, so courts have developed the doctrine case by case. They may yet find an acceptable form of Two-Step, one which yields tort claimants the rights they would receive in, say, a Johnson & Johnson bankruptcy, without hurting Johnson & Johnson’s ability to do business by forcing the whole company into bankruptcy. Along the way, though, a vigilant common-law gatekeeping is warranted, and judges should not hesitate to dismiss Two-Steps thinking that a later ruling on a fraudulent-transfer adversary proceeding can adequately safeguard tort claimants from an improper use of the bankruptcy system.

The full essay will be available at 121 Mich. L. Rev. Online __ (forthcoming 2022) and can be accessed here.

Senate Judiciary Committee Subcommittee Hearing on the “Texas Two-Step”: A Recap

By Amelia S. Ricketts (Harvard Law School) and Jin Lee (Harvard Law School)

Amelia Ricketts
Jin Lee

On February 8, 2022, the Senate Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights held a hearing on the process through which corporations allegedly side-step accountability through divisive mergers undertaken immediately prior to bankruptcy, commonly known as the “Texas Two-Step.”

Companies have used the Two-Step when they have incurred significant liabilities in mass tort cases. The company first changes its state of incorporation to Texas or Delaware. It then carries out a divisive merger, splitting into GoodCo and BadCo. GoodCo retains all of the company assets and the non-tort liabilities, while BadCo retains the mass tort liabilities. BadCo then files for bankruptcy, while GoodCo continues business in the ordinary course. BadCo requests that the automatic stay be extended to GoodCo, preventing tort victims from seeking relief from GoodCo.

Typically, as part of the divisive merger, GoodCo and BadCo execute a funding agreement whereby GoodCo agrees to fund any victims’ trust established in bankruptcy, but usually specifying an amount far below the potential liability. One witness argued that these agreements should assuage concerns about divisive merger bankruptcies, while others argued that they did not offer tort victims real recourse.

Certain witnesses objected to using the Texas Two-Step to obtain the benefits of bankruptcy without the burdens and urged legislative reform to prevent divisive merger bankruptcies. Others argued that the current bankruptcy protections, such as bad faith dismissal and fraudulent transfer law, were sufficient to guard against abuse. However, courts are generally reluctant to dismiss a case for bad faith. Moreover, fraudulent transfer law’s usefulness is also uncertain, because the Texas state law treats the divisive merger transaction as though no transfer has occurred. The witnesses also discussed Johnson & Johnson’s use of the Two-Step as an example and test case for existing protections against abuse.

The full post is available here.

For previous Roundtable posts on the Texas Two-Step, see Samir D. Parikh, Mass Exploitation.