By Lynn LoPucki, Security Pacific Bank Distinguished Professor of Law at UCLA Law School
One side in litigation should not pick the court. That is exactly what happens, however, in big bankruptcies. A debtor, perhaps working together with its largest lender, can choose virtually any court in the country. The thousands of other stakeholders have no say.
The current system’s defenders argue that venue transfers will protect the stakeholders in appropriate cases. But in big case bankruptcy, venue transfer is illusory. Over the past ten years, 209 of the 317 large, public company Chapter 11s filed in the United States (66%) were filed in Wilmington, Delaware or New York City. One hundred eighty-six of the 209 (89%) were headquartered in some other district or division, but the Delaware and New York courts retained 206 of the 209 (99%).
Because cases have flowed to Delaware and New York since the 1990s, those courts’ judges now have high levels of big-case experience. In a recently completed study, Joseph Doherty and I found that significantly more companies survive under judges with greater big-case experience.
That doesn’t justify or necessitate letting corporate managers and DIP lenders pick their courts. The venue rules should require a big bankrupt to file with a big-case panel designated for its headquarters region. Within each of three or four regions, a chief judge could assign cases to maximize the development and utilization of big-case experience. That could eliminate forum shopping, level the playing field for stakeholders, reduce the pressure on judges to attract cases, and save more companies and jobs.