[Crypto-Bankruptcy Series] Crypto Volatility and The Pine Gate Problem
by | posted in: Bankruptcy Reform, Chapter 11, Collateral Stripping, Crypto-Bankruptcy Series, Cryptocurrency, Valuation | 0

By Anthony Casey (University of Chicago), Brook Gotberg (Brigham Young University), and Joshua Macey (University of Chicago)

Anthony Casey
Brook Gotberg
Joshua Macey

Note: This post is the ninth post in a series of posts on bankruptcies of cryptocurrency companies and the emerging issues they pose. Previous posts in the series include:

1. The FTX Bankruptcy: First Week Motions, Jurisdictional Squabbling, and Other Unusual Developments, by Megan McDermott

2. Quantifying Cryptocurrency Claims in Bankruptcy: Does the Dollar Still Reign Supreme?, by Ingrid Bagby, Michele Maman, Anthony Greene, and Marc Veilleux

3. The Public and the Private of the FTX Bankruptcy, by Diane Lourdes Dick and Christopher K. Odinet

4. Staking, Yield Farming, Liquidity Mining, Crypto Lending – What are the Customer’s Risks?, by Matthias Lehmann et al. (University of Vienna)

5. The Treatment of Cryptocurrency Assets in Bankruptcy, by Steven O. Weise, Wai L. Choy, and Vincent Indelicato

6. FTX Bankruptcy – A Failure of Centralized Governance in the Name of Decentralized Cryptocurrencies, by Vivian Fang

7. Roundup: Celsius Network LLC, by Jessica Graham

8. The Implications of CeFi and DeFi in Bankruptcy: A Hot Take on Celsius, by Kelvin FK Low and Timothy Chan

This series is being managed by the Bankruptcy Roundtable and Xiao Ma, SJD at Harvard Law School, xma [at] sjd [dot] law [dot] harvard [dot] edu.

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

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When a crypto exchange such as FTX files for bankruptcy, crypto assets will often be treated as property of the estate and not as property of the individual or business that deposited coins with the exchange. Scholars have focused on the financial stability and consumer protection issues that arise as a result of this treatment.

In our opinion, there is an additional reason to treat crypto depositors as owners, not as creditors, of crypto assets, and to exempt holders of crypto assets from ordinary bankruptcy procedures such as the automatic stay. With some exceptions such as stablecoins, crypto assets are highly volatile. Claims against a crypto exchange, including claims submitted by customers who traded crypto assets on the exchange, are valued at the filing date. The failure of a crypto exchange is likely to occur when the crypto asset’s value has declined significantly. The fact that claims are valued at the filing date could lead to strategic bankruptcy petitions that redistribute value away from junior claimants. And even if crypto exchanges do not file with this purpose in mind, bankruptcy, by creating an artificial moment of reckoning, is likely to redistribute value from customers of a crypto exchange to the exchange’s other creditors or managers.

This is an extreme version of a familiar problem, which is that bankruptcy, by forcing a moment of reckoning, causes claimants who have invested in volatile assets to lose the option value of those investments. Imagine a company that has an asset that could appreciate significantly in the future but currently holds little value. If the firm files for bankruptcy, creditor claims are based on the value of the asset at the time the firm files for bankruptcy. If there is reason to think that the asset’s value will increase in the future, a bankruptcy filing allows the debtor to pay the relatively little and then benefit when the asset’s value goes up. That, in our opinion, offers another reason to think that customers of crypto exchanges should not be treated as unsecured creditors.

Click here to read the full article.

[Crypto-Bankruptcy Series] FTX Bankruptcy – A Failure of Centralized Governance in the Name of Decentralized Cryptocurrencies
by | posted in: Bankruptcy, Corporate Governance, Crypto-Bankruptcy Series, Cryptocurrency, Valuation | 0

By Vivian Fang (University of Minnesota)

Vivian Fang

Note: This post is the sixth post in a series of posts on bankruptcies of cryptocurrency companies and the emerging issues they pose. Previous posts in the series include:

1. The FTX Bankruptcy: First Week Motions, Jurisdictional Squabbling, and Other Unusual Developments, by Megan McDermott

2. Quantifying Cryptocurrency Claims in Bankruptcy: Does the Dollar Still Reign Supreme?, by Ingrid Bagby, Michele Maman, Anthony Greene, and Marc Veilleux

3. The Public and the Private of the FTX Bankruptcy, by Diane Lourdes Dick and Christopher K. Odinet

4. Staking, Yield Farming, Liquidity Mining, Crypto Lending – What are the Customer’s Risks?, by Matthias Lehmann et al. (University of Vienna)

5. The Treatment of Cryptocurrency Assets in Bankruptcy, by Steven O. Weise, Wai L. Choy, and Vincent Indelicato

This series is being managed by the Bankruptcy Roundtable and Xiao Ma, SJD at Harvard Law School, xma [at] sjd [dot] law [dot] harvard [dot] edu.

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

***

The fall of the once mighty crypto exchange FTX is sometimes mythologized, but what led to its bankruptcy may be simpler than you think. In a nutshell, FTX transferred a large amount of its native tokens to a closely affiliated trading firm Alameda Research. Using these tokens as collateral, Alameda borrowed real assets, made risky bets, and lost huge sums of money. Then, to cover up mounting losses, FTX and Alameda arranged obscure transactions between themselves. In the end, they went bankrupt for the same reason many other companies do: assets were insufficient to offset liabilities.

So, what lies at the crux of this mess? Let me start with FTT, which is FTX’s native token. It is not uncommon for a crypto exchange to issue a utility token to provide users with a convenient means of accessing features and benefits on the platform, such as discounted trading fees, early access to token sales, and voting rights. By offering such a token, a crypto exchange can create an integrated ecosystem and promote growth.

While FTT may have proven valuable to platform users as a utility token, it differed from open-source cryptocurrencies especially Bitcoin, being the first and most prominent, in two important aspects. First, FTT was issued and centrally controlled by FTX, while Bitcoin is generated and governed by a decentralized community. This means that FTX—a centralized exchange—could freely move large quantities of FTTs to affiliated entities like Alameda. This also means that FTX and Alameda should not have recognized FTT tokens as assets, just like stock should not be booked as assets by the issuing company or its subsidiaries. Second, supply and demand, which ultimately determine an asset’s value, are distinctly different between the two tokens. With FTT, the demand was tied to the performance and popularity of FTX platform, and the supply was tightly controlled by FTX, through its release of tokens, regular repurchases, and token burning. With Bitcoin, the demand comes from its perceived investment value and other utilities by a broad base of investors and users, while the supply is rigidly set by its open-source algorithm. This difference explains why FTT tended to be much riskier and less liquid than Bitcoin and why the announcement of a block sale by Binance, a competing crypto exchange, triggered a sharp decline in FTT’s price.

Unfortunately, the core issues that resulted in FTX’s bankruptcy—the use of illiquid and complicated financial instruments to inflate assets, excessive risk-taking leading to huge debts and losses, and engagement in shady non-arm’s length transactions with affiliated entities—are nothing new in U.S. corporate history. For example, mortgage-backed securities (MBS), another illiquid and complicated financial instrument that packages mortgage debts into bond-like securities, played a key role in driving the 2007–2008 financial crisis. Major financial institutions’ involvement with MBS made it possible for them to inflate assets and take risks, which fueled a real estate bubble and resulted in the largest corporate bankruptcy in U.S. history (Lehman Brothers). Take Enron as another example. The company was a dominant player in the global market for energy derivatives, which are financial contracts that enable transacting companies to manage exposure to energy prices. This market was highly obscure, and Enron assumed huge risks from its counterparties. When Enron’s energy trading business turned unprofitable, it attempted to cover up by creating a network of special purpose entities (SPEs) to raise debt and hide losses.

There are, of course, unique lessons to learn from every epic corporate downfall. Three aspects of FTX’s bankruptcy warrant emphasis. First, FTX is a case of regulator shopping facilitated by the status quo of the U.S. crypto regulation. The U.S. lacks a workable regulatory framework that guides exchange platforms on how to provide crypto-based financial services and store customer funds in a transparent manner. As such, many crypto exchanges set up operations offshore where regulation and enforcement are weaker, and customer protection is likely compromised. Second, FTX is a case of an accounting scandal facilitated by the lack of crypto accounting and disclosure requirements. In the U.S., the Financial Accounting Standards Board (FASB) is reportedly working on finalizing an authoritative rule that would require the use of fair-value accounting for crypto assets. It, however, remains a question as to how well this approach will apply to illiquid tokens like FTT, the value of which could evaporate overnight. It also remains a challenge as to how to consolidate accounting for deeply intertwined crypto entities. Third, FTX is a case of failed centralized governance in the name of decentralized crypto assets. Bitcoin, which is emblematic of decentralization, was created with the mission to circumvent centralized control. However, when decentralized assets are traded on a centrally controlled platform like FTX, the platform itself is no different from a traditional financial institution. To that end, proper governance measures must be implemented to prevent problems like conflicts of interest, excessive risk-taking, and misappropriation of customer funds.

[Crypto-Bankruptcy Series] Quantifying Cryptocurrency Claims in Bankruptcy: Does the Dollar Still Reign Supreme?
by | posted in: Bankruptcy, Chapter 11, Claims Trading, Crypto-Bankruptcy Series, Cryptocurrency, Reorganization, Valuation | 0

By Ingrid Bagby, Michele Maman, Anthony Greene, and Marc Veilleux (Cadwalader Wickersham & Taft LLP)

Note: This post is the second post in a series of posts on bankruptcies of cryptocurrency companies and the emerging issues they pose. The first post can be read here (by Megan McDermott).

This series is being managed by the Bankruptcy Roundtable and Xiao Ma, SJD at Harvard Law School, xma [at] sjd [dot] law [dot] harvard [dot] edu.

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

***

Ingrid Bagby

Michele Maman

Anthony Greene

Marc Veilleux

Crypto-watchers and bankruptcy lawyers alike have speculated how customer claims based on digital assets such as cryptocurrencies should be valued and measured under bankruptcy law. However, a crypto-centric approach to valuing claims raises a number of issues.  For example, measuring customer claims in cryptocurrency and making “in-kind” distributions of these assets could lead to creditors within the same class receiving recoveries of disparate USD value due to fluctuation in cryptocurrency prices. Moreover, the administrative burden associated with maintaining, accounting for, and distributing a wide variety of cryptocurrencies as part of a recovery scheme or plan may prove costly and complex.  Equity holders also might challenge the confirmability of a plan where valuations and recoveries are based on cryptocurrency rather than USD, as a dramatic rise in cryptocurrency values may  allow for a return of  value to equity.

A recent dispute in the Celsius bankruptcy proceedings as to whether a debtor is required to schedule claims in USD, or whether cryptocurrency claims can be scheduled “in-kind,” may serve as a preview of things to come on these issues. In Celsius, each Debtor’s schedule of unsecured creditors’ claims (Schedule E/F) listed customer claims by the number of various forms of cryptocurrency coins and account types, rather than in USD. Subsequently, a  group of Celsius preferred shareholders filed a motion directing the Debtors to amend their Schedules to reflect customer claims valued in USD, in addition to cryptocurrency coin counts.

Ultimately, the Debtors and the Series B Preferred Holders were able to consensually resolve the motion by the Debtors agreeing to amend their schedules by filing a conversion table reflecting the Debtors’ view of the rate of conversion of all cryptocurrencies listed in the Debtors’ schedules to USD as of the petition date.  However, it remains to be seen whether scheduling of claims in cryptocurrency and providing conversion tables will become the norm in similar cases involving primarily crypto-assets.  Practitioners and creditors should expect further issues to arise in the claims resolution process in crypto-related  cases as claimants and liquidation trustees (or plan administrators) wrestle with how to value claims based on such a volatile asset, subject to ever-increasing regulatory scrutiny.  For now, the bankruptcy process continues to run on USD.

The full article can be read here, and the memo is also republished by National Law Review, Lexology and Mondaq.

 

Value Tracing and Priority in Cross-Border Group Bankruptcies: Solving the Nortel Problem from the Bottom Up
by | posted in: Priority, Valuation | 0

By Edward J. Janger (Professor, Brooklyn Law School) and Stephan Madaus (Professor, Martin-Luther-University Halle-Wittenberg)

Edward J. Janger
Stephan Madaus

The Nortel bankruptcy case is simultaneously the biggest success and biggest failure in the recent history of cross-border restructuring practice. On the plus side, the coordinated sale of an insolvent telecom firm’s key assets created a pool of value worth $7 billion—much larger than could have been accomplished through piecemeal local liquidation of spectrum licenses and intellectual property rights.  On the minus side, the fights over value allocation swallowed up a gargantuan part of that value—an estimated $2.6 billion.

 This article suggests a simple, perhaps naïve, solution to this problem.  The fights centered on alleged entitlements to priority—upward deviations from equal treatment and pro rata distribution. These fights were complicated by Nortel’s structure as a global corporate group. The claims were based on, among other things: (1) liens; (2) corporate structure; (3) territorial jurisdiction; and (4) local statutory priorities. Interactions among these claims to priority made it virtually impossible to unscramble the egg.  In our view, a straightforward solution to this problem is to remember that a creditor asserting priority has the burden of establishing the realizable value of its claim to priority in excess of its pro rata distribution.

The article proceeds in three steps.

First, it describes the current architecture for dealing with the insolvency of corporate groups and the problem posed by cases like Nortel and Lehman.

Second, it details the various types of claims to priority that can exist within a corporate group and explores the nature of priority.  It then develops the concept of “homeless value” and the “rump estate.”  Claims to priority may be hierarchical or they may be plural. They may be traceable to assets, countries, or entities, or they may inhere in the group. Regardless, when a firm continues to operate in bankruptcy (or is sold as a going concern), the relative position of the claimants must be fixed at the outset. Thereafter, subject to respecting the priority of the newly fixed claims, governance should be situated with the variable claimants to this unsituated value—the “rump estate.” These claimants are the ones who will benefit from any increase in value and pay for any decrease.

Third, the article suggests an approach to value allocation that would vastly simplify cases like Nortel, but which also provides a mechanism to allocate value in rescue cases where the firm continues to operate. The simple point is that priority claimants should have the burden of establishing the realizable value of their priority. This requirement establishes an entitlement floor for, and limits the veto rights of, these priority claimants. As such, it provides a legal default for allocating value in going concern sale cases, and a cram-down standard for restructurings.

The full article is available here.

The Hertz Maneuver (and the Limits of Bankruptcy Law)
by | posted in: Bankruptcy Reform, Bankruptcy Roundtable Updates, Cramdown and Priority, Priority, Valuation | 0

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)

Anthony J. Casey
Joshua C. Macey

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.

The full article is available here.

Secured Creditor’s “Net Economic Damages” Estimate of Disputed Claims “Plainly Insufficient” to Establish Collateral Value
by | posted in: Bankruptcy Administration and Jurisdiction, Bankruptcy Reform, Bankruptcy Roundtable Updates, Valuation | 0

By Paul M. Green and Mark G. Douglas (Jones Day)

Paul M. Green
Mark G. Douglas

Valuation is a critical and indispensable part of the bankruptcy process. How collateral and other estate assets (and even creditor claims) are valued will determine a wide range of issues, from a secured creditor’s right to adequate protection, postpetition interest, or relief from the automatic stay to a proposed chapter 11 plan’s satisfaction of the “best interests” test or whether a “cram-down” plan can be confirmed despite the objections of dissenting creditors. Depending on the context, bankruptcy courts rely on a wide variety of standards to value estate assets, including retail, wholesale, liquidation, forced sale, going-concern, or reorganization value. Certain assets, however, may be especially difficult to value because valuation depends on factors that may be difficult to quantify, such as the likelihood of success in litigating estate causes of action.

The U.S. Court of Appeals for the First Circuit recently addressed this issue in In re Montreal, Maine & Atlantic Railway, Ltd., 956 F.3d 1 (1st Cir. 2020) (“MMA Railway”). The First Circuit affirmed a ruling that a secured creditor failed to satisfy its burden of establishing that collateral in the form of indemnification claims settled by the estate had any value entitled to adequate protection. According to the court, with respect to a disputed claim, a showing of possible damages is not enough. Instead, the creditor must establish the likely validity of the claim and the likelihood of recovery.

MMA Railway is a cautionary tale for secured creditors. Creditors bear the ultimate burden of proof in establishing the value of their collateral under section 506(a) of the Bankruptcy Code—a determination that has important consequences in many contexts in a bankruptcy case. The First Circuit’s ruling highlights the importance of building a strong evidentiary record to support valuation. It also indicates that certain types of collateral (e.g., disputed litigation claims) are more difficult to value than others.

The full article is available here.

COVID-19: Rethinking Chapter 11 Bankruptcy Valuation Issues in the Crisis
by | posted in: Bankruptcy Administration and Jurisdiction, Bankruptcy Reform, Bankruptcy Roundtable Updates, Valuation | 0

By Andrew N. Goldman, George W. Shuster Jr., Benjamin W. Loveland, Lauren R. Lifland (Wilmerhale LLP)

Andrew N. Goldman
George W. Shuster Jr.
Benjamin W. Loveland
Lauren R. Lifland

 

 

 

 

 

 

 

Valuation is a critical and indispensable element of the Chapter 11 bankruptcy process. It drives many aspects of a Chapter 11 case, from petition to plan confirmation, in all circumstances. It may be obvious that the COVID-19 crisis has added a layer of complexity—and volatility—to bankruptcy valuation issues with respect to valuing assets, liabilities, and claims, both in and outside the Chapter 11 context.  But the crisis may also change the way that courts look at valuation determinations in Chapter 11—both value itself, and the way that value is measured, may be transformed by the COVID-19 crisis.  While the full extent of the pandemic’s effect on valuation issues in bankruptcy has yet to be seen, one certainty is that debtors and creditors with a nuanced and flexible approach to these issues will fare better than those who rigidly hold on to pre-crisis precedent.

The full article is available here.

Presumption of Filed Claim’s Validity and Amount Does Not Apply in Proceeding to Determine Secured Amount of Claim
by | posted in: Bankruptcy Administration and Jurisdiction, Bankruptcy Roundtable Updates, Valuation | 0

By Paul M. Green, Mark G. Douglas (Jones Day)

Paul M. Green
Mark G. Douglas

The Bankruptcy Code creates a rebuttable presumption that a proof of claim is prima facie evidence of the claim’s validity and amount. Courts disagree, however, over whether that presumption also applies in a proceeding to determine the secured amount of the creditor’s claim. The U.S. Bankruptcy Court for the Eastern District of California weighed in on this issue in In re Bassett, 2019 WL 993302 (Bankr. E.D. Cal. Feb. 26, 2019). The court broadened the divide in the debate by holding that the presumption that a filed claim is valid does not create a presumption that the claim is secured to the extent specified in a proof of claim.

Valuation is a critical and indispensable part of the bankruptcy process. How collateral and other estate assets are valued will determine a wide range of issues, from a secured creditor’s right to adequate protection, postpetition interest, or relief from the automatic stay to a proposed chapter 11 plan’s satisfaction of the “best interests” test or whether a “cram-down” plan can be confirmed despite the objections of dissenting creditors. Bassett and other court rulings addressing the valuation of secured claims illustrate the importance of developing an adequate evidentiary record to support or refute a proposed valuation.

The full article is available here.

Teams and Bankruptcy
by | posted in: Bankruptcy Roundtable Updates, Corporate Governance, Jurisprudence, Valuation | 0

Ramin Baghai (Stockholm School of Economics), Rui Silva (London Business School), Luofu Ye (London Business School)

Corporate bankruptcies constitute an important mechanism through which the economy rids itself of obsolete firms and allocates their constituent parts to alternative and potentially more productive uses. This process of reallocation of human and physical capital is an “essential fact about capitalism” (Schumpeter 1942).

While resources may on average be used more productively following a bankruptcy, this process is not deterministic and likely involves various imperfections. In addition to the potential loss in value to the firm’s redeployable physical capital stock (e.g., due to asset fire sales), bankruptcy may involve some deterioration of organizational and human capital. Moreover, frictions in the post-bankruptcy re-allocation of resources across firms may lead capital and labor to be idle for some time or even result in protracted sub-optimal uses. In the case of workers, unemployment spells could also accelerate the depreciation of skills. While prior studies have focused primarily on the reallocation of physical capital and individual workers, we are the first to systematically study how the human capital embedded in teams is affected by corporate bankruptcies.

Teamwork has become a prevalent way of organizing production in science, in patenting, and, more broadly, in the corporate sector. It has been documented, in a variety of settings, that teamwork has substantial benefits compared to work in hierarchical environments, in particular when complex tasks are involved. Despite the importance of teamwork, there is little systematic evidence on the economic drivers affecting the creation, stability, and dissolution of productive team configurations. Understanding these forces is crucial for the design of corporate and public policies that maximize productivity.

In our working paper, we use employer-employee matched data on U.S. inventors to study how the human capital embedded in teams is reallocated in corporate bankruptcies; our data span the period 1980 to 2010. Our results paint a nuanced picture of the reallocation of human capital through bankruptcy. Team dissolution increases around bankruptcy and team inventors subsequently become less productive than their less team-dependent colleagues. However, the labor market and the market for corporate control promote the preservation of team-specific human capital. Therefore, on balance, the productivity losses associated with bankruptcy are modest for team-dependent inventors. In addition, inventors who do not work in teams may even experience an increase in their post-bankruptcy productivity (although these effects have limited statistical significance). This suggests that bankruptcies have the capacity to release resources to more productive uses. Overall, we conclude that frictions that limit the efficiency of asset reallocation through bankruptcy may be limited in the case of highly skilled labor.

The full article is available here.

Bankruptcy Sales: Is A Public Auction Required to Assure That Property Is Sold for The Highest and Best Price?
by | posted in: 363 Sale, Bankruptcy Roundtable Updates, Fiduciary Duties, Valuation | 0

By Vicki R. Harding (Vicki R. Harding, PLLC)

A buyer negotiating acquisition of commercial real estate from a Chapter 7 trustee or a Chapter 11 debtor-in-possession will almost always hear the mantra: “I have a fiduciary duty to maximize value for the benefit of the bankruptcy estate” – which the seller insists means the property must be sold through a public auction. The potential buyer may be designated as the stalking horse (e.g. its offer will be treated as an opening bid), and it may have input on the bidding procedures (bidder qualifications, minimum overbid, purchase price payment terms, etc.). But at the end of the day it runs a risk that after investing time and money in pursuing the acquisition someone else may be selected as having made a “higher and better” offer.

However, that is not always the case.  In re 160 Royal Palm, LLC, 600 B.R. 119 (S.D. Fla. 2019) presents an interesting case study. As discussed in Bankruptcy Sales: Highest Is Not Always Best, the bankruptcy court allowed a debtor to withdraw property from a previously authorized public auction and to proceed with a private sale to a designated buyer, subject only to an overbid by the stalking horse from the public auction. The court approved the private sale over the objection of a third party that claimed that in a public auction it would bid at least $1 million more than the private sale purchase price.

The full article is available here.

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