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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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.