COVID-19 Debt and Bankruptcy Infrastructure
by | posted in: Bankruptcy Administration and Jurisdiction, Bankruptcy Reform, Bankruptcy Roundtable Updates, Legislation | 0

By Robert K. Rasmussen (USC Gould School of Law)

Robert Rasmussen

The COVID pandemic put unprecedented pressure on all economies around the world. Many predicted that this economic dislocation would lead to an unprecedented number of corporate bankruptcies. This did not happen. The American government and other governments responded with extraordinary measures. While these measures allowed companies to ride out the worst of the pandemic, they did have consequences. Many large companies were left with unprecedentedly large amounts of debt on their balance sheets.

 Perhaps a robust economy will allow companies to grow their way out from under their debt burden. But perhaps not. To prepare for the possible future increase in large companies filing for bankruptcy, Congress should act now to build up a bankruptcy infrastructure sufficient to handle an influx in cases. Specifically, Congress should require that every circuit create a “business bankruptcy panel” designed to administer the Chapter 11 filing of large companies. As is well-known, three bankruptcy districts currently serve as dominant venues for large cases – the District of Delaware, the Southern District of New York and the Southern District of Texas. It is by no means clear that these three courts could handle a significant increase in caseloads. Creating expertise across the country would help prepare the system for any future rise in cases. A secondary benefit of this reform is that it may also ameliorate some of the concerns that have been raised over the years by the dominance of a small number of venues for large corporate cases.

The full article is available here.

Taking Control Rights Seriously
by | posted in: Bankruptcy Administration and Jurisdiction, Bankruptcy Reform, Bankruptcy Roundtable Updates | 0

By Robert K. Rasmussen (University of Southern California Gould School of Law)

It is common to observe that investors receive both cash flow rights and control rights against a borrower. The crucial differences between these two “rights” are rarely focused on. Cash flow rights are legal entitlements. Outside of bankruptcy, failure to pay entitles a lender to resort to a legal remedy against the borrower. Inside of bankruptcy, the Bankruptcy Code structures the way in which these legal entitlements will be adjusted. Control rights are different. They do not confer direct power over the business, nor do they provide lenders with a judicial remedy that allows them to assert control. Rather, they work indirectly. The Bankruptcy Code, in turn, pays scant attention to a lender’s control rights.

This disparate treatment stems from the lending contract. That agreement provides enforceable rights to cash and as we have seen in recent years – there is little limit to the creativity in dividing up cash flow rights. The same contract, however, does not place control in the hands of a lender, even on a contingent basis because legal doctrines threaten creditors who put their hands on the levers of power. Outside of bankruptcy, the lingering shadow of lender liability doctrine leads lawyers to counsel clients to avoid contracting for control upon a borrower’s default. Inside of bankruptcy, lenders that exercise what a court finds to be excessive control face the threat of having their claims equitably subordinated. In addition to these threats, it is far from clear that a bankruptcy court would enforce a contract that gave direct control to the debtor’s lenders should the debtor default. These restrictions on contracting, however, are questionable. Opening up the contract space for direct contracting on control could increase contracting surplus.

The full article is available here.