|The South Bay Law Firm Law Blog highlights developing trends in bankruptcy law and practice. Our aim is to provide general commentary on this evolving practice specialty.|
Making the Safe Harbors Safe Again: United States Court ofÂ Appeals for the Second Circuit Holds That State LawÂ Constructive Fraudulent Conveyance Claims Brought byÂ Creditors Are Preempted by the Safe Harbor of SectionÂ 546(e) of the Bankruptcy Code
Litigation and Dispute Resolution
Litigation and Dispute Resolution
Avoidance and Recovery
Avoidance and Recovery
Title II of the Dodd-Frank Act provides â€śthe necessary authority to liquidate failing financial companies that pose a systemic risk to the financial stability of the United States in a manner that mitigates such risk and minimizes moral hazard.â€ť
Under this authority, the government would have had the requisite authority to structure a resolution of Lehman Brothers Holdings Inc. – which, as readers are aware, was one of the marquis bankruptcy filings of the 2008 – 2009 financial crisis.
Readers are also aware that Dodd-Frank is an significant piece of legislation, designed to implement extensive reforms to the banking industry.Â But would it have done any better job of resolving Lehman’s difficulties than did Lehman’s Chapter 11?
Predictably, the FDIC is convinced that a government rescue would have beenÂ more beneficialÂ – and in “The Orderly Liquidation of Lehman Brothers Holdings Inc. under the Dodd-Frank Act” (forthcoming in Vol. 5 of the FDIC Quarterly), FDIC staff explain why this is so.
The 19-page paper boils down to the following comparison between Chapter 11 and a hypothetical resolution under Dodd-Frank:
By contrast, under Dodd-Frank:
Convinced?Â You decide.
Jones Day’s Charles Oellerman and Mark Douglas have just issued The Year in Bankruptcy: 2010.Â Â It is a (relatively) concise, thorough (81 pages), and useful compendium of bankruptcy statistics, trend analyses, case law highlights, and legislative updates for the year.
What to expect for 2011?Â According to the authors:
A recent post over the July 4 holiday weekend offered a “30,000 foot view” of the 2008 world-wide financial meltdown and offered some broad observations about its causes – and remaining challenges to recovery.
From the Federal Bank of New York last week comes yet another broad overview – this one of the “shadow banking” system that has come to comprise a significant portion of the US’s (and the world’s) financial infrastructure – particularly that of the world financial markets.
In Shadow Banking, researchers Zoltan Pozsar, Tobias Adrian, Adam Ashcraft, and Hayley Boesky describe the financial components of thisÂ ad hocÂ banking system, its role in recent asset bubbles, its brittleness under stress, and the role of the Federal Reserve and other federal agencies in relieving that stress.
As described in the abstract:
Last weekendâ€™s July 4 holiday afforded members of the US business and restructuring community an opportunity for reflection on recent economic history.Â Those who took the opportunity to do so would have benefitted from â€śThe Great Recession of 2008-2009: Causes, Consequences and Policy Responses,â€ť a recent discussion paper authored by Sher Verick and Iyanatul Islam and prepared under the auspices of the Institute for the Study of Labor (an independent think-tank associated with the University of Bonn, Germany).
According to the authorsâ€™ abstract:
“Starting in mid-2007, the global financial crisis quickly metamorphosed from the bursting of the housing bubble in the US to the worst recession the world has witnessed for over six decades.
Through an in-depth review of the crisis in terms of the causes, consequences and policy responses, [the] paper identifies four key messages. Firstly, contrary to widely-held perceptions during the boom years before the crisis, the paper underscores that the global economy was by no means as stable as suggested, while at the same time the majority of the worldâ€™s poor had benefited insufficiently from stronger economic growth.
Secondly, there were complex and interlinked factors behind the emergence of the crisis in 2007, namely loose monetary policy, global imbalances, misperception of risk and lax financial regulation.
Thirdly, beyond the aggregate picture of economic collapse and rising unemployment, this paper stresses that the impact of the crisis is rather diverse, reflecting differences in initial conditions, transmission channels and vulnerabilities of economies, along with the role of government policy in mitigating the downturn.
Fourthly, while the recovery phase has commenced, a number of risks remain that could derail improvements in economies and hinder efforts to ensure that the recovery is accompanied by job creation. These risks pertain in particular to the challenges of dealing with public debt and continuing global imbalances.”
Verick and Islamâ€™s work offers an excellent overview for anyone seeking to view economic events of the last two years through a â€świde-angleâ€ť lens.
The esoteric world of credit default swaps and other derivative securities often appears far removed from the everyday practice of Chapter 11.Â But the impact of this little-known (and often less-understood) corner of the securities market upon the bankruptcy worldÂ has recently garnered considerable academic interest – andÂ is now attracting some legislators’ attention as well.
Several posts on this blog (beginning here) have summarized the intersection between credit default swaps and bankruptcy.Â Â Some academics haveÂ explored the potential indirect effect of these securities uponÂ out-of-court netogiations – focusing primariliy on theÂ potential problemsÂ of “holdout” creditorsÂ and theÂ “empty creditor hypothesis.”Â Others (here and here) have offered their preliminary thoughts on the continued usefulness of the Bankruptcy Code’s “securities safe harbors,” originally included to shield financial markets from the effects of large bankruptcy filings – but now perceived as distorting creditor priorities and possibly exacerbating the financial risk created by such events.
Some portions of thisÂ debate (such as the true impact of CDS’s on corporate insolvency) continue to play out in the realities of Chapter 11 economics.Â Â Other portions (such as the continued viability of the Bankruptcy Code’s “safe harbor” rules) are beginning to work themselves – albeit slowly – into legislative proposals.
Within the last 30 days, Florida’s Sen. Bill Nelson has offered a brief, 2-page amendment to the proposed financial reform legislation now working its way through the US Senate.Â In essence, the amendment would strip the “safe harbors” out of the Bankruptcy Code, ostensibly “leveling the playing field” for all creditors.
For its simplicity, the amendment – which has no co-sponsors – has provoked still further discussion amongst academics.Â Seton Hall’s Steve Lubben commends it as a good “first step” toward amending the Bankruptcy Code,Â but believes further compromise is necessary (his proposed compromises are outlined here).Â Harvard’s Mark Roe says, in an updated research paper, that the amendment deserves “central consideration” in connection with financial reform legislation.
A recent post by University of Illinois’ Professor Bob Lawless over at the always-stimulating “Credit Slips” blog focuses on an often-ignored, but important, corner of the Chapter 11 world: “Small Business” Chapter 11’s.Â Â Perhaps more accurately, the post focuses on Chapter 11’s that could be – but aren’t – formally designated as “Small Business” Chapter 11’s.
Prof. Lawless – whose research interests include empirical methodologies in legal studies – recently reviewed bankruptcy data from 2007, observing that of 2,299 chapter 11s filed in 2007 where the debtor (i) was not an individual; (ii) claimed predominately business debts; and (iii) scheduled total liabilities between $50,000 and $1,000,000, only 36.8% were designated “small business” bankruptcies.Â Anecdotally, Prof. Lawless refers to one of the cases he surveyed:Â a manufacturer that scheduled about $800,000 in debt and yet did not self-designate as a small-business debtor.
So why don’t more “small businesses” that commence Chapter 11 proceedings (many don’t, but this is a different issue) claim “small business” status?
The answers from practitioners – some of whom responded on the post, and others who voiced their views on a national list-serve also maintained by Prof. Lawless. – appear to coalesce around the following:
– Congress’ 2005 amendments impose additional filing requirements.Â Section 1116 requires the provision of “the most recent” balance sheet, profit-and-loss statement, and statement of cash flows, as well as the most recent Federal income tax return.Â One busy LA practitioner noted that he avoids the “Small Business” designation for this reason.
– The “small business” deadlines are too compressed.Â For example, the Code’s exclusivity provisions generally “caps” the time period in which a “Small Business” debtor may file a Chapter 11 Plan and Disclosure Statement at 300 days.Â This period can, of course,Â be extended within the original 300-day period if the debtor can demonstrate that plan confirmation within a “reasonable period” is “more likely than not.”Â But as a practical matter, the debtor has about 10 months to get a Chapter 11 Plan and Disclosure Statement filed.
– The combination of increased reporting and compressed deadlines puts any “small business” case on a hair-trigger under the expanded dismissal provisions of Section 1112.
– Some practitioners simply overlook the designation – which appears as a “check-the-box” on the face page of the petition’s official form.
– The concept of separate “small business” treatment emerges out of “local practices” implemented by bankruptcy judges for the purpose of streamlining their own dockets, butÂ which were neverÂ reallyÂ aÂ good idea from a practical perspective.
With the possible exception of attorney oversight, these all appear emininently practical reasons for staying away from “Small Business” Chapter 11’s.
But are they always?
It may be that â€śsmall businessâ€ť cases are perceived as problematic because, in fact, they cut against the grain of the traditional law firm business model.Â For example:
– Additional filing requirements.Â There may be circumstances where the clientâ€™s non-compliance with income tax filing requirements preclude any â€śsmall businessâ€ť self-designation.Â But most businesses â€“ even troubled ones â€“ can generate a very rudimentary set of financial statements.Â Even for clients who generally operate without them, it should be possible to generate such statements (albeit very cursory ones) at the initial client interview or very shortly thereafter.Â It’s worth noting that in Californiaâ€™s Central District, the additional â€śup-frontâ€ť filing requirements are offset, at least to some degree, by the dramatically reduced monthly reporting requirements with the US Trusteeâ€™s Office.Â In one â€śsmall businessâ€ť Chapter 11 case handled last year by South Bay Law Firm, the extremely relaxed monthly operating reporting requirements were one â€“ though certainly not the only â€“ reason a â€śsmall businessâ€ť filing was recommended for the client.
– Compressed deadlines.Â Part of South Bay Law Firm’s pre-petition planning involves a review of the clientâ€™s â€śexit strategy.â€ťÂ The fundamental question is: What is the clientâ€™s perceived business objective for the contemplated Chapter 11?Â If there isnâ€™t one,Â the client has more fundamental issues to consider â€“ and the conversation typically turns to a discussion of whether or not Chapter 11 makes business sense.Â If there is a business purpose for the contemplated Chapter 11, the business purpose and the “exit strategy”Â are typically reduced to an informal â€śPlan Term Sheetâ€ť which will, itself, become the nucleus of a combined Chapter 11 Plan-Disclosure Statement.Â At South Bay Law Firm, ourÂ experience is that the combined document is generally a bit easier and less time-consuming to draft than 2 separate documents.Â And with the â€śend gameâ€ť relatively well-defined at or near the outset of the case, getting to a successful exit just got a lot easier.Â ThisÂ is a factor critical to the speed that is so important to an economically successful Chapter 11.
– More reasons for dismissal.Â It is certainly true that Section 1112 imposes draconian consequences for failure to make required filings.Â But more often, the real challenge isnâ€™t Section 1112 â€“ or the US Trusteeâ€™s Office.Â Instead, itâ€™s helping the â€śsmall businessâ€ť Chapter 11 debtor focus on the administrative requirements of a Chapter 11 â€“ and in Californiaâ€™s Central District, there are many.Â To that end, the extra discipline required up-front for a â€śsmall businessâ€ť Chapter 11 is, in fact, an important test of the debtorâ€™s ability and willingness to get through the process with success.Â If the debtor canâ€™t even comply with a few additional filing requirements, it’s preferable to know right away that this debtor will have difficulty dealing with the myriad other contingencies that are certain to emerge in even a small Chapter 11 case.
– Itâ€™s all an impractical (though perhaps well-intended) judicial idea.Â For the reasons described above, the additional filing requirements and compressed deadlines of a “Small Business” Chapter 11 may, in fact, btÂ very practical â€“ at least in the larger scope of Chapter 11 economics.Â But even if the practicalities are questionable (practicality is, after all, in the eye of the practitioner),Â their result –Â docket efficiency and speed of administration â€“ are both great sources of judicial pleasure.Â The judicial clerkship experience resident at South Bay Law Firm attests that there really is noÂ better way to make friends with everyone behind the bench than making their job easier â€“ even if the job is just a tad bit harder on counsel’s end.Â We’ll gladly invest a little extra effort if it will mean the benefit of the doubt on a â€śjump ballâ€ť in front of the person wearing the black robe.
All of this may be very interesting, but how does it implicate the law firm business model?
Only this way: In an industry predominated by an â€śhourly feeâ€ť pricing model and on bringing as much business in the door as possible, the pressure on increased speed and discipline in a “small business” Chapter 11, requires more focus (and time) up-front, drives down administrative costs, demands an internal adherence to business process, and â€śweeds outâ€ť many candidates unsuitable for Chapter 11 â€“ â€śsmall businessâ€ť or otherwise.Â This, in turn, has the effect of making â€śsmall businessâ€ť Chapter 11â€™s generally quicker and cheaper â€“ and therefore potentially less profitable, at least from an â€śhourly feesâ€ť point of view.Â It also tends, at least initially,Â to restrict or limit overall client “volume.”
However, it also has the effect of creating a relatively well-defined â€śproductâ€ť which is potentially salable to a larger segment of troubled small businesses.Â And a larger overall market segment means a larger absolute number of â€śsmall businessâ€ť debtors who are possessed of the discipline and determination to reorganize their businesses successfully.