Facing Personal Liability for Business Debts? Who Ya’ Gonna Call?1 People who are not bankruptcy experts but who know something about the subject tend to put all bankruptcy attorneys into one of two buckets: (a) attorneys who help people file bankruptcy; and (b) attorneys who help businesses file bankruptcy. This distinction is mostly correct. Generally speaking, there are two types of people who file bankruptcy: (a) people who incurred debt for personal or household purposes, which are “most people;” and (b) people whose debt derives from some form of business […]

[Editor’s Note: This article was originally published on LinkedIn on September 20, 2020.] There has been a significant uptick in the number of articles appearing in mainstream media (e.g. newspapers) about the wave of bankruptcies that has already started to appear. One article (linked here), authored by Matt Egan for CNN Business and published about a week ago, caught my particular attention. It is well-written but there were a few things about it that were wrong or, at least, not entirely right. And, so here I am with my thoughts… In […]

Potential Outcomes of Intercreditor Deeds   Secured creditors often seek agreement among themselves in order to limit intercreditor conflict and expedite fulfillment of their respective claims against a borrower in a Chapter 11 case. One might call it a “strength through peace” approach.   However, in Chapter 11 cases, some courts have ignored intercreditor agreements in cramdown situations, refused to enforce certain terms as contrary to public policy, and have construed a given intercreditor agreement term as not covering the controversy at issue. We note that the likely fate of an […]

The ABCs of ABCs, Business Bankruptcy, & Corporate Restructuring/Insolvency This installment of our series is required reading for the next, which attempts the audacious task of describing a “typical” chapter 11. And if you didn’t get it, the title of this installment, “Chapter 11—If You’ve Seen One, You’ve Seen Them All,” is intended to be sarcastic. That said… The Predictability of Chapter 11 and Likely Outcomes When a company files chapter 11, its experience will bear some resemblance to every chapter 11 that came before. We’re not saying anything momentous […]

The Complexity of Student Loan Debt in Bankruptcy… Demystified Student loan debt has hit a record $1.6 trillion. This number is staggering on its own, but as millions of Americans lose their jobs and source of income during the COVID-19 pandemic, student loan borrowers have to look at their options for repayment.  The U.S. government is allowing borrowers to suspend all federal loan principal and interest payments until September 30, 2020, but this still leaves many private loan borrowers at the hands of their lenders. For those experiencing extreme financial […]

The SBA’s Views, Court Rulings and Options for Your Company You need to restructure your debt and/or deal as soon as possible with assertive creditors. You want to preserve your company, and you would benefit (or already have benefited) from Paycheck Protection Program (PPP) funds as a bridge. What do you do? Can you risk Chapter 11? Are PPP loans for Chapter 11 debtors available? If not, what are your options? The CARES Act – which has led to two rounds of funding thus far – has proven to be […]

Considerations for Distressed Private Equity   You are a PE fund manager. Your fund employs a loan-to-own strategy (also referred to as distressed private equity) to effect take-overs of target companies. You are accustomed to exerting powerful leverage in chapter 11 cases, particularly when you buy enough claims to confirm a plan or to block confirmation of a plan by other parties. For a plan to be approved consensually, each class of claims or interests must approve it. Approval by a class of claims requires a “yes” vote by a […]

Is the Jury In or Out on Chapter 11 Bankruptcy Gifts?   The gifting doctrine in bankruptcy is not new and often is used to obtain creditor consensus to a debtor’s proposed exit—either through a chapter 11 plan or a Section 363 sale. Bankruptcy “gifts” typically involve a structurally senior class voluntarily giving some of its property or distribution to a structurally junior class of creditors or equity holders.  Bankruptcy courts across the nation have reached differing and, at times, seemingly inconsistent decisions regarding the gifting doctrine. Some courts view […]

Application of Section 503(b)(1)(A) and 503(b)(9) in the Sears Chapter 11 Filing Precedent setting rulings in the Sears chapter 11 case could radically alter how vendors support companies who file for bankruptcy in the future. Historically the presumption and practice in the vast majority of bankruptcy cases has been that vendors receive priority status for goods delivered beginning not only 20 days prior to the filing, but also continuing after the filing. Bankruptcy code Section 503(b)(9) applies to goods delivered prior to the petition, and Section 503(b)(1)(A) applies afterwards. Because […]

The ABCs of ABCs, Business Bankruptcy, & Corporate Restructuring/Insolvency Who are you? Maybe your company needs to file chapter 11. Or one of your customers recently filed. Or maybe a competitor is in (or is rumored to be close to filing) chapter 11. Maybe you’re thinking about getting into the corporate restructuring industry yourself. Regardless of your answer, if what you’re after is a tour of the turnaround, restructuring, and insolvency industry (the “Industry”), you came to the right place. A Little History About Law & Economics The Industry began […]