to be a process by which a company just decided to stop paying its bills, but continue operating anyway. If they wanted to
stay in business and reorganize their debt, they had to make
some difficult choices and make some sacrifices. They couldn’t
just stiff their suppliers and their lenders and then emerge.
They had to pay the Chapter 11 toll to avail themselves of
Chapter 11’s benefits.
and Travis Vandell of UpShot Services LLC finding that large
Chapter 11s filed at the end of 2012 were expected to reach
their conclusion, meaning either the confirmation of a plan,
approval of a sale, conversion to a Chapter 7 or dismissal, 25%
faster than similar cases filed at the beginning of 2008.
The financial crisis also introduced
new complications to an already
cumbersome subject; as some of the
world’s largest lenders—specifically
their holding companies—came face
to face with their demise, regulators
attempted to develop a system to
unwind systemically-important
financial institutions (SIFIs).
In a way, that was how Chapter 11 was conceived, and how it
operated, to a degree, in a bygone era. The advent of multiple
tranches of secured debt held by even small companies has
meant that the absolute priority rule, a fundamental principle
of bankruptcy law that, among other things, establishes the
idea that secured lenders are to be made whole before unsecured lenders, renders the debtor’s entire estate to its secured
creditors and leaves nothing for unsecured trade suppliers.
This isn’t necessarily news. It’s how Chapter 11 has developed
since the 1970s, culminating in the last decade with the enactment of the Bankruptcy Abuse Prevention and Consumer
Protection Act (BAPCPA), which continues to fall short of its
partial mission to right the ship as far as the balance between
secured and unsecured creditors is concerned. The financial
crisis also introduced new complications to an already cumbersome subject; as some of the world’s largest lenders—specifically their holding companies—came face to face with
their demise, regulators attempted to develop a system to
unwind systemically-important financial institutions (SIFIs)
via the Dodd-Frank Wall Street Reform and Consumer Protection Act and its Orderly Liquidation Authority (OLA).
BAPCPA’s Chapter 11 revisions govern companies that want
to reorganize and Dodd-Frank governs SIFIs that want to do
the same, since banks themselves can never be debtors in
Chapter 11 cases. Both landmark pieces of legislation find
themselves in an intricate dance at present, as legislators consider how to make reorganization faster, fairer to both creditors and taxpayers and less damaging to the overall economy,
three goals that can often come into conflict.
Typical Chapter 11 Filing Trends
However, the same study found that traditional Chapter 11s,
filed most often by smaller, less sophisticated companies with
less legal know-how at their disposal, tend to drag on longer
now than they did in the prior decade. “The typical large ‘freefall’ case filed in late 2012 is expected to take approximately
13%—or 49 days—longer than the time that a large free-fall
case filed in early 2008 took,” the authors wrote. “As key parties-in-interest are reaching negotiated frameworks for
restructurings before a Chapter 11 filing in a larger percentage
of cases, today’s pool of ‘free fall’ debtors includes the cases
with the thorniest and most complex restructuring issues.”
The increase in pre-planned and prepackaged cases, according to Meloro, Reese and Vandell is largely being driven by
“relatively solvent, viable companies” that are seeking to avoid
the unknowns of a traditional Chapter 11 and the “spiraling
administrative and professional costs” that accompany a standard reorganization. This is to say that the longer a typical
Chapter 11 case languishes in the court system, the more
value these administrative costs drain from the estate, leaving
less for unsecured creditors that are often already paid last in
reorganizations, if they’re paid at all.
For large companies, the fact that Chapter 11 is a big, complex
undertaking that offers no easy guarantees is no secret. As
such, pre-packaged Chapter 11 filings have grown more and
more popular as corporate debt structures have grown more
and more complicated. These sorts of filings are already
designed to be quicker, but according to an analysis published
in the March edition of the ABI Journal, these cases have actually sped up as they’ve grown more popular.
SIFIs
The study, titled “The Fast and Laborious: Chapter 11 Case
Trends,” found that while less than 40% of Chapter