Interplay Between Subordination Agreements and Chapter 11 Cramdown Plans

The Bankruptcy Code provides that subordination agreements are enforceable in bankruptcy to the same extent that such agreements are enforceable under non-bankruptcy law.  11 U.S.C. § 510(a).  However, Section 1129(b)(1) of the Bankruptcy Code permits a Chapter 11 plan to be confirmed subject to certain requirements “notwithstanding” Section 510(a).

Until recently, there was no Circuit-level guidance on whether bankruptcy courts had authority to disregard a valid subordination agreement in the context of a non-consensual “cramdown” plan when enforcement of the subordination agreement would jeopardize a plan proponent’s ability to confirm an otherwise enforceable Chapter 11 plan.

In re Tribune Co., 972 F.3d 228 (3d Cir. 2020)

In a case of first impression, the Third Circuit Court of Appeals in In re Tribune Co., 972 F.3d 228 (3d Cir. 2020) affirmed the Bankruptcy Court’s order confirming Tribune Company’s Chapter 11 plan over the objections of certain creditors who sought to enforce a subordination agreement entered into prior to the bankruptcy filing.   The Third Circuit found that the Bankruptcy Code’s cramdown provision set forth in Section 1129(b)(1) “supplants strict enforcement of subordination agreements” and held that “when cramdown plans play with subordinated sums, the comparison of similarly situated creditors is tested through a more flexible unfair-discrimination standard.”  The Third Circuit determined that the plain meaning of the word, “notwithstanding,” as used in Section 1129(b)(1) means that despite the rights conferred by Section 510(a) to subordination agreements, bankruptcy courts must confirm the plan over the objection of a non-consenting class of creditors if all of the applicable requirements of Section 1129(a) are satisfied so long as the plan does not discriminate unfairly, and is fair and equitable, for each impaired class that does not accept the plan.

            Eight-Factor Test to Determine Unfair Discrimination

The Third Circuit established eight “principles” to assess unfair discrimination in this context:  (1) subordination agreements need not be strictly enforced in the case of a cramdown, and creditors holding claims with the same priority can be treated differently so long as such discrimination is not unfair. “There is, as is typical in reorganizations, a need for flexibility over precision. The test becomes one of reason circumscribed so as not to run rampant over creditors’ rights.”; (2) unfair discrimination applies only to classes of dissenting creditors rather than individual creditors; (3) unfair discrimination is determined from the perspective of the dissenting class; (4) classes must be aligned correctly to enable bankruptcy courts to assess whether a cramdown plan discriminates unfairly; (5) bankruptcy courts should resolve how a plan proposes to pay each creditor’s recovery measured in terms of the net present value of all payments or the allocation of materially greater risk in connection with its proposed distribution; (6) bankruptcy courts should first determine the pro rata baseline for the recovery of creditors sharing the same priority and then compare such baseline against the percentage distribution that claimants in the dissenting class would have otherwise been entitled to receive under full enforcement of their subordination agreements under Section 510(a), but did not get under the plan; (7) there is a presumption of unfair discrimination where there is a materially lower percentage recovery for the dissenting class or a materially greater risk to the dissenting class in connection with the proposed distribution; and (8) the presumption of unfair discrimination may be rebutted (as determined by the bankruptcy courts in the first instance).

Pragmatic Approach to Assessing Unfair Discrimination

Applying the above principles, the Third Circuit agreed with the Bankruptcy Court’s finding that the difference between the senior noteholder’s desired and actual recovery is not material. The subordinated sums allocated to the retirees and trade creditors comprised 11.7% toward their 33.6% recovery, but only reduced the senior noteholders recovery by less than 1%.

According to the Third Circuit, its interpretation and application of Section 1129(b)(1) to override Section 510(a) supports the Bankruptcy Code’s purpose to allow confirmation of a cramdown plan provided that it protects the interests of the dissenting class of creditors. As the Third Circuit noted:

Both § 510(a) and the cramdown provision’s unfair-discrimination test are concerned with distributions among creditors. The first is by agreement, while the second tests, among other things, whether involuntary reallocations of subordinated sums under a plan unfairly discriminate against the dissenting class. Only one can supersede, and that is the cramdown provision. It provides the flexibility to negotiate a confirmable plan even when decades of accumulated debt and private ordering of payment priority have led to a complex web of intercreditor rights. It also attempts to ensure that debtors and courts do not have carte blanche to disregard pre- bankruptcy contractual arrangements, while leaving play in the joints.

In the alternative, the Third Circuit held that the allocation of the subordinated amounts to the class of non-consenting claimants did not result in unfair discrimination.  The Third Circuit noted that the prohibition against unfair discrimination “ensures that a dissenting class will receive relative value equal to the value given to all other similarly situated classes.”  In determining a plan’s differing treatment, the Third Circuit found that the best approach requires bankruptcy courts to compare the recovery of the preferred class and the dissenting class.  However, where a class-to-class comparison is difficult, such as in Tribune where the “Swap claims” were entitled to benefit from the subordination of various notes while the trade creditors and retirees were not, “a court may opt to be pragmatic and look to the discrepancy between the dissenting class’s desired and actual recovery to gauge the degree of its different treatment.”  Although this approach “is not the preferred way to test whether the allocation of subordinated amounts under a plan to initially non-benefitted creditors unfairly discriminates, . . . [t]here is, as is typical in reorganizations, a need for flexibility over precision.”  Due to the perceived importance of flexibility over precision, the Third Circuit upheld the Bankruptcy Court’s unfair discrimination analysis which compared the Senior Noteholders’ recovery under the Plan to its recovery if strict enforcement of the Subordination Agreements were enforced, and found that a 0.9% loss in recovery was immaterial.

Unfair Discrimination Test Only Applies to Classes of Creditors, Not Individual Creditors

In a recent unpublished decision, the Third Circuit expanded its holding in Tribune to dismiss an appeal of a Chapter 11 plan confirmation order as equitably moot, holding that the unfair discrimination test only applied to classes of dissenting creditors rather than individual creditors. See In re Nuverra Envt’l Sol., Inc., 834 Fed.Appx. 729, 2021 WL 50160 (3d Cir. Jan. 6, 2021), amended, Feb. 2, 2021 (unpublished).  In Nuverra, a creditor objected to the debtor’s plan of reorganization on the basis that the plan unfairly discriminated between classes of creditors.  The District Court dismissed the appeal as equitably moot, which was subsequently appealed to the Third Circuit.  The Third Circuit affirmed the dismissal, noting “’that unfair discrimination applies only to classes of creditors (not the individual creditors that comprise them), and then only to classes that dissent. Thus, a disapproving creditor within a class that approves a plan cannot claim unfair discrimination, and the standard does not ‘apply directly with respect to other classes unless they too have dissented.””  Id. at *4 (quoting Tribune, 972 F.3d at 242).  Although the Third Circuit held that the creditor was free to object to the plan on unfair discrimination grounds, he could “propose that the appropriate remedy is to pay only him and no one else in his class. He never asked for individualized relief before the Bankruptcy Court. Nor could he have at the confirmation hearing, because § 1123(a)(4) bars individualized treatment. . . .”  Id.  Because the only way to give the objecting creditor redress was to give all creditors in the same class a 100% refund on their unsecured notes in the amount of $40.4 million “which would fatally scramble the Plan and significantly harm third parties,” the Third Circuit found that his appeal was properly dismissed as equitably moot.  Id.  Therefore, creditors who challenge a plan based on unfair discrimination can only seek relief on behalf of the class.  Although this decision is not precedential, the Third Circuit’s rationale is instructive.

Takeaways from Tribune

Tribune provides valuable guidance regarding the interplay between subordination agreements and non-consensual cramdown plans.  Courts and parties will need to grapple with the competing policies of freedom of contract to negotiate subordination agreements which are recognized under Section 510(a) and the hammer granted by Congress to plan proponents under Section 1129(b)(1) to cram down a plan over the objection of non-consenting creditors.  Notably, Tribune’s flexible “unfair-discrimination” standard enables bankruptcy courts to disregard the rigid enforcement of subordination provisions when courts determine that it would be inequitable to do so by denying confirmation of an otherwise equitable plan of reorganization.

Somewhere in our rough memories of high school science, we should recall the general principle that a gas will always expand to fill a given void.  Although the Bankruptcy Code diverges markedly from scientific principles, newly enacted provisions in Subchapter V of Chapter 11 of the Bankruptcy Code suggest some similarity.  In In re Dani Transport Service, Inc., the United States Bankruptcy Court for the Central District of California found that Sections 1183 and 1185 of the Bankruptcy Code can be read together to remove a Subchapter V debtor’s misbehaving management and expand the Subchapter V trustee’s management duties to fill the void.  Aside from an example of these provisions in action, the case offers insight into the circumstances under which parties and the bankruptcy court may find management substitution preferable to chapter 7.

The Debtor’s Principals Fraudulently Apply for and Mismanage PPP Loan Proceeds

Dani Transport Service, Inc. (the “Debtor”) was a family business owned and operated by Abraham and Daniela Gutierrez that transports cars from manufacturers and delivers them to dealerships throughout California.  The Debtor expanded its services in mid-2019, but soon found that the contracts yielded substantially lower profit that did not offset the company’s costs of expansion.  On February 19, 2020, the Debtor filed a voluntary petition under Subchapter V.

In a sign of the times, two months after the Petition Date, the Debtor submitted a borrower application to the Small Business Administration for a loan (a “PPP Loan”) under the Paycheck Protection Program.  However, the Debtor’s principals did not disclose the bankruptcy case in the PPP Loan application where required, and did not disclose the PPP loan application to the Bankruptcy Court.

On April 30, 2020, the SBA approved the application and authorized the lender to disburse $170,000 to the Debtor.  The Debtor’s principals deposited $169,500 of the proceeds into a prepetition bank account and then transferred the funds to their son’s separate business account.  Ultimately, the Debtor’s principals used $100,000 of the funds to repay personal expenses and could not account for the remaining $70,000.

The Bankruptcy Court Removes Management and Expands the Subchapter V Trustee’s Duties

The scheme unraveled in February 2021, when the United States Trustee, Subchapter V trustee, and Debtor’s counsel learned of the PPP Loan from a filing in the bankruptcy case.  Although the Debtor’s principals agreed to repay the PPP Loan proceeds, the United States Trustee filed a motion to remove the principals from management of the Debtor and expand the responsibilities of the Subchapter V Trustee to fill management.

The United States Trustee’s motion relied on two sections of the newly enacted Subchapter V—11 U.S.C. §§ 1183 and 1185.  Section 1185(a) provides:

On request of a party in interest, and after notice and a hearing, the court shall order that the debtor shall not be a debtor in possession for cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor, either before or after the date of commencement of the case, or for failure to perform the obligations of the debtor under a plan confirmed under this subchapter.

Section 1183(b)(1) sets forth the initial duties of a Subchapter V Trustee.  However, following the request of a party in interest, the court can expand of those duties “for cause,” under § 1183(b)(2).  The Bankruptcy Code specifically provides that, if the debtor ceases to be a debtor in possession, the Bankruptcy Court can order that a Subchapter V Trustee

perform the duties specified in section 704(a)(8) and paragraphs (1), (2), and (6) of section 1106(a) of this title, including operating the business of the debtor[.]

11 U.S.C. § 1183(b)(5).  The United States Trustee argued that the principals’ dishonesty and misconduct—fraudulently applying for the PPP Loan, diverting the PPP Loan proceeds, and failing to disclose the PPP Loan to the Bankruptcy Court by motion or in monthly operating reports—demonstrated sufficient cause to remove the principals from management and expand the scope of the Subchapter V trustee’s duties under these provisions.

For its part, the Debtor joined in the United States Trustee’s motion and offered insight into the rationale against conversion to chapter 7.  The Debtor had filed a disclosure statement and reorganization plan in December 2020.  The Debtor contended that plan confirmation would provide a 27% return to holders of allowed unsecured claims, which could not be achieved in a chapter 7 case.

On February 23, 2021, the Bankruptcy Court granted the motion, removed the principals from management of the Debtor, and expanded the Subchapter V trustee’s duties to include management under Section 1183(b)(2) of the Bankruptcy Code.  The Bankruptcy Court separately continued upcoming hearings on approval of the disclosure statement and related matters “to give the trustee additional time to evaluate the case.”

The Upshot

Subchapter V cases contemplate a unique and balanced relationship—similar to chapter 12 cases—between the Subchapter V trustee and the debtor in possession.  Section 1112, governing conversion or dismissal, still applies in Subchapter V cases, but Sections 1183 and 1185 offer parties in interest a more nuanced approach to misbehaving management by simply expanding the Subchapter V Trustee’s role.  Dani Transport sheds some light on at least one circumstance, a pending plan with purported benefit to unsecured creditors, in which the United States Trustee and Bankruptcy Court may prefer application of Sections 1183 and 1185 to maintain the debtor’s operations.

In many chapter 11 cases, a committee of unsecured creditors is formed early in the case to represent the overall interests of unsecured creditors. See 11 U.S.C. § 1102. Members of the committee hold a “fiduciary” obligation to the entire general unsecured creditors’ class. Notably, each member of an unsecured creditors committee is duty-bound to act in the interests of all general unsecured creditors above the committee member’s singular and particular interests in the case. This fiduciary obligation carries great responsibility, and as recently seen in connection with the Neiman Marcus bankruptcy, great consequences if not honored.

Daniel Kamensky, a hedge fund founder, was the co-chair of the Official Committee of the Unsecured Creditors in the Neiman Marcus bankruptcy case. Earlier this month, Kamensky pled guilty to one count of bankruptcy fraud in a criminal action against him in the United States District Court for the Southern District of New York. Kamensky’s guilty plea was the result of his scheme to pressure a rival bidder to abandon its higher bid for securities in Neiman Marcus’ bankruptcy case so that his own hedge fund could acquire the assets at a lower price. Kamensky was made aware of a diversified financial services company’s interest in bidding on the securities involved at a price which was potentially twice as much as what Kamensky’s hedge fund was offering. After learning of the competing bid, Kamensky sent messages to employees at the financial services company telling them not to bid and threatened to use his position as co-chair of the Committee to prevent the financial services company from acquiring the securities. Further, Kamensky stated that if the financial services company moved forward with the bid, Kamensky’s hedge fund would cease doing business with them in the future. As a result, the financial services company decided to not make the bid to purchase the securities.

This scheme violated Kamensky’s fiduciary duty to the unsecured creditors in the Neiman Marcus bankruptcy as the higher bid from the financial services company would have resulted in a greater recovery for the unsecured creditors. Additionally, Kamensky is a former bankruptcy attorney, and therefore should have been well aware of his fiduciary obligations that come with the position of a committee member. Instead, Kamensky exploited his position on the committee to favor his own hedge fund at the expense of the general unsecured creditors he was supposed to represent.

U.S. Attorney Audrey Strauss recognized Kamensky’s abuse of his committee position in attempting to corrupt the asset distribution process and take profits for himself and his hedge fund. Strauss goes on to say that Kamensky “predicted in his own words to a colleague: ‘Do you understand…I can go to jail?’… ‘this is going to the U.S. Attorney’s Office.’ His fraud has indeed come to the U.S. Attorney’s Office and now has been revealed in open court.” Indeed, it has. Kamensky has acknowledged his “lapse of judgment” and “terrible mistake.” The extent of the consequences will be known when Kamensky is sentenced on May 7, 2021.

https://www.justice.gov/usao-sdny/pr/new-york-hedge-fund-founder-pleads-guilty-bankruptcy-fraud-connection-neiman-marcus

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.

As the pendulum of American politics has shifted once again, cannabis is back on the menu.  The change in presidential administrations, along with sweeping approval by voters in those states where legalization of cannabis was on the 2020 ballot, makes it more likely that Congress will pass legislation to decriminalize the manufacture, sale and distribution of cannabis at the federal level.  At the present time, at least 36 states and the District of Columbia have legalized cannabis in some form or fashion.  Indeed, the recent slate of victories on state ballots across the United States evidences the growing acceptance of cannabis by the majority of Americans.

In a recent article entitled “The Uncertain Future of Distressed Cannabis Bankruptcies and the 2020 Elections” published by New Cannabis Ventures (Dec. 4, 2020), I consider how a Biden-Harris administration will push to decriminalize cannabis at the federal level, which will open the door to distressed cannabis companies to reorganize or liquidate in bankruptcy.  https://www.newcannabisventures.com/the-uncertain-future-of-distressed-cannabis-bankruptcies-and-the-2020-elections/   Because marijuana currently remains an illegal Scheduled 1 controlled substance under the Federal Controlled Substance Act (the “FCSA”), it is a federal crime to knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute or dispense marijuana.   The United States Department of Justice has stated its commitment to enforce the FCSA consistent with Congress’ determination that marijuana is a dangerous drug, and its illegal distribution and sale provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels.  Because the United States Bankruptcy Code and the Bankruptcy Courts are creatures of U.S. federal law, Bankruptcy Courts have generally refused to afford companies that engage in the manufacture, sale or distribution of marijuana and cannabis-related products the same protections available to non-cannabis-related businesses with few exceptions.  This even applies to ancillary businesses such as landlords that rent to marijuana dispensaries or hydroponic farms, even if such activities are legal under state law. Bankruptcy Courts have almost unanimously concluded that involvement in the marijuana industry “betrays a lack of good faith” that prevents one from seeking the shelter of federal law. Therefore, as long as cannabis remains a Class I controlled illegal substance under federal law, Bankruptcy Courts will continue to dismiss cases – at least those cases where cannabis-related businesses wish to reorganize.

However, the 2020 federal and state elections have breathed new life and momentum into the marijuana legalization movement.  The Democrat-controlled House of Representatives recently passed the Marijuana Opportunity Reinvestment and Expungement Act (“MORE Act”) and sponsored the SAFE Banking Act, which respectively seek to decriminalize marijuana at the federal level, and allow federally regulated banks and financial institutions to serve cannabis-related businesses that comply with the laws in the states where they operate, making it legal for banks and financial institutions to do business with the cannabis industry without fear of federal arrest or prosecution. But such bills were unlikely to pass the Republican-controlled Senate, particularly during a contentious general election.  However, the Democrats’ ability to pass such legislation, which would certainly be signed into law by President Biden, is now more likely given the Democrats’ surprise win of both Senate seats in the Georgia runoff elections, handing the Democrats a threadbare majority with Vice President Harris as the tie breaker.  If the MORE Act is approved by Congress and signed into law by President Biden, bankruptcy will become a useful tool for distressed cannabis-related businesses to reorganize or liquidate.  However, a divided government will result in piecemeal solutions for distressed cannabis-related businesses that will provide little guidance or certainty.

In “The Uncertain Future of Cannabis Bankruptcies and the 2020 Elections,” I explain how bankruptcy courts have generally addressed  bankruptcy filings by cannabis-related businesses, the challenges facing cannabis-related business to confirm a Chapter 11 Plan or liquidate in bankruptcy, and addresses state law alternatives to bankruptcy including receiverships, assignments for the benefit of creditors, creditor compositions or out of court workouts.

In a recent Fox Alert, Harriet Wallace examined the new potential for debtors and bankruptcy trustees to apply for Paycheck Protection Program (PPP) loans in connection with operating a debtor’s business in bankruptcy under the Consolidated Appropriations Act 2021 that was signed by President Trump on December 27, 2020.

While the availability of PPP loans in bankruptcy could provide a helpful tool to assist debtors in restructuring, particularly during the COVID-19 pandemic, eligibility for debtors to obtain PPP loans is subject to the discretion of the Small Business Administration (SBA), which thus far has not rescinded its previously implemented rule that bankruptcy debtors are specifically ineligible for PPP loans.

Fox and the In Solvency Blog will continue to monitor developments regarding PPP availability in bankruptcy and other impacts of pandemic-related relief on bankruptcy.

The Federal Rules of Bankruptcy Procedure (the “Bankruptcy Rules”) govern procedure in cases arising under title 11 of the United States Code. Over time, the Bankruptcy Rules have been amended, and were most recently amended in 2020. The 2020 amendments to the Bankruptcy Rules took effect on December 1, 2020, and govern all proceedings commenced thereafter and (as is just and practicable) all proceedings pending prior to the effective date.

The amendments impact six different Bankruptcy Rules: Rule 2002, 2004, 8012, 8013, 8015, and 8021.

  • Rule 2002:
    • This Rule governs notices to creditors and others. Subsection (f) extends the requirement that the clerk of court give notice of the entry of an order confirming a plan for cases arising under chapters 12 and 13 (in addition to chapters 9 and 11) to the debtor, all creditors, and indenture trustees. Subsection (h) adds cases under chapters 12 and 13 of the Bankruptcy Code and makes changes to conform the time periods in this subdivision to the respective deadlines for filing proofs of claim under Rule 3002(c). Subsection (k) is amended to add a reference to subdivision (a)(9) of Rule 2002 to respond to the relocation of the deadline to object to the confirmation of a chapter 13 plan from subdivision (b) to subdivision (a)(9).
  • Rule 2004
    • In an effort to acknowledge the form information commonly exists in today’s ever evolving technical society, subdivision (c) is amended to explicitly refer to the production of electronically stored information, in addition to the production of documents. Additionally, subdivision (c) is amended to conform to the current version of Federal Rule of Civil Procedure 45 (which is made applicable to bankruptcy cases by Bankruptcy Rule 9016). It is now proper that a subpoena for a Rule 2004 examination is issued from the court where the bankruptcy case is pending by an attorney authorized to practice in that court, even if the examination is set to occur in a different district.
  • Rule 8012
    • This Rule now conforms to recent amendments to Federal Rule of Appellate Procedure 26.1. Subdivision (a) is amended to include nongovernmental corporations, rather than only corporate parties. Subdivision (b) is a new section, which requires the disclosure of the name of all debtors in the bankruptcy case (even if the name is not listed in the caption), and applies the subdivision (a) disclosure requirements to corporate debtors. Subdivision (c), which was previously subdivision (b), now clarifies that all disclosure requirements in Rule 8012 must be supplemented when information changes.
  • Rules 8013, 8015, and 8021
    • These three rules are amended to make technical changes by removing or qualifying references to “proof of service,” in order to respond to previous changes to Rule 8011(d) which eliminated the proof of service requirement when filing and service are completed using a court’s electronic-filing system. Rule 8015 is also amended to adjust to the change described above in Rule 8012.

Many of the changes to these rules were not overly substantive, but rather technical and designed to conform to existing changes to achieve consistency. However, after taking effect on December 1, 2020, these 2020 amendments to the Bankruptcy Rules are of immediate relevance to all practicing bankruptcy lawyers.

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.

Although enacted before the COVID-19 pandemic, the new Subchapter V of Chapter 11 of the Bankruptcy Code seems almost prescient now and could be a game-changer for small businesses looking to restructure.  Indeed, the Subchapter V provisions became effective on February 19, 2020, not a moment too soon given that the pandemic gripped the country just weeks later.

In a recent article for the American Bankruptcy Trustee Journal, Mark Hall and I explored the potential benefits of Subchapter V and its extreme timeliness in light of the pandemic.

Prior to Subchapter V, the time and costs of a Chapter 11 reorganization, including fees for professionals (particularly if an unsecured creditors’ committee is formed) and the United States Trustee, were often too prohibitive for many small businesses.  Consequently, many small businesses were force to liquidate without bankruptcy restructuring as a viable lifeline.

Some of the more notable features of Subchapter V that has made a Chapter 11 reorganization more feasible for qualifying small businesses (and qualifying individuals who have at least 50% of their debt arising from commercial or business activities), include:

  • Reducing administrative costs of Chapter 11 through eliminating the appointment of an unsecured creditors’ committee and exempting requirement to pay United States Trustee fees.
  • Implementing streamlined deadlines, including requiring the debtor to file a plan of reorganization within 90 days.
  • Appointing a trustee to help facilitate the process and mediate issues with creditors.
  • More easily enabling small business owners to retain their ownership interest in the reorganized company.

Additionally, as originally enacted, businesses (and individuals) with non-contingent, liquidated debts of up to $2,725,625 qualified for Subchapter V.  However, the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) passed by Congress in March in response to the pandemic, nearly tripled the Subchapter V debt limit to $7.5 million for one year.  As a result, far more businesses will be able to take advantage of Subchapter V until at least March 2021.

In a recent article for Bloomberg Law, Mark Hall and I examined why consumer bankruptcy filings have not (yet) increased during the COVID-19 pandemic as initially predicted, despite a significant uptick in commercial Chapter 11 filings.  Through the end of September, consumer bankruptcy filings were behind the pace of filings for 2019 and for the three year period of 2017-2019.  Potential explanations include:

  • The government assistance available earlier this year to small businesses through the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”), such as loans through the Paycheck Protection Program (PPP), which helped businesses retain employees.
  • The temporary increase in unemployment benefits by $600, and 13 weeks of additional eligibility.
  • The availability of low interest rate loans, which in particular, may help individuals avoid filing for Chapter 13 to save their homes.  Relatedly, there have been moratoriums on foreclosures.
  • Increase in savings resulting from a general pullback in consumer spending.
  • A belief or hope that the pandemic is ephemeral and that “normalcy” may soon return.

Meanwhile, commercial Chapter 11 filings since the start of the pandemic in March through the end of September are up nearly 30% compared to the same period last year.

However, as the pandemic persists and federal aid programs have ended – with the prospects for further government intervention presently murky – there is a strong potential for consumer bankruptcy filings to increase.

In these unsettled times, Fox Rothschild has prepared a comprehensive Bankruptcy FAQ to help businesses understand their potential bankruptcy options, the notable features of the bankruptcy process, how to prepare for a bankruptcy filing, and alternatives to bankruptcy.  Items addressed in the FAQ include:

  • The differences between filing for bankruptcy under Chapter 11 versus Chapter 7.
  • An overview of the “automatic stay” that goes into effect upon a bankruptcy filing and that protects debtors from their creditors.
  • A discussion of the recently enacted Subchapter V of Chapter 11, which provides a more efficient and cost-effective restructuring option for qualifying small businesses.
  • Tips on how to prepare for a Chapter 11 filing and issues to consider (e.g. potential third party and insider liability).
  • A summary of how creditors are treated in bankruptcy.
  • The impact of a bankruptcy filing on a company’s employees.
  • The ability for a business to assume or reject leases and executory contracts in Chapter 11.
  • An overview of “preference claims” to recover payments made by the debtor to creditors during the 90 days before the bankruptcy filing (or one year before for insiders).
  • Alternatives to bankruptcy filing, including:
    • Taking advantage of low interest rates to obtain new financing (or refinancing)
    • Workouts
    • Assignments for Benefits of Creditors (ABCs)
    • Dissolution proceedings

 

In July 2020, the Court in In re Generation Res. Holding Co., LLC, 964 F.3d 958, 962 (10th Cir. 2020), held that subsequent transferees do not qualify as immediate or mediate transferees under Section 550(a)(2) because they did not possess the initial property transferred, and only possessed the proceeds of the transfer. In Generation, the debtor’s insiders created a new entity and transferred a contract right to receive payments to said entity. The insiders sold the entity and used the proceeds from the sale to pay two law firms. The trustee sued the law firms to recover the proceeds. The Tenth Circuit ultimately reversed the District Court’s decision and held that the “law firms are not [immediate or mediate] transferees because they never received the property transferred.” See id. at 967. The Tenth Circuit’s reasoning focused on the subsequent transferees lack of dominion and control over the initial property transferred (the contract right to receive payments), resulting in their inability to qualify under Section 550(a) as a mediate transferee.

The United States Bankruptcy Court for the Southern District of Texas recently addressed a similar scenario in determining whether subsequent transferees qualify as immediate or mediate transferees when the subsequent transferee does not exercise control over the initial property transferred. See Cage v. Davis (In re Giant Gray Inc.), 20-3127, Doc. No. 20 at 40 (Bankr. S.D. Tex. Oct. 22, 2020).

In In re Giant Gray Inc., the appointed Chapter 7 trustee in the involuntary bankruptcy case against the debtor sued the recipients of fraudulently transferred money to recover certain funds when, prior to the petition date, the debtor’s CEO transferred more than $5 million of the proceeds from a fraudulent stock sale to the “subsequent transferees” (or the “Defendants”). Specifically, the Debtor’s CEO privately arranged for the debtor to issue $15 million in convertible preferred stock, which the CEO sold for $15 million shortly after the issuance. The defendants received more than $5 million of the proceeds from this sale of stock.

The trustee argued that the Tenth Circuit was wrong in Generation and that the decision created perverse incentives for fraudsters who are able to “immunize” the proceeds of a fraudulent transfer because the subsequent transferees were not in possession of the actual “initial property” that was transferred.

Faced with limited case law directly on point, the Court in In re Giant Grey began with the plain language of Section 550 and employed the relevant canons of statutory construction. The Court explained that a natural reading of Section 550 is that the “transferred property” is “whatever property that was the subject of the related avoidance action.” See Giant Gray Inc. at 40.  However, this limited reading of the statute restricts the pool of individuals of whom you can recover from, because you can only recover from those who have dominion or control over the “transferred property that was the subject of the related avoidance action.” The Court found that the “transferred property” is the convertible preferred stock, but not the proceeds from the sale of the stock. This logic results in the trustee’s ability to recover from anyone who controls the preferred stock or the value of the preferred stock (pursuant to a court order). However, the Court emphasized that this reading of the statute does “not give enough consideration to the language used in subsections (a)(1) and (a)(2)” and the statute as a whole. See id. To qualify as an immediate or mediate transferee, one only needs to be a transferee of the initial transferee. The statute is clear and does not add an additional restriction that the immediate or mediate transferee must be “of the property transferred.” Id. Conversely, in order to qualify as an initial transferee, one must be an “initial transferee of such transfer.” It is of note that this additional restriction is not placed on immediate or mediate transferees.

Further, when the Court read the statute as a whole it did not logically make sense that the complete defense provided for immediate or mediate transferees in Section 550(b) would apply to individuals who took proceeds of property in bad faith or were aware of the voidability of the transfer. The purpose of the complete defense in Section 550(b) is to protect those who did not engage in fraudulent activity or wrongdoing, not those who reap the benefits of the proceeds from a fraudulent transfer by simply turning a blind eye to the merits of the transfer. The Court’s reasoning aligned with the criticism that followed the Tenth Circuit’s ruling earlier this summer. The Court noted that if the immediate and mediate transferees are limited to only those who exercised control over the property it creates “perverse incentives” and “transferees could take with knowledge of the voidability of the transfer, in bad faith, or without providing value and escape unscathed with property belonging to a debtor.” Id. at 42. These perverse incentives do not align with the fundamental principles of the Bankruptcy Code and the goal to maximize the estate for all creditors. With limited case law directly on point, it will be fascinating to see how this subject develops and whether bankruptcy courts across the country will side with the Tenth Circuit or the statutory reading adopted in In re Giant Grey.

 

Stephanie Slater is a Law Clerk, based in the firm’s Wilmington, DE office.