Harvard Law School Bankruptcy Roundtable

The Bankruptcy Roundtable

Promoting the dissemination of academic and practitioner views of current bankruptcy issues

Latest News from the Bankruptcy Roundtable

False Venue Claims Signed Under Penalty of Perjury

By Professor Lynn M. LoPucki (University of Florida Levin College of Law) Professor Lynn M. LoPucki In a study of venue for the one hundred ninety-five large, public company bankruptcies filed from 2012 through 2021, I discovered nine cases (5%) in which the companies’ venue claims were in apparent conflict with what the debtors themselves stated on their petitions to be the locations of the companies’ principal places of business and principal assets. Eight of the nine proceeded to confirmation in an improper venue. The study analyzes the nine cases and concludes that (1) in seven of the nine cases, no apparent basis for the venue claims exists, (2) in one case, the basis for the venue…

Lender Liability At Forty: Thinking Through “Implied Covenant” Claims

By James Tecce and Bennett Murphy (Quinn Emanuel Urquhart & Sullivan) James Tecce and Bennett Murphy Lender liability cases invariably invoke the question of whether a lender who exercises a contractual right under a loan agreement can still be liable for breach of the “implied covenant of good faith and fair dealing.”  As the New York Court of Appeals has observed, “the implied covenant embraces a pledge that ‘neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Singh v. City of New York, 40 N.Y. 3d 138, 145 (2023) (internal quotation marks and citations omitted).  Lender liability claims typically…

Beyond Traditional Financing: Exploring Equity-Linked DIP Strategies in WeWork and Enviva

By Shana A. Elberg, Moshe S. Jacob, and Bram A. Strochlic (Skadden, Arps, Slate, Meagher & Flom LLP) Shana A. Elberg, Moshe S. Jacob, and Bram A. Strochlic 2024 saw a rise in the use of equity-linked Debtor-in-Possession (DIP) financing in Chapter 11 cases. Examples from WeWork and Enviva illustrate how stakeholders are leveraging this innovative tool to drive broader reorganization strategies and outcomes rather than as a mechanism solely providing interim financing to fund a debtor’s operations during the pendency of its bankruptcy case. WeWork’s bankruptcy case highlights the significant role equity-linked DIP financing can play in a debtor’s overall restructuring transaction, with 80% of the reorganized equity provided through the DIP arrangement and outside the…

Getting to Yes: The Role of Coercion in Debt Renegotiations

By Professor Vince Buccola (University of Chicago Law School) and Professor Marcel Kahan (New York University School of Law) Professor Vince Buccola and Professor Marcel Kahan How parties to a loan agreement or bond indenture can change the terms of their deal is an important, if frequently neglected, aspect of debt financing. Bonds and loans represent a company’s obligation to repay a debt, with interest, over time. But only a small fraction of what goes into an indenture or a loan agreement relates directly to the debtor’s financial obligations. Most of the material, by word count and complexity, consists of rules that bind the debtor while the debt is outstanding and which are designed to increase, relative…

D&O Policy Coverage: Specificity Matters in Bankruptcy Context

By Charles Dale and Nathan Lander (Proskauer Rose LLP) Charles Dale and Nathan Lander A recent Texas bankruptcy court decision In re Walker County Hospital Corporation highlights the importance of broadly drafted bankruptcy exceptions in “Insured versus Insured” (IvI) exclusions in directors and officers (D&O) insurance policies. IvI exclusions are standard in D&O policies, barring insurance coverage for claims asserted by one insured party against another insured party. Without specific policy language, current and former directors and officers may be exposed to personal liability under IvI exclusions. After Walker County Hospital (the Hospital) filed for bankruptcy, the Hospital sued its former CEO for breach of fiduciary claims. The CEO tendered the claims to the Hospital’s D&O insurer…

When Defamation Comes to Bankruptcy Court

By Professor Christopher D. Hampson (University of Florida Levin College of Law) Professor Christopher D. Hampson Shortly after Alex Jones and Rudy Giuliani were found liable for massive defamation judgments, they filed for bankruptcy in Texas and New York, respectively.  These cases and others sparked a series of conversations in my hallway at the University of Florida Levin College of Law.  My colleague Lyrissa Lidsky, a leading expert in defamation (among many other subjects), asked if she could point journalists in my direction when they asked what would happen next. That kind of inquiry is familiar to bankruptcy lawyers.  Bankruptcy courts, as the emergency rooms of commercial law, must figure out how to deal with whatever gets…

Boston Generating: Second Circuit Triples Down on Its Holding that Transfers Made Under Securities Contracts Are Safe Harbored in Bankruptcy if the Debtor-Transferee is a Customer of a Financial Institution

By Dan T. Moss, Daniel J. Merrett, and Ben Rosenblum (Jones Day) Dan T. Moss, Daniel J. Merrett, and Ben Rosenblum Section 546(e) of the Bankruptcy Code’s “safe harbor” provision (which shields transactions from avoidance claims in bankruptcy of certain securities, commodity, or forward-contract payments) has long been a magnet for controversy. Several noteworthy court rulings have been issued in bankruptcy cases addressing the scope of the provision, including its limitation to transactions involving “financial institutions” as transferors or transferees, its preemption of avoidance litigation that could have been commenced by or on behalf of creditors under applicable non-bankruptcy law, and its application to non-public transactions. The U.S. Court of Appeals for the Second Circuit contributed one…

The Gift of Exit Financing

By Professor Robert W. Miller (University of South Dakota, Knudson School of Law) Professor Robert W. Miller Hostile restructurings have spilled over into bankruptcy court and exit financing is often the prize in the center of the arena.  Debtors no longer rely upon gifting, the traditional strategy for buying plan support.  Instead, they can replicate gifting’s benefits in a more defensible package by funneling discounted subscription rights to chosen constituencies as part of exit financing.  The strategic use of exit financing has been undertheorized as commentators have focused on rules of thumb and improved monitoring.  None recognize the need for market testing.  This Article: (i) explains exit financing’s proliferation as both a symptom of gifting’s demise and…

Inconvenient Bankruptcy Appeals

By Michael Cook (Schulte Roth & Zabel) Michael Cook Too many district courts and bankruptcy appellate panels (BAPs) have been refusing to review non-final (i.e., interlocutory) bankruptcy court orders for questionable reasons, according to this article by an experienced business bankruptcy litigator.  These courts, though, have the requisite jurisdiction under 28 U.S.C. §158(a)(3) and (b) (“…jurisdiction … with leave of the court, from interlocutory orders ….”).  Some courts for example, claim to lack discretion to review “certain interlocutory orders.  They have devised a test for their discretion that effectively makes their review a matter of their own convenience.  These courts typically rely on an inapplicable provision of the Judicial Code, 28 U.S.C. §1292 (b) (“. . .…

Creditor Coalitions in Bankruptcy

By Professor Jing-Zhi Huang, Professor Stefan Lewellen, and Professor Zhe Wang (Pennsylvania State University) Professor Jing-Zhi Huang, Professor Stefan Lewellen, and Professor Zhe Wang Bankruptcy is a high-stakes game of negotiation, and creditor coalitions have emerged as game-changers in Chapter 11 proceedings. Despite their growing influence, these coalitions remain largely unexplored in academic research. This study is the first to systematically investigate their role, addressing two critical questions: (1) what drives creditor coalition formation in bankruptcy, and (2) how do creditor coalitions affect key outcomes, such as recovery rates and delays in bankruptcy? Creditor coalitions, especially ad hoc committees that are formed voluntarily and flexibly by creditors, serve as powerful vehicles for coordination in the face of fragmentation among creditors. This study uses a theoretical framework…

Novel Issues in the Crypto Bankruptcy Cluster

By Jane VanLare and Jack Massey (Cleary Gottlieb Steen & Hamilton LLP) Jane VanLare and Jack Massey The past two years have seen a cluster of interrelated Chapter 11 bankruptcy cases involving five major U.S.-based cryptocurrency companies: Voyager Digital, a crypto brokerage; Celsius Network, a crypto exchange; FTX and Alameda Research (FTX), a crypto exchange and hedge fund respectively; BlockFi, a crypto lender; and Genesis Global, a crypto lender. The domino effect that ultimately led to the filing of these five major U.S.-based crypto companies began in 2022, after the crypto market fell by approximately two-thirds in the first half of the year, and the BVI-based crypto hedge fund Three Arrows Capital (3AC) collapsed. 3AC’s failure led…

Absolute Priority, Relative Priority, and Valuation Uncertainty in Bankruptcy

By Mark J. Roe (Harvard Law School) & Michael Simkovic (USC Gould School of Law) Professor Mark J. Roe and Professor Michael Simkovic Bankruptcy reformers advocate substituting relative priority for the prevailing absolute priority standard to promote a more consensual restructuring process. In deciding who does and does not get paid when there is not enough value to pay all creditors, bankruptcy’s prevailing absolute priority rule lines creditors up in rank-order, compensating highest ranking creditors in full before lower-ranking creditors get anything. By contrast, relative priority would account for the possibility that the firm could recover and become more valuable after the bankruptcy. Relative priority would compensate lower-ranking creditors for that chance of the debtor turning around,…

Judge Rules SPAC Trust Account Sacred for Public Shareholders and Not Property of the Estate

Editor’s Note: This will be the HLS BRT’s last post of the semester and we look forward to resuming posts in late January 2025. By: Brian Schartz, P.C., Christian O. Nagler, P.C., Anna G. Rotman, P.C., Tabitha De Paulo, and Mac A. Bank (Kirkland & Ellis) Brian Schartz, P.C., Christian O. Nagler, P.C., Anna G. Rotman, P.C., Tabitha De Paulo, and Mac A. Bank (clockwise from top left) In an important win for SPAC investors, the U.S. Bankruptcy Court for the Eastern District of Texas held that the express terms of a SPAC’s trust agreement control whether a SPAC trust account is “property” of a debtor’s estate. Prior to filing for chapter 11 relief, SPAC-debtor Financial Strategies…

BRT Book Corner: Unjust Debts; The Financial Restructuring Tool Set

Editor’s Note: The Harvard Law School Bankruptcy Roundtable is excited to bring readers the first entry in a new semi-annual series, the BRT Book Corner, which features new and exciting books in the Bankruptcy and Restructuring fields. Unjust Debts: How Our Bankruptcy System Makes America More Unequal By Professor Melissa B. Jacoby (University of North Carolina School of Law) Professor Melissa B. Jacoby How should people evaluate the bankruptcy system? My academic scholarship has reflected a variety of lenses, from federalism and separation of powers, to economic efficiency.  I also have observed the hybrid nature of big business bankruptcy – not entirely public or private, and the need for the system to balance a variety of objectives.…

Opting into opting out: Due process and opt-out releases

By Marshall S. Huebner and Kate Somers (Davis Polk & Wardwell, LLP) Marshall S. Huebner and Kate Somers Since the U.S. Supreme Court issued its ruling barring nonconsensual releases in Harrington v. Purdue Pharma L.P., 144 S. Ct. 2071 (2024), there has been an even greater focus on other types of releases with respect to third parties, including both opt-out and opt-in releases. Provided that factors are satisfied, opt-out releases (which are a mechanic on a ballot or notice of nonvoting status that allows claimants to check a box to opt out of nondebtor releases in a reorganization plan) will likely be the best available pathway for effectuating the will of – and providing the best available recovery…

Does Global Insolvency Law Affect Cross-border Capital Flows?

By Professor Yeejin Jang (School of Banking and Finance, University of New South Wales, Sydney), Jenny Jihyun Tak (School of Banking and Finance, UNSW Sydney), and Professor Wei Wang (Smith School of Business, Queen’s University) Yeejin Jang, Jenny Jihyun Tak, and Wei Wang The restructuring of financially distressed multinational companies is often complex and costly because those companies must comply with both domestic and foreign bankruptcy laws in different jurisdictions. Poor coordination between domestic and foreign bankruptcy courts can be an important source of inefficiency associated with the restructuring process. The Model Law on Cross-border Insolvency proposed by the United Nations Commission on International Trade Law (UNCITRAL) aims to promote coordination among courts to improve court coordination…

Corporate Transparency Act: Are Bankruptcy Trustees and Court Appointed Receivers Obligated to File Beneficial Ownership Information Reports with FINCEN on Behalf of Debtor Entities?

By Mark Wisniewski* (Berger Singerman) Mark Wisniewski The Corporate Transparency Act (CTA) requires both domestic and foreign reporting companies1 to disclose information about the company and its beneficial owners.  Beneficial owners are defined as those persons who own 25% or more of the company (through equity, stock, convertible debt, etc.) or exert significant control over its governance and operations (e.g., C-suite officers and “important decision-makers”)—to the federal government. The CTA aims to combat money laundering, terrorist financing, corruption, tax fraud, and other illicit activities. Reporting companies formed or registered before January 1, 2024 must submit their initial Beneficial Ownership Information (BOI) report by January 1, 2025. The CTA is administered by Financial Crimes Enforcement Network, a bureau of…

Bankruptcy Court Frowns on SmileDirect’s Dismissal Request

By Timothy Q. Karcher, David M. Hillman, Vincent Indelicato, and Charles A. Dale (Proskauer Rose LLP) Timothy Q. Karcher, David M. Hillman, Charles A. Dale, and Vincent Indelicato (clockwise from top left) There is a growing trend of bankruptcy courts approving structured dismissals of chapter 11 cases following a successful sale of a debtor’s assets under section 363 of the Bankruptcy Code. A structured dismissal is a cost effective way for a debtor to exit chapter 11 and is an alternative to (a) confirming a post sale liquidating plan, which is expensive and not always viable, or (b) converting the case to chapter 7, which introduces significant uncertainty and unpredictability with the appointment of a chapter 7…

Everyone is Talking About Bankruptcy Directors

By Professor Robert W. Miller (University of South Dakota, Knudson School of Law) Professor Robert W. Miller The proliferation of bankruptcy directors represents a controversial shift in the corporate governance landscape.  Delegating corporate decision-making to bankruptcy directors insulates conflicted transactions and claims from the traditional protections provided by derivative standing and entire fairness.  Critics, however, have questioned their independence and cleansing effect.  Are bankruptcy directors really independent when their role includes negotiation with and/or investigation into the same parties who appoint them?  Should their decisions be given deference when their appointments are associated with lower recoveries for creditors?  Bankruptcy directors’ salience is best illustrated by the numerous proposals made for evaluating their cleansing effect, including Professors Ellias,…

Changes to Confirmed “Toggle” Chapter 11 Plan Required No Additional Disclosure and Voting Where Creditors’ Rights Not Materially and Adversely Affected

By Mark A. Cody (Jones Day) This article was originally published in Practical Guidance. The views and opinions set forth herein are the personal views or opinions of the author; they do not necessarily reflect views or opinions of the law firm with which he is associated. Mark A. Cody Even after a bankruptcy court has confirmed a chapter 11 plan, changed circumstances prior to the plan’s implementation and “substantial consummation” might make alterations to the plan necessary. If a proposed change is significant enough, it may be deemed a plan “modification,” in which case the Bankruptcy Code may require that stakeholders be provided with additional disclosure regarding the alteration and an opportunity to vote on the…

The Alchemist’s Inversion

By Professor Samir Parikh (Wake Forest University School of Law) Professor Samir Parikh Litigation finance makes the world go round. The capital financiers provide is the lifeblood for plaintiffs’ firms and individual claimants attempting to run the litigation gauntlet in high-stakes battles with wealthy corporate entities. Third-party litigation funding in general litigation is well documented and frequently discussed. But the role financiers play and dynamics they create in billion-dollar, mass-tort cases have been overlooked. This exclusion is confusing. Modern mass torts – including those involving Purdue Pharma, Johnson & Johnson, 3M, and Boy Scouts of America – each impact hundreds of thousands of individuals, seizing headlines and driving legal and policy debates. Most mass-tort financiers are principled…

A Tale of Two Debt Burdens:  A Day of Reckoning for China’s Debt-Fueled Infrastructure Development at Home and Abroad

By Steven T. Kargman (Kargman Associates) Steven T. Kargman In recent years, China has undertaken large-scale infrastructure development both at home and abroad. Overseas, China has undertaken massive infrastructure development around the globe under the umbrella of its widely heralded Belt and Road Initiative (BRI), a signature initiative of Xi Jinping’s tenure as the leader of China. Within China itself, a significant amount of infrastructure development has been carried out at the level of local governments, principally through entities known as Local Government Financing Vehicles (LGFVs). This infrastructure development has involved the incurrence of huge amounts of debt by LGFVs and sovereign borrowers under the BRI. Specifically, LGFVs are estimated to have incurred approximately nine trillion dollars…

Potential Resurrection of Creditor Derivative Suits on Behalf of Debtor LLCs

By Kate Scherling (Quinn Emanuel Urquhart & Sullivan, LLP) Kate Scherling Until recently, the judges of the Delaware bankruptcy court were in apparent agreement that Delaware state law acted to prohibit creditors from obtaining derivative standing to prosecute breach of fiduciary duty claims on behalf of the bankruptcy estate of a Delaware limited liability company.  But in February 2024, Judge Craig T. Goldblatt broke ranks with his fellow judges in In re Pack Liquidating, LLC, No. 22-10797 (CTG), 2024 WL 409830 (Bankr. D. Del. Feb. 2, 2024), holding that the Delaware Limited Liability Company Act did not preclude the bankruptcy court from granting the official creditors’ committee standing to pursue estate causes of action (assuming it otherwise…