Category Archives: Bankruptcy

All is not well with the Insolvency and Bankruptcy Code (IBC), on that there is agreement, across Parliaments Standing Committee, promoters and sundry commentators. How can it be fixed?

The problems range from voluntary bankruptcy not working as it should to unaccountable and unethical resolution professionals (RPs) and the absence of a deep and broad enough market for corporate debt. These must all be addressed.

Turn a New Chapter

The equivalent provision in the Indian code should be a financially stressed company voluntarily filing for bankruptcy. But this has not caught on. Under Section 10 of IBC, a corporate debtor can file for bankruptcy after committing debt-servicing default, and has to indicate an RP to run the company. These provisions should be changed. Voluntary filing of bankruptcy should be a pre-emptive move, seeking respite from debt servicing while a turnaround is put in place. The stipulation of filing for bankruptcy only after default should be removed. The incumbent management should be allowed to implement the turnaround, with the approval of the turnaround scheme, complete with monthly milestones, failure to achieve which should be reason enough for voluntary bankruptcy to lapse.

RPs are another source of angst. It would be unfair to tar the entire flock based on some black sheep who prepare unscheduled bags of wool, one for the master, one for the dame, and one for their own little ewes who live down the lane. However, the institutional framework to keep their conduct proper is missing.

RPs are governed by codes of conduct, one of the Insolvency and Bankruptcy Board of India (IBBI), and another of their affiliating institute. The only code Indians instinctively follow is that of caste honour, which leads on to the killing of young couples who love according to biology rather than sociology. There must be rigorous concurrent audit of the conduct of RPs. The IBBI must be beefed up to monitor this activity.

Employees of a company going bankrupt are as much victims of management failure/misconduct as creditors. Their help could be invoked to determine the value of the assets of a company. In the original scheme of things, information depositories were supposed to come up that would contain all the relevant data on companies. This has not materialised.

How much the assets of a company are worth is often vague, and there is little to prevent company managements or RPs from siphoning value out of a company. It might be a good idea to put in place an institutional framework for creating an inventory of a companys assets involving employees. Whistleblowers must be protected and rewarded.Liquidation Value No SecretIn a recent insolvency proceeding, a bench of the National Company Law Tribunal (NCLT) wondered if there had been collusion between the RP and the bidder who put in a bid just above the liquidation value of the company. This might have been unfair. If the companys books were reasonably accurate, due diligence would reveal the liquidation value to anyone.

In any case, why should the liquidation value be a secret? It should be a piece of information available to all bidders. If there is sufficient competition among would-be buyers, transparency on liquidation value would not bias bids to converge towards that figure. That brings us to the central defect in the working of IBC: insufficient competition among would-be buyers of resolved assets, either as going concerns or as liquidated parts.

Even without collusion among would-be buyers, there might be a paucity of very many viable bidders for a company going under the hammer during the 180-day interval in which resolution is supposed to take place. The way out of this time constraint is to sell the asset to patient capital that can, one, pay a competitive price for the asset, two, hold on to the company till a decent buyer comes along, and, three, run it competently in the meantime, if necessary.

The asset reconstruction companies (ARCs) created under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Sarfaesi) Act of 2002 are not up to the task. They do not have capital, they are supposed to pay banks only 15% of the deal price in cash, the rest is in the form of Security Receipts, essentially IOUs that can, in theory, be traded on the market but are not. And, ARCs do not have the managerial bandwidth to run the companies they buy until they find a buyers for those companies. Only private equity does this kind of a thing.

Recently, ARCs sought the governments help to obtain bank credit. ARCs should be issuing bonds to raise the money they need but, for that, we need a market for subprime bonds. And they should be able to raise enough from sale of subprime bonds to pay off the full value of what they are willing to pay for the resolved assets. That is the only way ARCs would cease to be vehicles for banks to evergreen their bad loans instead of bad loans, banks hold IOUs from ARCs.

The ARCs must be recast, entirely, as companies, without being attached to the RBIs apron strings.

Views expressed are author's own

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All is not well with India's bankruptcy law. Here's how it can be fixed - Economic Times

Healthcare and pharmaceutical giant Johnson & Johnson has been dealing with accusations about its baby powder for decades, andinvestigationshave revealed that the company knew that its signature product contained asbestos. They were sued in 1997, and J&J denied the allegations, even though internal documents from the 1970s revealed the presence of asbestos in its baby powder.

Now, more than 34,000 lawsuits are alleging that the asbestos in the talc in baby powder has contributed to cancer in patients all over the country, including women connecting the use of the powder to ovarian cancer. The product is no longer sold in the US and Canada.

But J&J explored a plan to use a Texas law to deflect the blame and financial punishment to another company, Reuters reports. The move is called the Texas Two-Step. It works like this: A company with liabilities, like J&J and the asbestos suits, transforms into a Texas entity, and then the new company undertakes a divisive merger that splits that company into two companies, which is allowed under Texas divisive merger statute. Then, liabilities and assets can be split, protecting the money and letting the other company take on the liabilities. Though this would typically be a fraudulent transfer, Texas law makes it legal.

The company taking on the liabilities next files for bankruptcy, and the other company is released from all claims against it. During settlement discussions, J&J lawyers mentioned that the company was considering the move. There wouldnt have been anything plaintiffs could have done to stop it. The potential payment could be $24 billion, and the move would limit compensation to pennies on the dollar and could end all trials in state courts across the nation. The parent company would not have any of the stigma attached to filing bankruptcy, says Andy Birchfield, Mass Tort Section Head of the Beasley Allen law firm, which represents thousands of ovarian cancer victims. It would just be the new company that is formed, and there would be a limited pool of assets in that new company that would be available to the victims that are now creditors.

In September, the plaintiffs sought a temporary restraining order and preliminary injunction to prevent J&J or any corporate affiliates from transferring its assets to a subsidiary. Plaintiffs deserve to have their day in court before a judge and jury, not arbitrarily placed in bankruptcy court with little hope of adequate compensation, Birchfield said via release. Bankruptcy should not be used as a ploy to delay or deny justice for the victims of a dangerous product produced by a company with hundreds of billions of dollars in assets.

The financial implications could be massive as well. One suit with only 22 claimants resulted in an award of $2.12 billion already, which was reduced from an initial jury award of $4.69 billion. With tens of thousands of claimants on the latest suits, the results could be astronomical. It is unlikely to be successful, and J&J hasnt made any moves yet, but Birchfield says plaintiffs wont know in advance, tying up the plaintiffs in bankruptcy filings rather than giving them their day in court. It would be atrocious for our clients and cancer victims, Birchfield says. They would be further victimized by Johnson & Johnson by taking this bankruptcy process and using it to their advantage, and extreme disadvantage for their former customers and our clients.

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The Texas Two-Step and How Corporations May Use it to Avoid Bankruptcy - D Healthcare Daily

A passenger plane arrives at the Arturo Merino Benitez International Airport, in Santiago, Chile May 26, 2020. REUTERS/Ivan Alvarado

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NEW YORK, Sept 9 (Reuters) - LATAM Airlines (LTM.SN) said on Thursday it has received several offers to fund its exit from Chapter 11 bankruptcy, each of which are worth more than $5 billion.

LATAM, the largest airline in Latin America, received the offers from creditors and shareholders, according to a filing with the U.S. Bankruptcy Court in New York City.

The Santiago, Chile-based company did not reveal the number of offers received or from whom they came, but Delta Air Lines Inc (DAL.N) is LATAM's largest shareholder. Other shareholders include Qatar Airways, with a 10% stake.

LATAM, which also operates in Brazil, Colombia, Ecuador and Peru as well as having operations through Latin America, Europe, the United States and the Caribbean, only said in the filing the offers came from "its most significant claimholders and its majority shareholders." It said negotiations for financing are ongoing.

LATAM filed for Chapter 11 bankruptcy protection in New York in May 2020 as world travel came to a halt amid the COVID-19 pandemic.

It hopes to accomplish by the end of the year the major tasks it needs to exit bankruptcy but may not formally exit by that time, according to a person familiar with the company's thinking who asked not to be identified.

The financing proposals the airline has received each include a combination of new debt and equity, which would be backstopped by the creditors or shareholders making the offer, the company said. Each offer would likely result in the substantial dilution of existing shares, it said.

However, the source said LATAM has no intention of pursuing a sale of any of its business units.

The company also forecast in Chilean regulatory filings a return to pre-pandemic profitability and capacity by 2024, as well as a projected 13% increase in total revenue by 2026.

LATAM estimates the total claims filed in the bankruptcy will fall between $8 billion and $9.9 billion, according to the regulatory filing.

The company's exclusive period to file a proposed reorganization plan expires on Sept. 15, but it filed a motion seeking an extension through Oct. 15. It will have the option to extend that deadline again by about a month if necessary.

LATAM has said it wants to grow its Boeing 787 Dreamliner fleet as part of its five-year business plan and expects to have a fleet of 28 by the end of 2021.

The airlines overall fleet will decrease to 286 by the end of the year from around 340 before the pandemic. However, it expects to increase that amount back up to 331 by 2026.

In August, the company secured court approval to enter into lease agreements with Avolon Aerospace Leasing Limited and ORIX Aviation Systems for five Dreamliners made by Boeing Co (BA.N).

The company had $1.9 billion in liquidity as of July 31. It also has the option to tap additional financing approved earlier in the bankruptcy proceeding, including up to $750 million in secondary financing.

Reporting by Maria Chutchian in New York; Editing by Ben Klayman and Lisa Shumaker

Maria Chutchian reports on corporate bankruptcies and restructurings. She can be reached at maria.chutchian@thomsonreuters.com.

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LATAM Airlines receives several financing offers to exit bankruptcy -filing - Reuters

"If you think about Michigan and automotive, it's mainly a middle-market business. You've got the OEMs and the Magnas, but for the most part it's a couple thousand suppliers with under $1 billion in revenue," said Wybo. "So if you think about an average middle-market industrial company, the government has really propped that up for the last 18 months."

Federal legislation passed just before COVID-19 slammed the U.S., as well as provisions in the CARES Act, passed in the wake of the pandemic, have also helped keep corporate bankruptcies at bay, according to Marc Swanson, a principal and bankruptcy group leader in the Detroit-based law firm of Miller Canfield Paddock & Stone PLC.

But Swanson and others in the bankruptcy space acknowledge it's unlikely to remain this quiet for much longer.

"It seems inevitable that more companies will have to turn to bankruptcy to reorganize and shore up their balance sheets," said Swanson.

Indeed, ongoing disruptions in supply chains sometimes called the "bullwhip effect" coupled with rising inflation means that companies all but assured to begin feeling pressure on their balance sheets and turn toward restructuring, said Wybo, who said he's not expecting a flood like was seen a decade ago, but still expects a substantial uptick in the coming months.

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Waiting for the shoe to drop: Corporate bankruptcies are expected to tick up - Crain's Detroit Business

"The mistake that I made, as the guy running the company, was to expand outside of Michigan, using debt to do it," Sellers told Crain's during an interview earlier this month. "I was under the false assumption that because the brand was so wildly popular in Michigan and would very easily translate to other states. And what we found is that in other states, we were just seen as any other chain. Whereas in Michigan we were considered a hometown hero, like Bob Seger."

At the time of the bankruptcy filing in June 2020, after the COVID pandemic had begun to wreak havoc with the economy, especially in the service sector, BarFly said it had between $1 million and $10 million in assets and liabilities of between $10 million and $50 million. Landlords had begun to sue the company over failure to pay rent, as Crain's reported at the time.

HopCat had begun to shutter locations even before the bankruptcy, in locations including Chicago's Lincoln Park neighborhood, and in Royal Oak, which closed in May 2020 after negotiations with its landlord fell through.

For Travis Baldwin, co-founder and principal of Dallas-based investment firm Congruent Investment Partners LLC, the mistakes acknowledged by Sellers were also apparent.

"Mistakes were made," Baldwin told Crain's. "(HopCat) grew too far out of state, (and) grew too far from the bread and butter that they were targeting."

HopCat has kept open two locations outside of Michigan, in Indianapolis and Lincoln, Neb.

To be sure, HopCat and the other BarFly restaurants that were acquired out of bankruptcy Stella's Lounge and Grand Rapids Brewing Company, both in downtown Grand Rapids were already facing massive headwinds.

Michigan restaurants were faced with more than 460 days "of closure, capacity restrictions and elevated regulatory scrutiny that forced more than one in six Michigan restaurants to close their doors for good," according to a June statement from Justin Winslow, president and CEO of the Lansing-based Michigan Restaurant and Lodging Association.

Lidvall, a restaurant industry veteran who was named CEO of the BarFly company after it was bought out of bankruptcy, acknowledged those headwinds, but noted that employee morale at the restaurants has remained high despite all the uncertainty.

Like many other industries are experiencing, Lidvall pointed to supply chain "disruption" and the tight labor market as the most severe challenges the company faces now. On the former point, Lidvall said prices are creeping up for commodities and supplies, and the labor squeeze is particularly acute on the west side of the state near HopCat's base of operations.

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HopCat seeks a path forward after bankruptcy, plans to focus on its home state, metro Detroit - Crain's Detroit Business

The story of Ess Dee Aluminum Pvt Ltd founder Sudip Dutta is a good example of rags to riches story as Sudip once used to earn Rs 400 per month and then went on to build a Rs 1600 crore empire.

Sudip hails from Durgapur in West Bengal and he came to Mumbai when he was 17-year-old. Sudip's father was an army man who got martyred during the Bangladesh liberation war of 1971. Sudip's dream was to become an engineer, but his father's untimely death forced him to abandon his dream to support his family.

There was a time when Sudip used to walk 40 km everyday and live with 20 men in a single room.

When Sudip got to know that the packaging company he was working will shut down, he decided to buy a manufacturing unit, reported Livemint.

Sudip adapted quickly and decided to convert his mid-cap company to a large-cap company. Sudip's competition was giants like India foils, Jindal Ltd. etc.In November 2008, Sudip bought India foils from Vedanta group. The move was significant because Sudip's company was smaller than India foils.

Slowly, Sudip's company Ess Dee managed to surpass a global giant like Vedanta and Ess Dee went to the top most position in the industry. Ess Dee's wide range of technologically advanced packaging solutions made Sudip the owner of an empire worth Rs 1,685 crore.

Ess Dee Aluminium Ltd,however, failed to capitalise on its success and fell prey to insolvency. The Calcutta Bench of National Company Law Tribunal once ordered the initiation of a corporate insolvency resolution process against the company.

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From labourer to owner of Rs 1,600 crore empire to bankruptcy: The rise and fall of Sudip Dutta - DNA India

The federal bankruptcy law is designed to provide people going through a tough financial time with an opportunity for a fresh start.

To help you determine if you need a fresh start, you can use our Credit Card Debt Calculator to determine how long it will take to pay off your credit cards if you do nothing.

There are many reasons why people file for bankruptcy relief. Often, it is because of a loss of income due to losing a job or even just a decrease in income that prevents the person from paying all of their bills.

Another life event that may cause someone to file for bankruptcy relief is a medical emergency or prolonged illness that results in massive medical costs that are not covered by insurance. Even the death of a spouse can create a financial crisis where the only alternative is to file for bankruptcy protection. It could even be that someone has made very poor financial decisions in the past and have over-extended himself or herself to the point where it is now impossible to meet all of their financial obligations given their current income.

The bottom line is that people file for bankruptcy relief because some type of life event or circumstance has caused them to be unable to continue paying for their basic living expenses in addition to paying their bills.

The ultimate goal in filing for relief under either Chapter 7 or Chapter 13 bankruptcy is a discharge of your debts.

If you qualify to file for a Chapter 7 bankruptcy case, you will receive a complete discharge of most of, in not all, of your unsecured debts when the case is completed. This means that once the bankruptcy case is closed, you will no longer be legally responsible for the payment of the debts that are discharged through the bankruptcy case.

The automatic stay provisions of Section 362 of the U.S. Bankruptcy Code prevent creditors from attempting to collect any debt that is discharged through a Chapter 7 bankruptcy action. This includes collection actions, wage garnishments, judgments and seizure of property.

If you file a Chapter 13 you will create a 3 to 5 year repayment plan. At the end of the successful competition of your plan your debts will be discharged.

The advantage of a Chapter 13 plan is that it may allow to keep your home or other property on which you are behind in payments or which are not covered by your exemptions. You will also enjoy the protections of the automatic stay when you file a Chapter 13 bankruptcy.

The property a debtor can keep through the bankruptcy is determined by the specific exemptions available under state law. Bankruptcy Information allows you to search for state exemptions. In addition, residents of certain states are allowed to choose federal exemptions instead of state exemptions.

Before deciding upon the appropriate course of action you may wish to explore somealternatives to bankruptcy and review thefrequently asked questionssection of the site in order to gain a better understanding of the bankruptcy process.

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BankruptcyInformation.com - Personal Bankruptcy Information

It comes to us from a July 2021 North Carolina district court decision reversing a $115,000 sanctions order by a North Carolina bankruptcy court. The story offers a lesson and a moral. The lesson is that the bankruptcy court cannot sanction a creditor if there is an objectively reasonable basis for concluding that the creditors conduct is lawful. The moral of the story is that a creditor can avoid the time, expense, and risk associated with litigating contempt and sanctions issues by taking basic steps to ensure that confirmed Chapter 11 plans are clear and precise.

In 2009, the Beckharts filed Chapter 11. At the time, they were almost a year behind on a loan secured by the property at Kure Beach. The loan servicer objected to a plan confirmation because it did not specify how post-petition mortgage payments would be applied to principal and interest. The bankruptcy court confirmed the plan without clarifying the issue, but the servicer did not ask the court to reconsider its order nor did it appeal.

The Beckharts paid for five years. Shellpoint acquired the loan from the original servicer and treated it as in default based on unpaid accrued arrearages. Periodically, Shellpoint sent default letters to the Beckharts, who disputed the default. Counsel for Shellpoint advised that the confirmation order had not changed the loan contract terms and that the loan remained in default. The matter escalated with the Beckharts filing complaints with the Consumer Financial Protection Bureau. Shellpoint commenced foreclosure, then represented to the Beckharts it was ceasing foreclosure, but then posted a foreclosure hearing notice on the Beckharts' door (allegedly due to error).

In January 2020, the Beckharts moved the bankruptcy court to find Shellpoint in contempt and award them monetary sanctions. The court held a hearing in June and, in September 2020, found Shellpoint in contempt. The court tagged Shellpoint with $115,000 in sanctions for lost wages, "loss of a fresh start," attorney's fees, and travel expenses.

Bankruptcy courts have the power to hold a party in civil contempt and to impose sanctions for violation of a confirmed plan. The test for liability is based on a recent United States Supreme Court decision -- Taggart v. Lorenzen. (To read our discussion of Taggart, click here.) The Taggart test prohibits sanctions if there was an objectively reasonable basis for concluding that the creditors conduct might be lawful. There can be contempt for violating the discharge injunction only if there is no fair ground of doubt as to whether the order barred the creditors conduct.

In reversing the bankruptcy court, the district court noted that the plan and confirmation order did not state how much the debtors would owe on confirmation, did not say how the $23,000 in arrears would be paid, and did not set the amount of the first payment. Confusingly, the confirmation order also said that the original loan terms would remain in effect, except as modified. Finally, the district court pointed out that Shellpoint was repeatedly advised by counsel that their behavior was authorized, and reliance on the advice of outside counsel is a sufficient defense to civil sanctions. Based on all these facts, the district court found that Shellpoint acted in good faith and interpreted the confirmation order in a manner consistent with the contractual terms of the loan, and that was objectively reasonable.

Creditors can take some comfort in the "no fair ground of doubt" test, which is more forgiving than a strict liability standard. Creditors can also solicit and act on the advice of counsel before engaging in perilous conduct, which provides another layer of protection. But the most important takeaway is the self-evident principle that creditors should insist on clear and specific plan terms. Shellpoint ultimately prevailed and avoided sanctions, but only after over 18 months of litigation. All of that could have been avoided had the loan servicer insisted the plan specify how the Beckharts' payments would be applied to satisfy the arrearage.

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Use Clarity to Avoid Contempt in Bankruptcy | Ward and Smith, PA - JDSupra - JD Supra

A LONG LEGAL chapter in Americas opioid epidemic, which continues to kill tens of thousands of people a year, at last came to an end on September 1st when a federal judge in New York approved the bankruptcy plan of Purdue Pharma, which developed and manufactured OxyContin, a highly addictive painkiller. The deal settled thousands of lawsuits against the firm filed by states, localities, tribes and individuals. Purdue will be reorganised as a public-benefit company called Knoa Pharma, and its future profits will go towards alleviating the damage done by opioid addiction. Members of the Sackler family, who own Purdue, will relinquish control of the firm and contribute $4.5bn to the settlement. But nine states and Washington, DC, opposed the final deal and some will appeal against it. Their objections stem from a legal arrangement shielding parties associated with bankrupt companies from liability. Many people want it changed.

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Bankruptcy comes with costs and benefits. The debtor must disclose all assets, which are distributed to creditors. But in return the debtorin this case Purdueis freed of legal liability. As a condition of their participation in the deal, the Sacklers sought and won immunity from civil lawsuits related to the opioid epidemic, without declaring bankruptcy themselves. The arrangement is known as a non-debtor release from liability (or a third-party release). It originated in the 1980s to protect insurers in bankruptcies arising from asbestos liability, and was codified by Congress as a protection in those cases. As a result of the settlement, the Sacklers (not all of whom were involved in the management of the company) will not relinquish most of their fortune, estimated at $11bn. Richard Sackler, Purdues former president and chairman, last month told a court that neither he nor his family nor the company is responsible for Americas opioid crisis.

Last year five members of the family paid $225m to settle civil charges brought by the federal government that they sold OxyContin while knowing it to be unsafe, ineffective and medically unnecessary. Lots of states and individuals would probably file similar suits if they could. But non-debtor release means that will no longer be possible, since the terms apply to all parties with a claim against the Sacklers, even if they did not participate in the deal or assent to it. Only a fraction of those who used OxyContin have filed claims related to their use of the drug: about 130,000. But the number of OxyContin usersall of whom were potential claimantsis probably at least ten times that, estimates Adam Levitin of Georgetown University Law Centre. They will get no piece of the settlement and no opportunity to sue the Sacklers for opioid-related claims.

The use of a non-debtor release has also been mooted in the reorganisation of two groups that filed for bankruptcy amid child-abuse lawsuits, the Boy Scouts of America and USA Gymnastics. For defendants in sprawling litigation, moving to a bankruptcy court and securing a non-debtor release is appealing: it binds absent parties, foreclosing future claims from victims who have not yet come forward. Some Democrats want to ban the arrangement, which they say has been expanded beyond its original intent. In July a group of senators, including Elizabeth Warren of Massachusetts, introduced a bill to close what they call a loophole used by bad actors.

In the case of Purdue, the settlement does at least mean that money will be disbursed. But those who had hoped the family would have to pay more will be disappointed. The Sacklers negotiated how much money they would turn over, and its as little as they thought they could get away with, says Lindsey Simon of the University of Georgia. The settlement will probably survive an appeal, bringing an unsatisfying legal resolution to a long chapter of a painful public-health crisis. For many, alas, the pain continues.

This article appeared in the United States section of the print edition under the headline "Released"

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How asbestos saved the Sackler family from bankruptcy - The Economist

What game is Sen. Joe Manchin playing? A week after calling to hit the pause button on Democrats bid for $3.5 trillion in new social spending, hes reportedly saying he might be OK with up to $1.5 trillion.

This is on top of the $1.2 trillion infrastructure bill that is largely his baby, now awaiting House approval.

Even cut down, this splurge would still hobble the economy, as Manchin himself outlined last week in The Wall Street Journal: Over the past 18 months, weve spent more than $5 trillion responding to the coronavirus pandemic. Now Democratic congressional leaders propose to pass the largest single spending bill in history with no regard to rising inflation, crippling debt or the inevitability of future crises.

Now the West Virginia Democrat is willing to bend part way an open invitation for bargaining thats all too likely to wind up far above what he today says is acceptable.

Fine: He wants the $1.5 trillion in social spending to be paid for, meaning no new borrowing. But he knows perfectly well that Congress routinely covers new outlays with various fictional assumptions.

And even if it doesnt do so this time, that means hefty tax hikes that also slam the economy. The Senate blueprint for the bill includes boosting rates on individuals and corporations, which would stifle business investment, slow the economy and bring the nation back to Obama-era stagnation, with the working class in particular losing ground.

Maybe Manchin is just giving the left some reason for hope, so the likes of The Squad dont torpedo his infrastructure bill out of spite. Otherwise, hes just bargaining over how hard to hit an economy still struggling to get back to boom times.

A trillion here, a trillion there, and the progressive loons will still spend America into disaster.

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Joe Manchin may bargain the nation into bankruptcy yet - New York Post