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Faster, Shorter, Smarter, Better: Strategies for a New Era of Bankruptcy
Notwithstanding myriad developments in corporate finance and restructuring over the last 20 years, bankruptcy remains an important, and often necessary, tool to help distressed companies reorganize debt obligations, streamline operations, and emerge as leaner, more profitable enterprises. To keep up with changing times, the practice of bankruptcy law also continues to evolve, as restructuring professionals and judges focus on making the process more accessible and cost effective.
Among other trends, practitioners are increasingly using pre-packaged and pre-negotiated cases, drafting clearer and more concise pleadings, employing smarter deposit management practices, and harnessing improved technology — strategies for a new era of bankruptcy.
Faster Cases
One oft-cited trend in Chapter 11 practice is the growing popularity of "pre-negotiated" or "pre-arranged" cases, which refer to bankruptcy cases where the debtor has already reached agreement on the terms of a Chapter 11 plan with one or more creditor groups prior to commencement.
Recent studies show that pre-packaged and pre-negotiated cases now make up the growing majority of Chapter 11 filings. The benefits of accelerated cases are clear: Negotiating plan terms with creditors prior to filing for Chapter 11 minimizes the duration of a case, decreases the likelihood of expensive and protracted post-petition litigation, creates leverage over dissenting creditors, and allows a debtor to enter Chapter 11 with a positive message for customers, vendors, employees and contract counterparties. Indeed, increased use of pre-negotiated cases has played a significant role in shrinking the average duration of Chapter 11 cases by large, public companies from approximately 800 days in 2008 to just 328 in 2018, according to UCLA-Lopucki Bankruptcy Research.
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