What Are U.S. Creditors' Rights?
August 15, 2003
Cross-border bankruptcies, a by-product of the globalization of businesses, are increasing in number, size and complexity. Coordination of reorganization or liquidation of transnational businesses is difficult because the applicable laws, social policies and concerns of the various nations are not uniform or sufficiently similar so as to be interchangeable or harmonized. In partial recognition of the globalization of businesses, Congress enacted Bankruptcy Code ' 304 in 1978, which gives foreign representatives in foreign insolvency proceedings access to U.S. bankruptcy courts.
Furthering Insolvency?
August 15, 2003
What was Enron's Board thinking? Where were the Tyco directors while Dennis went shopping? Had MCI's directors been invited to Scott's new Florida mansion? This stuff makes the headlines, but all across the country, decisions are made by boards of directors that don't come close to this scale and will never see the light of day, much less a courtroom. However, these decisions are no less questionable and susceptible to attack, leaving a director in litigation for years. This is particularly true should the company end up in bankruptcy with creditors having been harmed.
Stockbroker Fraud Not Dischargeable
August 15, 2003
It is a cornerstone of our nation's bankruptcy jurisprudence that the discharge of individual debt is reserved solely for the honest debtor. This encompasses rules that certain debts are non-dischargeable, notable among them debts obtained by fraud and other illegal acts.
Bankruptcy Filing Set New Record in Calendar Year 2002
August 15, 2003
The Administrative Office of the U.S. Courts reported that a new record high in bankruptcy filings was established for the 2002 calendar year. There were a total of 1,577,651 petitions filed during the 12-month period ending December 31, 2002, an increase of 5.7% from the previous year, when 1,492,129 petitions were filed. The previous record for filings in any 12-month period was recorded in the Judiciary's fiscal year 2002 (October 1, 2001-September 30, 2002) when 1,547,669 filings were reported.
Preventing a Haven for Wrongdoers
August 15, 2003
The current economic downturn has resulted in a huge number of bankruptcy filings by publicly traded companies. During 2001, for example, a record 257 publicly traded companies filed for bankruptcy. The telecommunications sector was particularly hard hit, as 14% of those bankruptcies were filed by publicly traded telecom companies.
Answering to the Regulators
August 15, 2003
Insurance companies, like any other segment of today's fragile economy, have shareholders, creditors, insureds, and regulators to whom they are answerable. They are hardly immune from the ups and downs of so-called new economy companies, nor the more time-tested old economy companies. As such, what is the likely result from a jurisdictional and regulatory standpoint of an insurance company seeking relief by the filing of a bankruptcy proceeding?
Don't Pay Twice for Your Equity!
August 15, 2003
In certain cases, a company may seek to exchange its outstanding debt for equity while also extinguishing (or 'squeezing-out') the interests of some or all of its prior shareholders. The need to reduce or eliminate shareholders typically stems from perfectly valid business reasons, including a desire to avoid becoming a reporting company under federal securities laws, to limit ongoing obligations to many small shareholders or to change the equity sponsor. In addition, the parties may seek to effect the transaction 'out-of-court' due to a perception (or the reality) that bankruptcy proceedings would take longer or damage the business.
Don't Pay Old Equity That Is Truly 'Under Water'!
August 15, 2003
As discussed last month, the law clearly shows that parties structuring cash-out mergers with distressed debtors must focus on two things: 1) timing the debt-for-equity exchange (and the resultant debt cancellation) so not to occur prior to the merger's effective time, and 2) demonstrating that the debtor was at 'the brink of bankruptcy' at the merger's effective time. A clear record should be built and maintained on these points, and the structure should accommodate the technical legal requirements.
