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Warren Graham's Legal Blog: New York Times Article
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Location: New York, New York, United States

I am a practicing lawyer who lives and works in Manhattan, and specializes in Bankruptcy, Corporate Restructuring and Creditors' Rights, Commercial Litigation and Real Estate Law. I grew up in the New York City Area, and am a graduate of the University at Buffalo (B.A. 1976) and Fordham University School of Law (J.D. 1980). I have a wide variety of interests, but am particularly interested in history, politics, economics/finance and religious affairs, and am a frequent writer on a variety of those topics, and others. On a personal note, I'm a 54 year old man, married for 27 years, with two daughters, ages 24 and 20, respectively. Legal topics of interest may be found on my blogsite,, while non-legal commentary may be found at The content of these sites will be centralized and easily accessed locations for both legal and non-legal analysis and commentary, as well as a description of my legal practice for clients and potential clients. Keep checking back, as I expect the content to change and grow regularly.

Thursday, May 04, 2006

New York Times Article

Below is an excerpt from a 2002 New York Times Article on the subject of, among other things, retail Chapter 11 Cases, in which I was quoted extensively. I am in the process of preparing an analysis of whether the article's conclusions would change materially under the subtantial revisions to the Federal Bankruptcy Code


Chapter 11? Or Time To Close The Books?

By DANIEL ALTMAN (NYT) 2791 wordsPublished: December 15, 2002

IN the last two years, more than 150 of the nation's large public companies have trooped into bankruptcy court, seeking protection from creditors while they reorganize. The process, under Chapter 11 of the bankruptcy code, has long been praised as one that gives American capitalism an advantage over systems in other wealthy countries, which are more likely to force insolvent companies to liquidate.

But that hardly means that there is no room for improvement.

A growing number of experts, having witnessed the damage to companies involved in drawn-out bankruptcy proceedings, want courts to move the cases along more quickly. Others see their point, but note that companies that have restructured in the nation's fastest-moving courts -- in Delaware and New York -- are the most likely to fail again. And experts in both camps agree that liquidation happens too infrequently.

''We tend to be biased toward saving failing firms,'' said Michelle J. White, an economics professor at the University of California at San Diego. ''The general view is that the United States system tends to overdo it. Often, firms tend to end up failing again after bankruptcy and probably should have been shut down in the first place.''

To thwart the gradual erosion of a company's value during years of legal wrangling, some academics have proposed an entirely new system to deal with insolvent companies. They would use auctions to assess and parcel out quickly the valuable parts of the company.

Yet in the decade since they began publicizing their ideas, Chapter 11 has only grown in use, especially among big, complex companies.

The next year will be telling for the bankruptcy system. When United Airlines filed for protection under Chapter 11 last week, it not only joined the list of the 10 biggest bankruptcies in history but also brought to 7 the number of those now in legal proceedings. How those cases unfold may well influence investors and creditors, hampering the markets' recovery in 2003.
Though only eight years have passed since Congress last revised procedures for corporate bankruptcies, some recent cases suggest that more work on Chapter 11 is in order.

Consider Caldor, the former discount retailer based in Norwalk, Conn., that filed for protection in September 1995 but did not announce that it was going out of business until January 1999.
The company's assets -- including 166 stores -- were worth about $1.2 billion in 1995, versus debts of $883 million, and it ranked fourth in sales among the nation's discount chains. Most analysts expected the company, which did not have a long history of financial problems, to reorganize and survive.

Instead, the chain lost money throughout the late 1990's. By the time it folded, Caldor had sold about half its stores for about $375 million and had received $223 million for its merchandise from liquidators.

What happened to the other $600 million in value?

''Caldor made the decision to liquidate too far down the road to really maximize the value of its assets,'' said Warren R. Graham, who was involved with the case and is co-head of the bankruptcy practice at Duval & Stachenfeld in New York. ''If they had decided Day 1 that they were going to liquidate,'' he said in hindsight, ''they probably would have done pretty well.''
The bankruptcy process allowed Caldor's leaders to keep control of the company, however, and their strategies were not radical enough to keep up with the changing retailing environment. What's more, in the first two years of its bankruptcy, the company paid its lawyers and accountants $15 million. Its executives extracted an extra $8 million to oversee the liquidation and paid its lawyers an additional $10 million.

Mr. Graham said that not even the creditors pushed for immediate liquidation. But it might have allotted Caldor's assets to more competitive companies sooner and saved millions in fees. By the time the liquidation decision was made, the value of Caldor's stores had declined significantly.

BY holding off creditors and protecting assets from sale or seizure, Chapter 11 was intended to give insolvent companies breathing room as they tried to restructure their operations into profitable businesses. Courts oversee their affairs, and companies finance their operations with short-term loans from lenders who move to the head of the line for repayment. Creditors vote on management's plan, and only if they disapprove -- and neither side comes up with an agreeable plan -- does a company liquidate.

But the process has a huge weakness. In the last two decades, several companies -- from airlines like T.W.A. to retailers like Grand Union to building materials giants like USG -- have emerged from bankruptcy only to file again under Chapter 11. That suggests that liquidation or a harsher restructuring might have been merited the first time.

The trouble is, Chapter 11 does not prevent various stakeholders and hired-hand advisers from pursuing their own interests at the expense of the company's value -- and lengthening the whole process.

And the longer a company is in bankruptcy, the more its brand value tends to dissipate. ''When T.W.A. was in bankruptcy, it wasn't the choice airline,'' said Lucian A. Bebchuk, a professor of law and economics at Harvard who has studied the bankruptcy process. Relations with suppliers often suffer, too. ''When companies are in insolvency proceedings, then any business partner would have to deal with it with more precautions,'' he said.

Executives, meanwhile, may no longer have incentives to make good business decisions during a bankruptcy. ''There isn't really any good way to do effective corporate governance in insolvency,'' Mr. Bebchuk said. ''Most of the mechanisms that you hope would do the work outside the insolvency are not there.'' Stocks and stock options, for example, which are traditional mainstays of executive pay, offering incentives to produce profits, become virtually worthless when a company is in bankruptcy. In addition, Mr. Bebchuk said, outsiders can no longer take over the company by buying up its stock -- a powerful way of enforcing investors' will.

The actions of shareholders, who are last in line for payment when a company is bankrupt, often combine with poor management incentives to extend the process, Ms. White said. Shareholders have to agree to any restructuring plan, she said, ''so they often want to drag their feet until, just to get things done, the other groups are willing to give some slice'' of the company to them.
Managers can also have an interest in stretching out the proceedings, said James J. White, a law professor at the University of Michigan (and no relation to Ms. White). They can, and often do, offer several plans for reorganization to try to stave off liquidation and the loss of their high-paying jobs -- even though their actions can be self-defeating.

''Because value is being dissipated,'' Mr. Bebchuk said, ''the ability of the company to be a viable, going concern and compete when it comes out of Chapter 11 might be hurt.''

That destruction of value hurts all creditors; they may have recovered more of their debts, sooner. Eastern Airlines, which filed for protection in 1989, was a case in point. ''They went in front of a judge who viewed bankruptcy as an institution for saving firms, so they were allowed to operate for quite a while,'' Ms. White said. ''The managers had the right to propose reorganization plans. They just kept operating, kept losing money, and there just wasn't anything left. Eventually, they were liquidated.''

Almost two years passed, filled with battles among Eastern's management, employees and creditors, before the airline stopped flying. While Eastern's unsecured creditors lost about $240 million, the company paid out at least $67 million in legal fees. Eastern, once the name of the biggest airline in the noncommunist world by several measures, became a byword for corporate failure of the most grinding and humiliating sort.

Mr. White argues that liquidation should come quickly in many cases. ''It depends on whether the company is in a business that is fatally flawed because of changes in the economy,'' he said, ''versus one that just had a financial problem.''

Airlines have usually fallen into the first category. ''Rarely have airlines that were run well made much money in the last 10 years,'' he said.

An example of the second type was Federated Department Stores, which filed for bankruptcy protection in 1990. Proving that Federated should remain intact was not easy, said Carol A. Sanger, who is now its vice president for corporate affairs. ''It was a matter of providing an awful lot of information to an awful lot of committees in a very short time frame,'' she said. At the beginning of negotiations, she added, liquidation was definitely a possibility. ''Everything was on the table at that point,'' she said.

FEDERATED'S bankruptcy process, however, reached a turning point in bizarre fashion. A judge's decision to allow charitable donations by the company to continue during its insolvency -- a matter of paying out a small but symbolic amount -- acted as the acid test. Federated exited bankruptcy in January 1992. It earned $795 million on $16 billion in sales in 2000, but lost $276 million on $15.7 billion in sales in 2001, as the economy slumped.

But properly categorizing companies at the time of their distress may be difficult, said Randall S. Eisenberg, senior managing director of FTI Consulting and president of the Turnaround Management Association, a trade group. ''Certainly, things occur that weren't anticipated,'' he said, including economic trends, terrorism and changes in technology or competitive pressures. ''I'm not sure that the current process could, by itself, identify them -- nor could any process.''
''Every company is different,'' Mr. Eisenberg said. ''I don't know whether it's fair to say that a company should go through quickly or slowly. The dynamics dictate it.''

Mr. Eisenberg recounted the bankruptcy of a furniture manufacturer he advised several years ago. ''Right after we filed, the industry went into a deep recession,'' he said. ''The judge supported the company's view that it should not rush out of Chapter 11.'' The company reorganized at a moderate pace, left bankruptcy and is still in business.

Speed may have other drawbacks that are more difficult to identify. Delaware and New York courts have traditionally dealt with bankruptcies fastest, according to Ms. White. Yet they may render the process too easy on restructuring companies.

Lynn M. LoPucki, a professor of law at the University of California at Los Angeles, tracked the outcomes of big public companies that emerged from bankruptcy from 1991 to 1996. More than 4 in 10 that exited Chapter 11 in Delaware ended up back in bankruptcy within five years; in New York, the figure was close to 2 in 10. In courts elsewhere, only 4 percent of bankruptcy survivors filed again within five years.

This recidivism has led many experts to argue that there are efficiencies to be gained by tilting the process in favor of liquidation.

Oliver Hart of Harvard and John H. Moore of the London School of Economics, innovators in bankruptcy theory, recognized the single source of these problems of vested interests, speed of resolution and efficient choice of liquidation. Bankruptcy laws around the world, they wrote in 1997 with two colleagues, fail to separate two fundamental decisions: how to best preserve the economic value of a company and how to split up that value among its claimants. When those two conflict, insolvent companies that are economically viable can deteriorate and disappear, and weaker companies can stumble along too long.

The professors offered a new way to resolve bankruptcies, based on a two-tiered auction. As in Chapter 11, it would begin with a court's protecting the company's assets. The court would appoint a receiver to catalog all claims against the company in classes: from the creditors with the strongest rights to the company's assets (the most senior) down to its shareholders (the most junior).

The receiver then asks for offers -- either in cash or in promised shares in the company's future profit -- to buy and restructure all or part of the company. In the meantime, the receiver either operates the company or oversees its existing managers.

After making public the list of claims and any offers for the company, the receiver would issue 100 ''reorganization rights'' to the most senior creditors, based on the relative size of their claims. Next, the more junior creditors and investors, starting with shareholders, could buy the reorganization rights at auction.

The prices for the rights must equal or exceed shares in the more senior classes' claims on the company. The bidding claimants may buy a number of reorganization rights equal to their own share of their class's claims. An owner of 18 percent of one class of debt, for instance, could buy up to 18 reorganization rights at a unit price not lower than one-hundredth of all the more senior creditors' claims.

If the shareholders do not buy all the reorganization rights, then the next most junior class has its chance. A creditor with 7 percent of the next class of debt could buy up to seven reorganization rights, at a price not lower than one-hundredth of all the more senior classes' debts.

The creditors always make their offers to the class directly above them in seniority, whose members are then obliged to buy the rights from the next class up (keeping any leftover cash), to complete the chain of transactions.

Consider a simple example with three classes: senior creditors and junior creditors who are each owed $100 as a class, and shareholders. If shareholders offer to buy 20 reorganization rights, they must pay $2 each for a total of $40, which they give to the junior creditors. The junior creditors must buy rights from the senior creditors, who are obliged to sell them at $1 each -- enough to pay off their debts. The junior creditors receive 40 rights, of which they deliver 20 to shareholders and keep 20 for themselves. They may then buy the remaining 60 rights from the senior creditors at $1 each. The most senior creditors are always paid first, because they hold the reorganization rights initially.

After the auction among the creditors, another auction takes place that allows outside investors to buy reorganization rights. Again, the prices paid must cover the holders' claims. When this auction ends, all the company's stocks, bonds and loans are canceled; only the reorganization rights remain. The final holders of the rights vote on the announced restructuring plans, which may include liquidation, and the company's bankruptcy process has ended.

The whole process should take about four months, the professors estimated. No one can draw it out, and the rights to reorganize the business are sold to the highest bidder.

The auctions-based approach has received much attention in academic circles, yet it has not gained much support among policy makers. ''It's not clear who is the strong, organized body of interests who would support such a reform,'' Mr. Bebchuk said, ''because the benefits would be diffused in a very big way.''

LAWYERS who earn millions in fees under the current system, and managers who can cling to control of their companies, may provide powerful political opposition. ''They are very organized,'' Mr. Bebchuk said, ''and they don't have an interest in reforming the system.''

Nonetheless, he said, the professors' system and later models of its kind could stand up to the naysayers. ''Some people criticize market-based approaches as leading excessively to liquidation, and liquidation has this negative connotation. But it might lead to a more efficient restructuring.''

Copyright 2006 The New York Times Company


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