Ravn Alaska’s Emergence from Bankruptcy

From Float Alaska to the New Ravn—Acquiring Alaska’s Largest Regional Airline through Bankruptcy During the COVID-19 Pandemic

In March of 2020, Ravn Air Group, Inc. and its seven affiliates (collectively, Ravn) comprised the largest regional air carrier in the State of Alaska.  Ravn had 1,300 employees, 72 aircraft, 21 hub airports, and 73 facilities serving 115 destinations in Alaska, with 400 daily flights.  In addition to transporting passengers throughout the state, Ravn provided logistics, mail, charter, medical and freight air services in Alaska.  Ravn operated two Part 121 FAA certificates, and one Part 135 FAA certificate.  The Ravn affiliates were assembled and owned by a group of private equity firms and other investors.

In 2015, Ravn entered into a secured credit agreement with secured lenders for a term loan of up to $95 million and revolving loans of up to $15 million.  In March 2020, Ravn owed the secured lenders approximately $91 million.  All of Ravn’s assets were pledged as collateral to secure the loans.

Due to the seasonal nature of Alaska air travel, Ravn relied heavily on spring and summer bookings.  In March of 2020, the COVID-19 pandemic upended the business.  By March 12, 2020, the World Health Organization declared COVID-19 a pandemic, and the first case of the virus was announced in Alaska.  Travel restrictions, cancellations and decreased booking resulted.  By March 20, 2020, the State issued a travel advisory to cease all non-essential travel.  By the end of March 2020, Ravn lacked cash to fund operations, including payroll.

On April 5, 2020, the eight Ravn entities filed for chapter 11 bankruptcy protection in Delaware bankruptcy court.  The Ravn debtors obtained superpriority secured financing from their prebankruptcy lenders, with such debt being repaid ahead of other debts, and a limited budget available for the administration of the bankruptcy cases.  The debtors originally sought to reorganize in chapter 11 utilizing funds made available under the CARES Act, but the debtors’ secured debt burden proved too great.

The debtors’ agreement with their DIP lenders required an accelerated timeline to confirm a liquidating chapter 11 plan.  The plan also allowed for sales of assets under section 363 of the Bankruptcy Code outside of a liquidating trust, so long as the secured lenders consented to the sale.

The debtors started a sale process, with the initial intent of selling the entire business as a going concern.  The debtors solicited bids.  However, no bidder submitted a bid that the lenders deemed adequate to acquire all of the assets of the debtors.  Accordingly, the debtors sold the Ravn assets in over two dozen lots, comprised of aircraft, ground support equipment, real estate, parts and equipment, contractual rights and other personal property.

FLOAT Alaska, LLC is a company founded by Josh Jones, a startup incubator manager and investor, Tom Hsieh, an engineer and social entrepreneur, and Robert McKinney, a veteran regional airline executive.  The team previously founded FLOAT Shuttle, Inc., focused on the Southern California market.  The FLOAT Alaska team viewed the Ravn going concern sale as a unique opportunity to provide essential air services to the rural communities of Alaska and to return much needed jobs to the region.  The team also understood that a successful going concern acquisition would be accompanied by the CARES PSP grant of at least $15 million which would be used to rehire personnel and other startup costs.

The FLOAT team completed extensive due diligence on the company and its assets.  The team worked diligently to submit a qualified bid satisfying the numerous operational, financial, and procedural requirements to acquire a commercial airline.  FLOAT participated in a multiday auction with numerous competing parties vying for the going concern business.  It was a complex process where the debtors repeatedly divided, and re-divided, their assets in efforts to maximize the value.  The debtors went so far as to expressly instruct bidders to “bid against themselves,” by asking bidders to increase their offers for various assets, some of which had only one bidder.  The FLOAT Team worked indefatigably to adjust its bid to meet the requirements of the court, the debtors and creditors.

FLOAT’s ultimately successful bid for the key assets of Ravn’s passenger business was $8 million, with a waiver of major contingencies, and a firm commitment to an early and expedited closing process.  The core assets FLOAT sought to acquire included the corporate name, intellectual property and goodwill, Ravn’s Part 121 certificates, and a core fleet of six Dash-8 aircraft.  The debtors concluded that FLOAT’s carefully crafted bid was the best and highest bid for the going concern business.

In addition to the initial aircraft purchased, FLOAT acquired essential ground support equipment and several important real properties, including the debtors’ main hangar and training facility.  The FLOAT team utilized an interdisciplinary team of attorneys specialized in bankruptcy, corporate laws, aviation, and CARES Act financing, led by restructuring attorney Zev Shechtman of Danning Gill.  Because of the vision and perseverance of FLOAT’s outstanding leadership team, they were able to rapidly transition  from bidders to owners and now operators of Ravn Alaska.  The company has hired or rehired over 200 employees, and it plans to grow further.  The New Ravn will resume commercial passenger travel by the end of October. 

 

Thoughts for Small Businesses Considering Bankruptcy

For an operating business, the bankruptcy process can be time-consuming, invasive, difficult to maneuver, and expensive.  You need someone who can explain all of the options, and prepare you for what’s to come.

Rule #1:  Don’t wait until the last minute.  There are lots of things most operating companies need to do when they file for bankruptcy.  Attorneys need time to evaluate what needs to be done, gather evidence, prepare motions, and hit the ground running.  Waiting until the business is almost out of cash, or until some negative event is about to happen, hurts your ability to hire good counsel and successfully prosecute a Chapter 11 case.

When is filing for bankruptcy a good idea?

For a company, Chapter 7 (liquidation by a trustee) usually is worth doing only if the business already is closed, and if (a) there are assets that can be sold, or (b) a strong signal needs to be conveyed that the business really is defunct.  For operating businesses that have some going concern value, an orderly liquidation through Chapter 11 is a better option.

For operating companies that want to reorganize, Chapter 11 is a good idea if the business is (or can be) profitable, but needs to shed some bad leases, restructure secured loans, and/or stretch out payments to creditors.  Chapter 11 can also be good for real estate companies with property that has significant equity or can generate enough cash to make monthly interest payments.  Bankruptcy protects the debtor’s assets and gives it some time to negotiate terms with creditors.

Generally, what is the first thing a company should do if it plans to file for bankruptcy?

Especially if the company is operating, get its records (and record-keeping) in order.  From the first day to the last, the debtor’s success depends on its ability to properly identify and disclose its assets, liabilities and financial history, generate reliable financial statements during the case, and prepare realistic financial projections.  No matter how profitable a company may be, cases can go south quickly if the debtor’s financial reporting is inadequate or untrustworthy.

What should a small business expect during the first few months after filing for bankruptcy?

Petitions often are filed on the eve of a foreclosure, judgment, or other adverse event the debtor wants to delay.  But there is no rest for the weary.

Existing bank accounts must be closed and new ones opened right away.  A “7-day package” must be submitted within a week.  Detailed schedules of assets and liabilities must be filed within 15 days.  Soon after the case is filed, someone will need to attend an “initial debtor interview” and later a “meeting of creditors.”  Detailed operating reports must be filed each month.  In a Subchapter V “small business” case, the debtor must file financial statements and tax return with its petition, and generally must file a plan within 90 days.

While doing all of this (and more), the debtor must keep its business going.  For a truly small businesses, this is a monumental task.

What are some bankruptcy pitfalls that businesses should avoid?

It’s a long list.  Mostly, don’t do things that may turn the judge against you.  Don’t transfer away assets before filing.  Don’t provide false or misleading information in court filings.  Choose your battles (if you litigate about everything, the judge may see you as the problem, not the solution).

Also, don’t make everyone your enemy.  Litigating against creditors – especially secured creditors who can add their legal fees to the loan balance – drives up costs.  Often, by the time you finish fighting with a hostile creditor you will have spent more on legal fees than you would have spent if you had just agreed to pay the creditor more under a chapter 11 plan.

 

How the CARES Act Has Impacted Bankruptcy Cases

Earlier this year, we wrote about the Small Business Reorganization Act of 2019 (the “SBRA”), which went into effect on February 22, 2020.  For a quick recap on the SBRA, click here for our prior post.  In this post, we’ll discuss a few ways the CARES Act has affected bankruptcy cases.

More businesses can seek relief under the new Subchapter V of Chapter 11

One of the things the SBRA did not do was change the definition of “small business debtor” to let more businesses qualify as small business debtors under the Bankruptcy Code.  The SBRA’s proponents wanted the term “small business debtor” to include businesses with up to $10 million of debt.  But Congress rejected their request.  When the SBRA went into effect a “small business debtor” needed to have no more than $2,725,625 of “noncontingent liquidated secured and unsecured debts.”

About a month after the SBRA went into effect, Congress passed the CARES Act in response to the economic fallout of the COVID-19 pandemic.  In the CARES Act, Congress temporarily increased the debt ceiling to $7.5 million for businesses seeking relief under the new Subchapter V of Chapter 11.  As a result, we can expect to see more businesses (and individuals) qualify as “small business debtors.”

Debtors might be eligible to borrow money under the Paycheck Protection Program (PPP)

One interesting issue we’ve seen come up over the past few months is whether small businesses are eligible for PPP loans while they’re in bankruptcy. The SBA says debtors are ineligible. In fact, the official application actually told potential borrowers that their loan requests would be denied if they were in bankruptcy:

Despite the SBA’s position, some courts have held that it is illegal for the SBA to discriminate against bankrupt entities.

The last day for businesses to apply for PPP loans was August 8, 2020.  If Congress extends the application deadline, or authorizes a new round of loans, eligible businesses should consider getting PPP loans before filing for bankruptcy.

 

Wait, What? Bankruptcy Filings Have Gone Down in 2020

The CARES Act, unemployment benefits, and hope that things will reopen soon seem to have buoyed many businesses for the last four-plus months.  Landlords also have been flexible, though county and city moratoria on evictions leave them little choice.

Danning Gill partner John Tedford spoke to the Daily Journal for a July 28 article about the stats coming from the Central District of California.  Based on that information, although a number of big-name companies have been filing for bankruptcy – particularly on the east coast – locally we have not seen an upswing in bankruptcy filings.  As of mid-July, we were on pace to have about the same number of Chapter 11 business cases filed in the Central District this year as in each of the last five years. There were actually fewer filings in March, April and May than in January and February.

As of August 7, 2020, 161 Chapter 11 business cases had been filed this year.  That equates to 269 filings per year (only 4 more than last year).  In 2010-2011 there were more than 720 such cases each year.

When we look at cases filed by all debtors under all chapters, the pace of filings is way down.  As of August 7, a total of 17,828 cases had been filed in the Central District.  That equates to about 29,800 filings for the year.  Since at least 1992, the Central District has had fewer than 30,000 filings only once (in 2006), and since 2007 it has never had fewer than 37,000 filings.

As the CARES Act programs lapse, unemployment benefits decline, and threats of evictions escalate, it seems certain that bankruptcy filings will increase substantially.  Whether filings return to their 2010-2011 levels remains to be seen.

If you have access to the Daily Journal online, click here to read the full article.

Brace for Impact: Cal Supreme Court holds that the “Community Property Presumption” trumps the “Form of Title Presumption”

In November 2018 we wrote about In re Brace, in which the Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether the “form of title presumption” trumps the “community property presumption” when spouses take title to real property as joint tenants.  To read our prior post, please click HERE.

On July 23, 2020, in a very thorough decision that will have a big impact on family, bankruptcy, and debtor-creditor law, the California Supreme Court answered the Ninth Circuit’s questions.  The decision can be read HERE.

In sum:  Property acquired by spouses with community funds on or after January 1, 1975, is presumed to be community property even if title to the property is taken in joint tenancy.  The grant deed, in itself, is not sufficient to overcome the community property presumption.  What is required to overcome the community presumption depends on whether the property was acquired before or after January 1, 1985.

Why does it matter when the property was acquired?  In the 1970s, the California legislature enacted landmark reforms to the community property system.  Those reforms, which went into effect on January 1, 1975, eroded prior rules that emphasized the manner in which title was held.  Still, spouses could “transmute” property from community property to separate property (and vice versa) by an oral or written agreement or a common understanding between the spouses.  However, effective January 1, 1985, new legislation provided that a transmutation is not valid unless it is made in writing and satisfies certain requirements.

This decision will have a huge impact in bankruptcy cases, especially chapter 7 cases, in which only one spouse files for bankruptcy.

Consider the following example:  John and Jane own a house that they bought after they were married.  The grant deed says that they took title as “John and Jane, husband and wife, as joint tenants.”  The house is worth $500,000.  Their mortgage is $300,000.  John files a chapter 7 petition, but Jane does not join in.  As is his right, John claims a $75,000 homestead exemption in the property.

Under a 2003 Ninth Circuit case called Summers, the chapter 7 trustee would not sell the house because it would not generate any funds for unsecured creditors.  If she were to sell the house, about $35,000 would go to pay brokerage fees and closing costs, and $300,000 would go to the mortgage company.  That leaves $165,000.  Half of that would be paid to Jane for her one-half joint tenancy interest.  That leaves $82,500.  From that the trustee would pay John his $75,000 homestead exemption.  That leaves $7,500.  The trustee’s statutory fee for selling the property would exceed $7,500.  Since a sale would generate nothing for unsecured creditors, the trustee would “abandon” it back to the debtor.  John and Jane would keep the house, and creditors would receive nothing.

Now, under Brace, the trustee will sell the house because John’s bankruptcy estate includes all community property in which John had an interest when he filed for bankruptcy.  See 11 U.S.C. § 541(a)(2).  After paying costs of sale and the mortgage, the trustee will pay John his homestead exemption and the remaining $90,000 will be used to pay costs of administration (such as the trustee’s fee) and unsecured creditors.  John and Jane will lose the house, and creditors will receive something on account of their claims.

As we predicted in our prior post, the California Supreme Court’s answer will have a significant impact on cases in which only one spouse files for bankruptcy.  In many such cases, the answer makes it more likely that debtors’ houses will be sold and creditors will be paid.

 

Telephonic 341(a) Hearings—A Brief Primer

By Brad D. Krasnoff, Esq.
Chapter 7 Panel Trustee, Central District of California


As you may know, due to the COVID-19 pandemic, all section 341(a) hearings conducted by panel chapter 7 trustees are being done telephonically. At this writing, these telephonic hearings will be conducted (at least locally, and likely nationwide) through early September 2020.

This protocol, which was initiated in late March 2020, has impacted significantly the manner in which these hearings are conducted. Through the efforts of the Office of the United States Trustee and the panel trustees, the hearings process, while challenging, has proceeded fairly efficiently. To further aid the conduct of these hearings, a few suggestions (to counsel and to parties without counsel) follow.

1.  Please cooperate with the trustees. Many of them are actively reaching out to the debtors and/or their counsel on their upcoming calendars to both provide instruction (an example: please do not put us on hold—the music is very distracting) and to request things (such as copies of valid IDs and SSI verifications). Please promptly and completely engage with the trustees regarding these requests and follow their instructions carefully and accurately. Send the trustees the requested ID and SSI copies. Send the trustees completed domestic support obligation (DSO) forms if the debtor has such court-ordered obligations. Send the trustees the completed declaration regarding pro se document preparation if the debtor did not have counsel assist in the case. If there are questions, reach out to the trustee—sooner rather than later. All of these things can and will greatly facilitate the process.

2.  Please be prepared for the hearings. Especially for parties with counsel, your counsel is typically knowledgeable regarding the standard questions posed by trustees in each case. Take the time to prepare the debtors regarding these questions, as well as potential questions which may arise in a given case depending on the contents of the papers. As the saying goes, a little preparation can go a long way.

3.  Please be proactive. Reach out to the trustee if there are questions. As alluded above, if there are issues that clearly exist based on what the papers contain, touch base with the trustee and provide information necessary to address the issues and be prepared to address those issues at the hearing. Doing this will greatly enhance the efficiency of the course of the hearings.

My present sense of things is: “so far so good.” The stakeholders in this process have largely tried to make this all work, and have largely succeeded. Of course, we can all do better sometimes, and hopefully the above suggestions, along with continued good faith and cooperation, will make things work even better as we wind our way through the COVID-19 crisis.

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Case Analysis: Pier 1 Imports Pandemic Rent Deferral; Equity; “Forum Shopping”; and the Dissolution of a Mega Retailer

In re Pier 1 Imports, Inc., No. 20-30805-KRH, 2020 WL 2374539 (Bankr. E.D. Va. May 10, 2020)

The bankruptcy court in the chapter 11 cases of furniture retailer Pier 1 Imports and affiliates granted the debtors’ motion to defer paying some of their rent payments.  On first blush, this ruling may seem inconsistent with the requirement that debtors stay current on their post-bankruptcy filing rent obligations.

In reaching its decision, the court took stock of the extreme circumstances confronting the debtors, the country and the world in the time of the COVID-19 (Coronavirus) pandemic.  The debtors filed for chapter 11 relief on February 17, 2020, aiming to confirm a plan within 60 days.  However, that timeframe became impossible.  The Court explained:

As the Debtors aptly stated in their Motion, “[t]he world has changed since the filing of these chapter 11 cases.”[]  On the Petition Date, the Debtors foresaw “potential disruptions from the COVID-19 virus [] currently facing China and other parts of the world,” but those disruptions were seen as temporary impacts on inventory shipped from China…. These forecasted limited supply disruptions were nothing compared to what the next few months would bring. No constituency in these cases predicted that the world would effectively grind to a halt.

In the coming weeks, numerous cities, counties, and most states issued versions of “stay at home” or “safer at home” orders, effectively closing the debtors’ stores overnight.

In considering the debtors’ request, the court stated that it was not “abolishing” the rent payments.  In fact, the court stated that rent payments are required under 11 U.S.C. § 365(d)(3).  The issue is timing. The court decided to allow the debtor to defer portions of rent payments temporarily during the COVID-19 shutdown. The court found that it had discretion to enter such an order pursuant to the broad equitable authority codified in 11 U.S.C. § 105(a) (“the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title”).

The court reasoned that a debtor is obligated to timely perform under its leases.  However, the failure to perform does not result in a separate remedy.  Rather, it gives the landlord an administrative claim that must be paid on the effective date of a confirmed plan, no sooner (not superpriority).  The landlord may, nevertheless, be entitled to adequate protection under 11 U.S.C. § 361.  The court ruled that the landlords were adequately protected because the debtors continued to make all ordinary insurance, security, utility and other similar payments to maintain the premises, as well as promised to make cure payments by July 2020.

The court concluded that the relief “serves to pause the case in order to allow the Debtors an opportunity to make these Bankruptcy Cases succeed for the benefit of all creditors, including the Lessors.”  Moreover, the court saw “no feasible alternative to the relief” requested by the debtors.  The debtors cannot conduct sales of their in-store inventory until the COVID-19 emergency orders are relaxed.  The court concluded that the temporary delay of rent payments was necessary for the benefit of all constituents and creditors–employees, vendors, suppliers, secured creditors, as well as the landlords.

Author’s Commentary:

1).  Since the Supreme Court’s Law v. Siegel decision, bankruptcy courts have tended to refrain from exercising their equitable powers lest they be accused of seeking to “alter the balance struck by the statute.”  Law v. Siegel, 571 U.S. 415, 427, 134 S. Ct. 1188, 1198 (2014).  The Pier 1 court was indeed careful to emphasize that its ruling was not inconsistent with the Bankruptcy Code, and thus the court acted within the proscribed bounds of its equitable powers.  Moreover, at a time when governments are taking dramatic action for the benefit of the health and safety of society, it may seem consistent with these extraordinary times for a bankruptcy court to take a broader view in crafting its judicial decisions.  However, if they appeal, it will not be surprising if the landlords argue that the court exceeded its authority by favoring equity over the rights of the landlords. 

2).  One might reasonably wonder why Pier 1 filed its chapter 11 case in Richmond, Virginia. After all, it is a Texas-based retailer. One might wonder the same thing about another pandemic victim, retail giant J Crew, based in New York, which filed its chapter 11 case in Richmond in May 2020. The Eastern District of Virginia’s bankruptcy court was also home to the Toys R Us, Gymboree and Circuit City bankruptcy cases. Of all of these cases, only Circuit City, the first in this line of cases, was actually based out of Virginia.

The answer resides in the bankruptcy venue laws.  A corporation can file for bankruptcy anywhere it or an affiliated debtor is incorporated. Thus, even if a conglomerate has a single affiliate, with no active operations, in a given jurisdiction, it is eligible to file there. These venue provisions give rise to a phenomenon known as “forum shopping,” where debtors, their banks and professionals select a filing venue that they believe will be favorable to them for one reason or another. Oftentimes the jurisdiction is viewed as debtor or bank friendly. The Richmond court had a reputation for speedy proceedings, letting debtors out of union contracts, and tolerance for high professional fees. Added to this list surely must be willingness to curb landlord rights. Richmond is one of a few select runners up on the exclusive short list of bankruptcy courts, dominated by Delaware, with the Southern District of New York in second place, receiving the lion’s share of “mega” bankruptcy cases. Because forum shopping makes it harder for employees, small businesses, and local and state governments to fully participate in the process, and deprives most courts of the opportunity to participate in the development of the law, there is a growing movement to enact bankruptcy venue reform.  See, e.g., letter from bankruptcy judges and letter from attorneys general to members of Congress. H.R.4421 – Bankruptcy Venue Reform Act of 2019 seeks to enact such venue reform.

3).  Unfortunately, Pier 1’s efforts have not proved adequate to overcome the forces of the global pandemic. As of May 19, 2020, the company is preparing to wind down its business and close all of its stores.  Sadly, this is expected to be true for many brick and mortar retailers, which were already struggling as the result of web-based competition led by Amazon.com.  The pandemic is an historic and seemingly unstoppable push over the proverbial cliff for many companies in the retail sector.

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The Small Business Reorganization Act of 2019 (SBRA)

Effective February 22, 2020

In 2019, Congress amended the United States Bankruptcy Code by enacting the Small Business Reorganization Act (the SBRA). One of the most important features of the SBRA is the creation of a new bankruptcy option for small businesses, Subchapter V of chapter 11 of the Bankruptcy Code.  Subchapter V is designed to streamline the chapter 11 process and remove some of the challenges for small businesses seeking to reorganize through bankruptcy. See, e.g., Statement of Senate proponents of SBRA.

Initially, Subchapter V was available to debtors with aggregate secured and unsecured debt of no more than $2,725,625.  11 U.S.C. § 101(51D).  However, as part of the CARES Act, signed into law March 27, 2020 as an emergency response to the COVID-19 pandemic, for one year the debt limit has been increased to $7,500,000, opening these provisions to a broader segment of businesses.  See H.R. 748, section 1113.

Some of the major features of Subchapter V include:

1.  Chapter 11 Plan Filed Within 90 Days After the Bankruptcy Filing, And Only Debtor May Propose A Plan. This is different from a typical chapter 11, where the debtor has the exclusive right to file a plan for the first 120 days, and that exclusive right may be extended for up to 18 months if the court finds “cause.”  Once exclusivity expires, other parties may submit a plan.  Eliminating the costs and risk associated with plans being proposed by competing parties, Subchapter V provides that only the debtor may submit a plan.  11 U.S.C. § 1189(a).  Further, Subchapter V requires that the plan be filed within 90 days after the filing of the petition, shortening the length of time in bankruptcy court.  11 U.S.C. § 1189(b).  And an extension is only allowed “if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable.”  11 U.S.C. § 1189(b). Among other key requirements, unless all classes of creditors vote in favor of the plan, the plan must pay creditors an amount equal to its projected disposable income over a three to five year period.  11 U.S.C. § 1191(c)(2)(A).

2.  Owners May Keep Equity in Company (No Absolute Priority Rule). The absolute priority rule in chapter 11 requires that owners contribute new value to keep their equity in the reorganized company.  That requirement is expressly eliminated from Subchapter V, removing a major financial cost and risk from the reorganization process.  11 U.S.C. § 1181(a).

3.  Discharge. If a plan is consensual (meaning, all classes of creditors vote in favor of it), the debtor will receive a discharge upon confirmation.  If the plan is not consensual, and if the debtor makes its required plan payments, its remaining debts are discharged.  11 U.S.C. § 1192.

4.  Trustees. All Subchapter V cases have a trustee, a professional fiduciary, who oversees the case.  11 U.S.C. § 1183.  The trustee’s role includes investigating the business and financial affairs of the debtor, and may include distributing plan payments.  This role is more limited than the role of a chapter 7 trustee or that of a trustee appointed in chapter 11 case for cause.  Unlike those situations, in Subchapter V the debtor stays in control of its business operations.  That is, the debtor remains a “debtor in possession” unless removed for “cause, including fraud, dishonesty, incompetence, or gross mismanagement of the affairs of the debtor.”  11 U.S.C. § 1185.

5.  No Disclosure Statement is Required Unless Ordered by the Court for Cause. In a typical chapter 11, the debtor is required to prepare a “disclosure statement” which the court reviews for adequacy of information as a preliminary step before the plan can be voted on by creditors and confirmed by the court.  This is one of the factors that contributes to the time and expense of a typical chapter 11 case.  Subchapter V eliminates that step from the process unless ordered by the court for cause.  11 U.S.C. § 1181(b).

6.  No Creditors’ Committee. Creditors’ Committees can play an important role in chapter 11 cases.  The committee allows creditors to advocate collectively for the best interests of all of the general unsecured creditors (or other classes of creditors or interest holders).  However, it is also sometimes cited as a major expense that prevents small businesses from utilizing and successfully emerging from chapter 11.  Subchapter V eliminates committees from the process, unless expressly ordered by the court in the case.  11 U.S.C. § 1181(a).

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Nationwide Bankruptcy Courts Allow Amendment of Petitions to Streamlined Reorganization under Subchapter V of Chapter 11

Courts throughout the country are broadly permitting amendment of bankruptcy petitions filed prior to the effective date of the Small Business Reorganization Act (“SBRA”) to Subchapter V of Chapter 11.

Here is a discussion of four cases reaching this conclusion.

In re Progressive Sols., Inc., No. 8:18-bk-14277-SC, 2020 WL 975464 (Bankr. C.D. Cal. Feb. 21, 2020).

Debtor may amend its petition in a case filed prior to enactment of SBRA.  The debtor sought authority to amend the case from a small business chapter 11 case to a subchapter V small business debtor case (lest there be confusion, a “small business case” is a small business chapter 11 case that is not a “subchapter V” case.  11 U.S.C. § 101(51C)).  The case was first filed on November 21, 2018 as a small business chapter 11 case.  At a hearing on February 20, 2020, the day after the SBRA became effective, the debtor asked that the petition be re-designated a subchapter V “small business debtor” petition.  The court ruled that the amendment can be made at any time without leave of court pursuant to FRBP 1009(a).

In re Moore Props. of Pers. Cty., LLC, No. 20-80081, 2020 WL 995544 (Bankr. M.D.N.C. Feb. 28, 2020).

On February 10, 2020, nine days before the effective date of SBRA, the debtor filed a small business chapter 11 case.  A creditor immediately objected because the debtor was the owner of three real properties, and its primary activity was the business of owning or operating real estate, making the debtor ineligible for designation as a “small business debtor” under then language of 11 U.S.C. § 101(51D).  Five days after the effective date of SBRA, the debtor filed an amended petition to one under subchapter V.  The court authorized the amendment in light of SBRA’s revision to section 101(51D).  That statute used to say that a debtor whose primary activity is the business of owning or operating real estate is not a “small business debtor,” but now the exception applies to a debtor who operates “single asset real estate.”  Here the debtor owned three separate properties, each leased for third party farming operations, so it was not a single asset real estate debtor.  At the time of the hearing the “small business debtor” designation was correct and the debtor was entitled to amend as of right under FRBP 1009.

In re Body Transit, Inc., No. BR 20-10014 ELF, 2020 WL 1486784 (Bankr. E.D. Pa. Mar. 24, 2020).

Citing the two cases discussed above, the court agreed that the debtor has the right to amend its petition.  Further, it determined that the standard applicable to a creditor’s objection is whether the creditor will be prejudiced by the amendment or whether the amendment is made in bad faith.  Because the objecting creditor did not satisfy its burden of proof, the court overruled the objection and approved the amendment.

In re Bello, No. 19-46824, 2020 WL 1503460 (Bankr. E.D. Mich. Mar. 27, 2020).

An individual case was originally filed under chapter 13, then converted to chapter 11 and, finally, after the effective date of SBRA, the debtor amended the petition to one under Subchapter V.  Applying Moore, the court approved the amendment.

Supreme Court Copyright Decision that is Important for Bankruptcy Practitioners

Allen v. Cooper, 589 U.S. ___, 2020 WL 1325815 (2020)

On March 23, 2020, the United States Supreme Court struck down the Copyright Remedy Clarification Act of 1990 (“CRCA”), holding that Congress had no authority under either Article I of the U.S. Constitution or Section 5 of the Fourteenth Amendment to abrogate sovereign immunity for States that infringe on protected copyrights.  Allen v. Cooper, 589 U.S. ___, 2020 WL 1325815 (2020).  To read the full decision, click here.

While the demise of the CRCA may not at first blush appear relevant to bankruptcy practitioners, the Court’s opinion includes a discussion with significant implications for the practice of Bankruptcy law.  Plaintiff in Allen v. Cooper asked the Court to adopt the ruling in Central Virginia Community College v. Katz, 546 U.S. 356 (2006), finding that Congress either had the authority to abrogate state sovereign immunity with regard to copyright claims or that the States waived their sovereign immunity rights as to intellectual property at the time of the plan of the Constitutional Convention.  Namely, Allen asked the Court to hold that the States understood in 1789 that Article I of the Constitution gave Congress the authority to codify uniform laws affecting copyrights and patents, including the authority to bind the States in federal courts as to these laws.

Despite expectations by some legal commentators that the Court in Allen v. Cooper would reject Allen’s argument and signal a future overturning of Katz, the Court affirmed that the Bankruptcy Clause is “unique” among Article I Clauses, suggesting that the Supreme Court would likely affirm Katz in future cases involving the Bankruptcy Clause.

Reversal of Katz would have a significant impact on bankruptcy proceedings in the United States, as it would deprive bankruptcy court jurisdiction over the States in many circumstances.  States are major creditors in bankruptcy cases, so their ability to assert sovereign immunity would likely change the bankruptcy landscape.