Business Restructuring Review
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RECENT DEVELOPMENTS IN BANKRUPTCY AND RESTRUCTURING VOLUME 11 NO. 1 JANUARY/FEBRUARY 2012 BUSINESS RESTRUCTURING REVIEW IN THIS ISSUE THE YEAR IN BANKRUPTCY: 2011 1 The Year In Bankruptcy: 2011 Charles M. Oellermann and Mark G. Douglas 7 Highlights of 2011 A “roller-coaster ride of financial and economic uncertainty” would be one way to 23 Newsworthy describe 2011. Limiting the script to financial and economic developments, however, 24 Top 10 Bankruptcies of 2011 would leave a big part of the story untold, as we chronicle the (not so certain) after- 28 Notable Exits From Bankruptcy in 2011 math of the Great Recession. Impacting worldwide financial and economic affairs 30 Legislative/Regulatory Developments in 2011 was a seemingly endless series of groundbreaking, thought-provoking, and sometimes cataclysmic events, including: 31 Notable Business Bankruptcy Decisions of 2011 • One of the worst nuclear disasters in history (Fukushima Daiichi, Japan); 45 From the Top • The Arab Spring and the removal of two autocrats (Hosni Mubarak and Colonel 47 Third Circuit Reaffirms Viability of Muammar el-Qaddafi); Deepening Insolvency Claim • The death of Apple founder Steve Jobs, shortly after Apple surpassed Exxon 49 European Perspective: All Mobil to become the world’s most valuable company; Change in Germany—A New • The deaths of the most wanted terrorist in human history (Osama bin Laden) and Era in German Insolvency Law a North Korean dictator (Kim Jong-il); • The “Occupy Wall Street” movement; • Phone Hackgate • Breaching the 7 billion mark in global population; • The end of a nine-year war in Iraq; and • The beginning of the second decade of the (most recent) war in Afghanistan. Among the most memorable business and financial sound the U.S. officially closed its books on fiscal year 2011 with bites and keywords of 2011 were the following: approximately $15.3 trillion in debt—still an all-time record— equating to 100.3 percent of GDP. The deficit, however, was • Austerity measures; $1.299 trillion, slightly more than the $1.293 billion deficit in • 99 percenters and 1 percenters; 2010 and less than the $1.413 trillion deficit in 2009. By con - • Orderly Liquidation Authority; trast, 2007’s deficit was just $160 billion. • Living wills; • SIFIs (systemically important financial institutions); On August 5, 2011, Standard & Poor’s (“S&P”) removed the U.S. • Insider trading; from its list of risk-free borrowers for the first time, cutting its • Deficit-reduction supercommittee; rating of long-term federal debt to AA+, one notch below the • Rehypothecation; top grade of AAA. It described the decision as a judgment • The Volcker Rule; about the nation’s leaders, writing that “the gulf between the • The Buffett Rule; and political parties” had reduced its confidence in the govern - • Debtmaggedon. ment’s ability to manage its finances. The U.S. had maintained the highest credit rating since S&P first designated it AAA In the U.S., the hallmarks of 2011 could readily have belonged in 1941. The downgrade ignited one of the most harrowing to 2009 or 2010: high unemployment; depressed home val - stretches in Wall Street history, with wild swings in the finan- ues; high home-foreclosure rates; a high poverty rate and a cial markets captivating the nation and the world. Even so, widening income disparity between rich and poor; a national the U.S. Treasury had no trouble attracting investors in sub - deficit of historic proportions; and a (well deserved) crisis of sequent auctions of government securities, perhaps reflect- confidence in a dysfunctional political leadership riven by ing the deep cynicism towards ratings agencies harbored by vituperative partisan politics. Still, the U.S. fared better in 2011 investors in the wake of the financial crisis. than many other countries. The downgrade came shortly on the heels of a last-minute The eye of the global financial storm moved to Europe in agreement in Washington to raise the U.S. debt limit and 2011—Greece, Italy, France, Portugal, Spain, and Ireland, in ward off “Debtmaggedon,” a possible default by the U.S. gov- particular—where the maelstrom now threatens to disman- ernment on its obligations. The deal reached by lawmakers tle the 27-nation European Union, or at least the 17-member provided for cuts of approximately $2.5 trillion from the defi- eurozone, which now confronts the very real prospect of a cit over a decade. $1.5 trillion of the cuts were to be deter - Great Recession II if austerity measures fail to provide endur- mined by a deficit-reduction “supercommittee” comprising 12 ing financial triage. lawmakers evenly split between Democrats and Republicans. However, on November 21, 2011, the (not so) supercommittee THE U.S.—MIXED MESSAGES conceded that panel members failed to come up with a plan, President Obama released a fiscal year 2012 budget on setting up what is likely to be a yearlong political fight over February 14, 2011, projecting that 2011 would see the biggest the automatic cuts to a broad range of military and domestic one-year debt jump in history, or nearly $2 trillion, to reach programs that would go into effect starting in 2013 as a result $15.476 trillion by September 30, 2011, the end of the fiscal of the committee’s inability to reach a deal. year. That would have equated to 102.6 percent of gross domestic product (“GDP”)—the first time since World War Ninety-two federally insured banks closed their doors in II that that figure has been reached. The budget projected 2011, compared to 157 in 2010 and 140 in 2009. The Federal that the U.S. government would run a deficit of $1.645 trillion Deposit Insurance Corporation’s list of “problem” banks— in 2011. banks whose weaknesses “threaten their continued financial viability”—as of November 22, 2011, stood at 844, compared The U.S. Government Accountability Office issued its report to 860 as of the end of fiscal year 2010. on the 2011 fiscal year on December 23, 2011. It states that 2 After starting the year at 9 percent and rising as high as 9.2 According to RealtyTrac, Inc., 1.9 million U.S. homes entered percent in June 2011, the U.S. unemployment rate finished the the foreclosure process in 2011, the lowest level since 2007, year at 8.5 percent, the lowest since February 2009, accord- when the recession began. ing to a U.S. Bureau of Labor Statistics report released on January 6, 2012. The total number of unemployed Americans State and Municipal Distress seeking work stood at 13.1 million at the end of 2011, com - Headlines in 2011 continued to herald the dire financial pared to 14.5 million at the end of 2010. The number of long- straits of U.S. states and municipalities. A study released term unemployed (those jobless for 27 weeks or more) was on February 3, 2011, by Robert Novy-Marx of the University little changed at 5.6 million and accounted for 42.5 percent of Rochester and Joshua Rauh at Northwestern University of the unemployed. Approximately 7.2 million Americans showed that U.S. cities, counties, and states face a $3.6 tril - were receiving unemployment benefits at the end of 2011. lion gap between their pension assets and their pension obli- Congress agreed in December to extend the emergency gations to retirees. It was also reported on January 21, 2011, benefits that half of these unemployed workers depend on by the Center on Budget and Policy Priorities, a Washington for another two months, instead of letting them lapse at the research group, that states must contend with $140 billion in end of 2011. budget deficits for the 2012 fiscal year. A total of 44 states and the District of Columbia forecast budget shortfalls for the Fewer Americans filed for personal bankruptcy in 2011. 2012 fiscal year, with the most cash-strapped states includ- 1.35 million Americans filed for chapter 7 or chapter 13 relief ing California, with a projected shortfall of $25.4 billion; New in 2011, 12 percent fewer than in 2010, according to the Jersey at $10.5 billion; and Illinois at $15 billion. National Bankruptcy Research Center. Chapter 7 filings were down 17 percent from the previous year, and chapter 13 filings Most U.S. municipalities have recourse to chapter 9 of the dropped off 25 percent. This represents the first decrease in Bankruptcy Code to sort out their financial problems, but personal bankruptcies since 2006. they rarely file for bankruptcy. Fewer than 40 chapter 9 cases have been filed during the last four years—four in 2008, 12 Income disparity was a big part of U.S. headlines in 2011. in 2009, seven in 2010, and 13 in 2011. Noteworthy chapter On October 30, 2011, the U.S. Congressional Budget Office 9 debtors in 2011 included Jefferson County, Alabama (the released a report showing that the richest 1 percent of largest chapter 9 filing in history); Harrisburg, Pennsylvania Americans have increased their income 275 percent since (whose bankruptcy case was subsequently dismissed); and 1979, while other Americans have increased their income only Central Falls, Rhode Island. Confronted with an increasing 18 to 40 percent. This development and the widespread per- volume of actual or prospective municipal failures, state leg- ception that Wall Street bankers responsible for the recent islatures and executives have been anything but idle, in many financial crisis are not being punished for their transgres - cases scrambling to implement an array of tools designed sions sparked “Occupy Wall Street” and hundreds of similar to offer viable alternatives to a chapter 9 filing or, in some demonstrations throughout the U.S.