What does "bankrupt" mean?

The word “bankrupt” comes from the Italian banca rotta, meaning “broken bench.” In Italy, money dealers worked from benches or tables. If a money dealer ran out of money, his bench or table was broken in half and he was out of business. The word had its French equivalent, banqueroute, and subsequently made its way into the English language as both a figure of speech and a literal definition of what happened to the affected person.

When agreements cannot be reached between businesses and lenders or certain other creditors to stretch the repayment of debts, legal and financial advisors may recommend that the company file a Chapter 11 bankruptcy case. Such action can also apply to profitable companies looking to restructure debt that has grown due to temporary reductions in cash flow which the company covered in part by drawing on its line of credit with its lender.

As businesses continue to feel the impact of COVID-19, many vendors and service providers should be aware what actions they should take if their customer files for bankruptcy. Here are several key concepts to know if you are a vendor or supplier:

The following provides guidance on managing private equity-owned portfolio companies in distress:

Brick and mortar retail businesses, including restaurants, have faced especially difficult challenges during COVID-19. Under the various stay-at-home and shelter-in-place orders that have been issued by state governors, retail stores had no choice but to close for weeks or months. Stores that have been able to reopen are operating at limited capacity due to social distancing guidelines. With either no sales or greatly reduced sales, retail companies have had trouble generating enough revenue to pay rent and many have had to close permanently.

In Ritzen Group, Inc. v. Jackson Masonry, LLC, 589 U.S. ___ (Jan. 14, 2020), the Supreme Court (the Court) agreed with the majority of circuit courts and unanimously held that an order unreservedly, that is, without prejudice or condition, adjudicating relief from the automatic stay of 11 U.S.C. § 362(a) is final and any appeal must be filed within the 14 day period under Rule 8002.

The U.S. Supreme Court provided much-needed clarity on the effect bankruptcy has on the licensor’s right to revoke a trademark license. On May 20, 2019, SCOTUS decided, in an 8-1 decision, that “A debtor’s rejection of an executory contract under Section 365 of the Bankruptcy Code has the same effect as a breach of that contract outside bankruptcy. Such an act cannot rescind rights that the contract previously granted.” Mission Product Holdings, Inc. v. Tempnology, LLC NKA Old Cold LLC No. 17-1657 (U.S. May 20, 2019).

Liquidation is one of those odd legal terms that has multiple meanings, some intuitive and others unexpected. In non-legal parlance, liquidation is what happens when you don’t pay your loan shark, or when you cross James Bond. Legal terminology has an analogous usage, such as liquidation of a business in bankruptcy proceedings. But it also has an entirely different meaning that is of great importance in the construction industry — liquidation of damages. Ironically, liquidation of damages is one of the ways that a contractor may prevent liquidation of its business.

Imagine this scenario: your client is a contractor, subcontractor or materialman on a construction project. Having completed the work, your client is promptly paid in full. Because of this, your client doesn’t bother to file a mechanic’s lien on the project. However, within 90 days after the payment, the payor, usually the contractor or general contractor (or the owner), files for bankruptcy.

On June 21, 2011, the Fifth Circuit Court of Appeals ruled in In re Evans Industries, Inc., that a purchaser of assets from a bankrupt company cannot make a claim against a holdback escrow account for expenses incurred while cleaning up hazardous waste that the bankrupt company left behind. Pursuant to an asset purchase agreement, Grief Industrial Packaging and Services purchased five facilities from Evans Industries, Incorporated.