Yes, says the First Circuit. The First Circuit recently affirmed the District Court’s decision to deny a group of bondholders’ (the “Bondholders”) motion to have a trustee appointed for the Employees Retirement System of the Government of the Commonwealth of Puerto Rico (the “System”) under section 926 of the Bankruptcy Code. Section 926 of the Bankruptcy Code allows a court to appoint a trustee to pursue avoidance actions in Chapter 9 cases.
Periods of economic uncertainty, such as the COVID-19 pandemic, create challenges not only in receiving timely payment for goods, services and other debts, but in retaining payments when dealing with customers or other obligors who may be on the verge of bankruptcy. A bankruptcy filing opens the door to preference liability, which could result in the obligation to return a payment or other property received prior to the bankruptcy.
As the economic fallout from the COVID-19 pandemic continues to rise – for example, J. Crew recently filed bankruptcy, and the financial press is predicting that Neiman Marcus may also file for relief this week – it seems prudent for secured lenders to consider what steps they can take to prepare for what may prove to be a tidal wave of bankruptcy filings this year.
One of the landmark protections enacted by the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was the Paycheck Protection Program (“PPP”). Under the PPP, small businesses (businesses with fewer than 500 employees) are eligible to receive loans that will be fully forgiven if utilized under the terms of the Program, including applying at least 75% of the loans to payroll. The loans may also be used for payment of interest on mortgages, rent, and utilities. The PPP loans are capped at $10 million for each small business.
Even in the halcyon days pre-coronavirus, a typical small business could not operate for more than two weeks without incoming revenue. In a matter of months, social distancing and mass unemployment having dramatically reduced consumer spending and companies are surviving by cutting energy usage, adjusting inventory purchases, and drawing on Paycheck Protection Program loans to backstop employee wages. Rent, however, is one expense that remains immutable.
“Bankruptcy is about financial death and financial rebirth. Bankruptcy is the great American story rewritten. We’re a nation of debtors.” -Elizabeth Warren
Amid the Coronavirus (COVID-19) pandemic and related economic turmoil, bankruptcy filings in the United States are on the rise. Non-US insurers should review contractual arrangements with US insureds and brokers, and establish a plan to deal with bankruptcy filings across the United States in a consistent fashion.
The emergence of COVID-19 (the Coronavirus) at the end of 2019 has had an unprecedented impact on the global economic system. This alert focuses on the effect the Coronavirus pandemic is likely to have on small and medium sized businesses (SMEs), their lenders in the UK and the options available to continue trading and avoid insolvency.
Paycheck Protection Program Loans Under the CARES Act
The Paycheck Protection Program (“PPP”), adopted as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which passed Congress on March 27, 2020 and was signed by President Trump the following day, provides forgivable loans guaranteed by the government to certain employers, with forgiveness of the loans dependent upon maintaining certain employment levels for the six months following the loan. A second PPP round was authorized in late April and is currently in process.
During the course of the most recent bull market, merger and acquisition (M&A) activity generally remained robust. We increasingly saw competitive auctions for desirable companies, some of which also had the ability to pursue an initial public offering instead of a sale. In the years since the 2008 financial crisis, many acquisitive companies have become accustomed to pursuing target companies with solid balance sheets and bright prospects.