The question is no longer whether the volatility created by the COVID-19 pandemic will deepen the difficulties businesses and other institutions face in the coming months, but by how much and in what ways. In the past few weeks, we have offered client mailings and webinars on COVID-19-related topics, and we will work to keep you informed of important developments as these issues evolve. Included below are updates to our recent commentary, with answers to questions we have been receiving.
Corporate
Impact of COVID-19 on M&A
Even before coronavirus concerns, the slump in oil demand placed considerable financial stress on oil exploration and production companies. With Saudi Arabia and Russia unable to reach an agreement on crude production, oil markets plunged further. That plunge led to a corresponding decline in high-yield bond prices issued by many U.S. producers. Although many of these bonds do not mature until 2021 or later, U.S. producers still face considerable stress.
- Companies facing bankruptcy can still make smart moves
- Creditors should consider asserting liens before it’s too late
- Legal fees may be covered for some unsecured creditors
Oil prices took an historic nosedive Monday as Saudi Arabia and Russia announced plans that would flood a market already crippled by the coronavirus. How long this price war will continue is unclear but Brent and US crude have already lost half their value this year.
Except for disastrous fires that sparked the largest bankruptcy filing of the year, liabilities arising from the opioid crisis, the fallout from price-fixing, and corporate restructuring shenanigans, economic, market, and leverage factors generally shaped the large corporate bankruptcy landscape in 2019. California electric utility PG&E Corp.
On January 27, 2020, FERC petitioned the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) for rehearing en banc of that court’s decision finding bankruptcy court-FERC concurrent jurisdiction over certain power purchase agreements. Notwithstanding such concurrent jurisdiction, the Sixth Circuit’s decision finds that the bankruptcy court’s concurrent jurisdiction is paramount, and that therefore, FERC-jurisdictional power purchase agreements are susceptible to rejection in bankruptcy.
FERC proceeding to restrict rejection of a power purchase agreement may be subject to the automatic stay. The debtor had entered into several agreements to purchase power it no longer needed because its reorganization contemplated its exit from the business of selling electricity at retail. The contracts constituted a minimal portion of the debtor’s power contracts and were an insignificant portion of the power market.
On December 20, 2019, Judge Marvin Isgur in the U.S. Bankruptcy Court for the Southern District of Texas (Houston Division) entered a memorandum opinion which held that debtors' midstream gathering agreements formed real property covenants "running with the land" under Oklahoma law - and such agreements could not be subject to rejection under section 365 of the Bankruptcy Code. See 11 U.S.C. section 365(a) (allowing a debtor-in-possession, "subject to the court's approval," to "assume or reject any executory contract.").
A divided Sixth Circuit Court of Appeals panel ruled in the case of In re FirstEnergy Solutions Corp. on Dec. 12, 2019. The panel decided that the U.S. Bankruptcy Court and the Federal Energy Regulatory Commission (FERC) share jurisdiction when a Chapter 11 debtor moves to reject a power purchase and sale contract over which the FERC has jurisdiction (Power Contract). However, the Sixth Circuit noted that such jurisdiction is not equal; declaring the bankruptcy court’s authority as primary and superior to that of the FERC.
The Bottom Line
On December 12, 2019, the US Court of Appeals for the Sixth Circuit issued a highly anticipated ruling in theFirstEnergy Solutions Corp. bankruptcy case, regarding the efforts of FirstEnergy Solutions Corp. (FirstEnergy or FES) to reject certain wholesale power purchase contracts.