Wave of bankruptcies may swamp courts

June 29, 2020
Marketplace

Many economists and bankruptcy lawyers expect a wave of bankruptcies coming this year.

Giant bankruptcies of companies that owe more than $100 million, are up 40% from a year ago, which means they are up 120% from 2018.  Chapter 11 bankruptcies of all kinds have increased 20% since last year. This is obviously traumatic for the people who work at those companies but there is a silver lining.

“It’s an overstatement to say that bankruptcy is this deeply undesirable thing,” said Jared Ellias, professor of law at UC Hastings College of Law.

“One of the great things that happens after bankruptcy is a company leaves, and they’re hopefully positioned to thrive,” he said.

The post COVID-19 economy is going to be very different and a lot of businesses will need to radically reinvent and reinvest in themselves in order to adapt. Chapter 11 bankruptcy lets companies do that. Which is why Ellias and a group of academics are concerned that if there are too many bankruptcies, the courts might get overwhelmed and companies won’t get the help they need.

“When a company is in financial trouble, they can’t invest, they can’t hire, they can’t give people pay raises, they can’t do the things that businesses need to do to be attractive places to work,” Ellias said.

So if you slow down the process of transformation, it slows down the entire economy.

“There have been proposals to bring back some retired bankruptcy judges, recently retired bankruptcy judges, and you also would need to add personnel at the clerk’s office level as well,” said Robert Keach, an attorney who specializes in business restructuring and insolvency at the Bernstein Shur law firm.

Congress also made it a lot easier, faster, and cheaper for small businesses to go through the bankruptcy process through reforms in 2019 and through the CARES Act, according to Keach. But judges take time to hire, and there is only so much you can do, he said, so a lot will depend on just how bad the bankruptcy wave will be.