Thursday, August 20, 2020

Texas Sees Surge in Large Bankruptcy Filings

Texas lawyers have long bemoaned the tendency of large Texas-based companies to file bankruptcy in Delaware or New York. However, with the collapse in oil prices and the impact of Covid-19 on retail, many large companies are seeking to restructure in Texas. Since January, 36 groups of companies reporting at least $100 million in assets have filed Texas cases.

These cases generated a total of 802 individual case filings. Since the filing fee for a case is $1,717, the flood of filings has generated $1,377,034 in filing fees for the clerk’s offices.

To arrive at these numbers, I looked at all of the chapter 11 filings in Texas this year. On the petition, there is a place to list estimated assets in ranges of $100-$500 million, $500 million - $1 billion, $1-$10 billion, $10-$50 billion and $50 billion or more. In a few cases, where the petitions did not seem to reflect the assets, I looked further at schedules and first day declarations. In the case of GGI Holdings (Gold’s Gym), I knew that the company had sold for $100 million, so I gave it a bump up to that category. I also aggregated fourteen single asset real estate cases related to World Class Capital into a group of companies although they are not being jointly administered.

 Of the 36 groups of cases, 31 filed in the Southern District of Texas, including two $10 billion cases, four filed in the Northern District of Texas and one filed in the Western District of Texas. The Southern District of Texas cases were divided between just two judges, Judge Marvin Isgur and Judge David Jones, who make up that district’s complex case panel.

 Oil and gas extraction and support services made up 21 of the large groups of filings. There were also a number of well-known retailers filing in Texas, including Neiman Marcus, Stage Stores, JC Penney, Tuesday Morning and Tailored Brands (Men’s Warehouse and Joseph A. Bank). Other businesses likely affected by Covid-19 were fitness chain Gold’s Gym, California Pizza Kitchen and NPC International (franchisee for Wendy’s and Pizza Hut).

Of these cases, eleven met my minimum cutoff of $100 million. Another five cases reported assets of at least half a billion dollars. Eighteen cases hit the billion-dollar mark. Two cases broke $10 billion. That means that Texas had twenty billion dollar filings, an incredible showing for less than a year’s time.

Out of the 36 groups of companies, three were headquartered outside of the United States, eleven were based in other states, and twenty-two were Texas based (even if they filed in a different Texas district than their home office).

Ironically, large number of financially troubled companies filing in Houston could be a boost for that city’s economy. Bloomberg Business Week has estimated that having a major case filed in a city generates $4.5 million worth of economic activity, such as amounts spent on hotels, restaurants and cabs. The thirty-one large filings in Houston and Corpus Christi could be worth at least $139,500,000 in economic activity, not including fees earned by Texas professionals. (While many of the lead law firms were from out of state, nearly every case had a Texas local counsel. 

If you would like a chart showing the filings, please feel free to email me at ssather@bn-lawyers.com.

 

Monday, August 03, 2020

Could Unpaid Cities File an Involuntary Bankruptcy Against Donald J. Trump for President, Inc.?

President Donald J. Trump knows a little something about bankruptcy. At least four of his casinos and hotels have filed voluntary reorganization petitions, but could his presidential campaign be placed into involuntary bankruptcy over unpaid security bills to cities? This hypothetical provides a great vehicle for discussing the mechanics of how an involuntary petition gets filed and the consequences arising from it.

Some Background

The President's campaign is a corporation named Donald J. Trump for President, Inc. When the President has campaign rallies, people show up. Some of those people don't like each other which requires that security be hired. According to published accounts, the President's campaign has failed to pay at least $1.8 million to fourteen cities for costs related to his rallies. Could those cities put the campaign into an involuntary bankruptcy?

Involuntary Bankruptcy 101

The requirements for an involuntary bankruptcy petition are set forth in 11 U.S.C. Sec. 303(b) which provides:
(b) An involuntary case against a person is commenced by the filing with the bankruptcy court of a petition under chapter 7 or 11 of this title—
(1)
by three or more entities, each of which is either a holder of a claim against such person that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount, or an indenture trustee representing such a holder, if such noncontingent, undisputed claims aggregate at least $10,000 more than the value of any lien on property of the debtor securing such claims held by the holders of such claims;
(2)
if there are fewer than 12 such holders, excluding any employee or insider of such person and any transferee of a transfer that is voidable under section 544, 545,547, 548, 549, or 724(a) of this title, by one or more of such holders that hold in the aggregate at least $10,000  of such claims.
To initiate an involuntary petition, there must be at least three petitioning creditors if there are more at least twelve creditors. Since there are at least fourteen cities claiming unreimbursed costs, there would need to be three petitioning creditors.

Next,the claims must not be the subject of a "bona fide dispute." This is a problem for our petitioning cities. According to the link I included above, the campaign denies all liability on the basis that it was the Secret Service that arranged for security. In order for a petitioning creditor to get past this, it would either need to have a signed contract with the Trump campaign or have had the campaign acknowledge liability.

Assuming that three undisputed creditors can be found, the next step is to serve the debtor with a summons. Section 303(h) sets out the test in the event the petition is timely controverted:
(h) If the petition is not timely controverted, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed. Otherwise, after trial, the court shall order relief against the debtor in an involuntary case under the chapter under which the petition was filed, only if—
(1)
the debtor is generally not paying such debtor’s debts as such debts become due unless such debts are the subject of a bona fide dispute as to liability or amount; or
(2)
within 120 days before the date of the filing of the petition, a custodian, other than a trustee, receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession.
Thus, there will be two issues at trial: whether there are three qualified petitioning creditors and whether the debtor is "generally not paying such debtor's debts as such debts become due unless such debts are the subject of a bona fide dispute." In our hypothetical, the campaign could reply that it is paying all of its nondisputed debts as they come due and provide campaign finance reports showing expenditures. They could also respond that the cities are losers who should have paid the President to visit them.

Consequences of an Unsuccessful Petition

Under our hypothetical, the Trump campaign would no doubt contest the petition and would stand a good chance of defeating it if it could show that it had not contracted for security with the cities and was paying lots of money out to consultants and for media buys and to stay at various Trump properties. Assuming that the Trump campaign defeats the petition, what are the consequences?

This is covered by 11 U.S.C. Sec. 303(i) which states:
(i) If the court dismisses a petition under this section other than on consent of all petitioners and the debtor, and if the debtor does not waive the right to judgment under this subsection, the court may grant judgment—
(1) against the petitioners and in favor of the debtor for—
(A)
costs; or
(B)
a reasonable attorney’s fee; or
(2) against any petitioner that filed the petition in bad faith, for—
(A)
any damages proximately caused by such filing; or
(B)
punitive damages.
There are three options for remedies here. The first is an award of costs, which is the least severe. The second would be an award of attorneys' fees, which could be painful because according to a podcast I listened to the Trump campaign has already spent $14 million on attorneys and would likely pour a lot of money into defeating an involuntary petition. Finally, if the court found bad faith, it could award actual damage and punitive damages. In our hypothetical, the campaign accuses the cities of being losers and therefore anything they do must be in bad faith.

Conclusion

In this hypothetical case, pursuing an involuntary petition against Donald J. Trump for President, Inc. could turn out very badly for the petitioning creditors. However, because they are municipalities, they could always file Chapter 9 to pay off the damages.

The bottom line is that there are brightline tests to be met for filing an involuntary petition: three undisputed debts and a debtor not generally paying its undisputed debts as they come due. Attempting to file an involuntary petition can be expensive if it is not successful.
 
Hat-tip: My partner Manny Newburger suggested this post to me.

Tuesday, July 14, 2020

Legal Blogger Beats Defamation Rap for Cheeky Headline

The Second Circuit has sided with a blogger who was sued for defamation for his headline "TCPA Class Certification Denial Exposes Major Spousal Scheme."  Wexler v. Dorsey & Whitney, LLP, 2020 U.S. App. LEXIS 21474 (2nd Cir. 7/9/20). While the case does not fall within the usual fare for this blog, I am always happy to write about another blogger.

The underlying case which led to the blog post was a putative class action in which the  husband-attorney proposed that his wife serve as class representative. Even though the husband agreed to withdraw from the case and forego any attorney's fees as class counsel, he still reserved the right to seek an award based on quantum meruit. The Court found that the husband's potential to seek quantum meruit fees disqualified the wife from serving as class counsel.

Artin Betpera, an associate with Dorsey & Whitney, wrote a rather clever blog post about the case, the introduction to which said:

There are plenty of things I'd like to do with my wife one day. Take a trip to Greece. Finally convince her to go camping with me (never going to happen). But filing a class action with her as a class representative is definitely not one of them.

That's exactly what one husband-and-wife duo tried to pull in the Eastern District of New York. Senior Judge Frederic Block made quick work of the scheme.
The attorney-husband did not find this amusing and filed suit for defamation. The firm and the blogger moved to dismiss for failure to state a cause of action. The plaintiff apparently failed to argue his claim that the post itself was defamatory, focusing instead on the headline. The U.S. Magistrate dismissed the case and the husband-attorney appealed.

The Second Circuit explained that only assertions of fact as opposed to opinion could constitute libel. 

Distinguishing between opinion and fact requires a consideration of the following factors: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal readers or listeners that what is being read or heard is likely to be opinion, not fact

Opinion at *6-7. Based on this standard, the Second Circuit had no problem finding that the headline was a statement of opinion.

We agree with the magistrate judge that the headline in this case constitutes opinion and is therefore not actionable. The tenor of the article reflects that it is meant to be not only informative but also amusing and entertaining, making hyperbole in the headline expected and reasonable. The article's placement on a law firm's blog also suggests that it is informed, at least in part, by the firm's and its author's opinions. The context of the statement therefore cuts against a determination that it is an assertion of fact meant to be taken literally. The language "exposes major spousal scheme" also does not have a readily understood precise meaning of the nefarious sort that is advanced by Wexler — it could just as easily mean exactly what happened here, that the TCPA decision brought to light an ethically questionable arrangement by a married couple (here, to represent both the attorney's and the class's fiscal interests in a class action). The use of "major" does not change this analysis, as that is a relative term, the applicability of which is a matter of opinion. An average reader would not understand the headline to be "an attempt to convey with technical precision literal facts about" Wexler. And because the statement does not have a readily understood precise meaning, it is not capable of being proved true or false.  Nor do we think that a reasonable reader would think that the headline was based on facts other than those disclosed in the article, which accurately describes the ruling of the court. The headline is therefore properly read as non-actionable opinion rather than fact, and Wexler's defamation claim fails.
Opinion at *7-9 (cleaned up).

The Court then invited Mr. Wexler to to show cause why sanctions should not be issued for filing a frivolous appeal.

When I write about cases, it is common that one party wins and one party loses. The losing party may disagree with the opinion and on occasion, I have had persons tell me that the Court's fact finding was wrong or that their attorney was incompetent. I try to make it clear in my blogging that I am reporting on what a court found. I believe that I am free to report what a court finds, even if it is embarrassing or distasteful to one of the parties. This opinion takes that protection one step further. I often offer my opinion on what the implications of a case are.  However, this case shows that I can make my posts "not only informative but also amusing and entertaining."