Category Archives: turnarounds
It was the day before Thanksgiving. A friend of mine called me in a panic. She received a notification that her bank account was frozen by a creditor; she was to get a direct deposit of her salary in the next 2 days, which was two weeks before Christmas. She needed to file bankruptcy fast in order to trigger the automatic stay (legal principle that means no creditor can take action to harm you).
I stayed up until midnight that day in order to get the case filed for her. Her business had gone bad and this was the fallout from it.
Often, bankruptcy cases are filed on an emergency basis. In many instances, time may be of the essence and you need to file the case immediately (e.g. a creditor has a judgment against you and has sent the Sheriff to your home or business; you have received a notice of garnishment of your wages or bank account by a taxing body). If this firedrill can be avoided, it should be.
Rushing into a case is pretty much never a good idea. Filing the petition on an emergency basis only increases the costs of your case and there may not be enough time to research potential issues that may arise during the course of your case. You may omit important creditors. You may omit assets. If the schedules are not accurate, you will need to amend them and that costs more money to do. Substantial, repeated amendments do not leave favorable impressions upon the U.S. Trustee or the Ch. 7 Trustee.
A debtor is permitted to file a barebones “emergency “bankruptcy petition together with a list of 20 largest creditors. The full set of schedules must be submitted within 14 days, unless extended.
Regardless of whether the case is an emergency filing or not, if you are an individual, you MUST complete pre-bankruptcy filing credit counseling course at least 24 hours before any case is filed.
- Talk to an attorney. He or she can give you the questionnaire you need to fill out well ahead of time. He or she will also give you a list of documents you will need You can start gathering that info. If the case is billed hourly, you will save yourself money by gathering up this information rather than having a paralegal do it.
- Pre-bankruptcy planning is always advisable for any individual or business. You don’t want to throw good money after bad (meaning you don’t want to pay down debt that ultimately may be discharged). You don’t want to make preferential or fraudulent transfers. Often, there are non-bankruptcy options, particularly for businesses (but that can be a topic for another blog post).
DISCLAIMER: This does not constitute legal advice. This post does not create an attorney client relationship. Consultant an attorney for more information re: this topic.
I am analytical. I like numbers. I like clear answers. Black and white. Not grey.
I was the Calculus member of my high school’s academic team in high school. Dad was an industrial engineer and the visual lens through which he viewed the world rubbed off on me. I initially majored in Physics because I appreciated how Calculus concepts could be applied to real life.
Fast forward 25 years. I love my work as a business lawyer. But, I still crave that opportunity to solve math problems (I did have a chance to be a financial analyst for two years before I started the firm). I just recently realize that, whenever I can, I attempt to solve my clients’ legal problems using spreadsheets and finite alternative scenarios. I reduce chaos and moving parts down to a formula, decision tree, or spreadsheet. There are only so many scenarios. There is a range of only so many possible outcomes. The law can only go so many ways.
Such an approach has worked really well for me in the context of settling business litigation. Recently, in bankruptcy litigation, I had to resolve the extent, amount, and priority of competing lien positions of 5 creditors (2 mortgage holders and 3 taxing bodies), on my clients’ commercial assets (including a building) and one of the owner’s residence. We tried to negotiate for months and no one was budging, but then I busted out my spreadsheets. I kept running the numbers given different assumptions regarding the value of the assets, whether to include interest and penalties, and given the two alternative legal outcomes as to whom should be first in lien priority. With the help of an esteemed mediator, we resolved the matter and successfully confirmed the plan of reorganization.
My abstract skills and fancy excel handywork also came in handy when I was about 29 (12 years ago, gasp), and working as a young associate. I developed an extensive series of “aging analysis” excel spreadsheets to utilize math to resolve a special type of bankruptcy litigation: preference litigation. The cases we handled were large dollar amounts in controversy, ranging from $15k- $8 million. Where a creditor is sued in a preference action (see first post on What the Heck is a Preference Action: Paying Off Favorite Creditors As a Business Tanks), there is an ordinary course of business defense. In order to mount this defense, a defendant should present an “aging analysis” of the length of time the parties were engaged in the transactions at issue.
We settled every time (with only one exception) and I am sure my extensive volumes of “aging analysis” spreadsheets helped. Maybe Dad would have preferred that I became an engineer like him. I don’t know. I do know that he would be proud of the way I approach my work now. Both my clients and I can thank my science and math teachers (Mr. Pete Karpyk, Mr. Phil Carey, Mrs. Kladakis, Mr. J.) for helping me be able to create these frameworks in which I can more readily resolve legal problems. So remember, #notalllawyershatemath.
Stay tuned for another post on exactly what is an “aging analysis” to be used to mount an ordinary course defense in a preference action.
Salene is a business and bankruptcy lawyer. This post does not constitute legal advice and does not constitute a guarantee of any legal outcome. The facts and legal issues vary from case to case; and not all outcomes will be the same.
My family and I traveled to Wheelwright, KY this summer for a mission trip with St. Winifred’s Church, in Mt. Lebanon Township, Pittsburgh, PA.
I took 500+ photos while I was in Wheelwright. I just prepared this presentation: 2015 Mission Trip: Wheelwright, KY: A City’s Turnaround During a Poverty War
I welcome comment.
All donations to Wheelwright can be made out to “World Servants Organization” and mailed to Stephanie Boyd, P.O. Box 73, Wheelwright, KY 41669. Mark “proceeds to benefit: Wheelwright, KY” on check.
In the beginning of 2014, I was asked by the WV Attorney General’s office to participate in a town hall meeting to discuss issues impacting the WV economy. As a business and bankruptcy lawyer, I wanted to do my diligence. I asked my clients and colleagues what they believed were significant factors. Here was a punch list of the issues identified by them and those at the town hall meeting:
- retention and attraction of young talent
- scarcity of livable downtown spaces in major WV cities, Weirton, Wheeling, Huntington, Charleston, Martinsburg, Morgantown
- healthcare reform proving costly for new businesses
- business and Occupancy taxes
- rampant drug addiction
- revitalization of old industry to attract new industry.
- deterioration of main streets
- oil and gas industry presence.
Prior to the town hall meeting, I also asked Justin Saporito, my law clerk to take to google to research this topic.
Justin found a 2014 Outlook Report (Report) for WV’s economy, produced by West Virginia University’s College of Business and Economics (one of my alma maters).
The economy of West Virginia has grown steadily over the past year with Gross Domestic Product (GDP) growing by 3.3% over the past year, ranking it tenth (10th) among U.S. states in real GDP growth. This growth was the result of several factors such as the addition of 3,000 new jobs over the past year, a state unemployment rate that has remained 1% below the national average for the past five years, and increased exports. Exports accounted for 16% of state economic output in 2012 compared with only 5% in 2000. The housing and automotive sectors of the economy, important indicators of economic health, have also seen increases. Home sales in WV are on par with home sales during the 2004-2005 housing boom and auto sales are at pre-recession levels.
According to the report, the key drivers of the economy in 2012 were coal mining, natural gas, healthcare, tourism, electrical power manufacturing, and chemical manufacturing. The Report predicted that annual job growth would increase in the healthcare services, wholesale and retail trade, construction, and professional and business service sectors every year through 2017.
A shining light for WV’s economy has been the city of Morgantown. Morgantown boasts an unemployment rate that is 3% below the national average with job growth above the national average with an estimated annual job growth rate of 2% in the coming years.
It is not all good news for WV however as it is ranked 47th among the 50 states in per capita income. Another major concern is the declining and aging population. WV’s median age is 5 years above the national average. Another concern is the state budget, ¼ of which comes from coal tax revenue and lottery revenue. With coal production predicted to fall through 2017, the state will have to find additional sources of revenue in the coming years. Despite these looming issues, WV is expected to have revenue growth of 3.5% for 2014.
DragonFire, Inc. filed a voluntary petition for Chapter 11 bankruptcy in October 25th, 2013. The petition was filed in the United States Bankruptcy Court for the Western District of Pennsylvania and has been assigned case number 2:13-bk-24517. Debtor’s Disclosure Statement, Balance Sheet, Declaration of Schedules, and other documents were due by November 8th, 2013. For a complete list of the documents due please refer to the document summary.
Debtor is the corporate entity for DragonFire Japanese Steakhouse and Sushi Bar located at 1500 Washington Rd. in the Gallery Mall in Mt. Lebanon, Pennsylvania. As the name suggests, DragonFire specializes in hibachi and sushi. For those unfamiliar with hibachi, it is a rectangular Japanese style barbecue grill. Customers often sit at a counter that spans three sides of the grill. The chef stands at the fourth side and prepares the meal (which typically consists of fried rice, vegetables, and various meats) with much fanfare. DragonFire also boasts a robata grill, a traditional Japanese slow grilling method. For more information about DragonFire, you can visit their website here.
Debtor has declared between $50k and $100k in assets with between $500k and $1 million in liabilities with approximately 20 creditors listed in the petition. Debtor is represented by Donald R. Calaiaro of Calaiaro & Corbett, P.C.
The first 30 days of a Chapter 11 bankruptcy case often are like water spewing violently out of a fire hydrant. Fast. Furious. Urgent. Many issues being thrown at the Debtor, its employees, and its lawyers at one time.
According to the Pre-Bankruptcy Planning for the Commercial Reorganization: A Brief Guide for the CEO, CFO/COO, General Counsel and Tax Advisor, written by the Reorganization and Restructuring Group of Squire, Sanders & Dempsey, LLP (2nd edition, 2008), a whopping 83 percent of chapter 11 reorganizations that are filed generally “die on the vine” and are never confirmed.
I purchased this Brief Guide at the American Bankruptcy Institute that I attended this past Spring and I thought I would write a few blog posts integrating my experience with the concise content of the book. As set forth on Appendix A to the Guide, generally certain matters must be addressed within the first 30 days of a case.
- Petition filed
- Filing of list of 20 largest creditors
- Applications for retention of professionals (attorneys, accountants, turnaround professionals, valuation specialists, real estate brokers). A Debtor cannot pay a professional unless the retention of the firm is first approved by the Judge and the professional files a fee application on the docket, to which parties may review and/or object.
- Filing of ”first day” motions (seeking authority to pay wages, use pre-petition bank accounts, pay deposits for utilities, use of cash collateral, payment of interim compensation to professionals)
- Filing of schedules of assets and liabilities and statement of financial affairs. Getting correct addresses and dollar amounts owed for every single creditor often is a daunting task. Once the Schedules are filed, a creditor matrix is generated. The Bankruptcy Court and parties in interest use this address list to mail or “serve” important pleadings in the case. If the matrix is enormous, certain limited servicing lists can be authorized by the Court. In mega-cases, servicing agents are employed by the Debtor to handle only this aspect of the case, i.e., proper service.
- Filing of Corporate Resolution authorizing the Chapter 11 filing
- Negotiation of debtor in possession financing
- Hearing on use of cash collateral and adequate protection
- Negotiation with trade creditors regarding reclamation claims and/or reestablishment of trade terms.
The first few weeks of a case can be exhausting and dramatic. Often, by the time a petition is filed, a debtor runs out of money and payroll has not been paid (therefore employees are angry and morale is low), bank accounts frozen, the utilities have been shut off, and/or the front doors have been padlocked by a creditor. Once a case is filed, a creditor may immediately file a motion to dismiss the case.
The filing of the petition and related schedules requires a financial autopsy of a business and all of its related entities. In order to avoid confusion down the road, Debtor’s counsel should try to obtain as much factually accurate information as possible during this time. The process requires persistence, diligence and coordination with the Debtor’s employees, who basically become your co-workers for as long as the case is open, which could be 18 months or longer.
During this critical time, management and key employees must be counseled regarding what to do and not do, now that the actions of the Debtor are under close scrutiny by not only a Judge but also a U.S. Trustee as well as the creditor body. Employees should be clear regarding what transfers may or may not be made without court approval. Also, at the same time, the U.S. Trustee’s Office dictates that a debtor comply with its financial reporting requirements (hence the required “Monthly Operating Report”), and the filing of insurance and bank account information. Lack of compliance may lead to a dismissal of the case or a conversion to a Chapter 7. Often the debtor must close pre-petition bank accounts and open new ones.
Keeping all constituencies informed is an important part of the role of Debtor’s counsel. Creditors may include key lenders and critical vendors who will want to know what the turnaround strategy is for the company. Once creditors receive the “Notice of Suggestion of Bankruptcy”, they too will be scurrying around to hire bankruptcy lawyers if the size of their claims warrants such an expense.
Let’s face it, all businesses face challenges. Especially when the economy is not a booming bull, financial challenges are in abundance. You are not alone. So what do you do when your company has financial troubles staring you down? What do you do when going to work every day puts you and your family deeper in debt instead of adding money to your bank account? At some point, the best business decision you can make may be the decision to no longer do business.
What do you do? Well, there are a few options: 1) Sell the business to a competitor, strategic business, or key employee; 2) File for Chapter 7 bankruptcy; 3) Wind-down the company yourself. We want to talk about the latter two options. Before taking action, both avenues have advantages and disadvantages that must be weighed.
Avenue 7. Filing for Chapter 7 Bankruptcy means that a Bankruptcy Trustee employed by Office of the United States Trustee of the Department of Justice, steps into the shoes of the company and has the burden of winding-down the business. In doing so, the Trustee is in control of distributing the business assets according to the Bankruptcy Code.
Perks of Chapter 7:
- Upon filing a petition for Chapter 7, an automatic stay is imposed preventing lawsuits and writs of execution against business assets –think of it as MC Hammer’s “Can’t Touch This.” This preserves the vital business assets and provides peace of mind that the business will not have to defend against future legal actions arising from pre-petition debts
- The Bankruptcy Court assumes the burden of notifying all creditors of the bankruptcy (sending the “funeral notice”, if you will). Having this objective third party serve as a buffer between the business owner and the unpaid creditor provides a sense of relief to the business owner
- Debtor benefits from expertise of an experienced Bankruptcy Trustee
- Debt forgiveness is not taxable
Downsides of Chapter 7:
- Business management has no control in the winding-down
- Trustee will scrutinize the pre-petition financial and operational affairs of the Debtor
- Instead of finding a strategic buyer who may pay more for business assets, a trustee may liquidate business assets for pennies on the dollar, called a “fire sale”
- Trustee may abandon certain assets letting creditors with an interest in them duke it out
- Since the Trustee assumes the place of the debtor, he or she also assumes all of the debtor’s legal claims. The debtor, therefore, may be without standing to pursue a future lawsuit arising out of pre-petition transactions, unless otherwise agreed
- Furthermore, filing for bankruptcy creates a public record and may pick up media attention, depending upon your business
- Time and monetary costs are also associated with Chapter 7. In addition to attorney’s fees, the filing fee alone is $306 and the Debtor will have to pay Trustee’s fees if there are assets for the Trustee to liquidate. Plus, the Trustee’s fees come off the top of liquidation proceeds before any distributions to creditors are made.
The Wind-Down Alternative. If you are a do-it-yourself personality, then the Wind-down approach may be the approach for you. In this scenario, you control the winding-down process of the company and pay off the debts. However, this do-it-yourself project may require a thick skin and much cooperation from your creditors and lessors.
Perks of Non-Bankruptcy Wind-down:
- Winding-Down the business yourself avoids the legal and bankruptcy fees
- Business owner retains control and does not expose dirty laundry to the public
- Business avoids scrutiny by the Trustee
- Higher likelihood that you, the business owner with the industry know-how, will find a better buyer in the market who is willing to pay more for business assets
Downsides of Non-Bankruptcy Wind-down:
- Creditors may initiate an involuntary Chapter 7 bankruptcy petition against your business
- Business must comply with state laws for dissolving which are usually more demanding than the Bankruptcy Code and take longer to execute. If liquidation is done incorrectly, the business can be exposed to lawsuits for dishonoring creditors’ legal rights
- Business owner personally deals with all of the creditors and is responsible for all issues that arise.
- Debt forgiveness is taxable outside of bankruptcy
Now, do you file for Chapter 7 or Wind-down? In some cases, a hybrid approach may be best. Go as far as feasible in the liquidation process on your own, and then turn it over to a Trustee or a bankruptcy lawyer to finish the job. Weigh which option suits your needs the most, reflecting upon your unique business, the nature and amount of the debt that your business still owes, and your personal capabilities. And, as always, it is best to first consult with your attorney.
MAZURKRAEMER represents debtors and creditors in bankruptcy courts all over the country. The information, comments and links posted on this blog do not constitute legal advice. No attorney-client relationship has been or will be formed by any communication(s) to, from or with the blog and/or the blogger. For legal advice, contact an attorney at MAZURKRAEMER or an attorney actively practicing in your jurisdiction.
NOTE: This is not necessarily related to bankruptcy. But, on second thought, maybe it is. Just short of its 100th birthday, Weirton Steel Corporation filed for Chapter 11 bankruptcy protection in the Northern District of West Virginia (Wheeling) on May 19, 2003. Here the NY Times article published the day after the filing. As detailed in the Weirton Steel wikipedia entry, by bankruptcy court order, the assets were auctioned with most being acquired by ISG. ISG then formed a new division called ISG Weirton Steel. On April 5, 2005, ISG completed a merger with Mittal Steel. Then again in 2006, Mittal Steel completed a merger with Arcelor thus resulting in a new company known as Arcelor Mittal. While I was practicing bankruptcy in Philadelphia at the time of the initial bankruptcy filing, I would then relocate to Pittsburgh in 2004 and work for a boutique commercial bankruptcy firm who served as counsel to the creditors’ committee in the Weirton Steel Ch. 11 case. I was raised in Weirton, West Virginia and returned last year (after 21 years away) to open a law office there.
So I attended the Weirton Festival of Nations this past Saturday. I had to man the Rotary booth. I brought along my children.
I had the privilege of sitting next to E.T. Weir’s lovely wife Gretchen at the Festival. Her late husband was the grandson of E.T. Weir, who founded the Weirton Steel Corporation. He is the man after whom our town and high school were named. Gretchen Weir traveled here with her dynamic daughter from New York City to donate memorabilia to the Weirton Area Museum and Cultural Center and to address the audience as a part of the opening ceremony for the Festival. She and I talked about many things. I told her what it was like growing up in Weirton and what it is like now. I have reflected much about my upbringing in Weirton and my continued close bonds with my childhood friends.Gretchen asked me to what extent the mill was still operating and I said I wasn’t exactly sure but, to my relief, I see smoke sputtering out of a few remaining stacks. I told her my mom and I drove down Main Street just on Friday and shuttered when we noticed another part of the mill had been demolished.I explained Weirton was, at one time (and probably still is), one of the most ethnically diverse towns in the state of West Virginia. There were numerous ethnic enclaves- Italian, Greeks, Polish, Serbs, etc. The Festival this weekend was a celebration of this diversity. Performances, foods, booths, etc. My children and I thoroughly enjoyed it. When I was a kid we used to have the “International Food Festival” each July. It was a 3-4 day event. I used to LOVE it. I still have my “half-Italian” red, green and white pin. I told Gretchen that Weirton was so unique because there were not significant economic disparities (i.e, the haves and have nots). Most all of our pops, of course, worked in the mill; our moms had to quit working once they got married (!!! ). Most families were in the middle class and experiencing a similar way of life. Weirton native Anna Egan Smucker wrote a lovely children’s book title NO STAR NIGHTS about growing in Weirton, this way of life. I happened to borrow it from the local Mary H. Weir library çand have been reading it to my children for the past few weeks.
Gretchen and her daughter were kind and interested and enthusiastic about urban renewal and where Weirton can go from here. Gretchen even let me take a photo with her to post to Facebook!!This post is a chapter in a turnaround story about urban renewal and the evolution of a small steel mill town. TO BE CONTINUED …