Tag: bankruptcy

John Horn, professor of practice in economics, wrote this article with contributions from Taylor Begley, assistant professor of finance.

In a well-functioning economy, the bankruptcy process should be able to sort out why a particular company failed. Was the company structurally unable to compete? Did executives make poor choices (like taking on too much debt)? Or were circumstances simply unlucky?

But when large swaths of the economy default concurrently, banks shouldn’t hold individual businesses responsible for the disruption. Though the Coronavirus Aid, Relief, and Economic Security (CARES) Act and subsequent bills provide some small business relief, they largely leave the existing bankruptcy process in place.

Unfortunately, that process will take years to sort through the chaos. Unless we take additional action, when the crisis ends small businesses that were perfectly viable will face challenges in accessing the cash they need to start up again.

Cataclysmic events

In contract law, “force majeure” clauses are intended to protect both parties from cataclysmic events beyond their control. But force majeure—in short, an extraordinary, unforeseen event—won’t absolve most current borrowers from default. Few small business loans have such clauses, and, even if they do, courts will have to decide whether the pandemic counts as such an event. This, in turn, will require a lot of one-off decisions from lenders, further clogging the system.

Here’s the bottom line: We are not ready for the economy to come out from under a large number of defaults once the coronavirus is contained sufficiently. We can’t rely on existing contractual clauses to remedy the situation. In an ideal setting, a bank will take into account the business’ situation before the COVID-19 crisis and evaluate it on the pre-crisis fundamentals.

This will work best when the lenders have a more intimate knowledge of the borrower and their history. That’s more likely to occur when the bank is a local entity. However, the banking industry has been closing branches over the past 10 years, and closures appear likely to continue amid this downturn.

The correct action requires coordination: All lenders need to act in a similar fashion at the same time so no one bank feels like it’s the only one taking a risk by doing something different.

Banks’ unwillingness to take risks on their own shouldn’t be surprising; we’ve seen this in the recent past. Since the Great Recession, banks have been holding excess reserves (cash in their vaults that they are allowed to lend out, but don’t) between $685 billion and $2.7 trillion since mid-2009. As comparison, the number averaged $1 billion between 1985 and 2008. Also during the Great Recession, banks tightened standards for small-businesses loans and have not relaxed them significantly since that crisis officially ended.

What can be done?

If we can’t rely on banks to self-start the lending cycle, what can be done? There are a couple of ways the federal government can improve liquidity for small businesses by putting all banks on the same footing with regard to the underlying insolvency risk.

1. The simplest correction would to be for the government to underwrite the continued financing of small businesses until the crisis has passed. Ensure these businesses have access to funding they need to pay off all of their bills and remain viable. The CARES Act (and second round of Paycheck Protection Program funding) was a good first step, but Congress will need to continue funding small businesses until the crisis ends.
2. If it doesn’t, then Congress should enact legislation that would count any bankruptcy/default from March 2020 until the end of the crisis as a nondefault event. Sure, some risky borrowers would have defaulted anyway without the coronavirus shutdown, but many of the other conditions (like cash flow, tenure of business) will still be used to underwrite future loans, as will bankruptcies/defaults before March 2020.
3. Create new investment protection vehicles for banks/lenders to incentivize certain types of loans (modeled on the FDIC insurance—i.e., only for loans up to a certain amount, only for certain types of loans—and the mortgage loan backup created after the Great Recession). This would be similar to the current CARES SBA loans and allow for smaller minimums than the Fed’s Main Street Lending Program (currently $500,000).

Small businesses are hurting. If the current economic crisis doesn’t end in the next few weeks, they face an existential crisis that will be hard to endure—and find it hard to rebuild once the economy starts to rebound.

With pension payouts skyrocketing, tax credits expiring and the inability to pay operating expenses, Puerto Rico filed for bankruptcy protection May 3. The U.S. territory owes an estimated $73 billion to assorted creditors, including Wall Street firms. This makes the bankruptcy the largest-ever American municipal debt restructuring in history.

A senior lecturer in finance at Washington University in St. Louis’s Olin Business School says the situation should serve as a dire wake-up call to the municipal bond market.

“Earlier this year, when the bankruptcy of the fictitious town of Sanidcott became the subject of the hit Showtime series ‘Billions’, I knew we had reached a new low point in the municipal bond market,” said Rich Ryffel, who advised governments, corporations and more about financing and capital structure in his 30-year career in investment banking and asset management. “So common had the once-unheard of notion of municipal bankruptcy become, that it would now be understandable to the television audience and fodder worthy of acting out on the small screen. Well, now the folks in Puerto Rico have given us an even better subject.  Reminiscent of CSI Las Vegas, CSI Miami, CSI Whatever, we now have – Municipal Bankruptcy: Puerto Rico.

“Puerto Rico has become the U.S. municipal bond market’s own little Greece, seeking from the courts what it could not find the will nor the way to do on its own; change its profligate ways and pay its creditors.  Its move to the courts lowers the recovery floor in its negotiations with creditors and gives it remedies heretofore unavailable… . Years of preferential tax and trade treatment failed to create an island economic paradise, so after seeking new assistance from Congress last year, Puerto Rico is now adding itself to the list of those expecting others to suffer the hangover after they they enjoy the bender; think Greece, Argentina, Wall Street.  Where does this end?”

Ryffel says the long-held assumption that governments could repay their debt has eroded, and that’s changed the playing field for lenders.

“Not that long ago, the municipal bond market used two standards when considering whether to open the lending tap to borrowers — one’s ability to pay and one’s willingness to pay,” Ryffel said. “The first threshold was fairly easy to assess. The second was always more difficult to gauge — being more qualitative in nature — but it was assumed that governments would only borrow what was needed to provide essential public services and would take all necessary means to repay its obligations. Default, let alone bankruptcy, was a remote thought.

“Now, however, we see with growing and concerning frequency borrowers treating repayment as optional, as the redemption provision in their bonds themselves. The problem is that the markets depend on this second lending standard and as it erodes, the availability of municipal credit will both shrink and become more expensive for all market participants.”

The Puerto Rico bankruptcy dwarves that of Detroit, which was previously the U.S.’s largest municipal bankruptcy. The city filed for Chapter 9 protection in 2013, with $18 billion in debt. While studies are underway to assess the impact of Detroit’s financial woes, Ryffel says the Puerto Rico situation could send even more shockwaves, not just because of the amount owed, but also for the way it could change laws allowing massive debt forgiveness.

“Puerto Rico may have even larger impacts on the market because they have not only moved to the Doomsday scenario, they successfully had law changed to allow them to do so,” Ryffel said. “In essence, they not only started the markets down the slippery slope, they had a slippery slope built for them.

“To be fair, Puerto Rico is only doing what they need to do to protect their citizens, and they have used every tool available to them. One can’t blame their leadership for that.  While there may not be enough money to go around, there is plenty of blame to go around.  Healthy portions of it go to prior administrations which borrowed without a plan to repay and which borrowed to pay operating expenses rather than invest in the future. Still too, blame must also go to the municipal bond markets, which for years knew of Puerto Rico’s increasing lack of ability to pay, yet still lent it money.”

Guest blogger: Erika Ebsworth-Goold, WashU’s The Source

Radhakrishnan Gopalan, Olin finance professor writes in The Hindu that “despite…limitations…the Bankruptcy Bill, as introduced in the Lok Sabha in the winter session, is a significant step in the right direction and should be enthusiastically welcomed.” Read article, “Working Through the Bankruptcy Maze.”