Law & Economics Working Papers
In The End of Bankruptcy we set out the forces that have rendered obsolete traditional conceptions of corporate reorganization. Lynn LoPucki wrote a critique that asserted that our paper lacked empirical foundation. In this response, we draw on LoPucki’s data set of the reorganization of large, publicly held entities to show the robustness of our claims, both empirical and theoretical. Looking in detail at the firms whose Chapter 11 cases ended in 2002, most of which concluded after we completed our original piece, we find that in over 80% of the cases the assets of the firm were either sold or the bankruptcy proceeding put in place a restructuring plan agreed to before bankruptcy was filed. The remaining firms evince little in the way of going-concern value. Moreover, equityholders are nearly always wiped out, and the board of directors is usually replaced. Today's bankruptcy practice reveals creditors, particularly the senior lenders, in control. They use their powers to remove managers in whom they have lost confidence, replace the board of directors, put the corporation on the auction block and terminate the interest of equityholders. This paper provides further evidence that issues of control rather than priority dominate modern reorganization practice.
Robert K. Rasmussen & Douglas G. Baird, "Chapter 11 at Twilight" (John M. Olin Program in Law and Economics Working Paper No. 201, 2003).