Private Benefits Without Control? Modern Chapter 11 and the Market for Corporate Control

25 Pages Posted: 6 Jun 2019 Last revised: 10 Oct 2019

See all articles by Oscar Couwenberg

Oscar Couwenberg

NHL Stenden University of Applied Sciences; University of Groningen - Campus Fryslan

Stephen J. Lubben

Seton Hall Law School

Date Written: July 2, 2018

Abstract

Outside of bankruptcy, a board of directors’ decision to take control rights away from existing shareholders and grant them to another is subject to heightened fiduciary duties. As the sale of control represents a kind of end game, shareholders have one last chance to realize the full value for their investment. In such a context, their interests warrant special protection.

A similar sale of control can happen in a chapter 11 procedure when a bankruptcy plan revamps the capital structure of the firm. In such a restructuring of the firm, control rights can be newly created, redefined and redistributed to corporate stakeholders. As bankruptcy always implicates many more stakeholders than only shareholders, a sale of control thus implicates a wider array of control rights owners than a normal control transaction. However, in a chapter 11 procedure fiduciary duties protecting interests of such owners of control rights do not arise and this creates the potential for agency misdeeds.

We discuss three recent chapter 11 or 15 cases in which the bankruptcy plans lead to a restructuring of the capital structures, redistributing control in the process. Our viewpoint is that in such complex restructuring processes, private benefits of control provide incentives to a select group of investors to twist the plan to their advantage. Our three cases show: 1) a lack of openness to other investors who are not part of the plan proposing classes; 2) that plans redistribute control via penny warrants, private placements, and other similar devices, shutting out other shareholders or diluting holdings significantly; and 3) a deal and fee structure that explicitly rewards specific groups and not others.

We conclude that in chapter 11 procedures, a redistribution of benefits is possible to an extent not possible under state corporate law. However, as we discuss only three exemplary cases, caution is warranted at the moment as we cannot provide a full empirical picture of private benefits in chapter 11 and chapter 15 procedures.

Keywords: Chapter 11, Reorganization, Market for Corporate Control

JEL Classification: G33, K20

Suggested Citation

Couwenberg, Oscar and Lubben, Stephen J., Private Benefits Without Control? Modern Chapter 11 and the Market for Corporate Control (July 2, 2018). 13 Bʀᴏᴏᴋ. J. Cᴏʀᴘ. Fɪɴ. & Cᴏᴍ. L. 145 (2018), University of Groningen Faculty of Law Research Paper No. 25/2019, Seton Hall Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3386029 or http://dx.doi.org/10.2139/ssrn.3386029

Oscar Couwenberg

NHL Stenden University of Applied Sciences ( email )

Rengerslaan 8-10
Leeuwarden, Friesland 8917 DD
Netherlands
31 582441479 (Phone)

University of Groningen - Campus Fryslan ( email )

Wirdumerdijk 34
Leeuwarden, 8911 CE
Netherlands
31 582055000 (Phone)

HOME PAGE: http://www.rug.nl/staff/o.couwenberg/?lang=en

Stephen J. Lubben (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-642-8857 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
45
Abstract Views
564
PlumX Metrics