On June 15, 2023, the Supreme Court held that the Bankruptcy Code unambiguously abrogates the sovereign immunity of federally recognized Indian tribes. Therefore, tribes may not raise sovereign immunity as a defense to multiple portions of the Bankruptcy Code. Many tribal enterprises and their business partners, for the first time, will need to consider the legal implications of bankruptcy on their business arrangements. The immediate significance of this case is that tribes may be subject to damage claims for violating the automatic stay. However, there may be broader implications for tribal business dealings from this case.Continue Reading Supreme Court Ruling on Bankruptcy Code May Have Far-Reaching Implications for Tribal Business Arrangements
Deborah Williamson serves as the leader of Dykema's Financial Review Committee and has practiced insolvency and restructuring law for over 30 years. Ms. Williamson is regularly called on by clients in a variety of industries for her bankruptcy experience and advice regarding counter-party risk. She served as one of the 19 members of the American Bankruptcy Institute’s (ABI) Bankruptcy Reform Commission. She was the second recipient of the ABI’s Lifetime Achievement Award. In 2019, Ms. Williamson received a lifetime achievement award from the San Antonio Business Journal. Based in San Antonio, she travels frequently around Texas, the United States, and the world to address colleagues and counsel clients on bankruptcy issues and trends.
In 2016, Williamson authored the second edition of When Gushers Go Dry, The Essentials of Oil & Gas Bankruptcy to address new realities in the oil fields, the first guide to oil and gas bankruptcy. She had previously co-authored Bankruptcy Litigation for the Commercial Litigator. Ms. Williamson has been named a leader in her field by Chambers USA since 2003, previously selected for inclusion by Texas Super Lawyers as one of the Top 100 Lawyers in Texas (regardless of practice), as one of the Top 50 Women Lawyers in Texas and she has been named as one of the Top 50 Lawyers in Central Texas since the honor’s inception. Named one of The Best Lawyers in America© consecutively for over two decades. She has served as Co-Chair of the Bankruptcy and Insolvency Litigation Committee of the Litigation Section of the American Bar Association and Chair of the SBOT Bankruptcy Law Section. Ms. Williamson formerly served as Managing Director of Cox Smith prior to its combination with Dykema and was responsible for guiding and shaping the firm's business and client service strategies.
Distressed businesses that are facing severe financial difficulties often think that only bankruptcy, whether a Chapter 11 reorganization or Chapter 7 liquidation, can solve their problems. While bankruptcy is certainly an option, it may not be the only—or even the best—path to restructuring, financial stability, or an otherwise orderly closing of business operations. Bankruptcy can be costly and time-consuming and, in some instances, result in more harm to stakeholders on both sides of the creditor-debtor relationship.Continue Reading Distressed Business’ Alternatives to Bankruptcy: An Overview of Out-of-Court Workout Options
The Paycheck Protection Program (PPP) is one of two business loan programs created under the Coronavirus Aid, Relief and Economic Security (CARES) Act to assist companies by extending potentially forgivable credit to small business employers. The PPP is designed to help cover employee-related expenses and help employers avoid layoffs. The prospect of forgivable debt, coupled with relatively favorable terms, have put PPP loans in high demand and many businesses, including some which had already sought chapter 11 bankruptcy protection, have sought PPP loans.
The CARES Act contains no bar to the granting of PPP loans to bankrupt companies. That said, section 7(a)(6) of the Small Business Act requires qualifying small business loans to be “of such sound value or so secured as reasonably to ensure repayment.” As a result, the U.S. Small Business Administration (SBA) took the initial position that a PPP loan must meet the same requirements, and a loan cannot meet this standard if the borrower is a debtor in a bankruptcy case.
Continue Reading Are Debtors Eligible to Receive PPP Loans? Bankrupt Companies and the SBA Wage War Over Critical CARES Act Program Eligibility
Buried in the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, which is expected to be passed by Congress and signed by the President today, are revisions to the Bankruptcy Code that are relevant to creditors dealing with distressed debtors. Most notably, the bill will impact the recently-enacted Small Business Reorganization Act of 2019 (the “SBRA”) by increasing the potential pool of qualified debtors.
The SBRA, which just went into effect in mid-February, adds to the Bankruptcy Code a subchapter V, which allows small business owners certain advantages to reorganize their debt. The current debt limit for eligibility for cases under the new subchapter V is $2,725,625. The CARES Act will increase the eligibility threshold to $7.5 million in total debt, but only for one year, at which time it will revert back to the present limit.
Continue Reading How The CARES Act Will Impact Small Business Bankruptcies
Like most companies, you are preparing for how COVID-19 might affect your operations. Equally as important: the conversations you should be having with your borrowers that range across multiple industries and sectors. How is COVID-19 likely to impact their business? Are they proactively analyzing and implementing protocols to reduce costs, and better ensure continuity of supply?
These conversations, if approached correctly, can provide an opportunity to learn more about your customer’s business, while simultaneously pinpointing concerns that might affect their livelihood. And this crisis presents an opportunity to provide guidance and support to your customers, beyond the typical lender/borrower relationship.
Continue Reading Bankers: Are you having the right conversations with your customers around COVID-19?