By now everyone knows that one fifth of LL corporations are “zombies” – companies that should be out of business as they are technically insolvent and don’t even generate enough cash flow to meet their debt obligations, but continue to exist thanks to either record low rates which allow them to issue even more debt and use the proceeds to pay for existing interest expense (and roll over debt maturities), or government handouts which perpetuate their pathetic, deflationary existence.
But did you know that there are now reincarnated zombies: companies which were in such a dire state they did file for bankruptcy despite the Fed’s unprecedented monetary generosity… and yet shortly after they “unfiled” just so they would be eligible for government “stimulus”?
As Bloomberg’s Steven Church puts it, say your business needs a bailout from the federal Paycheck Protection Program, but you’ve already gone bankrupt, making your firm ineligible. Tough luck, right? Well, maybe not.
Such is the pathetic state of modern capitalism that some companies have “unfiled” for bankruptcy, arranged a PPP bailout loan, and then almost immediately refiled for bankruptcy. They range from a rural Texas hospital to a group of pizza joints in Tennessee and a Portland, Oregon firm that
As Church explains, “the logic behind the PPP law was to ensure money went to save jobs, not to prop up failing companies, said Las Vegas bankruptcy attorney Brett Axelrod. But Congress didn’t do its homework. There isn’t any real difference between a company that can’t pay workers during a pandemic without a government loan and one forced into bankruptcy by a pandemic, she said.”
“The government really wasn’t thinking it through,” Axelrod said. “What do companies do in a pandemic? They file for bankruptcy.”
And in this case, they then unfile to get some more taxpayer cash for which they are only eligible if they are out of bankruptcy court… and then immediately file again!
According to Bloomberg, a proposed change to the law could make such legal contortions unnecessary, but only if Congress is willing, during an election year, to vote to give federal aid to bankrupt businesses. Faith Community Health System in rural, northern Texas “unfiled” its Chapter 9 case in May, lined up a $1.8 million PPP loan, and went back into bankruptcy about two weeks later.
“It was a matter of life or death for us,” Faith Community Chief Executive Officer Frank Beaman told Bloomberg. Two nearby hospitals had shut down in recent years, leaving Faith Community the only option within 50 miles for many of Jack County’s 9,000 residents, according to court records. The hospital initially filed bankruptcy in February after losing an arbitration fight with an insurer that refused to pay for lab tests. Covid-19 made things worse.
Lawyers warned that if U.S. Bankruptcy Judge Mark X. Mullin didn’t dismiss the bankruptcy, it “could jeopardize the lives of citizens who may find themselves suffering with Covid-19 and in dire need of medical treatment.” The judge allowed Faith Community to proceed.
In the end, however, death won… again.
One of the first companies to unfile was Starplex Corp, a Portland, Oregon-based provider of security and related services for concerts, fairs and sporting events. Starplex argued that if it had to stay in bankruptcy without a PPP loan, it would most likely have to liquidate. Starplex got a loan and returned to court within a month.
Henry Anesthesia Associates used the technique even though its original bankruptcy began last September, long before the Covid outbreak. The Stockbridge, Georgia medical service left court protection in June to pursue a PPP loan, and returned on July 28 after getting almost $1 million. The move was justified, Henry said in court papers, because it’s the sole anesthesia provider to the local hospital, and it “continued to be on the front lines fighting the Covid-19 pandemic.”
Needless to say, the law is completely broken, bankruptcy lawyers say – and we wholeheartedly agree – but in a world where money is worthless – and in some countries a liability thanks to negative interest rates – that’s the norm. If the program is designed to protect small businesses during the pandemic, it makes no sense to deny a bankrupt company a PPP loan, said Joe Cotterman, one of about 250 small-business trustees empowered by federal law to help companies navigate Chapter 11.
The U.S. loans are forgivable if the money is used to pay employees or other approved expenses. It’s easier in bankruptcy to ensure a borrower complies with those rules, since borrowers must disclose far more detail when reorganizing in court, Cotterman said.
“There are a lot more eyes on it,” he said, although how that justifies this epic abuse of taxpayer funds to reincarnate a corporate zombie just to then burn it down again, is a different question entirely.