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Corporate Governance in Chapter 11 and Stockholder Voting Rights Whos in Control

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When a corporation files a voluntary petition for relief under chapter 11, it becomes a debtor-in-possession (DIP). See 1 U.S.C. §1107(a). As a DIP, the debtor corporation remains in control of property and management of its operations. See 11 U.S.C. §§1107(a), 1108.

A corporation, however, is a legal fiction. As such, a corporation does not manage and operate itself. Instead, individuals, whether they are titled officers, managers and/or directors, manage and operate a corporation. And, since officers of the company manage the day-to-day affairs of a company outside of bankruptcy, they manage the day-to-day affairs of the DIP.

Officers, directors and/or managers, however, are not debtors in bankruptcy and are not the DIP. Nonetheless, a DIP and a trustee cannot coexist under the provisions of §1107. Consequently, the duties and obligations of a trustee must vest either in the corporation, the individuals that manage and operate the corporation, or both‹a requirement that, although at first glance appears simple, creates a complicated web of duties and raises the ultimate issue of who is in control.

Duties and Obligations of a Corporate DIP and Its Management in Chapter 11

Pursuant to §1107(a), a corporate DIP "occupies the shoes of a trustee in every way." In re Mark Hughes, 704 F.2d 820, 822 (5th Cir. 1983). In fact, a DIP, acting as a trustee, is an officer of the court. In re Performance Nutrition Inc., 239 B.R. 93, 112 (Bankr. N.D. Tex. 1999). As an officer of the court, the DIP owes the court a duty to act in the best interest of the bankruptcy estate. Id.; In re Intermagnetics Am. Inc., 926 F.2d 912, 917 (9th Cir. 1991); In re Tri-Cran Inc., 98 B.R. 609, 617 (Bankr. D. Mass. 1989). Indeed, the concept of allowing the debtor to remain in possession is "premised upon an assurance that the officers and managing employees can be depended upon to carry out the fiduciary responsibilities of a trustee." Wolf v. Weinstein, 372 U.S. 633, 651 (1963).

Reliance upon a board of directors accepting the heightened fiduciary obligations of a trustee is necessary because a corporation is a legal fiction. Wolf v. Weinstein, 372 U.S. 633, 644 (1963); In re Schepps Food Store Inc., 160 B.R. 792, 797 (Bankr. S.D. Tex. 1993); In re Albion Disposal Inc., 152 B.R. 794, 813 (Bankr. W.D.N.Y. 1993). Courts and commentators have recognized that this creates a conflict of interest due to the fact that "on the one hand, [directors] must act in the best interests of the corporation and stockholders, and on the other hand, [they] must act in the best interest of the estate, stockholders and creditors, collectively," but have not specifically addressed how to deal with this conflict. In re Schepps Food Store Inc., 160 B.R. at 798; Miller, Harvey R., "Corporate Governance in Chapter 11: The Fiduciary Relationship Between Directors and Stockholders of Solvent and Insolvent Corporations," 23 Seton Hall L. Rev. 1467 (1993). Nonetheless, directors must devise a means to deal with the diverse interests of their different constituencies so that the purposes of the Bankruptcy Code are achieved without favoritism or breach of fiduciary duties. Nimmer, Raymond T. and Feinberg, Richard B., "Chapter 11 Business Governance: Fiduciary Duties, Business Judgment, Trustees and Exclusivity," 6 Bank. R. Dev. J. 1, 21 (1989).

Due to the lack of guidance, directors of a corporate debtor find themselves in a quandary as to how to protect all of the varying interests of the bankruptcy estate and its constituents. And, although creditor constituents must move the court to change management from the DIP to a chapter 11 trustee, equity interest-holders are not necessarily under such constraints. This basic premise of state law corporate governance makes the conflicting duties and obligations even more complicated.

The Right of Stockholders to Change the Board of Directors During a Chapter 11 Proceeding

Upon the filing of a chapter 11 petition, and usually due to the events leading up to it, equity interest-holders are not happy. These equity interest-holders typically blame management for the corporation's downfall, regardless of other factors. When equity interest-holders become organized, whether right or wrong, they may seek to change the perceived cause of the bankruptcy: the board of directors and/or management.

In fact, equity interest-holders may seek to replace a board of directors with a board of directors that promises to consider the interests of equity over the interests of creditors. While some may consider such foolishness the creation of its own penalty, mainly the appointment of a chapter 11 trustee and/or conversion to chapter 7, that result overlooks the real parties at risk: creditors of the bankruptcy estate. Thus, there is some question as to whether equity interest-holders should retain their state law rights regarding the election of directors post-petition. See, e.g., LoPucki, Lynn M. and Whitford, William C., "Preemptive Cram Down," 65 Am. Bankr. L.J. 625 (1991); LoPucki, Lynn M. and Whitford, William C., "Bargaining over Equity's Share in the Bankruptcy Reorganization of Large, Publicly Held Companies," 139 U. Pa. L. Rev. 125 (1990).

Specifically, LoPucki and Whitford suggest that giving equity interest-holders a voice in negotiations over a reorganization plan is far more than the Bankruptcy Code's black-letter priorities would seem to allow. LoPucki and Whitford suggest an early elimination of equity interests, which would therefore reduce their bargaining leverage. See Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1499-1500 (9th Cir. 1995) (citing LoPucki and Whitford). The Ninth Circuit, however, declined to accept LoPucki and Whitford's suggestions and reasoning. In fact, the Ninth Circuit noted the many provisions in chapter 11 that give equity interest-holders influence over plan formulation and the bankruptcy process. See Jacobson, 50 F.3d at 1500. The Ninth Circuit further noted that corporate governance in bankruptcy remains shaped by relevant state-law corporate governance issues. Id., citing Broude, Richard F., Reorganizations under Chapter 11 of the Bankruptcy Code, §6.06 ("shareholders still have the power to elect directors of the corporation...").

Although the Ninth Circuit's comments over corporate governance in Jacobson are dicta, they offer insight into the Ninth Circuit's view of corporate governance in a chapter 11 bankruptcy case. The Second Circuit, on the other hand, has directly addressed the post-petition rights of equity interest-holders. See In re Johns-Manville Corp., 801 F.2d 60 (2d Cir. 1986).

In Johns-Mansville, the Second Circuit reviewed the propriety of an injunction against equity interest-holders commencing a state court action to force an annual meeting of equity interest-holders. The debtor in Johns-Mansville feared that at such a meeting the equity interest-holders would elect new directors, thereby potentially altering the course of its bankruptcy case.

Although the Second Circuit reversed and remanded, thereby dissolving the injunction, it did not find the right to compel an annual meeting absolute. Instead, the Second Circuit held that, "[a]s a consequence of the shareholders' right to govern their corporation, a prerogative ordinarily uncompromised by reorganization, 'a bankruptcy court should not lightly employ its equitable power to block an election of a new board of directors.'" Johns-Mansville, 801 F.2d at 64; citing In re Potter Instrument Co., 593 F.2d 470, 475 (2d Cir. 1979). Thus, the (equity interest-holders') right to call such a meeting may be impaired only if such attempts are a clear abuse of their state law rights. Johns-Mansville, 801 F.2d at 64; citing In re J.P. Linahan Inc., 111 F.2d 590, 592 (2d Cir. 1940) ("It is the court's concern that the management of the business does not pass into the hands of incompetent or untrustworthy persons... As to such matters, the right of the majority of stockholders to be represented by directors of their own choice and thus to control corporate policy is paramount and will not be disturbed unless a clear case of abuse is made out").

"Clear abuse" does not exist merely because equity interest-holders intend to exercise bargaining power, whether by actually replacing directors or by "bargaining away" their "chip," without replacing the board. Johns-Mansville, 801 F.2d at 65. However, such intent can be a clear abuse under the appropriate circumstances, such as where a confirmation hearing has already begun and all indications are that the equity interest-holders are acting in bad faith and are willing to risk any possibility of reorganization. Id. at 66, FN 7.

Similarly, when a debtor corporation is so insolvent that no equity exists, then denial of an equity interest-holder meeting may be proper because such equity interest-holders are no longer real parties-in-interest.1 Id. at 65, FN 6; see, also, Potter Instrument, 593 F.2d at 475. In Potter Instrument, the Second Circuit found the circumstances appropriate to enjoin a director election because the election could result in unsatisfactory management and would probably jeopardize both reorganization and the rights of creditors and shareholders‹sounding the death knell to debtor and shareholder alike. See Potter Instrument, 593 F.2d at 475. While the circumstances in Potter Instrument were unique, it affirms that if equity interest-holders intend to embark on a suicide mission with the intent of undermining any reorganization plan, regardless of the economic realities, then a clear abuse exists, and preventing the election of new directors is appropriate. Johns-Mansville, 801 F.2d at 67.

In developing a standard, the Second Circuit did undermine the state law corporate governance rights of equity interest-holders. However, such reasoning is sound so as to prevent bitter equity interest-holders from spitefully preventing an otherwise successful reorganization. Due to the application of state law in chapter 11 bankruptcy cases and the rights of equity interest-holders in choosing the management of their company, such rights should be carefully tread upon to prevent the complete disregard of such rights.

Conclusion

The divergent interests of the debtor, creditors and equity interest-holders make governance of a corporate debtor perhaps the most stressful experience corporate management will ever face. Management is constantly faced with accusations of insider dealing, breach of fiduciary duty and plain incompetence, whether any truth to such allegations actually exists. Nonetheless, their duties persist, and most directors fulfill their duties of loyalty to all constituents.

The issue of corporate governance and the election of directors during a bankruptcy case remains troublesome on both sides of the coin. After all, state law still governs the rights and obligations of officers, directors and equity interest-holders, and such rights should not be lightly diminished. On the other hand, allowing rogue equity interest-holders intent on destroying the company is simply inequitable due to the interests of other constituents and the underlying premises of the Bankruptcy Code. As such, directors remain in control until such time as equity interest-holders say otherwise, and only if the bankruptcy court allows them to say otherwise.


Footnotes

1 This reasoning appears flawed, as the Bankruptcy Code does not dictate such a limitation, nor could such a limitation exist because of the potential application to unsecured creditors in an apparent "no-asset" case. Return to article

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Tuesday, July 1, 2003

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