COVID-19 AND BUSINESSES: HOW HAS THE PANDEMIC AFFECTED U.S. BUSINESSES’ DECISION TO FILE BANKRUPTCY? 

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Authored By: Sarah Hammitte 

            As we have all observed and some have experienced personally, COVID-19 impacted companies in the energy, retail, restaurant, entertainment, health care, travel, and hospitality industries on a global and national scale.  In the Spring of 2020, mandatory shutdowns devastated the bottom lines of thousands of companies due to dramatic drops in demand for their products and services.[i]  The economic impact of COVID-19 has forced several large, distressed companies into bankruptcy, but not nearly as many as one would expect.  

            Historically, bankruptcy filings reflect the rise and fall of our nation’s economic status. Following the global financial crisis, business bankruptcy filings doubled to 60,837 in 2009 from 28,322 in 2007.[ii]  Given that the COVID-19 global pandemic caused the American economy to virtually shut down, economists and scholars predicted a tidal wave of bankruptcies to follow.[iii]  And they did, for a while, primarily affecting large corporate businesses. Expecting an increase in filings, Congress even enacted a new Bankruptcy Law that would ensure there would be adequate funding in the Bankruptcy Courts to cover the predicted high caseloads.[iv]  July 2020 experienced its peak in pandemic-driven bankruptcies with a 52% increase in Commercial Chapter 11 Bankruptcies.[v]  This spike in large corporate bankruptcies was only second behind 2009’s peak.[vi]

            But then, just as quickly as business bankruptcy filings rose, they fell, beginning as early as October 2020.[vii]Indeed, corporate bankruptcies fell to a historic low in 2021.[viii]  Despite COVID-19’s worsening conditions, businesses across the United States were surviving the economic crisis that greatly exceeded the Great Recession in years prior. What was different? 

Why Did the Tidal Wave of Bankruptcies Never Materialize? 

            Not surprisingly, the mandatory switch to remote court hearings had an impact on the decline in bankruptcy filings beginning in March 2020.[ix]  April 2020 hit its sharpest decline for monthly filings due partly to the shift to online court proceedings.[x] For example, complex bankruptcy cases can require over 100 attorneys to participate in a single hearing.[xi]   

            Moreover, the majority of the businesses that contributed to the July 2020 peak in bankruptcy filings were already in financial distress, and COVID-19 merely accelerated their restructuring proceedings.[xii]  Further, the enactment of the Coronavirus Aid, Relief, and Economic Security Act,[xiii] (“CARES Act”) in March 2020, provided small and large businesses the relief they needed to avoid filing for bankruptcy in most cases.  The CARES Act set aside nearly $454 billion in funding programs to assist eligible businesses that were affected by COVID-19.[xiv]  Eligible businesses had the opportunity to apply for grants including the Shuttered Venues Grant, and the Restaurant Revitalization Fund, totaling to nearly $44.8 billion in relief funds.[xv]  However, as the economy has recovered since 2020, these grants and loans are no longer offered to businesses that may still be experiencing hardships from the pandemic to this day. Further, as of May 2021, the Payment Protection Program, (“PPP”), offered loans to businesses to help keep their workforce employed during the COVID-19 crisis.[xvi]  All of these federal assistance programs allowed businesses that would otherwise file for bankruptcy due to the pandemic’s economic impact, to avoid filing, by increasing their debt limit.[xvii]  

            As a result of the various federal funding programs that were provided to stabilize the economy by allowing businesses to survive the harsh economic effects of COVID-19, the decision to file for Chapter 11 bankruptcy became increasingly difficult. To confirm a Chapter 11 Reorganization plan, courts must consider, among other things, the “feasibility” of the proposed plan.[xviii]  The Bankruptcy Code defines feasibility to mean that the confirmation of the plan “is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor” unless specifically proposed in the plan.[xix]  This feasibility requirement requires adequate assurance of a business’s future performance.  In an uncertain economy and COVID-19’s seemingly unpredictable future, the feasibility that a company who chooses to file Chapter 11 Bankruptcy in 2021 or 2022 will not need further financial reorganization is nearly impossible to estimate.  In other words, the government assistance provided by the CARES Act has made it difficult for businesses to predict future performance, to determine which businesses will strive, or accurately place a value on their assets.[xx]  

            Furthermore, the CARES Act mandated debt forbearance, which allowed lenders to offer businesses that were suffering from the effects of the pandemic to suspend their payments rather than force them into default or bankruptcy proceedings.[xxi]  Additionally, the strong stock market provided an alternative to filing for bankruptcy amid the pandemic.  Many large, distressed businesses were able to avoid bankruptcy by selling stock, thus allowing them to raise capital without having to restructure their business or borrow money.[xxii]

Will the Bankruptcy Tidal Wave Ever Materialize? 

            Although the tidal wave of bankruptcies has yet to materialize, some experts believe that the U.S. Bankruptcy Courts will see a rise in filings in the second quarter for 2022.[xxiii]  The stimulus payments are coming to a halt as the economy rebounds, more Americans are choosing to be vaccinated, and businesses are opening back up to the public.  The decline in bankruptcy filings over the last two years were tied to temporary federally funded programs, generous lenders, a strong stock market, and historic-low interest rates.  As businesses run out of stimulus money, with little to no federal assistance in sight, and as borrowing costs are expected to rise, those once generous lenders may turn into eager creditors.  It is important to note that certain creditors made such allowances while businesses were in covid-related distress. The question becomes, once the economy fully rebounds and COVID-19 slowly stops to spread, will these creditors still be so generous. Further, the interest rates are expected to rise by the end of 2022, which could push businesses into bankruptcy court. Bankruptcy professionals fear that looking forward, as inflation continues to rise and monetary policies issued by the Federal Reserve begin to tighten back up, large businesses may begin to become financially distressed.[xxiv]

Why Does it Matter? 

            The same concerns that scholars had when predicting a massive wave of bankruptcies as a result of the pandemic remain true today.  Bankruptcy Courts may run the risk of being overwhelmed. Historically, the bankruptcy system functions differently when they are congested causing them to be less effective.[xxv]  Congested courts present special challenges to smaller business by increasing their likelihood of liquidation.[xxvi]  Although larger businesses are much more likely to successfully reorganize, congested courts makes the process unduly longer and inevitably more costly.[xxvii]   Precautions should be made when deciding to file for bankruptcy, especially Chapter 11, which primarily depends on obtaining financing to repay the debts.[xxviii]


[i]See, e.g., Allie Schwartz et al., Trends in Large Corporate Bankruptcy and Financial Distress, Cornerstone Research, 4 (Aug. 24, 2021),  https://www.cornerstone.com/wp-content/uploads/2021/12/Trends-in-Large-Corporate-Bankruptcy-and-Financial-Distress-Midyear-2021-Update.pdf (“The Retail Trade industry had 31 bankruptcies in 2020, as the COVID-19 pandemic created a difficult environment for traditional retailers that faced lockdowns and reduced demands for in-store shopping.”). 

[ii]See Annual Business and Non-business Filings by Year (1980-2020), American bankruptcy institute, https://abi-org.s3.amazonaws.com/Newsroom/Bankruptcy_Statistics/Total-Business-Consumer1980-Present.pdf (last visited Feb. 5, 2022). 

[iii]See, e.g., Mary Williams Walsh, A Tidal Wave of Bankruptcies is Coming, N.Y. Times (Aug. 3, 2020),  https://www.nytimes.com/2020/06/18/business/corporate-bankruptcy-coronavirus.html (expecting the number of large bankruptcies to challenge the record set in 2009).

[iv]See H.R. 8895, 116th Cong. (2021).  

[v]See Alex Wolf, Commercial Bankruptcies Jump by Significant 52% Over Last Year, Bloomberg Law (Aug. 5, 2020), https://news.bloomberglaw.com/bankruptcy-law/commercial-bankruptcies-jump-by-significant-52-over-last-year (stating that 642 businesses filed Chapter 11 in July 2020, compared to only 423 in July 2019). 

[vi]Schwartz, supra note 1, at 1. 

[vii]See id. at 4 (“Starting in October 2020, monthly bankruptcy filings returned to levels more consistent with historical averages.”). 

[viii]See Michael O’Connor & Chris Hudgens, US Corporate Bankruptcies Reach New Low in 2021, S&P Global (Nov. 8, 2021), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/us-corporate-bankruptcies-reach-new-low-in-2021-67459322.

[ix]See Bankruptcy Filings Fall 11.8 Percent For Year Ending June 30, U.S. Courts (Jul. 29, 2020), https://www.uscourts.gov/news/2020/07/29/bankruptcy-filings-fall-118-percent-year-ending-june-30.

[x]Juli Collins-Thompson et al., Review of U.S. Business Bankruptcies During the COVID-19 Pandemic, Fed. Rsrv. Bank of Boston, 4 (Nov. 19, 2021),  file:///Users/sarahhammitte/Downloads/sra-note-2105%20(1).pdf.

[xi]See 2020 Year-End Report on the Federal Judiciary, Supreme Ct. of U.S., 2,    https://www.supremecourt.gov/publicinfo/year-end/2020year-endreport.pdf.

[xii]Alex Wolf, Corporate Bankruptcy Wave Turns to Dust, Defying Expectations, Bloomberg Law (Jan. 5, 2022), https://news.bloomberglaw.com/bankruptcy-law/corporate-bankruptcy-wave-turns-to-dust-defying-expectations.

[xiii]H.R. 748, 116th Cong. (2020). 

[xiv]Steven M. Szymanski, CARES Act Programs for Business Too Large for the Paycheck Protection Program,  Nat’l. L. Rev. (Apr. 2, 2020), https://www.natlawreview.com/article/cares-act-programs-businesses-too-large-paycheck-protection-program (“The CARES Act provides that 4003(b)(4) Programs will apply to any business organized in the United States that has significant operations in the United States and the majority of its employees based in the United States and that has not received adequate economic relief in the form of loans or loan guarantees under another provision of the CARES Act.”). 

[xv]See generally COVID-19 Relief Options, U.S. Small Bus. Admin., (Date Last Reviewed: February 2022),  https://www.sba.gov/funding-programs/loans/covid-19-relief-options.

[xvi]See generally Paycheck Protection Program, U.S. Small Bus. Admin., (Date Last Reviewed: February 2022), https://www.sba.gov/funding-programs/loans/covid-19-relief-options/paycheck-protection-program

[xvii]COVID-19 Bankruptcy Relief Extension Act Extends Higher Debt Limit for Small Business Bankruptcies, Hirschler(Apr. 8, 2021), https://www.hirschlerlaw.com/newsroom-publications-1684#:~:text=The%20CARES%20Act%20increased%20the,extended%20through%20March%2027%2C%202022 (“The CARES Act increased the debt limit under the SBRA to $7,500,000, initially through March 27, 2021. The higher debt limit has now been extended through March 27, 2022.”).

[xviii]See 11 U.S.C. § 1129(a)(11).

[xix]Id.  

[xx]Alex Wolf, Corporate Bankruptcies Delated Until Virus Carnage Sorted Out, Bloomberg Law (May 11, 2020), https://news.bloomberglaw.com/bankruptcy-law/corporate-bankruptcies-delayed-until-virus-carnage-sorted-out?context=article-related (“In the present state of stay-at-home orders, sickened workforces, and a dropoff in global economic activity, there’s not much for even the riskiest investors to feel good about and not much certainty to build out a major restructuring. Things have to get better for people to see what companies need to file for bankruptcy,” attorney Monique Almy of Crowell & Moring LLP said.”).

[xxi]Id. 

[xxii]David Skeel, Pandemic Hope for Chapter 11 Financing, Yale L.J. Forum, 321 (Nov. 10, 2021), https://www.yalelawjournal.org/pdf/F7.SkeelFinalDraftWEB_3s3482o2.pdf.

[xxiii]See Charlsy Panzino & Chris Hudgins, U.S. Corporate Bankruptcy Pace Likely to Speed Up in 2022, S&P Global(Oct. 11, 2021), https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/us-corporate-bankruptcy-pace-likely-to-speed-up-in-2022-67011237.

[xxiv]Id.

[xxv]David Skeel, Bankruptcy and the Coronavirus, Economic Studies at Brookings, 6 (April 2020),  https://www.brookings.edu/wp-content/uploads/2020/04/ES-4.21.2020-DSkeel-2.pdf.

[xxvi]David Skeel, Bankruptcy and the Coronavirus: Part II, Economic Studies at Brookings, 3 (July 2020),   https://www.brookings.edu/wp-content/uploads/2020/07/ES-6.6.20-Skeel-1.pdf.

[xxvii]Id.

[xxviii]Skeel, supra note 25, at 4.

Covid-19 and the Americans with Disabilities Act: The Effects and Adaptations in Employment

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Authored By: Morgan Vardaman

Student Materials Editor, American Journal of Trial Advocacy

          COVID-19, a novel coronavirus that causes severe acute respiratory syndrome, has swept the world since its recognition in December 2019.[i]  With cases climbing to more than seventy-two (72) million in the United States and a death toll of over eight hundred seventy (870) thousand and climbing, it is unlikely that any person in the United States has not been affected by this virus in some way.[ii]  While nearly all facets of life have been affected by COVID, the Americans with Disabilities Act (“ADA”) has been impacted to an extreme.  Many aspects of the ADA have been altered following the onset of the virus, namely employment. Continue reading “Covid-19 and the Americans with Disabilities Act: The Effects and Adaptations in Employment”

Caniglia v. Strom: Updating the “Community Caretaking” Exception to the Fourth Amendment Warrant Requirement

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Authored By: Gabrielle Humber

Member, American Journal of Trial Advocacy

          The Fourth Amendment gives the people the right “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.”[i]  Further, warrants to search these places and objects must be supported by probable cause.[ii]  As such, warrantless searches of one’s home are considered to be “presumptively unreasonable” and police officers are subject to a “greater burden” if they “enter a home . . . without consent.”[iii]  The rationale underlying these protections is that the home is within an individual’s zone of privacy, where one can retreat and be free from unreasonable governmental intrusion. Continue reading “Caniglia v. Strom: Updating the “Community Caretaking” Exception to the Fourth Amendment Warrant Requirement”

Embedded Media and Copyright Infringement- Recent Southern District of New York Ruling Further Builds the Circuit Split on This Question

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Authored By: Forrest Hyde

Executive Editor, American Journal of Trial Advocacy

          Recently, a circuit split has been building up between the United States Courts of Appeal for the Second and Ninth Circuits, the two leading copyright appeals courts.[1]  The disagreement centers around what constitutes a “display” for purposes of copyright infringement under the Copyright Act of 1976 (“the Act”) where copyrighted images are shown (or “embedded”) on third-party websites without the copyright owner’s permission.[2]  A split on this issue, discussed in more detail below, could create a “rash of new litigation, and prompt newsrooms and media companies to re-examine their embed policies,” and would also raise a question “central to governing copyright on the internet.”[3]  But first, a quick mention of the Act’s provisions and the controversial test in issue. Continue reading “Embedded Media and Copyright Infringement- Recent Southern District of New York Ruling Further Builds the Circuit Split on This Question”

United States v. Tinker: The Eleventh Circuit’s Standards for Compassionate Releases

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Authored By: Vina Nguyen

Member, American Journal of Trial Advocacy

          Prisons in the United States are notoriously unhygienic and so overpopulated and close-knit that it almost impossible to maintain a six-foot distance between inmates every day. [1] Thus, when the COVID-19 pandemic started, one of the hugest populations at risk were prisoners. [2] Scared for their lives with this unknown disease, prisoners flooded courts with motions for compassionate releases pursuant 18 U.S.C. § 3585(c)(1)(A). [3] Under the First Step Act, an act whose purpose was to reduce prison populations, defendants could seek a motion for a reduced sentence under 18 U.S.C. §3583(c)(1)(A). [4] Despite finding the COVID-19 pandemic to be an “extraordinary and compelling” circumstance, the vast majority of these motions were denied. Continue reading “United States v. Tinker: The Eleventh Circuit’s Standards for Compassionate Releases”

Chilling Winter for Both Oil and Gas Industry and American Households

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Authored By: Taylor Sims

Member, American Journal of Trial Advocacy

            Steadily increasing gas prices, looming heating costs—all amidst United States inflation at a 31-year high appear may pose the most ominous winter storm of all this year.[1]  This month, OPEC and its oil-producing allies responded to President Biden’s call for greater energy production on the global front.[2]  Specifically, OPEC retorted that “if the United States believes the world’s economy needs more energy, then it has the capability to increase production itself.”[3]  Now, President Biden finds himself pulled by opposing forces: the necessity for the United States to produce a sufficient oil supply and environmental promises to limit U.S. production of hydrocarbons. Continue reading “Chilling Winter for Both Oil and Gas Industry and American Households”

Potential Unconstitutional Bankruptcy Fee Hike Causes a Split Among the Circuits: Headed to the Supreme Court

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Authored By: Katie Larsen

Member, American Journal of Trial Advocacy

          Fees collected from debtors who have filed bankruptcy fund the Justice Department’s U.S. Trustee (UST) Program, which oversees the administration of bankruptcy cases in 48 states.[1]  The exception to the rule is Alabama and North Carolina, as Congress established the bankruptcy administration (BA) program to administer and monitor cases in the six judicial districts in those states in 1986.;[2]  Starting in 2018, Congress amended the Bankruptcy Judgeship Act[3] to increase U.S. Trustee Program quarterly fees for all debtors who file bankruptcy within the UST program.[4] Continue reading “Potential Unconstitutional Bankruptcy Fee Hike Causes a Split Among the Circuits: Headed to the Supreme Court”

Vaccine Mandates: Shots or You’re Fired

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Authored By: Isom Carden

Member, American Journal of Trial Advocacy

          For individuals all over the United States, 2020 was a year to remember, and hopefully a year to eventually forget.  On March 11, 2020, the World Health Organization (WHO) declared Covid-19 a pandemic.[i]  Soon after being declared a global pandemic, the United States took action with mask mandates, the closure of schools and businesses, no sail orders for cruise ships, and travel restrictions with airflights.[ii]  As two weeks turned into two months, and then into over a year, the question remains… will we ever get back to normal? Continue reading “Vaccine Mandates: Shots or You’re Fired”

Carter v. Companion Life Ins. Co. and the Use of Errata Sheets to Modify Deposition Testimony

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Authored By: Owen Mattox

Articles Editor, American Journal of Trial Advocacy

          Few individuals would complain about a party making efforts to correct a court reporter’s errant keystrokes or other immaterial errors contained within a deposition. But when it comes to altering significant portions of a deponent’s testimony, things can get contentious. A recent decision in Carter v. Companion Life Ins. Co. highlighted the use of “errata sheets” when altering testimony and addressed the two approaches courts around the country have used to determine whether substantive changes to deposition testimony are permitted under Fed. R. Civ. P. 30(e). Continue reading “Carter v. Companion Life Ins. Co. and the Use of Errata Sheets to Modify Deposition Testimony”

The Right to Remain Silent: A Retrospective of the Privilege Against Self-Incrimination in the United States

Author: Michael Mears

Excerpt:

          The right to remain silent began in our justice system because of the trials and tribulations of a long line of martyrs.  According to an exhaustive study of the development of this area of common law by Leonard Levy, the first person on record to suffer death because he asserted his right to remain silent was John Lambert.  Upon being accused of the infamous crime of heresy in 1537, Lambert told his inquisitors, “though I did remember . . . yet were I more than twice a fool to show you thereof; for it is written in your own law, ‘[n]o man is bound to . . . accuse himself.”

            In the late sixteenth and early seventeenth centuries, the draconian Star Chamber contributed to the development of the right to remain silent.  Active in the Tudor and early Stuart periods of English history, the Court of Star Chamber was an outgrowth of the royal council and consisted of judges and privy councillors.  The purpose of the Star Chamber was to give greater speed and flexibility to common-law courts and equity courts in both civil and criminal matters.  As a result of the ruthless inquisitorial nature of the Star Chamber judges, the term has become synonymous with secret, oppressive, or irresponsible court proceedings.

            The Star Chamber was eventually abolished by the British House of Commons in 1641, in large part because of the bravery and unswerving dedication of the immortal John Lilburne.  He was steadfastly dedicated to maintaining his right to remain silent, even in the face of his inquisitors, and he refused to convict himself of a crime by waiving that right.  Lilburne was committed to prison by the Court of Star Chamber after two of his associates accused him of importing seditious books in order to save their own lives.  Under the law at that time, to secure a conviction for his crime the government needed Lilburne’s confession in addition to the accusations of his associates.  When the Star Chamber brought him before the judges, Lilburne refused to take the oath or answer any questions.  He was found guilty of contempt and was sentenced to public whipping and locked in the pillory in the middle of London.  He was subsequently whipped over 200 times on the two-mile walk to the pillory, and his remarkable courage to withstand the punishment rather than confess won him instant fame.  On the way to the pillory and between floggings, Lilburne told the assembled crowds that the “law of God . . . requires no man to accuse himself.”  Then, in November of 1640, a new member of Parliament delivered an impassioned speech in support of John Lilburne’s freedom, which subsequently led to his and other prisoners’ release.  Parliament met in April 1641 and determined that Lilburne’s imprisonment and punishment were “illegal and against the liberty of the subject” and ordered that he be released and receive reparations for his suffering.

            Although Parliament freed Lilburne, the House of Commons had not established the right to remain silent by law, but it did establish the right against self-incrimination.  Under the common law, torture was illegal when its purpose was to extort confessions, and common law has long accepted, at least abstractly, that one should not force a person to accuse himself.  Still, there was no official recognition that a refusal to answer incriminating questions did not imply guilt.  It was not until John Lilburne’s courageous stand that the law afforded the right of an accused person to remain silent in common law proceedings.            

          However, John Lilburne’s contributions to the development of the right to remain silent did not end with his vindication by Parliament.  After John Lilburne and one of his associates, Richard Overton, published pamphlets attacking Lord Cromwell in 1649, he was promptly rearrested and returned to prison.  At his trial, John Lilburne again refused to answer any questions and, in addition, he demanded the right to have counsel, time to consult with that counsel, the right to subpoena witnesses in his favor, and a copy of his indictment.  At the end of the trial, the jury returned a not guilty verdict after deliberating for just one hour and Lilburne was once again freed.