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Advising Unsecured Creditors in Complex Bankruptcies

By Robb C. Adkins and Beverly N. McFarland

A perfect storm has developed in the need for increased use of fiduciaries for examination and management of debtors. As a result of being over-leveraged, companies have engaged in complex financial transactions that have impaired creditors' rights. At the same time, in the wake of the economic crisis, there have been increased reports of fraud and mismanagement. A decade ago, a number of unprecedented corporate scandals rocked the nation – Enron, WorldCom, and Tyco are the leading examples. The recent financial crisis, epitomized by the fall of Lehman Brothers, the collapse of the Madoff funds and a record number of bank failures, has led to a new wave of investigations into whether fraudulent or actionable conduct lies at the heart of recent institutional failures.

It is important to recognize that individual creditors, even those with significant stakes, seldom have much ability to influence the bankruptcy process. When complex entities and financial transactions are involved, the Chapter 11 filing and the events to follow are often understood only by the creditors with the most at stake who are close to the action, well informed and highly motivated. Often, some of these creditors may be appointed to the creditors” committee. In those situations, a creditors” committee, although representative to a degree, may not be able to provide timely and meaningful information and assistance to creditors outside the active inner circle.

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