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LEHMAN BROTHERS, SHARPER IMAGE, BENNIGAN’S AND BEYOND: IS CHAPTER 11 BANKRUPTCY WORKING? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 26, 2008 

Serial No. 110–212 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

PERRY APELBAUM, Staff Director and Chief Counsel 

SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 26, 2008 

Page 

OPENING STATEMENTS 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1 

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 3 

WITNESSES 

Jay Westbrook, Esq., Professor, University of Texas School of Law, Austin, 

TX 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Barry E. Adler, Esq., Professor, New York University School of Law, New 

York, NY 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

Lawrence C. Gottlieb, Esq., Cooley Godward Kronish LLP, New York, NY 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Ranking Member, Subcommittee 

on Commercial and Administrative Law ........................................................... 4 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Letter from Kappa Alpha Psi Federal Credit Union (KAPFCU), dated September 26, 2008 .................................................................................................... 62 

Response to Post-Hearing Questions from Jay Westbrook, Esq., Professor, 

University of Texas School of Law, Austin, TX ................................................. 65 

Response to Post-Hearing Questions from Barry E. Adler, Esq., Professor, 

New York University School of Law, New York, NY ........................................ 69 

Response to Post-Hearing Questions from Lawrence Gottlieb, Esq., Cooley 

Godward Kronish LLP, New York, NY .............................................................. 71 

(1) 

LEHMAN BROTHERS, SHARPER IMAGE, BENNIGAN’S AND BEYOND: IS CHAPTER 11 

BANKRUPTCY WORKING? 

FRIDAY, SEPTEMBER 26, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:26 a.m., in 

room 2141, Rayburn House Office Building, the Honorable Linda T. 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Sa ́nchez, Lofgren, Delahunt, and Cannon. 

Staff Present: Eric Tamarkin, Majority Counsel; Adam Russell, 

Majority Professional Staff Member; and Stewart Jeffries, Minority 

Counsel. 

Ms. SA ́ NCHEZ. This hearing of the Committee on the Judiciary, 

Subcommittee on Commercial and Administrative Law, will now 

come to order. You guys can be seated. Without objection, the 

Chair will be authorized to declare a recess of the hearing. And I 

will now recognize myself for a short statement. 

Today we find our country in the midst of the most significant 

economic crisis of our Nation’s history, perhaps since the 1929 depression. The subprime mortgage meltdown and housing market 

collapse have sent shock waves throughout all of the sectors in the 

United States economy and threaten the global economy. 

The cascading effect of tightened credit has led to unprecedented 

government bailouts of private companies and a surge in business 

bankruptcies. According to the American Bankruptcy Institute, 

during the first half of 2008, there have been 55 percent more 

Chapter 7 liquidations than last year. Chapter 11 filings, where a 

company attempts to stay in business, are up 30 percent. 

Last week, Lehman Brothers filed for bankruptcy under Chapter 

11, with total debts of $613 billion against total assets of $639 billion. This filing is the largest in U.S. history, dwarfing the previous 

largest bankruptcy in 2002 of WorldCom Incorporated, which had 

$104 billion in assets. Although Lehman racked up huge losses in 

risky mortgage-backed securities that could undoubtedly have had 

a major impact on the market, the Federal Government refused to 

bail it out and, as a result, Lehman filed for bankruptcy. 

2 

On the eve of Lehman’s bankruptcy filing, it apparently utilized 

the netting provisions of the 2005 Bankruptcy Code Amendments 

to offset various financial contracts it had outstanding. Accordingly, 

I hope at least some of the witnesses will help us understand the 

ramifications of these netting provisions as a matter of bankruptcy 

policy. 

Other large financial institutions have found themselves in similar positions recently. Earlier this year, California-based IndyMac 

filed for liquidation under Chapter 7 of the Bankruptcy Code, making it the ninth largest bankruptcy in history. IndyMac was crippled when the housing crash and ensuing economic slump caused 

borrowers to default on their loans and depositors to pull their 

money out of the bank at the same time. 

Chapter 11 bankruptcy filings have not only become more prevalent in the financial sector, but they have been on the rise among 

retailers. Sharper Image, Levitz and Bennigan’s are just a few of 

the household names that have recently sought to reorganize under 

Chapter 11. A disturbing trend that appears to be developing is 

that more and more retailers are opting to liquidate rather than to 

reorganize. Some blame the overall economic climate. Some blame 

the credit crunch. 

Those in the bankruptcy community believe that the 2005 

amendments, including, for example, the nonresidential leasehold 

provision, are the principal cause of retailers choosing to close their 

stores, lay off their employees, and liquidate their assets rather 

than to attempt to reorganize. 

The purpose of today’s hearing is to examine whether Chapter 11 

is working as Congress intended and whether the amendments to 

the Bankruptcy Code in 2005 have made it more difficult for business debtors to reorganize. 

We will also review how the increase in business bankruptcy fits 

in the current economic crisis that has engulfed our country. 

I should note that Judiciary Committee Chairman Conyers invited a representative from Lehman Brothers to participate in this 

hearing for the purpose of explaining the circumstances leading to 

the filing of its bankruptcy case and how the financial contract offsets will impact its bankruptcy case. Unfortunately, Richard Fuld, 

Jr., Chairman and Chief Executive Officer of Lehman, was not able 

to make himself available, even though we offered to have him participate via video conference. Given the significance of the issues 

presented by this hearing, I may suggest that we will conduct a 

further hearing at which Mr. Fuld will have an opportunity to testify. 

As this is our last scheduled hearing, I wanted to take this opportunity to thank all of the Members of the Subcommittee in our 

work during this Congress. It has been a busy 2 years, far busier 

for this Subcommittee than I think most would have imagined at 

the beginning of the term. So I am especially thankful to everyone 

for their hard work, including the staff. 

I particularly want to salute our Ranking Member, Mr. Cannon, 

and to wish him my very best in his future endeavors. Congressman Cannon has been a fearless leader in working to reauthorize 

the Administrative Conference of the United States, a highly respected administrative law and process think-tank that provided 

3 

valuable guidance to Congress and the executive branch. Even in 

an area that has often been contentious, bankruptcy reform, Mr. 

Cannon was willing to work with us across the aisle on significant 

issues, including consideration of ways to address excessive executive compensation in Chapter 11 bankruptcy cases. 

Mr. Cannon, I want to thank you for your service to the Subcommittee on Commercial and Administrative Law as both the 

Chair and Ranking Member, and as a distinguished Member on the 

full Committee, as well as a well respected Member of Congress in 

other areas. We are very sorry that you will be leaving Congress, 

but I know that you are going to go on to accomplish wonderful 

things, and we wish you well. 

Ms. LOFGREN. Will the gentlelady yield? 

Ms. SA ́ NCHEZ. I would yield. 

Ms. LOFGREN. If I may, I would just like to also note the tremendous service that Congressman Cannon has given to our country in 

his years in the House. It has been a pleasure to work with him. 

We don’t agree 100 percent on things, but he is a smart person and 

he is an honest person and he is someone who can talk through 

things without a bunch of games or hidden agendas, just to try and 

get something done for the American people. 

So it has really been an honor for me to work with him on many 

issues. And he is a credit to his district and his State. And I will 

miss him tremendously next year as a Member of Congress. And 

I thank the gentlelady for yielding. 

Mr. DELAHUNT. Would the gentlelady continue to yield? 

Ms. SA ́ NCHEZ. I would yield to the gentleman from Massachusetts. 

Mr. DELAHUNT. Because I want to echo your sentiments and that 

of Ms. Lofgren’s. I have had an opportunity to work with Chris on 

a number of issues. He is a straight shooter, he has a keen intellect, he has a passion for public policy and he is just a great guy. 

And he will be sorely missed. And it should be noted that he commands great respect on the Democratic side of the aisle, and we all 

wish you the very best, Chris. 

Ms. SA ́ NCHEZ. I think it is unanimous. We love you, Mr. Cannon, 

and are sorry to see you go. 

At this time, it is my pleasure to recognize my distinguished colleague, Mr. Cannon, the Ranking Member of the Subcommittee for 

his opening remarks. 

Mr. CANNON. I thank the Chair and ask unanimous consent to 

have my written statement included in the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CANNON. Have you guys been campaigning for me in my district? I would like the record to reflect that I have one of the most 

conservative voting records in Congress. But that said, I do have 

many dear friendships in this body. There are many people that I 

will miss. 

Bill Delahunt and I came together. I think he had only been here 

a little while before I got here. The three of us have worked together for many years on issues that I think are very important. 

And it has been a pleasure to have our new Chair, Ms. Sa ́nchez, 

take the Committee. We work sometimes at odds and sometimes 

together, but mostly—this is the coolest Subcommittee on Earth beVerDate Aug 31 2005 12:32 May 13, 2009 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\COMM\092608\44631.000 HJUD1 PsN: 44631
4 

cause the issues are really important and they are arcane and people don’t get them and don’t understand them generally. So the arguments are sort of in-house. But I have been a big promoter of 

the jurisdiction of this Committee, and the new Chair also has been 

a promoter of the jurisdiction of this Committee. 

I think I am going to make one last statement about that. We 

have jurisdiction over the way the Federal Government oversees 

commerce and that, by nature, just includes administrative law. So 

this Committee ought to be reviewing—and I hope we pass early 

next year the bill that we have introduced that will give this Committee jurisdiction over all regulations for review. And then, ultimately, I would hope that this Committee gets the authority to 

take regulations to the floor of the House to be voted on before they 

become law and thereby recapturing the legislative role that we 

have delegated away I think, unfortunately, to the executive 

branch. 

And secondly, we are evolving as a Nation and I don’t think that 

this has been understood or recognized. We have thousands of organizations that should be interstate compacts but aren’t because 

they don’t understand that they need congressional ratification. 

The other side to that is that to the degree that we can move 

Federal activities to interstate compacts, I believe in many ways 

the country is going to be better off. I don’t think anybody believes 

that FEMA has performed well, ever. It is an amazing concentration of power. The Senate reviewed what happened after Katrina 

and basically said we shouldn’t have a Federal Emergency Management Agency. What did work were the interstate compacts, the 

compact between Louisiana and Texas and other States in that region that allowed, on the statement by the Governor, that there 

was an emergency that allowed Texas troopers to cross the border 

into Louisiana and help perform the police functions, as had been 

anticipated by that interstate compact. 

So this is a great Committee, one that I have loved being on, one 

that I hope the people that remain on the Committee will continue 

to work toward expanding the jurisdiction of. And let me just say 

that it has been a pleasure to work with all of you on many different issues. You said all kind things about me. Those things are 

things that you are saying because those traits are inherent to each 

of the three of you, and it has been a pleasure for me to work with 

you. And I don’t intend to disappear. At least the Chair has pointed 

out that I have some kind of future, and I appreciate the fact that 

she thinks it will be bright. I intend to make it bright. And I will 

miss this Committee and Congress. 

And thank you and I yield back the balance of my time. 

Ms. SA ́ NCHEZ. I thank the gentleman. I’m sure we will be hearing 

much more from you, Mr. Cannon, and hope you will remain available for us to pick your brain next year in the next session when 

we work on some of these issues that you have raised. 

[The prepared statement of Mr. Cannon follows:] 

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND RANKING MEMBER, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW

Thank you for calling this hearing on Chapter 11 bankruptcy. As Chairman Conyers is fond of pointing out, this ‘‘sleepy Subcommittee Number 5’’ has been very 

5 

busy these last two years. And bankruptcy has been one of our busiest areas. According to my count, we have held no less than 10 prior hearings on bankruptcy 

related topics—including two other hearings on Chapter 11 bankruptcy. 

That is, I think, appropriate given the importance of bankruptcy as a means of 

addressing debt in this country. In fact, the Founders thought it so important that 

they explicitly listed it as one of the enumerated powers of Congress in Article I, 

section 8 of the Constitution. Given that Congress passed a major overhaul of the 

bankruptcy laws in 2005, it perhaps not surprising that it would take a hard look 

at that law in this Congress to see how it is performing. Of course, the current financial difficulties facing this country also make bankruptcy an unfortunately all 

too relevant of a topic. 

The hearings that we have had on bankruptcy have been illuminating—some perhaps unintentionally so. Whenever a major piece of legislation passes Congress, it 

inevitably involves compromises from all parties. The Bankruptcy Abuse Prevention 

and Consumer Protection Act of 2005 is no exception. What we have seen with these 

hearings are that many of the parties involved in the 2005 bankruptcy bill have 

come back to try and strike a better bargain for themselves now that the political 

power on the Hill has shifted from Republicans to Democrats. That is inevitable, 

but it is also unfortunate. 

Which brings us to today’s hearing. The title of the hearing mentions Lehman 

Brothers, which is certainly one of the most famous—or perhaps infamous—bankruptcies of our times. Unfortunately, there is no one here to testify from Lehman 

Brothers, so I doubt that this hearing will shed much light on that subject. 

What I do expect it to highlight is the complaints of some retailers with respect 

to changes in the treatment of leases. Prior to 2005, retailers could enter into Chapter 11 bankruptcy and, for all intents and purposes, refuse to make decisions about 

the future of their commercial leases for months and even years. This left shopping 

mall owners without any real way to locate new tenants for their malls. This hurt 

not only the owners of the mall, but also the other tenants that suffered from lower 

foot traffic due to closed stores. The changes to the bankruptcy code enacted in 2005 

prevent a bankrupt tenant from tying up that property for years. 

We will also hear about the overall mix of Chapter 11 reorganizations versus 

Chapter 7 liquidations. I am particularly interested to hear how that mix has 

changed over time, including trends that began before the changes of 2005. I am 

also curious what our witnesses have to say about the effects of the current economy—namely diminished consumer confidence and tightening credit—on the overall 

number of retail liquidations. I suspect that those factors may impact why companies choose liquidation rather than reorganization far more than any changes to the 

bankruptcy code. 

Finally, I know that this Congress will not implement any changes to Chapter 11. 

That will be the work of future Congresses. However, I hope that those future Congresses will take into account the positive changes that we made in 2005 and not 

just throw out the proverbial baby because of the rough economic times that we are 

now facing. 

I yield back the balance of my time. 

Ms. SA ́ NCHEZ. I am now pleased to introduce the witnesses on 

our panel for today’s hearing. Our first witness is Jay Westbrook, 

one of the Nation’s most distinguished scholars in the field of bankruptcy and a part of the University of Texas Law School faculty. 

Professor Westbrook has been a pioneer in two respects: empirical 

research and international comparative studies of bankruptcy. Professor Westbrook also teaches and writes in commercial law and 

international business litigation. He practiced in all of these areas 

for more than a decade with Surri & Morris, now part of Jones Day 

in Washington, D.C., where he was a partner before joining the 

University of Texas Law School faculty in 1980. 

Professor Westbrook is co-author of The Law of Debtors and 

Creditors: As We Forgive Our Debtors, Bankruptcy and Consumer 

Credit in America, and the Fragile Middle Class. He has been a 

visiting professor at Harvard Law School and the University of 

London and is a member of the American Law Institute, the National Bankruptcy Conference and the American College of Bankruptcy. I want to welcome you today. 

6 

Our second witness is Barry Adler. Professor Adler is the 

Charles Seligson Professor of Law at New York University School 

of Law, and has just completed a term as Vice Dean. He joined the 

New York University School of Law faculty in 1996, leaving his position as the Sullivan and Cromwell Research Professor of Law at 

the University of Virginia. 

Professor Adler’s course offerings have included bankruptcy, commercial law, contracts, corporate finance, and corporations. Professor Adler has written numerous articles on the application of 

corporate finance theory to issues of corporate insolvency. These articles suggest that bankruptcy law can be properly understood as 

an integral part of contract, property and tort law, rather than as 

a mere supplemental body of law applied after a financial failure. 

He is currently at work on a book, The Law of Last Resort, which 

will elaborate on this theme. 

In addition, Professor Adler is the editor of the recently published reader: Foundations of Bankruptcy Law. Beyond his bankruptcy scholarship, Professor Adler has been published and continues to write in the fields of contract and corporate law. I want 

to welcome you as well. 

Our final witness is Lawrence Gottlieb. Mr. Gottlieb is the Chair 

of Bankruptcy and Restructuring Practice and a member of the 

Cooley Godward—did I pronounce that correctly—Kronish, LLP’s 

management committee. Mr. Gottlieb practices in the field of creditors’ rights, bankruptcies and workouts. He has represented debtors in committees and Chapter 11 reorganizations, out-of-court 

workouts and other insolvency proceedings in over 40 States and 

Canada as well. He has handled matters involving a broad array 

of businesses including retail apparel, luggage, software, furniture, 

sporting goods, telecom, tools, drug, construction, foodstuffs and 

giftware. 

Over the years, Mr. Gottlieb has represented creditors’ committees and numerous Chapter 11 cases and frequently represents 

purchasers of assets and claims in bankruptcy. He regularly addresses creditor groups, corporate credit departments, credit associations, and other professional groups regarding creditors’ rights 

and bankruptcy matters. I want to welcome you to our panel as 

well. 

I want to thank you all for participating in today’s hearings. 

Without objection, your witness statements are going to be placed 

into the record and we are going to ask that you limit your oral 

testimony today to 5 minutes. We have a lighting system that, 

when we remember to employ it, will give you the green light when 

your time begins. When you have a minute of testimony remaining, 

you will get the yellow warning light. And then when your time 

has expired, you will get the red light. At that time we would ask, 

if you are caught midsentence or midthought, we will ask you to 

finish that sentence or thought and then we will move onto the 

next witness. After all of the witnesses have presented their testimony, Members will be permitted to ask questions subject to the 

5-minute limit. 

So with that, I am anxious to get underway because we are expecting another series of votes. 

7 

Professor Westbrook, if you would begin your testimony at this 

time. 

TESTIMONY OF JAY WESTBROOK, ESQ., PROFESSOR, 

UNIVERSITY OF TEXAS SCHOOL OF LAW, AUSTIN, TX 

Mr. WESTBROOK. Good morning. 

Ms. SA ́ NCHEZ. Can you please turn your microphone on? And you 

might want to move it closer to you as well. 

Mr. WESTBROOK. How about that? 

Ms. SA ́ NCHEZ. Much better. 

Mr. WESTBROOK. Good morning. And thank you so much for asking me here to talk about this subject of exemptions of certain 

kinds of financial assets from bankruptcy law and bankruptcy 

court control. 

We come together today in the midst of a hurricane, and I am 

just going to talk about one particularly large hole in the roof, 

which is this set of exemptions for financial assets. I particularly 

want to focus on the 2005 amendments which greatly expanded the 

scope of these exemptions and, in my view, made them seriously— 

raise a serious question about the efficacy of Chapter 11 reorganization for many companies in light of that expansion. 

The 2005 amendments added to the list of financial assets, precisely the kinds of assets that are at the absolute center of the current crisis. It added mortgages, greatly expanded the coverage of 

derivatives and swaps, and it greatly expanded the possibility of 

netting values among all of those. All of those things have to be 

considered together because they are very much an integrated 

package of exemptions. 

Prior to 2005 we had exemptions for financial assets, but they 

were narrow exemptions and they were focused on fairly specialized, exotic kinds of assets like swap agreements, true swap agreements. And as a result, they were focused on fairly narrow and 

specialized markets. I think the best example is repurchase agreements or repos. Before 2005, the only exempted area—excuse me— 

the only exempted area was for repurchase agreements relating to 

government securities or government-backed securities. 

All of a sudden in 2005, at a time when Congress was focused 

primarily on consumer provisions of various sorts, we had an expansion of this exemption of repo agreements to include agreements—any agreement involving mortgages or mortgage-backed securities. These are essentially secured loans that were suddenly exempted from the automatic stay, the preference provisions, and the 

other aspects of bankruptcy control at the moment when a debtor 

files bankruptcy. Without that control, the bankruptcy laws can’t 

function effectively and the debtor finds itself with many of its 

most valuable assets walking out the door at the moment bankruptcy is filed. 

It also must discourage the filing of bankruptcy cases when the 

debtor really needs relief and when creditors need the orderly procedures that bankruptcy offers, because the debtor knows that 

these assets will disappear shortly before or shortly after the bankruptcy is filed. 

One example has to do with a company that might have valuable 

contracts. It is important to understand, as I know the Members 

8 

of this Subcommittee do, that we have a lot of new creatures out 

there that aren’t financial institutions, but hold a lot of financial 

assets. That is a big change, really, in our financial system. Hedge 

funds are the most common example, but there are many others. 

So you may have a company that is in financial trouble and 

nonetheless has a number of profitable contracts which the bankruptcy rules would normally protect and make sure they can’t simply be terminated by the other party, but those contracts can be 

maintained and the value in those contracts can be preserved if 

they turned out to be good bargains for the debtor. That is an extremely important part of the reorganization process. It is one of 

the reasons our reorganization works and reorganizations in many 

other countries do not work because they don’t have that feature. 

Unfortunately, the 2005 amendments not only expanded the 

scope of the exemptions but it made them much fuzzier, much more 

ambiguous than they had been before, so that now it is not clear 

exactly what a swap agreement is for this purpose; for example, to 

be exempted from these provisions and to be subject to the master 

netting provisions. 

I saw back in 2000—Enron, for example, loved to make ordinary 

contracts in the form of swap agreements, did it all the time. And 

I am told by my friends on Wall Street and elsewhere that more 

and more lawyers, since the 2005 amendments, are recasting contracts that are not really financial contracts in the normal sense 

and swap agreements or as derivative contracts so that they can 

enjoy the benefits of this exemption. 

Essentially what I want to ask the Committee to consider as a 

short-term solution is to roll back the 2005 amendments to return 

to where we were. Not to eliminate the exemptions completely, because there is a case to be made for the narrow exemptions that 

previously existed, but to roll back the exemptions that were adopted in 2005. I can’t offer you so many hard examples or hard data. 

I wish I could because we are in the first crisis that we have had 

since the 2005 amendments went into effect. So some might counsel let’s wait and see what happens. I personally think that in the 

current crisis it is not a good idea to conduct a natural experiment 

on our business community to see how many of them can survive 

in light of these exemptions, among other difficulties. This is, of 

course, not the only problem. 

Thank you very much for letting me come and talk to you about 

these questions. 

Ms. SA ́ NCHEZ. Thank you, Professor Westbrook. We appreciate 

your testimony. 

[The prepared statement of Mr. Westbrook follows:] 

9 

PREPARED STATEMENT OF JAY WESTBROOK


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Ms. SA ́ NCHEZ. Professor Adler. 

TESTIMONY OF BARRY E. ADLER, ESQ., PROFESSOR, 

NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NY 

Mr. ADLER. Thank you, Chairwoman Sa ́nchez. I will resist the 

academic instinct to try to debate Professor Westbrook and I will 

stick to my statement for now which is—— 

Ms. SA ́ NCHEZ. You will probably have that opportunity during 

the questioning round. 

Mr. ADLER. I am going to talk briefly this morning about large 

firm Chapter 11 bankruptcies and how they have changed over the 

past decade or so. 

In the 1980’s and early 1990’s, the beginning of the new Bankruptcy Code, a large firm would get into financial trouble and file 

for bankruptcy. And the process looked something like this. The 

managers that were representing equity and in charge of the firm 

prior to bankruptcy also controlled the debtor in the bankruptcy. 

They were in charge of the reorganization plan and continued to 

manage the firm. These managers sometimes even kept their jobs 

after the firm reorganized, notwithstanding the fact that they had 

been in charge as the firm sunk to need bankruptcy. 

In the bankruptcy process, there is a negotiation between the 

managers representing the equity holders and the creditors. The 

creditors often would go along with the manager’s plan for reorganization and continuation of the firm, perhaps because they wanted 

to get out quickly or more quickly. These reorganizations sometimes dragged on. So quick wasn’t always even possible. But the 

creditors would typically go down and not face a cram-down 

against their interests, but they bargained in the shadow of the 

possibility of that cram-down. 

As a result, not surprisingly, frequently firms that emerged from 

bankruptcy would provide a return to equity holders even though 

the creditors are not paid in full. But the firms would survive very 

often, which has its benefits. 

However, a theme of my comments this morning are that bankruptcy, which restructures the balance sheet of a firm, can’t fix a 

broken firm. If the firm is economically distressed, if it is producing 

a product that no one wants and it costs a lot of money to make, 

that is going to be the case when it emerges from bankruptcy. And 

it was not uncommon for firms to fail a second time. 

A recent study by Professor Lynn LoPucki showed that between 

1991 and 1996, 30 percent of large firms that reorganized failed 

within 5 years. They didn’t even survive 5 years. 

So what has changed? Beginning in the late 1990’s, early 2000, 

notably before the 2005 amendments, creditors became more aggressive and started to take control of the bankruptcy process. In 

fact, they started to take control of the firms in anticipation of the 

bankruptcy process. When a large firm enters bankruptcy today, 

they typically are already under the thumb. I may be more pejorative than I intend, but under the control of a secure creditor who 

has lent money to the debtor in an attempt to allow it to avoid 

bankruptcy. And when that fails, they are in control when they get 

into bankruptcy. 

19 

The secured lenders also provide the financing; that is, debtor in 

possession financing which is just jargon for a loan that is needed 

to keep the firm going in bankruptcy. The managers are routinely 

replaced. More often than not, that is, the old managers are gone. 

And if the firm reorganizes, there is nothing left for equity. Equity 

no longer gets payment. The creditors get paid in full. 

A significant change which may be occurring in the data are 

somewhat complicated on this, but it is at least plausible that this 

change is occurring. These firms are liquidating more frequently 

than they used to. 

The title of this hearing makes mention of Bennigan’s and 

Sharper Image, which liquidated instantaneously, virtually upon 

the filing of bankruptcy. And there is evidence to suggest again, 

though somewhat mixed, that there is a trend toward the liquidation of bankruptcy, liquidation in bankruptcy of these firms. 

It was mentioned in the Chairwoman’s opening statements that 

there are new 2005 provisions that make this more common. The 

lease provisions, which give debtors a very short period of time to 

assume or reject leases, that may have contributed to this trend 

with respect to retailers in particular. But again the trend was organic, it was economic. It predates the 2005 amendments. So we 

do have these more frequent liquidations than we had in the past. 

And the question that we can talk about later is whether this is 

good or bad. 

In sum, the point of my comments is it is potentially good. It is 

potentially better to have failed firms be liquidated. If they are 

dead economically, they are going to liquidate anyway. The assets 

can be redeployed to better uses. And if the liquidation is quick, 

creditors who get paid get a higher return than they otherwise 

would receive are more apt to lend to the next round of debtors. 

This will result in more employment and better plight for working 

families, which should be the focus of bankruptcy law anyway. 

So it is not that I oppose or think that reorganization is itself a 

bad thing. It is a good thing if the firms were healthy. But when 

firms get into bankruptcy, it is typically because—or frequently because they are not healthy, they are not healthy economically. And 

if there is a trend toward more liquidation, this creditor control 

that is creating the greater liquidation may benefit society more 

than it is injuring it. 

Ms. SA ́ NCHEZ. Thank you, Professor Adler. We appreciate your 

testimony. 

[The prepared statement of Mr. Adler follows:] 

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PREPARED STATEMENT OF BARRY E. ADLER


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Ms. SA ́ NCHEZ. And now, Mr. Gottlieb, I want to invite you to give 

your testimony. 

TESTIMONY OF LAWRENCE C. GOTTLIEB, ESQ., 

COOLEY GODWARD KRONISH LLP, NEW YORK, NY 

Mr. GOTTLIEB. Thank you, Chairwoman. Chapter 11 reorganizations are dead, and that really is not much of an overstatement. 

In the 3 years since the 2005 amendments took effect, we have 

seen no more than two retailers emerge from Chapter 11 as reorganized entities. Chapter 11 for retailers has become nothing more 

than a vehicle through which secured lenders sell the assets of the 

company through a quick sale process which provides retailers no 

opportunity to restructure their debts and rehabilitate their businesses. 

Numerous prominent retailers have disappeared so far this year 

alone after filing for Chapter 11. They include Sharper Image, 

Levitz, The Bombay Company, Domain Furniture, Friedman Jewelers, Wilson’s Leather and Luggage. The liquidation of just these 

seven retailers alone has resulted in the loss of approximately 

15,000 jobs. The weak economy clearly has contributed to the 

downward spiral of retail reorganizations. But it just as clearly is 

not the cause of it. The real culprit are the amendments. Prior to 

the amendments, there were many successful and important retail 

reorganizations, including Federated Department Stores, Macy’s, 

State Stores, P.A. Bergner and Zales, cases that often took years 

to be resolved. In my view, it is likely that most of these and other 

retail reorganizations would have failed if the amendments were in 

place at the time of their proceedings. 

Although there are several amendments which, working together, have conspired to choke off retail reorganizations, there is 

one provision of the amendments that in our experience is so problematic for retailers that if every other onerous provision were remedied, save for this one, reorganization would still remain a pipe 

dream for distressed retailers. 

We are talking about section 365(d)(4) of the Amendments of the 

Bankruptcy Code, which has been amended and provides for the 

time for which the debtor can assume or reject leases. In the old 

days before the amendments, they had 60 days to assume or reject 

the leases, which times could be extended and often were extended 

by the bankruptcy judges. The judges understood that it was important that the debtor have a sufficient time to try to reorganize. 

The problem with assuming or rejecting leases early is that if you 

assume a lease and then later reject it because the case fails or because your business plan determines that you should no longer 

have that lease, the landlords now have the enormous administrative claim which takes priority over taxes, employees, general unsecured creditors. The time before the Code when those amendments 

were in effect, the secured creditors were actually happy to fund 

the debtors because, after all, they could receive their interest, they 

were protected by the collateral. If and when it turned out that 

their collateral was in danger, they often would conduct going-outof-business sales, which is really the place they need to liquidate 

that collateral. They have inventory. If they are going to liquidate 

it, they need to liquidate it in the stores, not on the street corners. 

26 

As long as the debtors maintain those stores, the financial institutions are more than willing to continue financing the debtors. 

However, the amendments put an end to this dynamic by revising the section to provide a strict limit of 210 days, by which time 

a debtor must assume or reject its store leases. Extensions beyond 

the 210 days, irrespective of whether the retailer operates 10 stores 

or 1,000 stores, are not within the discretion of the bankruptcy 

courts. So even if a 1-day extension meant a difference between a 

reorganization or a liquidation that would cause 100,000 job losses, 

the bankruptcy judge, as a result of the amendments, is powerless 

to grant that extension. This new section has killed the Chapter 11 

financing market. 

The banks are saying essentially I need to be able to liquidate 

my inventory. It takes 90 days to liquidate that inventory. It takes 

2 months to get the courts to approve that. That is 180 days or 

something like that. Because of that, the banks are going into the 

bankruptcies at the outset and are telling debtors at—retail debtors at the outset, we have no time; you either sell your assets within 2 months, and if you don’t sell your assets within 2 months, you 

need to start your liquidation process. We are not helping you reorganize. We don’t have time to let you reorganize. And my experience has been that every single case that I have been involved in, 

retail cases—and it has been dozens since the amendments went 

into effect—the banks have said the same things: You liquidate 

within 210 days, you start that liquidation 60 days into the case, 

one way or the other. 

Now, because of that, the financing from the banks has totally 

dried up. In addition to that, there are a couple of other sections 

which we won’t discuss at great length yet, which drain liquidity 

from debtors when they file Chapter 11—when retail debtors file 

Chapter 11. When the debtors file the Chapter 11 is when they 

need liquidity. They have no liquidity and that is why they are filing Chapter 11. 

And there are other provisions which drain that liquidity at the 

very time they need it. They have to pay deposits to utilities, they 

have enormous section 503(b)(9) claims to vendors who have 

shipped within 20 days of bankruptcy, all of which the amendments combined with the 365(d)(4) on the leases have served to 

drain liquidity, prevent absolutely, no question in my mind, have 

absolutely prevented retailers from reorganizing. It is not irreversible. This is not a problem that can’t be resolved, but some action 

needs to be taken right away. 

Ms. SA ́ NCHEZ. Thank you, Mr. Gottlieb. We appreciate your testimony as well. 

[The prepared statement of Mr. Gottlieb follows:] 

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PREPARED STATEMENT OF LAWRENCE C. GOTTLIEB


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Ms. SA ́ NCHEZ. We will now begin the questioning round, and I 

will begin by recognizing myself for 5 minutes. 

Professor Westbrook, you indicated in your written statement 

that Wall Street held a chaotic private trading session for traders 

to settle or unwind their contracts with Lehman on the afternoon 

before Lehman filed for bankruptcy. 

To the extent that this trading session occurred on the eve of the 

Lehman bankruptcy filing and may have been done with the 

knowledge that the bankruptcy was eminent, do you believe that 

there are issues that the Court ought to examine in connection 

with the private trading session? 

Mr. WESTBROOK. That may well be true. I wasn’t a fly on the 

wall, I am sorry to say. My information comes from the Wall Street 

Journal story on that private trading session. But it seems to me 

for sure Congress ought to find out what happens in a session like 

that where, because of the exemptions we have been discussing, all 

the rules about preferences and fraudulent conveyances are out the 

window when you are trading these kinds of financial assets. 

Whether or not there may also be something that the Court in 

the Lehman’s bankruptcy should take a look at, I don’t know 

enough to answer that question. But I would start with an assumption that somebody ought to consider whether it is a good idea for 

the Court to take a look at it. That far I could go. 

Ms. SA ́ NCHEZ. Thank you. The netting provisions that were 

added in 2005, largely at the urging of financial services—of the financial services industry and by the Federal Interagency Working 

Group, the argument at that time was unless counter parties were 

permitted to net out their provisions, one bankruptcy could have a 

ripple effect on the market with catastrophic results as a result of 

systemic risk. Do you believe that these amendments are having 

their intended effect? 

Mr. WESTBROOK. I think the amendments, if anything, may increase the domino risk. Because what we have seen in the present 

crisis is that without the control, the orderly control that bankruptcy brings to these kinds of crises, you don’t have a slow and 

careful liquidation maximizing value. 

Frankly, one of the benefits, it is true that bankruptcy sometimes 

delays things too much, I give you that. But on the other hand, 

some delay is one of the benefits of bankruptcy. What we are seeing in the present crisis is a lot of collateral being thrown on the 

market at the same time. As a result, it declines in value. When 

sales are made at low prices, everyone else holding the same kind 

of asset has to mark down that asset, and then their balance sheets 

start looking bad and they may have to file bankruptcy. Part of the 

point of bankruptcy is that the government steps in in the form of 

the courts and imposes an orderly circumstance on the liquidation 

or reorganization of the company and the sale of the assets. So I 

think, if anything, the domino effect is exaggerated by these 

amendments. 

Ms. SA ́ NCHEZ. Thank you. Professor Adler, as part of the 2005 

amendments, the period in which a debtor had to assume or reject 

commercial leases was greatly shortened and the discretion of the 

Court to extend that period without the consent of the lessor was 

51 

taken away. This provision was added at the urging of the shopping center industry. 

What impact has this change had on the ability of national retailers to organize successfully? 

Mr. ADLER. I don’t doubt, as Mr. Gottlieb suggests, that it has 

hindered reorganization of retailers. I don’t know that it has hindered it quite as much as he suggests, because there is a good deal 

of discretion about when a debtor files for bankruptcy. Obviously, 

if a firm is illiquid or illsolvent, they can’t wait forever. 

But insolvency and default on debts don’t typically fall out of the 

sky. Firms can see them coming, and one thing they can do is plan 

their bankruptcy. Before they file their bankruptcies, they can look 

at the various outlets that are subject to lease, decide which they 

are going to want to close, and decide which they want to remain 

open prior to filing for bankruptcy. So the 210-day limit that has 

been mentioned may not be quite as restrictive as has been suggested. 

This also suggests that perhaps it is the economy and, as I mentioned, the fact that these retailers are in a weak condition that 

has led to the increase in their liquidations. As I mentioned in my 

testimony, Montgomery Ward was a dead business not because of 

the Bankruptcy Code, but because it had no customers and this 

was prior to the 2005 amendments and they lingered in bankruptcy 

for 2 years. They emerged from bankruptcy. They were reorganized, and then they closed all their stores a year later anyway. 

What replaced those Montgomery Ward stores were Targets and 

Wal-Marts which were successful and which had employees and 

still have employees. The Montgomery Ward employees are all 

gone. I don’t mean to dismiss the benefit of the Ward employees 

in this hypothetical or this illustration, I should say. I don’t mean 

to dismiss the benefit of their having their jobs for 2 years. There 

is nothing more important. However—— 

Ms. SA ́ NCHEZ. So you think there is enough flexibility in the current system? I am just trying to get a brief answer because I have 

very little time left. 

Mr. ADLER. I apologize. I believe there is significant flexibility, 

given that the debtor can plan to some extent when they file. Yes. 

Ms. SA ́ NCHEZ. Mr. Gottlieb, I would ask for your sort of reaction 

to that, and if you could also add in ways in which we could perhaps change that provision to give retailers a better chance of 

emerging from Chapter 11 bankruptcy. 

Mr. GOTTLIEB. Well, I guess it wouldn’t be surprising that I disagree with Professor Adler in his response. My experience has been 

involved in cases such as Federated Department Stores, which took 

over 2 years to reorganize. But it did and they are still around. 

Macy’s took over 2 years to reorganize. It did and it is still around. 

The amendments went into effect in October 2005. The economy 

was a bit healthier then. And as I stated in my remarks, only two 

retailers, to the best of my knowledge, that have filed since 2005 

have reorganized. Before that time, retailers regularly reorganized; 

not all, and some failed, obviously. But clearly the empirical evidence would seem to indicate to me that they had a much better 

chance. 

52 

* The statement of Joyce Koons had not been received by the Subcommittee at the time of 

the printing of this hearing. 

The idea that they can plan ahead of time and extend the 210 

days really doesn’t work for two reasons. Number one, debtors file 

Chapter 11 when they have to. They don’t generally go to their attorneys a year ahead of time and say I have got to start planning 

for a Chapter 11. They file when the bank has called the loan when 

they’ve run out of liquidity, and it all happens very quickly, number one. 

And number two, and most important, the banks have decided 

that when a debtor files, they just don’t have enough time to let 

it try to reorganize. So when they file the loan at the beginning of 

the case, the dip loan at the beginning of every single one of these 

cases provides for a liquidation within 210 days. Whether they plan 

to assume those leases, whether they like these leases or not, the 

banks will not lend into a reorganization. 

Ms. SA ́ NCHEZ. Thank you. I appreciate your response. My time 

has expired and I recognize Mr. Cannon for 5 minutes of questions. 

Mr. CANNON. Thank you, Madam Chair. And I ask unanimous 

consent to include in the record the statement of Joyce Koons.* 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CANNON. It seems to me, Mr. Gottlieb and Mr. Adler—in the 

first place, Mr. Adler, that was a very coherent statement that you 

made on the timing of the bankruptcy. And as I hear the two of 

you, Mr. Adler and Mr. Gottlieb, what we really have is a difference of view of the value of retail as institutions. 

I think Mr. Adler would suggest that, hey, if they can’t make it, 

they can’t make it, and let’s get somebody else in those leases in 

those outlets in those malls. And, of course, Mr. Gottlieb, this is not 

a question. There is a balance here between the interests of the 

owners of malls and rental space and retail organizations when it 

comes to how we balance the interest in bankruptcy, is there not? 

Isn’t there a difference? 

I mean, these people are—some people—the people that have invested in bricks and mortar want that to be productive with a new 

tenant and their neighbors. The other stores next door to them actually want them to be productive with new tenants. 

Mr. GOTTLIEB. I understand that. I agree with that, actually. The 

thing is, though, that during the Chapter 11, the landlords have to 

be paid on time. In fact, they normally have to be paid even more 

on time than was the case before the Chapter 11s. 

What we have talking about are landlords getting paid their rent 

that they’ve negotiated with their the debtors in Chapter 11. If the 

retailer has more than 210 days to live, the landlord still has to 

get paid. So as long as they are getting the benefit of their bargain 

for those leases, I don’t know why they should be in a position to 

decide that Chapter 11s should fail. 

I would also add one other thing. It will be interesting, I think, 

to speak to the landlords in 6 months to a year, the mall owners 

in 6 months to a year, after all these retailers fail, the economy is 

as it is now, and they are going to have vacancies. It will interesting to see when you bring them before this Committee whether 

or not they might be willing at this point to permit there to be 

53 

some discretion in the Bankruptcy Court to extend that time to let 

retailers survive. 

Mr. CANNON. There may be. The benefit of the bargain, though, 

includes other things than just the rent payment. Often there is a 

percentage of sales, and clearly the other stores around it have a 

benefit from a vibrant operation as opposed to a dying operation. 

I think that we would agree on that, wouldn’t we? You would agree 

with me on that? 

Mr. GOTTLIEB. I would agree with that also, and I think it is a 

balance of interest. 

Mr. CANNON. Right. Exactly. Mr. Adler, you appear to have 

something you would like to say. 

Mr. ADLER. Yeah. If the lessors are unhappy with how quickly 

things are moving, even under the current law, they can consent 

to allow the lease to continue. This is a right that they have to 

have a decision on assumption or rejection occur quickly, in part 

because they want to protect the malls, as you say. Many of these 

leases are in malls. An anchor store in particular has effects on 

neighboring stores, some of which will close down if we have a 

dying enterprise allowed to extend for long periods of time. 

But in response to Mr. Gottlieb, if the lessors are unhappy with 

the quick decisions, they have it within their power under the current law, as I say, to change that simply by permitting an extended 

decision. 

Mr. CANNON. Thank you. I appreciate the insights because this 

has been very good testimony. We worked intensively on this issue 

beforehand and I hope that we will continue to look to see how— 

we are going to have to learn something about how it works over 

time. And the fact that we are interested in a difficult economic environment now is probably not the best time to make decisions but, 

rather, to see how it works through a cycle in the future. 

Thank you for that. 

Mr. Westbrook—Professor, I should say—one of the things I gave 

up in my life to become a Congressman was my very pleasant association with Jones Day, which is a great law firm. I love it. 

For the remainder of my time, I would like to have you talk just 

a little bit more about the transactions that are happening here 

based upon your earlier testimony and how the bankruptcy law affects those in particulars, because we are looking here now at this 

big revamp of the whole system or at least a bailout. Who knows 

what we are going to call it? But making liquidity available. 

And it would be interesting to hear what kind of instruments are 

sitting around that are going to be paid for or made liquid with 

Federal money and how those—how that is affecting, for instance, 

Lehman. I mean, this had to be a fairly significant decision by the 

Secretary of the Treasury not to rescue Lehman, given the context 

of bankruptcy and what was going to be liquid or not liquid or 

what pressures were going to come to bear on Lehman. 

If you would give us a little insight on that, I would appreciate 

that. 

Mr. WESTBROOK. Certainly. I will do the best I can. We still have 

relatively little information about Lehman’s because it happened so 

recently and it is so enormous, as the Chair pointed out earlier. 

What we can say is that a very substantial portion of the assets 

54 

of Lehman’s consisted of these exempted sorts of assets, and those 

assets essentially went out the door either shortly before bankruptcy or shortly after bankruptcy because of the lack of application of the automatic stay, of the avoiding powers, and of things 

like the ipso facto provisions that say you can’t cancel a contract 

because someone is calling it a bankruptcy. That doesn’t apply with 

respect to these kinds of financial contracts. 

So as a result, we know that an awful lot of Lehman’s assets, I 

can’t put a number sitting here today—but an awful lot of Lehman’s assets were simply disposed of privately. Contracts were terminated. One obligation maybe on a credit derivative was liquidated against another obligation secured by mortgage-backed securities, things that have nothing to do with each other, because 

of the expansion of the master netting provisions in 2005. 

So what we can be sure of is that a lot of value that might have 

been available either to try to reorganize Lehman’s or at least to 

liquidate it in a way that would maximize value was instead permitted to be liquidated, walked away with, if you will, by the 

counter parties to all of those transactions. I wish I could give you 

more specifics. 

If we talked again in 2 or 3 months I suspect we could, because 

I am very interested in Lehman’s and I plan to find out what my 

old friend Harvey Miller is doing over there with that company. 

But I will say this. It is striking that in Lehman’s, the biggest 

assets, as far as I can see, other than these exempted assets, were 

the going concern value of its broker-dealer operations in the U.S., 

the U.K., and Japan. All of that has been sold for something like 

$5 billion or less. It is hard to tell from the exact figure from the 

reports. Frankly, $5 billion is walking-around money in Lehman’s 

case, whereas it was noted the debts are over $6 billion. So it is 

hard to know what else is left there for anybody. 

Unsecured creditors, including more than 150—it is even hard to 

say the word—billion dollars’ worth of bonds, unsecured bonds, I 

have to assume, unless we hear something quite startling, are 

going to get little or nothing out of that Chapter 11. So there is 

going to be a dramatically unequal distribution of value, a dramatic 

lack of sharing of the pain among the creditors of Lehman’s. But 

I can’t put numbers on it. Forgive me for that. 

Mr. CANNON. Thank you. And I see my time has expired. Madam 

Chair, I yield back. 

Ms. SA ́ NCHEZ. The gentleman yields back. At this time, I would 

recognize the gentlelady from California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Madam Chairwoman. And I would like 

to ask Professor Westbrook on this Lehman private session—and I 

don’t want to make accusations because we don’t know what happened. I mean, we have a press account, so let me just posit it as 

‘‘what if’’ without being accusatory. What if the private session 

were as described in the press? Are there adequate tools available 

to the Bankruptcy Court via fraud statutes to unwind things that 

were done in that session, in your judgment? 

Mr. WESTBROOK. The answer is no. The reason, ma’am, is that 

the normal avoiding powers, as we call them, preference and fraudulent conveyance law in bankruptcy, are specifically among the 

55 

things that—from which these financial assets are exempt. So I 

think the answer to that is no. There might be some State law that 

could be applied, but my sense is that couldn’t be applied in the 

bankruptcy; it might be applied separately under State law. The 

reason we have those provisions in bankruptcy law, they don’t 

work very well when they have to be applied by individual creditors under State law. So I think in terms of adequacy and in most 

cases even in an attempt to be able to do it at all, gosh, that the 

answer to your question is no. 

Ms. LOFGREN. Mr. Adler looks like he is anxious to comment. 

Mr. ADLER. Yeah. Thank you. Professor Westbrook is right that 

the fraudulent conveyance provisions of the Bankruptcy Code are 

called off in these netting of derivatives. But fraudulent conveyance 

of the bankruptcy law is a term of art having to do with transfers 

for—typically having to do with transfers for less than real value. 

I think if anything happened at this session, it was an honest to 

God fraud, crime, deceit, tort. I don’t think the special provisions 

of 2005 would prevent liability from being visited upon anyone who 

committed such tort or fraud. 

Ms. LOFGREN. I am interested—obviously, we are here looking at 

Lehman as the topic, but we have got sort of the elephant in the 

room on what is going on in our economy generally. Since we have 

got three professors who know a lot, I am just going to take the 

opportunity to ask the broader question, which is what to do in the 

face of the current economic challenges. 

We have had a proposal made by the Secretary of the Treasury 

and Mr. Bernanke and the President that has been refined for 

more oversight and the like. One of the things that is not included 

is a provision that would permit individual homeowners facing 

foreclosure to renegotiate their loans and save their homes in bankruptcy, because that is in many cases the only way—the only forum 

where it actually can be done. 

I am concerned—I mean, people have different views about bankruptcy and the like. But just on a practical level, if we are unable 

to deal with the individual homeowner facing foreclosure, in your 

judgment will we be back here with an additional crisis a year from 

now or the like, if we don’t allow for that steep decline in housing 

to be arrested in some fashion? 

Mr. WESTBROOK. I have two responses to that, if I may. The first 

one is I think that could be the case. That is, I think this problem 

needs to be solved from the bottom up, as well as from the top 

down. And I think if you solve it, either one or the other is not 

going to be enough. 

The second point is this. Much of the discussion, quite correctly, 

has focused on the difficulty of having a Federal program that 

deals with a million foreclosures, each in local areas, different and 

so forth and so on. The benefit it seems to me of doing something 

about this provision that prevents what we call lien stripping or 

adjustment of value for primary residences—and it is the only exception. Every other kind of secured debt—well, now certainly 

automobiles, but—— 

Ms. LOFGREN. Taxes and student loans, too. 

Mr. WESTBROOK. Right. But every other secured debt can be adjusted in terms of the value of the collateral. What we have is 300 

56 

bankruptcy judges around the United States who are experts in 

doing this. A Federal system actually exists, remarkably enough, 

for dealing with each of these individual problems if Congress will, 

forgive the expression, unleash the Bankruptcy Courts to do what 

I think is a necessary job. 

Now, I don’t think that is a complete answer because some of 

these folks perhaps shouldn’t go into bankruptcy in order to sort 

out a mortgage problem, particularly if they were lied to or whatever. But for many of them, it is probably the only lifeline as a 

practical matter that you in this building can give to many of these 

homeowners, and it would work because we have the people in 

place to do it and they know how to do it. 

Mr. ADLER. I think the matter is somewhat complicated. I think 

anyone would agree that when a bank is holding a mortgage on 

someone who can’t pay it in full and properly that can’t satisfy the 

loan in full, it is in everyone’s interests for them to reassess and 

renegotiate the loan so that payments are manageable and will 

give the bank the highest possible return. And we could all be 

happy if that were easy. The problem is it is not. It is not clear 

that cram-down is the way to do it. It might be better if negotiation 

directly were possible. 

One thing we are all discussing prior to this hearing is that part 

of the problem with the fact that these loans have been packaged 

and sold, the originator of the loan no longer owns them, so it is 

difficult to know who should be doing the negotiation and thus 

cram-down is a plausible response, not necessarily the best one. 

I do want to add that I think we should be careful not to think 

that it would necessarily be a good thing to reinflate the housing 

bubble by propping up prices if there is no real value in those properties anymore. 

Ms. LOFGREN. I know my time has expired, Madam Chair, but 

I ask unanimous consent for an additional minute. 

Ms. SA ́ NCHEZ. Without objection. 

Ms. LOFGREN. Property values are going to decline. I mean, that 

is going to happen. That is happening. So the question is not 

whether we are going to inflate a bubble. That is off the table. The 

question is, can we put a floor on a collapse, because as the inventory increases through these foreclosures, the entire market is 

going down and it is a spiral down, and we have gotten some information that over half of the foreclosed properties have a second. 

You can’t get the second to agree to a renegotiated price. Plus, 

since all of the mortgages have been securitized and sold off, you 

can’t even get the authority to do a renegotiation, which is—not 

that I love bankruptcy, but you need to have somebody with the 

authority to make a deal. And that is in the interests of actually 

everybody. 

Mr. ADLER. Congresswoman, I agree completely that that is the 

fundamental problem. It is not clear whether that can be solved 

better by forcing these people into bankruptcy and cram-down. But 

I entirely agree. 

Ms. LOFGREN. The only thing I would add is that we have maybe 

a couple of days to figure it out. 

Mr. ADLER. You do have a couple of days, though. You have to 

have the bailout by noon, so—— 

57 

Ms. LOFGREN. A system that works versus something that, theoretically, if we had a couple of years, we could figure out. 

Mr. WESTBROOK. Let me just say if I may, Congresswoman, that 

it is possible that you could do something on a temporary basis. I 

mean, that happened a lot back in the thirties. Oh, I don’t like to 

invoke that. But nonetheless, a lot of things were put in for 2 or 

3 years. 

Ms. LOFGREN. If I may, in the thirties, my grandparents had a 

little house that they built, and they were able to negotiate an interest-only payment because the bank had so many properties, they 

didn’t want another property. But the difference there is they had 

a bank they could deal with. You can’t make that today. I don’t 

want to abuse the Chair’s—— 

Mr. CANNON. May I ask unanimous consent that the gentlelady 

be granted 2 more minutes, because I would like to follow up on 

this. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CANNON. Ms. Lofgren and I have been working on this issue, 

trying to figure out where we go. And I would like to ask another 

question similar to what she has asked. You have this complicated 

environment, seconds and fractured or fractionated interest, and it 

is very difficult—I mean, you know, we were talking earlier about 

how does the Secretary of the Treasury resolve these problems 

without it taking—because you have got—any person who says I 

don’t like the fact that you reworked that mortgage then has a taking and the claim for a taking among the many problems that happen if the Treasury has the authority to do this. 

On the other hand, we are in this very difficult environment and 

according to the Mortgage Banking Association, 80 percent of the 

subprime loans are performing. Of the 20 percent that aren’t, half 

are being worked out. Of those half that have been worked out, the 

rest are being worked on in a way that will keep people in their 

homes, meaning you have got 10 percent of the subprimes, which 

means a much smaller percentage of all the loans outstanding are 

now troubled and need the kind of resolution that Ms. Lofgren is 

talking about. 

Is it worth opening up, even in a limited sense as you—because 

we were talking about limiting it by time or limiting it by nature 

of the loan, and both have problems. But is it worth opening that 

door to anybody, say, from 3 or 4 years ago, who got a loan for another year, giving them the opportunity to go into bankruptcy? Or 

do we open up so many—the opportunity for so many people to 

come in and get relief that it becomes vastly counterproductive. 

And that is the question I think we are asking, and I would love 

to hear your views on that. 

Ms. SA ́ NCHEZ. Who are you posing the question to? 

Mr. CANNON. I think principally Professor Adler and Professor 

Westbrook. 

Ms. SA ́ NCHEZ. Okay. I am going to ask that you answer as briefly 

as possible. We have just been summoned to votes. And in all fairness, I would like to give Mr. Delahunt an opportunity to ask his 

5 minutes of questions. So if you can briefly answer Mr. Cannon’s 

question. 

58 

Mr. ADLER. I think the Congressman puts his finger exactly on 

the problem. On the one hand, you don’t want to induce the entire 

segment of the mortgage population into bankruptcy when it might 

be able to work out their mortgages outside of it. Nor do you want 

to favor, necessarily, those who are nonperforming on their mortgages as opposed to those who are dutifully paying it, which is why 

I think this cram-down provision would be problematic. 

Mr. WESTBROOK. Just very briefly. I’ve seen very different figures, Congressman, on how many voluntary workouts there are. I 

will give you at least some other sources of information on that 

subject. My sense is that the voluntary workouts are not working 

nearly that well. And also the problem extends way beyond 

subprime loans. And the Alt-A loans are in big trouble, even 

subprimes. I think it is a bigger problem. 

Mr. CANNON. We don’t have a couple of days on this. If you can 

communicate with our staff and get some source information, that 

would be helpful. 

Ms. LOFGREN. If I may. Like today would be helpful. 

Mr. WESTBROOK. I will do my best. 

Ms. SA ́ NCHEZ. The gentlelady’s time has expired. 

Mr. DELAHUNT. I thank the Chair. And I would commend the 

Chair. I think it is interesting, here we are in the midst of a huge 

meltdown and where is everybody? Because these are absolutely essential questions to address, and I would hope that while we are 

here you continue to have these informative hearings. 

I would like to talk about the business reorganization, because 

I was on this Subcommittee when we went through bankruptcy reform. And we gave it very short shrift. And I appreciate what you 

are saying. 

It was, I think, Professor Westbrook that said we have 300 bankruptcy judges out there. You, Professor Adler, talked about discretion in terms of planning when to file. I don’t buy into that for the 

reasons that Mr. Gottlieb indicated. I believe in discretion, however. And I believe in discretion to those that do this professionally, 

such as our bankruptcy judges. I am not talking—this is really conceptual, if you will. I think we have got to give them a lot more 

leeway to make commonsense decisions in terms of what is happening in our economy today, particularly among, you know, Chapter 11 reorganizations. 

Any quick comments from either one of you? 

Mr. ADLER. A lot of bankruptcies are filed exactly 92 days after 

a payment has been made, which forces the payment outside of the 

preference period. So that is evidence of some planning. There is 

some planning. 

Mr. DELAHUNT. I am not saying it doesn’t exist. I am suggesting 

planning with the intent not to play a game or to game the system, 

but planning to make a sincere and genuine effort to sustain, you 

know, a viable, a potentially viable corporation. 

Mr. ADLER. There is no doubt that there are limits. I am not suggesting that the planning is infinite, the planning opportunity is infinite. And there is a trade-off. The easier you make it for firms to 

reorganize, the more likely you are going to save good firms but the 

more likely you are going to save bad firms along with it. And the 

question is whether or not society is better off—— 

59 

Mr. DELAHUNT. But my point, Professor Adler, is that is why I 

vested in the bankruptcy judge to make those decisions. I mean if 

there is anyone that should be cognizant of who is gaming what 

here, I would hope it would be the bankruptcy judge. Mr. Gottlieb? 

Mr. GOTTLIEB. Yeah, I would like to respond also. I think first 

again, remember, as I stated, the problem is that even if you plan 

ahead of time as to which leases you like or you don’t like, the 

point of fact is that the banks are unwilling to fund reorganizations 

no matter how you plan ahead. They walk in and they want to 

make sure their collateral is liquidated within 210 days, in the 

stores and not on the streets. 

In addition to that, I would suggest, and I think as you suggested, when the business bankruptcy provisions were put into this 

bill it was put into this big consumer bill. 

Mr. DELAHUNT. Right. 

Mr. GOTTLIEB. And I think a lot of them were probably done 

quickly. 

Mr. DELAHUNT. You are being kind. 

Mr. GOTTLIEB. And what didn’t happen—— 

Mr. DELAHUNT. They were done without any—minimal thought 

and analysis. That is the honest response. 

Mr. GOTTLIEB. Right. So you had individual provisions that were 

lobbied for, and I understand the lobby—— 

Mr. DELAHUNT. Correct. 

Mr. GOTTLIEB [continuing]. But no one, I suspect, looked at all 

those provisions together as one unit and said how will this affect 

business bankruptcies? The way they protected it is they have 

drained liquidity—— 

Mr. DELAHUNT. The Bankruptcy Reform Act was driven by the 

credit card industry. Everybody understands that. 

Professor Westbrook, and this is just an observation to all of you, 

you are very informative, and I appreciate the tutorial that you are 

providing us, but you have got to change your language. You cannot presume that any of us know what netting means. You can’t— 

what is the other word? Netting. Give me—— 

Mr. GOTTLIEB. Exemptions. 

Mr. DELAHUNT. Exemptions. Don’t make those presumptions. I 

happen to have an understanding of them, but it is not just for 

Members of this Committee, but when you are here you have a 

chance to begin to participate in educating the American people. 

Sometimes, even though there is no one here, they will run this 

thing on, you know, at 3 a.m. some Sunday. It is important that 

we all participate with a better understanding of what is out there. 

Nobody knows what is out there. And your language has to be clear 

so that the average citizen, okay, now I understand it, now I get 

it. Netting, you can come here, you can talk about, we can talk 

about swaps and derivatives, it ain’t working. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. And I 

want to thank all of the witnesses for their testimony today. 

Without objection, Members will have 5 legislative days to submit any additional written questions, which we will then forward 

to you and ask that you respond to as quickly as possible so that 

we can make those a part of the record. And as I understand, there 

60 

is also great interest in getting additional information even more 

quickly than 5 days from now. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any additional written materials. And, 

again. I want to thank the witnesses for their time and their patience in putting up with our crazy voting schedule. And with that, 

the hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 11:29 p.m., the Subcommittee was adjourned.] 

(61) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

62 

LETTER FROM KAPPA ALPHA PSI FEDERAL CREDIT UNION (KAPFCU), 

DATED SEPTEMBER 26, 2008 


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RESPONSE TO POST-HEARING QUESTIONS FROM JAY WESTBROOK, ESQ., 

PROFESSOR, UNIVERSITY OF TEXAS SCHOOL OF LAW, AUSTIN, TX 


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RESPONSE TO POST-HEARING QUESTIONS FROM BARRY E. ADLER, ESQ., 

PROFESSOR, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NY 


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RESPONSE TO POST-HEARING QUESTIONS FROM LAWRENCE C. GOTTLIEB, ESQ., 

COOLEY GODWARD KRONISH LLP, NEW YORK, NY 


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