COVID-19 and Cross-Border Insolvencies

Brazil’s health minister has predicted that the spread of COVID-19 would reach its peak between April and June and has warned that Brazil’s health system could reach saturation by the end of April.

As the novel coronavirus has been spreading throughout the region, Sequor Law has monitored its impact across Latin America. Brazil confirmed its first COVID-19 case, the first in Latin America, from a traveler who had visited Northern Italy before arriving in Sao Paulo, a city of approximately 20 million people with the largest urban population in the Americas. It is also the country’s financial center and a business hub representing one of Latin America’s largest economies. The news, which arrived after a long weekend of Carnival celebrations, brought with it a deep and almost immediate dive in the Ibovespa stock index similar to the losses that have been seen elsewhere around the globe. Most recently, Brazil closed its border to eight neighboring countries, banned travel from Europe and Asia, and closed schools, colleges, courts, and commercial business in its largest cities. Brazil’s top soccer teams have handed stadiums over to health authorities to turn them into field hospitals and clinics in the fight against the COVID-19 pandemic.

Brazil’s health minister has predicted that the spread of COVID-19 would reach its peak between April and June and has warned that Brazil’s health system could reach saturation by the end of April. At present, the country has over 4,600 confirmed cases, 165 deaths and reports indicate that the number of new cases is steadily growing. With various government officials testing positive for COVID-19, including 14 who accompanied its president, Jair Bolsonaro, to Florida a few weeks ago, the federal government has declared a national emergency in Brazil allowing the government to free up budget resources and announcing an economic stimulus package of approximately $40 billion euros. Notwithstanding all of these measures, Brazil’s currency recently hit an all-time low of R $5.2 per dollar before its Central Bank helped pare losses by cutting its benchmark interest rate to an all-time low of 3.75%, pledging to deploy financial stability policies to fight the crisis. Like the United States, closures of commercial establishments and travel bans have hit Brazil’s retail, entertainment and aviation sectors hard.

Like Brazil, nations throughout the region are in a race to “flatten” the exponential spread of COVID-19. Recent reports have stated that every country in Latin America and the Caribbean now have confirmed cases of COVID-19. Argentina is on total lockdown. In Chile—a country that already faced a political crisis prior to the coronavirus pandemic—restricted freedom of movement has postponed its April referendum for a new Constitution. Examples of such “social distancing”-inspired policies are ubiquitous. Efforts to get ahead of the most horrific potential consequences of COVID-19, however, have begun to exact a hefty price, as large sectors of the regional economy have all but shut down. Even in these early days, we have already begun to see an impact in U.S. bankruptcies, as distressed companies in pending reorganization proceedings are losing their exit financing and private equity investors are lowering or pulling bids to acquire the assets of bankrupt companies due to market volatility caused by the pandemic. Unfortunately, with no clear medical solution on the horizon and talk of increasing infection rates impacting the region, it appears likely that the situation will get worse before it gets better.

On March 27, the managing director of the International Monetary Fund, Kristalina Georgieva, said that the global economy has now entered a recession that could be as bad as or worse than the financial crisis in 2009. Although Georgieva noted that the world economy could experience a “sizeable rebound” in 2021 if nations are successful in containing the pandemic, she stressed that “a key concern about a long-lasting impact of the sudden stop of the world economy is the risk of a wave of bankruptcies and layoffs that not only can undermine the recovery but erode the fabric of our societies.” These statements capture the reality that, unlike other recent recessions, it is difficult to identify sectors of the economy that will not be impacted by the current crisis. The extent of the crisis is perhaps most poignantly captured by the report that more than 6.6 million workers filed claims for unemployment in the United States this week—a number that shattered all prior records for such filings.

Although the most widely publicized effects of the worldwide shutdown have been seen in the aviation, cruise, hospitality (restaurant and hotel) and retail sectors, this crisis will undoubtedly result in a sharp increase in both domestic bankruptcy cases, and cross-border insolvency matters across all sectors where foreign companies and liquidators may seek U.S. assistance to obtain relief from creditors (such as by obtaining a stay of collection actions), to protect assets located in the United States or to obtain information or directly enforce rights against third parties in furtherance of a foreign bankruptcy proceeding. Certainly, our years of experience as bankruptcy specialists tell us that the rise of domestic bankruptcy cases for small businesses and the sectors of the economy hardest hit by the shutdowns are inescapable, as many businesses cannot withstand the strain of even a temporary closure without revenue combined with continuing obligations to pay fixed costs. It is likely that a similar dynamic will play out in national economies around the globe, including Brazil and other Latin American countries.

Countries are already responding to the anticipated surge in insolvencies. In the United States, the recently enacted stimulus bill dramatically expands access to the simplified and expedited procedures that apply to small business bankruptcies, such that relief may temporarily be accessed to reorganize debts up to $7,5 million  (up from $2,725,625) through Dec. 31, 2020, and extending payment plans under Chapter 13 up to seven years due to financial consequences stemming from COVID-19. Similarly, in Brazil, the Chamber of Deputies approved new preventive restructuring measures to enable companies facing financial difficulties to continue their operations including a special recovery plan for micro and small companies, allowing the extension of payment terms, reduction of interest and fines relating to tax debts, allowing more flexibility in relation to the possibility of negotiation of the parties in structuring a recovery plan and simplification of judicial procedures.

In addition to the potential for increased bankruptcy filings, our experience in cross-border fraud suggests that widespread financial distress (such as that seen during the last financial crisis) and the ensuing insolvency proceedings that follow, bring increased oversight, investigations, and, potentially, the discovery of financial frauds (like Madoff or, more recently, the “Operação Lava Jato” or “Car Wash” scandal in Brazil) that may have previously been overlooked. The discovery of improper transfers and fraud, which are more likely to come to light during a downturn, and certainly in bankruptcy, may result in the filing of cross-border insolvency proceedings under Chapter 15 of the Bankruptcy Code, where administrators and trustees search for offshore assets and information that will facilitate recovery for their creditors.

Even if the United States is fortunate enough to avoid the worst potential outcomes of this pandemic (most critically as it relates to the loss of human life), it appears inescapable that the ongoing shutdown of the global economy will result in increasing insolvency proceedings in all economic sectors (both in the United States and abroad). As numerous international businesses have substantial ties and interests in the United States (particularly, in South Florida), this drastic increase in foreign insolvency proceedings will inevitably translate to increasing numbers of cross-border insolvency proceedings in the United States.

Leyza F. Blanco and Fernando J. Menendez are shareholders at Sequor Law in Miami. The firm specializes in hidden asset recovery, notably Brazil-linked Chapter 15 cross-border cases.

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