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Jared Ellias: "The Elevation of the Board is an Important Trend in the Bankruptcy Process"

Jared Ellias: "The Elevation of the Board is an Important Trend in the Bankruptcy Process"

FromBoardroom Governance with Evan Epstein


Jared Ellias: "The Elevation of the Board is an Important Trend in the Bankruptcy Process"

FromBoardroom Governance with Evan Epstein

ratings:
Length:
46 minutes
Released:
Jul 6, 2021
Format:
Podcast episode

Description

Intro.(1:39) - Start of interview.(2:15) - About UC Hastings and the Center for Business Law [that we are building together!](5:10) - Jared's "origin story": he grew up in Michigan, attended the U. of Michigan (BA political science) and Columbia Law School (JD). A book on the bankruptcy of Marvel Comics led him to bankruptcy law and practice. After graduation he joined Brown Rudnick in NYC (’07-’11). He later joined academia as a Teaching Fellow and Lecturer in Law in Corporate Governance & Practice at Stanford Law School ('11-'14). He joined the UC Hastings Faculty in 2014.(9:38) - Start of discussion about his latest article The Rise of Bankruptcy Directors: "Traditionally bankruptcy is about a court process, not a board process." But his research shows that the boardroom increased its prominence in bankruptcy starting in about 2012-2013, where many distressed companies, especially those controlled by private equity sponsors, prepared for bankruptcy by appointing independent directors (which they call "bankruptcy directors") to their boards of directors with the power to make key bankruptcy decisions.(13:03) -  On the new cohort of "bankruptcy directors" and the parallels with venture capital and Silicon Valley [Their dataset consists of the boards of directors of 528 firms and the 2,895 individuals who collectively hold 3,038 directorships at firms in bankruptcies from 2004-2019]: "The change is that a practice that was once relatively uncommon has become ubiquitous and a central and standard part of the process of preparing for a Chapter 11 bankruptcy filing, leading to the growth of an industry of professional bankruptcy directors who fill this new demand for bankruptcy experts on the board of distressed firms."(15:08) - On the question of fiduciary duty of loyalty and conflicts of interests of bankruptcy directors (particularly regarding the private equity controlling owners) and the emergence of "super-repeater directors".(16:38) - The example of the Nine-West bankruptcy.(21:34) - Whether bankruptcy judges will incorporate some standards such as those used (for example) by the Delaware Chancery Court on the independence of directors, board conflicts and the decision-making process of the board.(23:02) - On his finding that unsecured creditors recovered 21% less when a bankruptcy director is appointed.  On the lucrative new bankruptcy director role.(26:04) - On his proposal that the court regard bankruptcy directors as independent only if creditors support their appointment.(29:03) - "The elevation of the board is an important (new) trend in the bankruptcy process." "The Board is going to play a more central part in bankruptcies."(31:52) - On the current growth of the economy and deal-making despite pandemic, and projected bankruptcies. "It's caught all of us by surprise." "It just shows you that Washington can change the rules on Wall Street on they want to." On the Hertz bankruptcy.(34:49) - His thoughts on the next trends in bankruptcies: "I think we are going to continue to see the democratization of the bankruptcy process." "Bankruptcy is less of a black box today and retail investors are becoming bigger players (the participation of normal people in Chapter 11 is a trend that we are going to see continue."(36:46) - On bankruptcy forum shopping. "This issue goes back to the 1990s, and we will continue to see a concentration of bankruptcy cases in the hands of a few judges."(38:53) - On his advocacy to increase the number of bankruptcy judges (in response to Covid-19).(40:17) - The books that have greatly influenced his life:Comic Wars (2002), by Dan Raviv.The Strategy of Conflict (1981), by Thomas Shelling.The Selfish Gene (1990), by Richard Dawkins.Germs, Guns and Steel (1997), by Jared Diamond.(41:30) - His mentors:J.David Singer, Professor at U. of Michigan.Jeffrey Fagan, Professor at Columbia Law School.Edward Morrison,  Professor at Columbia Law School.Robert Stark, Brown Rudnick.Michael Klausner, Professor at
Released:
Jul 6, 2021
Format:
Podcast episode

Titles in the series (100)

In-depth interview podcast with leading corporate governance experts, including world-class founders, scholars, board members, executives, investors and more. The content is structured as a long-form conversation to explore not only the latest corporate governance trends, but also to get some personal insights from some of the best and brightest minds behind America's boardrooms.