Vaccine gives small businesses new hope to file for bankruptcy

Going bankrupt is expensive — especially for small businesses.

As the pandemic intensified, even companies with enough cash to try to reorganize in court lost faith that they’d be able to stay open after cutting their debts.

On March 28, Carol and Henry Huffman of Pike Creek, Del., simply closed down their specialty catering shop, the Cheese Chalet, and walked away rather than seek court protection from creditors and chance a reopening.

“Waiting was not an option,” Carol Huffman said in an interview. “They kept saying there might be another shutdown in the fall.”

Hundreds of thousands of small business owners made the same decision in 2020, researchers report. Collectively, they laid off millions of employees and walked away from small stores, restaurants and other enterprises in a wave of silent closures.

Next year may be different if the widespread rollout of a vaccine gives entrepreneurs hope that cutting debt under court oversight once again is worth it.

“Bankruptcy requires people to be hopeful that there will be a better future on the other side,” said

Jared Ellias, a bankruptcy professor at the University of California at Hastings College of the Law. “I suspect you will see a serious bounce in Q1 and Q2 especially. The driver isn’t going to be the pandemic. The driver is going to be the vaccine.”

‘We have been surprised’

A spate of shutterings typically would cause bankruptcies to surge, says a paper by academics at the University of Illinois, Brigham Young University and Harvard Business School.

In 2020, though, they declined as some business owners walked away while others received enough government support to delay reorganizaitons.

“We were all expecting an increase,” said Jialan Wang, an assistant professor of finance at the University of Illinois. “We have been surprised for this whole year.”

Through November, 20 percent fewer business cases were filed compared to the same period last year, statistics from the American Bankruptcy Institute show.

Attorneys who work with small businesses have urged clients to wait to file if they can so they have a better shot at survival in the longterm, said John Mudd, a bankruptcy lawyer who works primarily with creditors in San Juan, Puerto Rico. “Going into bankruptcy can have costs which are severe,” he said.

Court costs and an attorney’s initial retainer can run $10,000 or $15,000, he said. “A lot of business owners will say ‘That’s a lot of money.’”

A new provision of the bankruptcy code, known as Subchapter V, started this year and was designed to make the process cheaper and easier for companies with less than $7.5 million in debt.

So far, about 1,300 such cases have been filed, said Ed Flynn, a consultant with ABI who studies bankruptcy statistics. He said that next year, that number is likely to hit 3,000.

New rules

Some small companies want to wait before filing for bankruptcy under Subchapter V rules because the process comes with tight deadlines for proposing a debt-cutting plan, said Matthew Zirzow, a bankruptcy lawyer in Las Vegas who led two companies through the process in Nevada and has many more clients waiting to file.

“They don’t want to file Subchapter V too soon,” he said in an email. “It may have a great business when things bounce back that is well worth eventually reorganizing, but who is to say when that will happen?”

The deadlines were imposed to prevent small companies from ducking creditors for too long while in bankruptcy, since past debts don’t have to be paid while the case is ongoing.

Banks and landlords have been far more willing to work with struggling firms during the pandemic, keeping some out of bankruptcy for longer, Ellias said. “The normal mechanisms of debt collection are not working because banks are holding off on collecting,” he said.

That won’t last. At some point next year, creditors will begin to demand payment, landlords will end rent relief and federal support will dry up.

Even with a vaccine on the way, Carol Huffman said she still believes closing down made more sense than seeking court protection and trying to limp along until things got better.

Last month, Huffman returned for one day to her shuttered food shop. The landlord still hadn’t found a new tenant. The 69-yearold set up a table outside the entrance devoted to her latest venture: a cookbook based on the dishes she used to sell at the Cheese Chalet.

“We moved on,” she said.