Companies gave execs millions before bankruptcy

Labor experts say payouts were timed to bypass a 2005 law.

The corona virus recession tipped dozens of troubled companies into bankruptcy, setting off a rush of store closures, furloughs and layoffs. But several major brands, including Hertz Global, J.C. Penney and Neiman Marcus, doled out millions in executive bonuses just before filing for Chapter 11 protection, according to a Washington Post analysis of regulatory filings and court documents.

Since the pandemic took hold in March, at least 18 large companies have rewarded executives with six- and seven-figure payouts before asking bankruptcy courts to shield them from landlords, suppliers and other creditors while they restructured, The Post review found. They collectively meted out more than $135 million, documents show, while listing $79 billion in debts.

Labor experts and bankruptcy attorneys say the payouts are particularly egregious — and unjustifiable — during an economic crisis, and were timed to bypass a 2005 law passed specifically to prevent

executives from prospering while their companies flailed.

“These are bonuses that unfairly enrich the very same corporate managers that led the company into bankruptcy,” said Brandon Rees, a deputy director at the AFLCIO, the nation’s largest coalition of labor unions. “That unfairness is compounded by the fact that we’ve just experienced theworst unemployment rate since the Great Depression.”

The retention bonuses, which range from $600,000 at the parent company of retailer New York & Co. to the $25 million awarded to executives at Chesapeake Energy, illustrate how the pandemic recession is exacerbating economic inequality in the starkest terms: Those same companies laid off tens of thousands of workers, the majority earning less than $29,000 a year.

Utobia Hornbuckle, 49, lost her job at Chuck E. Cheese’s corporate office near Dallas just as the nation was preparing to shut down. The part-time position booking birthday parties had been just enough to lift her out of homelessness, she said, allowing her to afford a motel room. Shehad hoped it would eventually help her into a one-bedroom apartment that she could share with her daughter and three grandchildren.

But on March 17, she was furloughed from her $ 12.50- an- hour job. Six months later, shewas among dozens of corporate employees laid off from the family-friendly restaurant chain.

During that time, Chuck E. Cheese’s parent company filed for bankruptcy, citing $2 billion in debt. But first it awarded nearly $3 million in bonuses to top executives, including $1.3 million to chief executive David McKillips, who had been with the company less than five months.

“Of course it makes me mad,” Hornbuckle said. “But that’s kind of the way of the world now: Big corporations do what they want to, and the rest of us — the peons, the small people — fall off our feet.”

CEC Entertainment, which owns Chuck E. Cheese and Peter Piper Pizza, did not respond to multiple requests for comment. But in a regulatory filing, it said the bonuses were designed to retain employees “while providing them with financial stability.”

Many companies have homed in on retention to justify bonuses because they cannot be attached to traditional motivators like sales targets or stock valuations during bankruptcy. Experts said retaining executives — even thosewho may have overseen a company’s decline — is often seen as a way to maintain consistency and raise the chances that the company will successfully emerge from bankruptcy.

“Somebody has to run the company, and the thinking is that it’s better to have someone who knows the organization,” said Dayna Harris, a partner at executive compensation consulting firm Farient Advisors. “If the company is able to go through reorganization, then investors still get something at the end and some employees still have a job left. If you go to liquidation, then everybody’s done.”

Denver-based Extraction Oil & Gas awarded $6.7 million in retention bonuses a week before its June bankruptcy filing because its “historic compensation structure and performance metrics were ineffective in motivating and incentivizing the company’s workforce in our current environment,” spokesman Brian Cain said. It has laid off more than 120employees, or roughly 40% of its workforce, this year, according to reports.

Of the 17 other companies contacted by The Post, 11 did not respond to requests for comment. Ascena Retail Group, Chesapeake Energy, Hertz, Intelsat, Neiman Marcus and Tuesday Morning declined to comment.

The issue of executive compensation has been contentious for years, emblematic of America’s widening income gap. In 2019, the CEOs of the nation’s largest companies made more than 320 times the salary of their average employee, data show. Thirty years earlier, the ratio was 61-to-1.

The rise of pre-bankruptcy bonuses corresponds with the passage of 2005 legislation meant to stampout such payouts during reorganization, attorneys say. The Post’s review found that companies typically awarded bonuses within weeks — or days in several cases — of filing for Chapter 11 protection.

“It’s become a standard solution: Pay the bonus before bankruptcy, so bankruptcy law doesn’t apply,” said Adam Levitin, a Georgetown University law professor whose work focuses on bankruptcy and financial regulation.

While companies use bonuses to keep top executives from leaving during critical and uncertain times, “that doesn’t really apply in this economic climate,” he said.

“Where are these executives going to go? It’s not like there’s much of a market for high-priced CEOs right now.”

Nell Minow, an expert in corporate governance and vice chair of Value Edge Advisors, believes such bonuses should be tied to specific metrics, such as resolving bankruptcy issues by a particular date or taking other steps to ensure the company’s longterm viability. If restructuring efforts fail, some companies will end up having to liquidate and shut down altogether.

“What we call this is ‘Pay for pulse,’” she said. “There is absolutely no obligation other than being alive to earn these bonuses. They’re payments for sticking around — and there is no worse timing for that than in the middle of an economic and medical crisis.”

Five days before its Chapter 11 filing in May, J.C. Penney awarded $7.5 million to its four top executives, including CEO Jill Soltau. The department store chain, which hasn’t turned anannual profit in nearly a decade, entered bankruptcy with more than $8 billion in debt. It’s now working to close roughly 150 stores and eliminate thousands of jobs.

Neither J.C. Penney nor representatives for Soltau responded to requests for comment.

Danyelle Ryone was furloughed from a J.C. Penney store in Poughkeepsie, N.Y., in March. A few weeks later, she learned through a Facebook post that her store was closing for good, which meant her job at the jewelry counter was gone, too.

Managers, she said, asked her to help liquidate the store but only for four hours a week. Instead, the 23-yearold filed for unemployment benefits and began looking for other work.

“It really shows how corporate businesses feel about their employees,” said Ryone, who now works at a bank. “They (are) literally profiting off of us losing our jobs.”