For some folks the three letters ABC are a reminder of elementary school and singing a song to learn the alphabet. For others, it is a throw back to the early 70’s when the Jackson Five and its lead singer Michael, still with his adolescent high voice, sang a catchy love song. Then there is a select group of people in the world of corporate workouts, liquidations and bankruptcies, who know those three letters to stand for the Assignment for the Benefit of Creditors – a voluntary state law liquidation process that may arguably offer a hospitable and friendly alternative to federal bankruptcy. This article is a brief summary of this potentially attractive alternative to bankruptcy.
The Assignment for the Benefit of Creditors (“ABC”), also known as a General Assignment, is a state law procedure governed by state statute or common law. Over 30 states have codified statutes, and the remainder of states rely on common law. See Practical Issues in Assignments for the Benefit of Creditors, by Robert Richards & Nancy Ross, ABI Law Review Vol. 17:5 (2009) at p. 6 (listing state statutes). In some states, the statutory authority and common law can coexist. At its most basic, the ABC process involves the transfer of all assets by a financially distressed debtor (the assignor) to an individual or entity (the assignee) with fiduciary obligations who then liquidates the assets and pays creditors. The assignment agreement is essentially a contract involving the transfer and control of property, in trust, to a third party. In some states that have enacted a statute, state courts may supervise the process (and at different levels of involvement depending on the statute). The statutory scheme in other states such as California and Nevada, and in states where common law govern, do not provide for judicial oversight..
ABCs are promoted as less expensive and more flexible than a chapter 7 liquidation and may proceed substantially faster than bankruptcy liquidation. See generally Practical Issues in Assignments for the Benefit of Creditors, ABI Law Review Vol. 17:5 (2009) at p. 8 (citations omitted). In addition, the ABC process may provide four other noteworthy benefits not available in a bankruptcy. First, the liquidating company chooses the assignee, there is no appointment of a random trustee or formal election required like in a bankruptcy. This freedom of choice allows the assignor to evaluate the reputation and experience of proposed assignees, as well as select an assignee with familiarity in the nature of the assignor’s business and/or with more expansive contacts in the industry to facilitate the sale/liquidation. Second, the ABC process generally falls under the radar of the media (particularly in states that do not require court supervision), and the assignor may avoid publicity, often negative, that can be associated with bankruptcy proceedings. Third, with an ABC, the assignee has the ability to sell the assets without the imposition of potentially cumbersome requirements of Section 363 of the Bankruptcy Code, and in some cases, can conduct a sale the same day as the general assignment. Finally, the ABC process generally authorizes the sale of assets free of unsecured creditor debt. In essence, in an ABC, a company buying assets from a distressed business does not acquire the debt of the assignor.
On the down side, ABCs do not provide the protection of the automatic stay that is triggered upon the filing of a bankruptcy petition. In some situations, the debtor entity needs to stop the pursuit of creditors immediately, and a bankruptcy proceeding will supply this relief. Unlike bankruptcy, the sale through an ABC: i) is not free and clear of liens; ii) unexpired leases cannot be assumed and assigned without the consent of the contract counter-party; and iii) insolvency can trigger a default under an unexpired lease or executory contract. See generally Practical Issues in Assignments for the Benefit of Creditors, ABI Law Review Vol. 17:5 (2009) at p. 20. In general, an ABC is not a good choice for debtors that have secured creditors that do not consent because there is no mechanism for using cash collateral or transferring assets free and clear of liens without the secured creditors’ consent. In cases where junior lienholders are out of the money, there is no incentive for those creditors to voluntarily release their liens. In addition, while unsecured creditors do not have to consent to the general assignment for it to be valid, choosing this alternative forum may cause concern for creditors (particularly those used to the transparency of a court-supervised bankruptcy or receivership proceeding) and invite the filing of an involuntary bankruptcy. Therefore, it is prudent to involve major creditors in the process, and perhaps even in the pre-assignment planning. In addition, if an involuntary petition is filed, the assignee could request that the bankruptcy court abstain in order to proceed with the ABC.
Using the ABC state process in lieu of filing for bankruptcy in federal court may result in a more streamlined, efficient liquidation process that is less expensive and likely completed quicker than a federal bankruptcy proceeding. In some jurisdictions, such as New Jersey, workout professionals note anecdotally that corporate clients fare better under this state law alternative rather than the lengthy, more complicated federal bankruptcy proceedings.
Many bankruptcy professionals are unfamiliar with the procedures of ABC and are reluctant to recommend it as a method for liquidating assets and administering claims. This lack of familiarity may be a disservice to potential clients.
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