Title 11 of the United States Code (the “Bankruptcy Code”) operates as a tool allowing an honest, struggling debtor to gain a fresh start absent of their burdensome debts. Generally, when a company is about to enter bankruptcy, shareholders and creditors of the insolvent company play two distinct roles. Shareholders, those with an ownership stake in the company, have voting rights enumerated in their shareholder agreement, allowing them to vote on certain actions, including the company’s bankruptcy filing. On the other hand, creditors generally have a claim (i.e., a right to payment) against the company, which typically has arisen from receiving inadequate value in return for the value the creditor gave to the debtor. Thus, while a shareholder may have input into a company’s decision to file for bankruptcy, a creditor typically will not. However, in certain circumstances, a party may serve dual roles—it may be both a shareholder and a creditor. Ultimately, in such a circumstance, conflict arises as a creditor is now afforded the ability to exercise shareholder voting rights and prevent a company from filing for bankruptcy.
Courts have recognized two central ways in which a creditor/shareholder attempts to block a company from filing for bankruptcy: (1) a golden share, and (2) blocking provisions. A golden share is a “share that controls more than half of the corporation voting rights and gives the shareholder veto power over changes to the company charter.” The term blocking provision “is a catch-all to refer to various contractual provisions through which a creditor reserves a right to prevent a debtor from filing for bankruptcy.” Ultimately, both golden shares and blocking provisions give a creditor/shareholder the ability to prevent a company with which they do business from entering into bankruptcy, eliminating the possibility of having their claims discharged.
Part I of this memorandum discusses whether a creditor/shareholder may use its shareholder voting power to prevent a company from entering bankruptcy, while analyzing the difficulty courts have with uniformly deciding the issue. Part II of this memorandum examines the conclusion of many courts, that from a policy standpoint, when a party is both a shareholder and creditor, it should not have the ability to prevent a company from filing for bankruptcy.