Do You Hear Heavy Footfalls?

Bankruptcies in America
Waiting for Armageddon
The recent rise in corporate bankruptcies in America may well be a sign of much worse to come
Illustration by David Simonds
CAPITALISM without bankruptcy, it is said, is like Christianity without hell. With recession looming, the air in America's bankruptcy courts is thick with brimstone and the coals are being heated in readiness for the many sad souls whose sin was to borrow too much. After several heavenly years, in which bankruptcies fell to record lows, going bust is back. How bad will things get?
If the debt markets are to be believed, companies could be in at least as much trouble as they were in the previous two downturns, in the early 1990s and at the start of this decade, after the dotcom bubble burst. A leading indicator is the spread between yields on speculative “junk” bonds and American Treasury bonds. A year ago, the spread was only about 280 basis points; the long-term average is around 500 points. This month the spread exceeded 800 points for the first time since March 2003, reaching 862 on March 17th.

The bankruptcy rate (in the previous 12 months) for high-yielding bonds has so far edged only modestly higher, to 1.28% from a record low of 0.87% in November. But most forecasters expect it to rise sharply over the coming months. For instance, Moody's, a ratings agency, predicts that the default rate will rise to 5.4% by the end of this year, mostly due to problems in America. (Moody's also expects a rise in European bankruptcies this year, but only to 3.4%, thanks to lower levels of borrowing and less exposure to economic weakness.)
That is a relatively optimistic prediction, for it would merely return the bankruptcy rate close to its long-term average after an abnormally trouble-free period, and it assumes only a mild recession in America. But if there is a severe recession, the default rate “could go to double figures,” admits Kenneth Emery, head of corporate-default research at Moody's.
Other forecasters are much gloomier. FridsonVision, a research firm, publishes a default-rate predictor based on the percentage of bonds trading with a spread of at least 1,000 basis points. On March 19th this was forecasting a default rate on high-yielding American corporate bonds of 8.55% by the end of February 2009, compared with Moody's forecast for American bonds of 6.8% for that date.
Martin Fridson, the firm's founder, admits this forecast is risky, because it relies on prices set in a market that has been hit by the liquidity crisis. Indeed, some contrarians believe that today's corporate-bond spreads say more about the shaky health of the financial markets than they do about the condition of corporate borrowers. As liquidity returns, they predict, corporate-bond prices will soar, making this the buying opportunity of a lifetime.
Mr Fridson concedes that the difference between corporate-bond spreads and actual default rates is unusual and hard to explain: on the previous occasions when spreads have exceeded 800 points, the default rate was already 9.43% in 1990 and 5.44% in 2000. That said, the huge amounts of “covenant lite” debt issued in the credit boom of 2005-07, which gives lenders much less power to demand their money back than in the past, may have delayed the moment of default for many underperforming firms. So FridsonVision looked at the ten firms in which spreads exceeded 1,000 points by the smallest amounts. If these were merely victims of irrational pessimism in the market, they ought to be in relatively good shape. In fact, the analysts found plenty of reasons to worry. The companies included household names such as Beazer Homes, Ford and Rite Aid, all of which are “exhibiting classically distressed behaviour of downsizing amid recurring losses.”
A look at the firms with distressed debt shows that problems are rapidly moving beyond the long-term sick (airlines, cars) and the industries immediately affected by the crisis (home builders, mortgage lenders, monoline insurers). Craig Dean of AEG Partners, a restructuring-advisory firm, says he is now seeing troubled companies in retailing, restaurants, manufacturing and food processing.
As defaults rise, the new rules governing Chapter 11 of America's bankruptcy code will face their first test. Long admired as the world's best system for allowing corporate liabilities to be restructured while giving firms a decent chance of staying in business, the rules were tightened in 2005 to deter firms from staying in Chapter 11 too long and to stop the managers of bankrupt firms from paying themselves too much. One result may be that firms will try to restructure without going into Chapter 11, or at least do much more preparation before they enter it, says Mr Dean.
But perhaps the biggest difference this time will be the effects of the huge market for credit derivatives and other credit-related securities, which often dwarf the amount of debt that a firm has issued, says Henry Owsley of Gordion, another restructuring adviser. The interaction between underlying debt and credit derivatives will complicate bankruptcy and near-bankruptcy no end, he says.
A big concern for company bosses will be the role of speculative investors, especially hedge funds. They can use derivatives to pursue complex strategies that may not be in the best interests of the firm that has issued the underlying debt, says Henry Hu, a law professor at the University of Texas, Austin. In a bankruptcy, a hedge fund could use the voting rights attached to different securities to maximise the overall value of its holdings in the firm at the expense of other investors.
Imagine, for instance, a hedge fund that owns debt secured against a company asset. It may prefer to force the firm into liquidation in order to win that asset rather than engage in a restructuring negotiation that will keep the firm alive. Meanwhile, it can boost its returns by short selling its unsecured debt and its equity. Or suppose that a hedge fund owns credit-default swaps as well as a firm's debt. If the fund makes enough money from the pay-out of the credit-default swaps, it may prefer to use the voting rights on its debt to ensure that the firm goes bust rather than negotiate a way to avoid bankruptcy.
So far there is little hard evidence that hedge funds are doing this. But in recent papers written with his colleague Bernard Black, Mr Hu reports credible rumours and other evidence of what they have dubbed “debt decoupling”, both in and outside of bankruptcy. Such activity is only likely to increase. “When there are more restructurings and bankruptcies, there is a lot more potential for mischief,” says Mr Hu.