What We “Know” About Chapter 11 Cost Is Wrong

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Fordham Journal of Corporate & Financial Law, Vol: 17, Issue: 1, Page: 141

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Lubben, Stephen J.
FLASH: The Fordham Law Archive of Scholarship and History
Chapter 11; Bankruptcy Law; Law
article description
Among the collective wisdom about large corporate bankruptcy cases, the following points are almost undisputed: Longer chapter 11 cases cost more; prepackaged chapter 11 cases cost less; cases filed in New York or Delaware cost more; and fee examiners control the costs of big chapter 11 cases. But each of these points is wrong, and in most cases entirely backward. This Article provides empirical evidence to show why. Ultimately, I argue that the complexity of the bankruptcy and the compensation structure of the professionals retained (which may itself reflect further aspects of complexity) are the key determinants of cost. The key questions of chapter 11 cost are subtle and difficult to tease out; and I end this paper urging more subtlety and modesty going forward.