Delta's Unsecured Creditors
Bloomberg has this article today about Delta's unsecured creditors going after Delta lessors, claiming they've illegally colluded to achieve higher lease rates in Delta's bankruptcy. But earlier this year United lost a very similar issue in its bankruptcy.Some background. In a US Chapter 11 bankruptcy, the company has the right to assume (i.e. keep) or reject all "executory contracts" (a contract in which some duties remain to be done by at least one of the parties). This includes aircraft leases. In theory, what happens is that a bankrupt company assumes all contracts that are below or at the market price for the same product or service and rejects all those that are above the market rate for the same product or service today. So, in theory, above-market contracts are "marked-to-market" (i.e. reset to market rate or replaced by new contracts at market rate).
In the case of aircraft leases, if an airline rejects a lease and returns the airplane and the lessor is unable to lease the aircraft to another airline at comparable or better rents, the lessor can file a claim against the bankrupt airline for the lost value. The catch is that such a claim is considered an unsecured claim against the bankruptcy estate, and in the case of airlines, such claims are generally paid out at pennies on the dollar (in the case of the first US Airways bankruptcy such claims were paid out at between 1 and 2 pennies on the dollar).
Something similar should, theoretically, happen in the case of aircraft that the airline has mortgaged. If an aircraft loan is upside down (market value of the aircraft is lower than the loan outstanding) then in theory the airline can return the aircraft and the difference between the loan outstanding and the market value of the aircraft is converted into an unsecured claim against the airline.
That's the theory, and until the United Airlines bankruptcy, this wasn't a bad high-level view of what generally happened in an airline bankruptcy (what actually happens is quite technical -- one day we'll have a discussion about Section 1110 of the bankruptcy code, for instance), especially if the airline was willing to lose a few aircraft here and there, because hardline lenders/lessors could be credibly threatened with the return of a few aircraft.
(Taking back an aircraft can be expensive for a lender/lessor. The aircraft may need maintenance, reconfiguration, paint, etc. Further, there are ways for a bankrupt airline to ensure the return is expensive. For instance, an engine is just a collection of parts. So before returning an aircraft, an airline can rebuild engines with parts that are closest to needing replacement/overhaul. So the lessor/lender is stuck with engines that need very expensive overhauls -- and though the lessor/lender might be able to claim this cost from the airline, it's likely another one of those unsecured claims paid at pennies on the dollar...)
In the United case, the bankruptcy dragged out so long (and United so angered aircraft lessors and lenders) that lenders/lessors finally banded together. Ultimately financiers for 175 of United's fleet (of then about 460 aircraft) came together in something called the Chapman group, significantly enhancing their leverage. At this point United's unsecured creditors complained such collusion was illegal (and damaged their interests, since if aircraft financiers get more, there's less left over for the unsecured creditors). United thought this was a good argument. The home town bankruptcy judge (who has generally sided with United) agreed.
United's argument sounded good: the Chapman group was a straightforward violation of anti-trust laws. However, an appeals court ultimately demolished this argument, spanking United -- and the bankruptcy judge -- hard. The key distinction, it transpires, is that although it's illegal to collude over new business, it's not illegal for creditors to cooperate to maximize recovery of debts owed, and the appeals court ruled that this is what the lessors were doing. United lost big time. The deals it eventually signed were, we've heard, worse than what it had originally negotiated before it decided to sue. We touched on this earlier in our post on United management's naked greed.
This appears to have established a new approach for aircraft lessors/lenders in airline bankruptcy. They now get together immediately and present as united (heh) a front as possible to the airline. It's now much harder for the airline to pick off lessors/lenders one at a time. Hence, Delta's renegotiated lease rates are higher than they would otherwise be, and Delta's unsecured creditors are not happy. But if the United precedent holds, that's just too bad.

























































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