đ„What's Going on with Sears? Part I.đ„
This sucker is still languishing in chapter 11 bankruptcy, believe it or not.

For those of you who have been blindsided by the world around you â whether thatâs due to the still-rampant coronavirus, the January 6 hearings in Washington DC, or recent decisions from the Supreme Court of the United States of America â weâre here to tell you that we are ⊠wait for it ⊠currently in the month of June, 2022.
We point that out because it was waaaaaaay back on October 15, 2019 when (the recently recalled) Judge Robert Drain of the Bankruptcy Court for the Southern District of New York confirmed Sears Holding Corporationâs proposed plan of reorganization. And, yet, the company has yet to emerge from bankruptcy after all of this time. Thatâs right: we repeat. Sears still hasnât emerged from bankruptcy after all of this time.
The gating issue remains the payment of outstanding administrative, priority and secured claims in the case. For those of you who are unfamiliar with what that means, let us put it in this very simple way. Administrative claims are claims held by parties on account of some kind of rendered service or good to the Sears Debtors after the Sears Debtors filed their chapter 11 bankruptcy cases. Weâre talking vendors and suppliers and professional service providers, among others â which, obviously, can run the gamut from Mom and Pop small businesses who happened to work with the Sears Debtors to major clothing suppliers, as just one example. Priority claimants are those afforded priority status by the Bankruptcy Code, e.g., a governmental unit with a tax claim. Finally, secured claims are claims that are backed by a lien on collateral to the extent of the value of that collateral. Typically itâs fairly uncontroversial that these particular buckets of creditors get paid in a bankruptcy case.
But nothing about Searsâ bankruptcy was particularly typical.
When we last heard from the Sears Debtors back in January 2022, they indicated that theyâd be making a fourth distribution to certain administrative claimants in March 2022. We have to assume that those have been made and, therefore, that, as of now, an estimated $35.6mm of allowed administrative claims remains due and owing (plus another $52.9mm of allowed priority and secured claims).

The question is: where is the rest of the money for these payments supposed to come from?
The official committee of unsecured creditors (âUCCâ) has allegedly been moving to find it and, by extension, move towards implementation of the confirmed plan and emergence from bankruptcy. This includes â thanks to an agreement on âjoint standing with the [Sears] Debtorsâ â pursuit of the most valuable remaining contingent assets of the Searsâ estate. That is, two jointly asserted causes of action: (i) Sears Holdings Corp. v. Lampert, Case No. 19-08250 (RDD) (Bankr. S.D.N.Y.) which has been dubbed the âInsider Actionâ and (ii) Sears Holdings Corp. v. Tisch, Case No. 20- 07007 (RDD) (Bankr. S.D.N.Y.), which has been dubbed the âPublic Shareholder Actionâ (together with the âInsider Action,â the âJointly Asserted Causes of Actionâ). The UCC obviously hopes that the Jointly Asserted Causes of Action will result in meaningful recoveries for the estate such that the aforementioned admin, priority and secured claims can be addressed with enough lingering value remaining to trickle down through the payment waterfall to its constituency, general unsecured claimants. To this end, the Sears Debtors agreed to arm the UCC with a $25mm war chest to prosecute claims; they also established a liquidating trust governed by five members of a liquidating trust board â two of whom were appointed by the Sears Debtors and the other three by the UCC to serve as âLitigation Designeesâ to oversee the litigation. That litigation has been slooooooooooooooooooowly progressing ever since against the ânumerous well-heeled defendants.â đŹ
â[S]lower than anticipated,â in fact. The Jointly Asserted Causes of Action are mired at the motion to dismiss stage.
And so the Litigation Designees (and, naturally, their advisors at Akin Gump Strauss Hauer & Feld LLP, lol) realized that âthe Initial Litigation Funding is nearing exhaustionâ â with approximately $300k remaining as of April 21, 2022 â and needed additional financing to continue taking the Jointly Asserted Causes of Action to their logical conclusion (for the record, $10mm of that $25mm went to pay Akin). In turn, the defendants have apparently spent at least $26.6mm in fees and expenses through December 31, 2021. So for those keeping score: a bunch of lawyers are making bank while admin claimants sit around awaiting distributions. Good times!
Consequently, the Litigation Designees scoured the earth for those litigation funders weâve often heard so much about and discussed here:
The Litigation Designees contacted ten institutions â both traditional lit financers and investment managers â and, lo and behold, litigation finance does have a place in bankruptcy! The Litigation Designees entered into a term sheet with an entity called Bench Walk 21p LP that would provide $35mm in non-recourse super-priority funding to allow the UCC to prosecute the Jointly Asserted Causes of Action. Here the UCC asserts:
Entry into the Litigation Funding Arrangement is of paramount importance to the prosecution of the Jointly Asserted Causes of Action. Indeed, there can be little dispute that, without additional funding, vigorous pursuit of the Jointly Asserted Causes of Action against the defendants, all of which are represented by sophisticated counsel and nearly all of which have substantial resources, is not possible. In that respect, prosecuting the complex claims that comprise the Jointly Asserted Causes of Action requires not only the dedication of substantial legal resources and expertise, but also the retention of multiple testifying and consulting experts to opine on a range of complex topics. (emphasis added)
Thatâs right. The UCC is asserting that it may need $35mm on top of the $25mm already spent to pursue the Jointly Asserted Causes of Action. The payroll is as long as Sliderâs Johnson in the original Top Gun: thereâs the pro fees, the expert fees, the vendor fees, the Litigation Designee fees, Bench Walkâs feesâŠitâs a veritable fee bonanza! Everyone gets paid except admin claimants. Slider, you stink.
Ok, whatever, sure, pros need to hunt this monetary prey and they deserve to be paid for all their crossbows and eye paint and sh*t. Rambo away, yâall. But at what cost? What is the waterfall here if the Jointly Asserted Causes of Action result in a victory (of some kind) for the liquidating trust?
đFirst Answer: Bench Walk gets its funded draws back plus interest at a 15% IRR, a rate that the UCC asserts âappears well within or below the range of interest rates typically associated with litigation financingâ (citing a bunch of reports and data that appears to be at least seven years old despite the growth of increased competition in the space over that period which, we have to assume, has placed downward pressure on IRRs đ€·ââïž).
đSecond Answer: 100% to the Litigation Designees until theyâve reaped the full benefit of their applicable contingency fee as set forth in the Plan.
đThird Answer: 100% to the âBorrowerââ the Sears Debtors â to pay the remaining allowed admin expense claims, secured claims and priority claims. This bit is cute AF:
According to the Jan. 2022 Status Report, the Debtors estimated that an additional $86.6 million currently is needed to satisfy administrative, secured and priority creditors in accordance with the Plan and the Administrative Expense Claims Consent Program. Following monetization of additional assets, including preferences, the Debtors estimate that such amount will total approximately $62.6 million. Proceeds from litigation, including both the Jointly Asserted Causes of Action and preference actions, are expected to cover this estimated shortfall. This projection assumes that the Debtors will realize the full value of various estate assets and that related costs do not exceed current projections, which may or may not be the case. (emphasis added)
Riiiiiiiiiiiiiiiiiight.
đFourth Answer: more for Bench Walk! Thereâs a formula here but letâs not get too bogged down in the weeds.
đFifth Answer: Akin at a clip of 2x the âGo-forward Fee Holdback,â i.e., 20% of go-forward fees starting upon entry of an order approving this new financing plus any Past Fee Holdback which a Litigation Designee says equals approximately $7.1mm as of 4/21/22, i.e., any fees incurred yet unpaid before entry of the order.
AndâŠ
đSixth Answer: the Borrower for the benefit of the estates subject to vigs to Bench Walk depending upon how much money they had to fund. For instance, if the draws total $20mm or more of the $35mm facility, then the Borrower will get 82.35% and Bench Walk will get 16.75%.
That all sounds pretty rich, right? Well, sure, maybe, but this is where one must conduct a cost/benefit analysis and according to the Litigation Designee, the benefits of continued pursuit of the litigation far outweigh the added costs of this additional financing. Indeed, according to a declaration proffered by a Litigation Designee, there are a variety of potential buckets of recovery here:
đThe Landâs End Spinoff. The Plaintiffs in the Jointly Asserted Causes of Action allege that the spin-off of Landâs End to shareholders was worth between $800mm-$900mm (net of debt and exclusive of interest). The Plaintiffs seek recovery of these amounts from Sears Holdings shareholders who were gifted shares of Landsâ End for allegedly no consideration and the directors, officers and advisors of Sears Holdings (and an affiliate) who effectuated the spin-off.
đThe Seritage Growth Properties ($SRG) Transaction. Per the Litigation Designee:
Plaintiffs in the Jointly Asserted Causes of Action have alleged that the Seritage Rights transferred to Sears Holdings shareholders for no consideration were worth approximately $600 to 700 million and seek to recover this amount plus interest. Furthermore, Plaintiffs have alleged that the real estate transferred to Seritage in the Seritage Real Estate Transfer was undervalued by at least hundreds of millions of dollars. Plaintiffs are working with their experts to determine the precise amount by which the real estate was undervalued and will seek to recover that amount plus interest. Plaintiffs are seeking recovery of these amounts from: (i) Sears Holdings shareholders who received the Seritage Rights; (ii) Seritage, which acquired the transferred real estate; and (iii) the directors, officers and advisors of Sears Holdings and certain affiliates who orchestrated and approved the Seritage Transaction. (emphasis added)
đRelated-Party Financings. The Plaintiffs seek approximately $400mm that was paid as interest and fees on purported âloansâ that the Plaintiffs allege were actually disguised equity investments.
In sum, thereâs apparently approximately $2b plus interest at play here. Measured against that, $35mm seems like a drop in the bucket â especially when you factor in that there are, at least according to the Litigation Designee â several potential sources of âmaterial recovery.â He goes on to list various financial institutions (e.g., ESL Investments Inc.), large companies (Seritage, Duff & Phelps LLC, Cushman & Wakefield Inc.), and D&O Insurance policies (of which he asserts there may be over $200mm which is fair game). Finally, one additional source of recovery is several ultra-high net worth individuals like Eddie Lampert (naturally), Bruce Berkowitz and former Treasury Secretary Steven Mnuchin, the brilliant architect *cough, cough* behind the pandemic relief programs that, on one hand, bailed out so many small businesses in a time of need, and on the other hand, enriched all kinds of fraudulent grifters and schemers with virtually no ramifications whatsoever.
Still. Whatâs generally astounding about all of this is how the UCCâs motion for approval of this new litigation financing arrangement is effectively an explicit acknowledgement of how fundamentally wrong everyone was here. Wrong about how long it would take to prosecute the Jointly Asserted Causes of Action. Wrong about how expensive it would be. Wrong about when the plan of reorganization would go effective and administrative (and other) claimants would get paid.
Furthermore, itâs astounding how hung Akin is here. They negotiated a deal in July â19 over their fees but, for whatever reason, the arrangement was never formalized/executed. And so you have a case where the terms of the sale transaction itself was the subject of dispute pretty much before the ink even dried and then this additional sloppiness in the lead-up to confirmation. Now, of course, after earning $10mm in fees and deferring an additional $77.1mm, the Litigation Designee is representing that any contingency fee arrangement is no longer viable (even though that was the original contemplation) and even though, technically, Akin would still be working on contingency dependent upon success in the litigation (2x the Go-Forward fee holdback?!?).
As you can imagine, this doesnât sit very well with a number of admin claimants. In Part II, weâll discuss their objections to all of this.
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đ„Tweet of the Weekđ„
Speaking of Sears:

đRevlon: Lipstick on a Pig? Part XXII (but Chapter 11)đ

On to our continuing coverage of the Revlon Inc. ($REV) shit show.
As Revlon scrapped to solve for its capital structure, Citigroup Inc ($C), the administrative agent on the companyâs 2016 term loan, figured it would thrust itself into the drama for, you know, sh*ts and giggles. Or as the fine folks at Bloomberg put it at the time:
If Citigroup Inc. was looking to create a drama big enough to compete with the pandemic and U.S. elections for Wall Streetâs attention, it couldnât have written a better script.
The bank allegedly facilitated a debt deal that left a group of lenders fuming, then accidentally sent those firms hundreds of millions of dollars that it had to, politely, ask to be returned.
We described earlier in the series how various firms â namely Brigade Capital Management, Bardin Hill Loan Management, HPS Investment Partners LLC, Symphony Asset Management LLC, Greywolf Loan Management, Zais Group LLC, Allstate Investment Management, Medalist Partners Corporate Finance, Tall Tree Investment Management and New Generation Advisors â were prettttttty prettttttty pissed off about that teenie weenie Brandco Facilities transaction that stripped them of both collateral and priority in Revlonâs wobbly capital stack. As they explored a potential lawsuit, there wasnât much they could do other than simply collect their interest payments.
And Revlon was prepared to make those payments. Indeed, prior to August 11, 2020, Revlon transferred the funds necessary to make the interest payment to Citi so that Citi could then remit said funds to the 2016 term loan lenders.
But then the unthinkable happened.
Citi inadvertently sent the 2016 term lenders $894mm dollars of total principal and outstanding interest due rather than a mere $7.8mm interest payment. Of that amount, approximately $500mm went to the aforementioned disgruntled term lenders (the âMistaken Payment Lendersâ). What did the Mistaken Payment Lenders do? They took that cash and were likeâŠ
âŠeven after Citi immediately sent recall notices to all 2016 term lenders informing them of the error.
Bloomberg continued:
Market watchers say Citigroupâs flub not only offered them a long-shot chance to recoup more than $400 million they claim theyâre duly owed, but also a rare opportunity to inflict pain on the bank with very public, very embarrassing courtroom battles.
Brigade has made little secret of the antipathy it harbors for Citigroup for its alleged role aiding cosmetics giant Revlon Inc. in stripping away collateral from term lenders and using it to back new debt. Not only does it fault the bank -- as the loanâs administrative agent -- for facilitating the transaction, but moreover it accuses Citigroup of helping Revlon create a credit line to manipulate a lender vote and override the objections of a majority of debtholders to secure the deal.
âIâd be furious, and Iâve been in the spot where as a first-lien lender someone is trying to prime me in a gray area in the documents,â said Adam Cohen, managing partner at Caspian Capital, which oversees about $3.7 billion. âThe ethics and morality of the lending market have gone to waste. Itâs a disappointing sign of the times.â
In âđRevlon: Lipstick on a Pig? Part VIII (Citiâs F*ckup).đ,â we responded:
You know what is so on brand for 2020? Flushing YOUR ethics and morality down the toilet to offset someone else flushing THEIR ethics and morality down the toilet. Two wrongs! Or something.
Meanwhile, imagine that poor schmuck at Citi who fat fingered a $900mm payment to lenders who frikken hate your guts! Weâd almost feel bad for the guy/galâŠif we could stop laughing first. đŹ
On August 17, 2020, Citi initiated the first of three lawsuits against the Mistaken Payment Lenders in the U.S. District Court for the Southern District of New York, alleging, among other things, âunjust enrichment.â In turn, the Mistaken Payment Lenders argued that they didnât necessarily know the transfer was a mistake and, therefore, they were entitled, under New York law, to keep the monies. Nobody really appreciated it at the time but G-d bless good lawyering!
The Mistaken Payment Lenders didnât merely play defense. They went on the offensive too and, through UMB Bank, as successor agent to Citi, commenced within the same week. Weâll call this, âThe UMB Lawsuit.â Per Revlon in its bankruptcy papers:
Notablyâand inconsistently with the allegation that the Mistaken Payment Lenders believed they had been paid in full on August 11, 2021âUMB Bank, purporting to act in its alleged capacity as successor administrative agent to Citibank under the 2016 Term Loan Credit Agreement on behalf of the same Lenders, filed a separate Complaint on August 12, 2020 in the Southern District of New York against Revlon, Citibank, Jeffries, the BrandCo Lenders and others alleging that transactions giving rise to the BrandCo Facility had breached the 2016 Term Loan Credit Agreement and fraudulently transferred assets to the BrandCos.
Lawsuits to the left. Lawsuits to the right.
*****
Which gets us to the trial.
In December 2020 in âđRevlon: Lipstick on a Pig? Part XIII. (The Trial)đ,â we wrote that it was awfully hard to have sympathy for anyone in a battle that has a big bank on one side and a bunch of hedge funders on the other â those poor schmos at Citi, thoughâŠ
Whoopsies. As for the hedge fundsâ new found riches? In this Bloomberg Opinion piece published during the trial, Noah Feldman did a great job of outlining the competing legal standards at play in this debacle. Describing the âdischarge for valueâ rule, Feldman wrote:
This rule says that when a creditor gets a payment from a third party (like Citi) âin dischargeâ of any debt, the creditor doesnât have to pay it back even if âthe discharge was given by mistake,â so long as the creditor âdid not have notice of the transferorâs mistake.â The idea here is, roughly, that if someone owes you money and it gets paid back, you should be able to assume that the payment belongs to you, even if it came to you at an unexpected time. After all, in some sense, itâs your money, since it was owed to you. (emphasis added)
He continued:
That sounds good for Revlonâs creditors; but not so fast. The creditors will only get to keep the money under the ⊠precedent if they had âno knowledgeâ that the money was transferred to them by mistake. That leaves the question of whether sophisticated financial actors like the creditors knew the money they were getting was received in error.
Technically, thatâs a question of fact: Did the creditors know this was a blunder? The reality is that they must have known it almost instantaneously. No creditor expects to get the full principal from a sophisticated borrower when only interest is owed. The creditors were already angry at Revlon for allegedly eroding the value of their collateral. It seems almost unimaginable that they thought Revlon was somehow making their dreams come true. (emphasis added)
And yet, at trial, the Mistaken Payment Lenders posed all kinds of cockamamie theories in response to Citiâs attempts to determine whether they knew that the Citi payment was a mistake. Per Crainâs New York Business:
Brigade Capital Management partner Matt Perkal said that when the credit-investment firm was sent $211 million, he figured it reflected the wishes of Perelman, who during the summer was raising cash by selling art, his stake in Humvee-maker AM General and other holdings.
âI thought it was possible that Mr. Perelman might have elected to deploy capital he controlled to pay off some or all of the Revlon debts,â Perkal testified. âIt was widely reported in the news that Mr. Perelman was monetizing various assets, and I thought it plausible that Mr. Perelman used some of those proceeds to satisfy debt at Revlon.â
Citiâs lawyers werenât buying it though. Per Bloomberg:
âDo you believe Perelman to be a rational businessman?â John Baughman, a lawyer for the bank, asked Matthew Perkal, a partner at Brigade Capital Management and a witness for the defense. Wouldnât paying $387 million of notes âbe more economically rationalâ than suddenly paying down almost $900 million in loans, he asked.
Indeed, wouldnât it have made more sense â if Perelman was gonna do anything â for him to pay off the notes to avoid the springing maturity rather than pay down the entirety of the term loan? Lock and load this banger:
At the time of the transfer, Revlon had bonds outstanding that would have triggered the payment of more than $1 billion of secured debt in November. All it had to do to avoid this âspringing maturityâ was to pay off the bonds before the November deadline, Baughman said during his cross-examination of Perkal.
Perkal pushed back, suggesting there were a lot of things Perelman might have done or not done.
âThere is nothing preventing me from playing in the NBA,â he said. âBut itâs not going to happen.â
Over a year later and we still donât know what that means. As we wrote at the time, âGod we hope the âCurb Your Own Enthusiasmâ theme started playing immediately after that response.â
Then thereâs Mr. Perkalâs colleague. Per Business Mirror:
Jeff Frusciante, a bank debt manager for Brigade Capital Management, had testified that he couldnât understand how Citigroup could have sent the sum by accident. During a contentious cross-examination, he defended his claim that he thought the August transfer was an early full paydown of the loans plus interest.
âDo you still believe that Citibank intended to make a full paydown on August 11?â John Baughman, a lawyer for the bank, asked him.
âI still havenât got a good answer as to how this happened,â Frusciante said, in part.
âCan you think of any reason why Citibank would send out approximately $900 million on August 11 and the next day send out notices saying, âWe made a mistake, please give it back?ââ Baughman pressed. âWhy would they do that?â
âI have no idea,â Frusciante said. âI donât work for Citi.â
Thatâs true. He didnât. Pretty fair answer, frankly. Someone prepped that dude well. Why opine on something you didnât âknow.â
And then thereâs this one:
âThe theory that we agreed at the time was most likely was that Revlon and Citibank were attempting to manipulate the voting rightsâ of certain lenders, testified Catherine McCoy, a portfolio manager at Allstate Investment Management, whose firm was sent more than $10 million by Citi.
Someone from HPS Investment Partners also apparently subscribed to this theory â asserting that maybe Revlon paid off certain holders to get below a 50% threshold needed to spring to action.
Lenders posited other theories too: (a) maybe Revlon suddenly raised financing and could refi out existing holders (Greywolf Capital Management) or (b) courtesy of Bardin Hill Investment Partners, maybe Revlon was just like, âfuck it, weâll just pay down this sucker.â With what liquidity? Thatâs where Mr. Perkelâs Perelman answer comes into play: liquidity from selling off yachts and paintings, apparently. For âsophisticatedâ investors, there sure were a lot of unsophisticated rationalizations being bandied about.
We love this bit:
Frusciante, of Brigade, told the court in his declaration that even after Citibank notified recipients that it was an error, âit seemed more plausible that the payments were intentional than that one of Americaâs largest banks accidentally paid off our loans down to the penny.â
We wrote at the time:
Our thoughts exactly!!! Who could POSSIBLY imagine a scenario where a big bank would make a mistake that would be detrimental to its financial interests and/or its reputation? Sloppiness never happens at big banks! Look up checks and balances and de-risking and youâre sure to find big banks as the poster children. đ€đ
Duck for cover folks. Thereâs a lot of bullsh*t flinging through the air.
With the benefit of hindsight, this response is even more comical now. How many fat finger incidents has Citi suffered from since this trial alone? There literally was another instance in early June 2022 LOL:
What a fucking clown car over there at Citi.
Not that the idiocy stops there. There were emails! Per Bloomberg:
âI feel really bad for the person that fat-fingered a $900 million payment,â a vice president at HPS Investment Partners told another executive the day after the Aug. 11 transfers, according to an excerpt highlighted in court. âNot a great career move.â
âHow was work today, honey?â the vice president said a little later, imagining both sides of the dinner table conversation that night at home. âIt was OK, except I accidentally sent $900 million out to people who werenât supposed to have it.â
In âđRevlon: Lipstick on a Pig? Part XIV. (The Trial.)đ,â we responded:
Kinda hard to argue that you didnât know it was a blunder when you use words like âfat fingeredâ and âaccidentallyâ and âwerenât supposed to have it.â Just sayinâ.
But you know whatâs a good counter to a healthy helping of snark and cynicism? The law.
đ§Tips for Summer Internsđ§
Itâs summer time which means that partners and MDs who otherwise would continue to stay away from the office are being goaded into âmandatory three days a weekâ policies and the like â in part because thereâs a bunch of fresh-faced summer associates and interns roaming the halls in need of some miserly mentoring. Hey interns! Maybe things are different in a post-pandemic world â we suppose weâll find out soon enough â but assuming all else is equal, you really just need to not f*ck things up too badly to ensure youâll get an offer at the end of the summer. Put your head down, get your BS busy work done, donât get too drunk at an event and tell some boomer partner to go f*ck himself, and you should be golden. Then you can roll a fattie, toss all your books into the corner, and spend the remaining school year binging Suits on streaming.
In other words, donât do this:
Or this:

Well, maybe do this âŹïž. Apparently it confers âlegendâ status. đ
đResourcesđ
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PETITION is looking for one MBA and one JD candidate to work with us as paid interns in the Fall. This is primarily a research and writing position for up to 10-20 hours a week that will give awesome exposure to the worlds of distressed investing, bankruptcy and restructuring. Work is remote. If interested, email us at petition@petition11.com with the subject line âFall Internshipâ and weâll be happy to answer questions.
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