Many small businesses have had a challenging year due to the COVID-19 shutdowns and restrictions placed on their operations. As a result of financial difficulties, some companies may have no other option than to seek relief in bankruptcy. A new law that took effect in February 2020 — the Small Business Reorganization Act of 2019 (SBRA) — intends to make the bankruptcy process more cost-efficient and streamlined for main street business owners.

What is the SBRA?

While Chapter 11 bankruptcy has long been an option for businesses to restructure their debts, it also comes with high costs and complex challenges.

The new law generally allows small business debtors with less than $2.7 million in debt to reorganize them without the cost burden imposed by traditional Chapter 11, as long as 50% or more of the debt arose from business activities. As in Chapter 11, a small business debtor may continue business operations in a case brought under the SBRA.

Additionally, eligible small business debtors may be entitled to amend petitions previously filed to proceed under Subchapter 5, even if their case has been pending several months.

What New Provisions Does the SBRA Include?

The new Subchapter 5 provides relief to small businesses that may not be possible for them to attain through other bankruptcy types.

A small business debtor who chooses to proceed with bankruptcy under Subchapter 5 of Chapter 11 must file a plan within 90 days of the date they file the petition. This requirement differs from that in a traditional Chapter 11, in which the plan must be filed within 120 days. Under the SBRA, only the debtor may file the reorganization plan.

While a debtor does not need to file a separate disclosure statement with the plan, they must still include some of the information contained in it, such as:
 

• A history of the business’s operations
• An analysis of liquidation
• A projection concerning the debtor’s ability to make payments under the plan

A specialized trustee supervises cases brought under the SBRA. While the trustee does not operate the debtor’s business, they may act as a consultant and generally act to keep the reorganization on track.

The SBRA offers small business debtors significantly less restrictive requirements for plan confirmation and the elimination of the absolute priority rule. Additionally, administrative expense payments can be made over the term set forth by the plan, rather than on the date it becomes effective. The key features of the SBRA can significantly impact a small business debtor’s rights and remedies in bankruptcy.

Learn More About the SBRA and How it Can Help Small Businesses

While this post does not offer a comprehensive list of all the major changes, you can learn more about the details of the SBRA and get case strategies at NBI’s upcoming course, A Guide to Small Business Bankruptcies Under New Subchapter 5 (December 21, 2020). It will be available OnDemand shortly after it airs.

As the economic effects of COVID-19 worsen, many more small businesses may seek relief under the SBRA. Attorneys must have a comprehensive understanding of how it differs from a traditional Chapter 11 proceeding and the benefits it can offer their clients.