Sears’ creditors are waiting to learn how much money they’ll recoup from its bankruptcy case. The only thing that’s certain: Whatever they get will be reduced by the tens of millions because of legal and other professional fees that are already mounting in the case.
Since the filing, those fees are already averaging about $4 million a week. Under bankruptcy law, those fees are paid before creditors get any of the money they are owed.
Fees could top $200 million before its all over, according to Joshua Friedman, global head of restructuring data for Debtwire.
The bills for the 2017 bankruptcy of Toys “R” Us, a significantly smaller case than Sears, have run to more than $165 million and are still counting, according to Debtwire.
“It’s a matter of how contentious the case is,” he said.
Sears has already been a very contentious case.
The company was on the cusp of going out of business a couple of times already this month. Sears raised concerns that Lampert was not offering enough money in his bid to keep a part of the company in business. The need to cover the mounting legal costs was a major part of the issue.
Lampert had to raise his offer to $5.2 billion, from an initial bid of $4.4 billlion, before Sears’ attorneys would accept it. The alternative would be to close down and liquidate the company’s assets.
The committee representing most other major creditors continues to push to shut down the company, even with his increased bid.
That battle is one of the factors that will probably drive up the legal expenses in the case, because Sears is paying both sides in the fight: It’s covering its own attorneys fees and those for the creditors.
A committee of the Sears board of directors is paying its own team of lawyers and experts as part of the case.
And the Sears bankruptcy case will go on for months, if not years. That’s the case no matter what happens in the coming weeks, The bankruptcies of General Motors and Lehman Brothers from about 10 years ago both continue to this day.
The collapse of Lehman Brothers in 2008 led to the largest, most complex and most expensive bankruptcy in history. Lehman’s bill for professional fees reached $2.6 billion, according to an analysis from the Federal Reserve Bank of New York. Those fees reduced the amount of money that creditors were able to recoup.
Sears’ bankruptcy process won’t get close to those figures, but the bills are still staggering.
So far, the company has spent $31 million in legal and professional services fees through the end of November, including $7 million paid to Weil, Gotshal & Manges, Sears’ lead law firm, to prepare the bankruptcy filing.
That’s just the beginning, and doesn’t include the hours of negotiations in January that one Sears attorney described as “virtually round-the-clock” to reach the deal with Lampert. And it doesn’t include the contentious hearings ahead.
US Bankruptcy Court Judge Robert Drain has set a February 4 hearing for objections to the deal to keep the company open from creditors and others. He has told parties that the hearing will probably spill over into a second day.
Even if Lampert successfully purchases the operating assets of the company in early February, as he hopes to do, the bankruptcy case could go on for years.
That’s because Lampert will only buy some assets of the company. Disposing of the other assets and liabilities will take months or years.