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Session Description
This session will discuss bankruptcy issues that arise in connection with financing structures common at various stages in the growth of life sciences company, including early stage venture lending , drug development lending, royalty monetizations, and synthetic royalties/revenue interest financings and other hybrid finance structures. Bankruptcy issues include treatment of rights in IP and licensed IP as collateral and under royalty sale structures; executory contract issues with respect to material contracts related to recovery of value of financing (e.g., supply contracts for manufacture of drug); secured or unsecured status under synthetic and hybrid structures; and structuring deals to mitigate bankruptcy.
Recent cases will be discussed to illustrate the features of common structures and treatment of bankruptcy risks and issues by courts (cases include PhaseBio, Mallinckrodt and Clovis).
Learning Outcomes
Participants will understand the general features of these life sciences financing structures, the bankruptcy risks involved, how to avoid or mitigate risk in the structures prebankruptcy, and likely outcomes in the event of a challenge to the structure in bankruptcy. Target audience is life sciences companies and their lenders.
Target Audience
Creditor
Suggested Speakers
Martin
Beeler
mbeeler@cov.com
First Name
Martin
Last Name
Beeler
Email
mbeeler@cov.com
Firm
Covington & Burling LLP

Dayton Nursing Home Files for Bankruptcy But Is Not Expected to Close

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Dayton Senior Care LLC, which does business under the name Friendship Village, is part of a chapter 11 bankruptcy filing in Tennessee along with six other entities owned by the same company, but the Ombudsman Office does not anticipate the facility will close, the Dayton Daily News reported. Friendship Village filed for bankruptcy in the U.S. Bankruptcy Court for the Middle District of Tennessee in Nashville. Among the top creditors listed is the Montgomery County Treasurer’s Office with $444,411.31 owed in property taxes, according to court records. The Ombudsman Office recently visited Friendship Village to conduct staff and resident interviews at the request of the U.S. Bankruptcy Court to ensure resident care does not decline during the bankruptcy proceedings. While the Ombudsman Office does not anticipate Friendship Village to close — expecting it will be sold — the facility would be required to give residents a 90-day notification before closing. Friendship Village’s assets are listed as being between $10 million and $50 million, according to court filings. The liabilities for the debtors are between $100 million and $500 million with between 200 and 1,000 creditors.

Developers of Iowa Senior-Living Homes, Including in Waukee, File for Bankruptcy

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A pair of Iowa developers has filed for bankruptcy in federal court, leaving uncertain the future of homes and properties in three states — including some under construction in the Des Moines metro, the Des Moines Register reported. Court records show creditors are owed millions of dollars, including for luxury vehicle purchases. Jeffrey and Tina Ewing, husband and wife developers from Pella, filed for chapter 11 bankruptcy in federal court on March 5. Their Vintage Cooperatives real estate business operates homes and independent living communities for people who are 55 years old and older in Iowa, including in Altoona, Ames, Ankeny, Bettendorf, Coralville, Des Moines, Indianola, Iowa City, Johnston and Pella. It also has communities under construction or planned in Cedar Rapids, Dubuque, Iowa City, North Liberty and Waukee, as well as Columbia and Liberty, Missouri, and Sioux Falls, South Dakota. At least five homes have been sold at the development in Waukee, under construction now. It's unclear how the bankruptcy proceedings may affect those homeowners, though the Ewings' lawyer told the Des Moines Register there's a plan in place to address the issue. The Ewings' other real estate businesses and holdings include Ewing Land Development and Services LLC and Harvest Investments LLC.

Rite Aid Opioid Settlement: Victims Will Likely Get No Payout

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While rivals Walmart Inc., CVS Health Corp. and Walgreens Boots Alliance Inc. agreed to pay more than $13 billion combined to settle opioid lawsuits, Rite Aid never reached a similar accord before its bankruptcy filing put litigation on hold, Bloomberg News reported. The company told opioid plaintiff lawyers it didn't have the funds. And unlike drugmakers that have gone bankrupt, the retailer doesn’t expect it will wind up with any money to pay opioid victims. “Bankruptcy is perceived as a strategic tool that provides enormous leverage in negotiations with injured people,” said Melissa Jacoby, a law professor at University of North Carolina Chapel Hill. "It’s a real problem that bankruptcy is being used this way, even when a company has other financial problems.” Rite Aid’s restructuring talks have focused on how much it can afford to repay its secured creditors before either selling itself or reorganizing into a new company, immune from future opioid lawsuits. Last year, Rite Aid filed for Chapter 11 bankruptcy, listing debts of $8.6 billion, close to $1 billion more than the value of its assets at the time. The company got a new $200 million loan in Chapter 11 and continued access to an existing credit line from a group of its secured lenders after it agreed to bump up more than $3 billion of their old debt in the repayment line. Rite Aid is still trying to sell its retail business. But its back-up plan involves shedding a lot of debt, shutting down more than 600 stores and giving the remaining pharmacy business a fresh start. Mediated talks with the committee of mass tort claimants are ongoing, so their outcome could change if a deal is struck. But Rite Aid said in court papers as recently as Feb. 20 it doesn’t expect for there to be any money left for opioid plaintiffs after paying higher-ranking debts.

Governor Canceling $2 Billion in Medical Debt for Up to 1 Million Arizonans

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Arizona Gov. Katie Hobbs (D) announced a program on Monday that will cancel $2 billion in medical debt for Arizonans, The Hill reported. “Today, I am so proud to announce that we are taking steps to retire medical debt for up to an estimated 1 million Arizonans,” Hobbs said at a press conference Monday. “That’s a fresh start, a new chapter and a huge weight taken off the shoulders for every single one of them.” Hobbs said that by using up to $30 million in American Rescue Plan Act funds, Arizona is “working with partners” at the nonprofit RIP Medical Debt to buy back “up to approximately $2 billion worth of medical debt held by Arizonans.” “Hard-working, middle class Arizonans should not be forced to have those difficult kitchen table conversations because of medical debt from conditions they cannot control,” Hobbs said. Hobbs’ announcement follows the unveiling of another plan to cancel medical debt by Connecticut Gov. Ned Lamont (D), which includes using $6.5 million in funds from the American Rescue Plan Act for the cancellation of $1 billion of medical debt, also working with a nonprofit that buys and eliminates debt.

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New York County Lawmakers Demand Overhaul to Save Nassau University Medical Center from Insolvency

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Long Island community leaders are demanding an overhaul and oversight to save Nassau University Medical Center, which is in danger of running out of money, CBSNews.com reported. The safety-net hospital is in imminent fiscal danger of insolvency. It serves the uninsured, underinsured or those on Medicaid. Critics claim cronyism caused the fiscal mismanagement. It's time that we have County Executive Blakeman call for the termination of Matthew Bruderman," said Nassau County Legislator Siela Bynoe (D). Two years ago, Bruderman was appointed NU Health chair and pledged to turn the medical center around in six months. The hospital is now weeks away from running out of money to pay its staff. "The county will be on the hook and therefore the taxpayers will be on the hook for the debt that is looming," said County Legislator Debra Mulé (D). The state health commissioner sent a terse letter saying funding is available with strings attached: oversight, transparency and accountability.

Baudax Bio files for Bankruptcy a Year After Halting Sales of Its Pain Medicine Anjeso

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Baudax Bio, a Malvern, Pa.-based biopharmaceutical company spun out of Recro Pharma more than four years ago, has filed for U.S. Bankruptcy Court protection, the Philadelphia Business Journal reported. In Thursday's chapter 11 filing at U.S. Bankruptcy Court in Philadelphia, Baudax listed assets of just under $20.6 million and debts of nearly $21.8 million. The company's two largest unsecured creditors, according to the filing, are law firms. Goodwin Procter of Boston is owed $1.8 million, and Troutman Pepper Hamilton Sanders in Philadelphia is owed $1.3 million. The next largest unsecured creditor among the 20 listed in the filing is ERG Holding Co., a clinical services provider based in St. Louis, which is owed $917,000. Baudax was established in 2019 after Recro Pharma decided to split its two businesses. Recro continues to serve as a contract development and manufacturing organization with its headquarters in Malvern and a manufacturing plant in Gainesville, Georgia. Baudax was established as a drug development company. It received Food and Drug Administration approval for a non-opioid paid medicine called Anjeso, which Recro had been developing. Early last year, Baudax shelved Anjeso, which was approved for the management of moderate to severe pain for patients in medical centers or other acute-care settings. When announcing the decision in February 2023, Baudax Bio CEO Geri Henwood said the company was halting sales and marketing efforts for the drug due to "persistent economic challenges facing hospitals."

Medical Properties Trust Reports Bigger Loss Related to Largest Tenant

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Medical Properties Trust reported growing losses related to its largest tenant, Steward Health Care System, and said it lent the struggling hospital chain another $20 million, the Wall Street Journal reported. MPT, the nation’s largest hospital landlord, reported a fourth-quarter net loss of $664 million, or $1.11 per share, driven by $772 million of write-offs and other impairment charges mainly related to Steward, a Dallas-based hospital chain trying to stay out of bankruptcy. In a Jan. 4 update, MPT had said it expected to book about $350 million of write-downs related to Steward. In that same release, MPT said it had agreed to fund a new $60 million bridge loan for Steward and that Steward was $50 million behind on its rent. MPT in its press release this morning also detailed plans to raise cash through asset sales. Its shares were up 5% in morning trading. MPT’s comments about Steward will be closely watched in Massachusetts and other states where Steward has operations. Yesterday, Mass. Gov. Maura Healey sent Steward a letter demanding that it release its financial statements by Feb. 23. The last set of Steward financial results that were disclosed publicly was for 2020.

Justice Department Says Sorrento Therapeutics Lawyers Falsified Texas Bankruptcy Filing

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The U.S. Justice Department’s bankruptcy watchdog accused Sorrento Therapeutics lawyers of submitting false paperwork to justify the company’s chapter 11 filing in Houston, saying that the mailbox location it cited as a principal place of business was created only hours ahead of its bankruptcy, WSJ Pro Bankruptcy reported. Kevin Epstein, the U.S. trustee for the Southern District of Texas, said that on Feb. 12, 2023, a lawyer for Sorrento rented a mailbox at a UPS in the Woodlands, a Houston suburb, on behalf of Scintilla Pharmaceuticals, a Sorrento subsidiary. Both Sorrento and Scintilla are based in San Diego. Scintilla wasn’t registered or licensed to do business in Texas, Epstein said. It had been dormant since about 2019, with no employees or business operations, and its only asset was a $60,000 bank balance that Sorrento had wired to it days before the bankruptcy filing, he said. Ten hours after establishing the mailbox, Scintilla filed its chapter 11 petition in the U.S. Bankruptcy Court in Houston stating that the mailbox was its principal place of business, while still listing its San Diego office as its mailing address, court records show. Sorrento, Scintilla’s parent company, then filed its own chapter 11 petition in Houston. The Scintilla petition was signed by Henry Ji, Sorrento’s chief executive, and Matthew Cavenaugh, a partner at the Texas law firm Jackson Walker. Veronica Polnick, another partner at Jackson Walker, rented the mailbox on behalf of Scintilla, Epstein said.