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The language of insolvency: why getting it wrong can harm struggling firms

The law can help struggling firms turn their business around, but stigma around the legal terms may be deterring companies from acting in time.

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Business failures are on the rise in Britain Michaelpuche/Shutterstock

Business failures are on the rise in Britain, with several high-profile names lost already this year. But since the 1980s, the UK has made it a priority to throw a lifeline to struggling companies. It appears, however, that these efforts to enhance the law are being hampered by sloppy language in the media, increasing the stigma around insolvency and potentially deterring businesses from seeking help.

Legal terms and concepts need to be accurate. The law of insolvency is no different.

Unfortunately, accuracy is often missing in insolvency coverage. MPs have used insolvency terms incorrectly, while media outlets, including the BBC, have a habit of referring to insolvency procedures in overly negative, and sometimes inaccurate, terms. In particular, the administration procedure, which is aimed at rescuing a company, is often discussed using words like “collapse”. This misleadingly associates it with the process of liquidation, which is aimed at removing a company from the market.

So what is the correct language to use when we’re discussing insolvency?

Corporate insolvency law

There are no fewer than six procedures which can be used by struggling companies.

They are found in the Insolvency Act 1986 (liquidation, administration, company voluntary arrangements (CVAs) and standalone moratoriums) and in the Companies Act 2006 (schemes of arrangement and restructuring plans).

Liquidation is used to gather in and sell the assets of the insolvent company for the benefit of its creditors – that is, the parties who are owed money by the insolvent firm. The liquidator then distributes the value of the assets among the creditors of the company in a ranked order, known as the “insolvency waterfall”. The liquidator replaces the board of directors and takes control of the day-to-day management of the company. At the end of the liquidation process, the company is dissolved and no longer exists. For example, Lloyds Pharmacy has recently gone through liquidation, and subsequently disappeared from high streets and Sainsbury’s stores.

Administration is a procedure that has been used by several high-profile names already this year, including Ted Baker most recently. The procedure was introduced in 1986 as a tool to rescue companies (that is, keep a firm afloat rather than liquidate it). Similar to the liquidation process, directors of the company are sidelined during administration and the administrator assumes day-to-day management.

There is also the Special Administration procedure, which is used for certain nationally important sectors, and which the Liberal Democrats have suggested for troubled Thames Water.

CVAs are another rescue procedure. It is a voluntary arrangement between the company and its creditors, supervised and approved by an insolvency practitioner (that is, someone who is licensed to act on behalf of an insolvent company). Crucially, a CVA is called a “debtor in possession” procedure because directors are left “in possession” (in charge) of the company – unlike in a liquidation or administration process. For example, after calling in administrators earlier this year, The Body Shop is now thought to be seeking a CVA.

The Body Shop store frontage
Can a CVA help The Body Shop turn things around? Yau Ming Low/Shutterstock

The standalone moratorium (introduced in 2020) can be used by companies together with, or independently from, any other procedure. Directors are given 20 business days to assess their rescue and recovery options. During the moratorium, the company will continue to operate under the control of the directors and the moratorium allows them the 20 days’ breathing space from creditors.

The scheme of arrangement, regulated by the Companies Act 2006, is a procedure available to companies that are not yet insolvent. It is used as a debt restructuring tool or to alter the company’s financial obligations. Essentially, it involves a deal between a company and its creditors and shareholders. Think of it as something akin to an individual consolidating their credit cards, or arranging a plan to repay arrears.

Lastly, closely modelled on the scheme of arrangement, the restructuring plan procedure introduced in 2020 is available to companies that have encountered, or may encounter, financial difficulties that are likely to affect their ability to carry on business.

The reality of corporate insolvency

Clearly, the legislative priority in the UK over the past 40 years has been to promote corporate rescue and renewal. This should, in principle, be particularly useful to British businesses at a time when the UK has seen a record number of business failures, with no fewer than 26,595 corporate insolvencies in 2023. That figure is 14% higher than in 2022 and 43% higher than pre-pandemic levels in 2019. It is predicted that this number will rise to 33,000 in 2024.

With an increasing number of companies in financial difficulty, we might have expected that corporate rescue cases would have risen too. But this is not the case. Rescue cases have dropped from 10% in 2019 to a rather woeful 6% in 2023. That means that in 2023, 94% of these companies (by our calculations 21,961 in total) were liquidated.

This shows that while the law is here to help, something is preventing struggling businesses from using it. While there are more factors at play, it is clear that inaccurate wording, including misleading language by politicians and the media, play a very important role. The stigma around experiencing financial difficulties and the negative way this is talked about may prevent businesses from looking for help at a time when it would provide the greatest chance of turning things around.

This is not just an academic point but it has real-world ramifications. The economic climate is challenging enough for companies. Lumping further issues on to indebted firms really isn’t helpful.

The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

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Nike CEO blames oddly specific problem for brand issues

The footwear and apparel company has been losing ground to its competitors.

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Blink and you might miss an important trend when it comes to the fashion industry.

Thanks to the rapid integration of social media by virtually all fashion brands – and the breakneck pace at which fans of fashion use social media – trends or movements can come and go in the blink of an eye. 

Related: Some Walmarts make surprising self-checkout change

Whether its brands being showcased on Snapchat during New York Fashion Week, the metaverse hosting its very own fashion week, or influencers showing off their latest styles on TikTok, it can be tough to keep up. 

This is especially the case with footwear. As athletes influencers build their own brands (and social media presence), it's important for them to stay on top of what's considered cool to wear, and what may be a little outdated. In fact, it's kind of a part of their jobs. 

Currently, what's old is cool again. Vintage footwear styles like Adidas' Sambas and Campus sneakers are everywhere from the high streets of London to college campuses in the United States. So-called dad shoes – specifically New Balance's highly popular Unisex 530 sneakers – are almost always sold out in stores and online. 

So establishing a foothold for Nike  (NKE) , which has historically specialized in sleek silhouettes and bright colors, has been tough when neutral and chunky styles are now popular. 

As a result, Nike has been struggling to gain back the enthusiasm its brand once enjoyed so steadily during the earlier 2000s. 

A pedestrian walks past a Nike store in Hong Kong.

SOPA Images/Getty Images

Nike CEO identifies a problem

Some CEOs have called out Nike, claiming "they stopped a little bit bringing in new stuff,” per JD Sports CEO Régis Schultz earlier this month, adding "shoppers get bored very quickly."

Aware that growth and imagination seem to be an issue at his company, Nike CEO John Donahue isolated one particular issue that may be to blame, claiming the problem "is fairly straightforward."

Since the onset of the pandemic, Nike adopted a remote work policy that Donahue said hurt its competitive edge. 

“But even more importantly, our employees were working from home for two and a half years,” Donahoe said in an interview with CNBC. “And in hindsight, it turns out, it’s really hard to do bold, disruptive innovation, to develop a boldly disruptive shoe, on Zoom.”

Eager to right the ship, however, Donahue says the company has been working on a “bold, disruptive” plan to churn out new products and hopefully reinvigorate excitement for the brand. 

“So we realigned our company, and over the last year we have been ruthlessly focused on rebuilding our disruptive innovation pipeline along with our iterative innovation pipeline,” he said. “So the pipeline is as strong as ever.”

Nike plans a comeback

Nike stock is down 11% year-to-date, and in December the sneaker maker slashed its revenue outlook for the forthcoming fiscal year, citing weaker digital demand in the U.S. and stronger headwinds in its key Europe-Mideast-Asia region. 

It also announced a $2 billion cost-cutting plan. In February, Nike laid off 2% of its employees. It has also been working to streamline and simplify some of its lines.

But the sneaker maker is planning a comeback in 2024. 

It plans to make the upcoming 2024 Paris Summer Olympics an exhibition for some of its refreshed product lines, specifically in the track and field category. 

“We’ve done more to advance running than any brand in the world over the last 50 years and we continue to lead with elite runners,” Donahoe added. “Innovation has always been what’s marked Nike in running, as in other categories, and so we’re not just going to copy what other people do.”

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Delta Air Lines makes a baggage change that travelers will like

Delta VP Jeff Moomaw said that the airline will soon be able to remove a "part of the experience" that is "difficult."

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Those who travel internationally frequently will know that an airport transfer could mean chaos for your baggage.

While flying with the same airline generally means that airport workers will move whatever one checked from one plane to the other for you, there are some exceptions to this. Most often, when flying with the carrier's partners or during long transfers (this is done to avoid a situation in which the bag is kicking around in a room for many hours and could get separated from the owner.)

Related: Domino effect: Another airline just made checking a bag more expensive

Certain customs requirements mean that such situations are particularly common on long transatlantic flights between Asia and the U.S. but, as a Delta Air Lines  (DAL)  executive recently let slip, the airline is starting to eliminate its re-check requirements on flights from Tokyo and, eventually, Seoul.

An airport check-in and baggage counter is pictured.

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'Remove that (difficult) part of the experience'

"Anyone who has traveled and connected in the United States knows that it's a difficult experience," Jeff Moomaw, Delta's VP for the Asia South Pacific Region, told Japanese outlet The Mainichi. "We will soon be able to remove that part of the experience."

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The bag re-check requirement will initially be lifted for flights out of Tokyo Haneda Airport (HND), from which the airline has six routes includes ones to Seattle, Detroit and Honolulu, while the airline hopes to remove it for Seoul's Incheon International Airport (ICN) later in the year — Delta flies there from New York, Minneapolis-St. Paul and Seattle.

According to Moomaw, passengers would frequently say that the re-check requirement was inconvenient and "difficult" but airports that are not designated as pre-cleared by CBP still require this. Moomaw did not elaborate on how it was working with airport authorities to not require it of passengers.

'We are starting to see more demand for international'

"We are starting to see more demand for international [flights]" after the pandemic," Moomaw told The Mainichi. "Tokyo market has the most capacity for Delta of any other market in Asia. We are very committed to Tokyo and Japan long-term."

In general, any baggage changes introduced by the airline have generally leaned toward increasing prices. At the start of 2024, JetBlue Airways  (JBLU) , Alaska Airlines  (ALK)  and American Airlines  (AAL)  have all raised their checked bag prices as part of a "domino" effect.

A change for the positive occurred when, in March 2024, United Airlines  (UAL)  announced that it would retrofit some of its planes to have more space in the overhead compartment. With the cost of checking a bag rising, more passengers have been settling for a single carry-on suitcase.

While this may be a good money-saving travel hack, it has been creating a situation in which the plane cannot fit all the carry-ons people bring aboard and ends up having to to check them free of charge anyway. When analyzing their markets, airlines repeatedly find that how smooth the baggage process is goes a long way toward customer satisfaction.

"Customer sentiment for the new overhead bins and signature interiors has been extremely positive," United's Chief Customer Officer Linda Jojo said in a statement. "By helping to eliminate the need to gate check bags, we are seeing an increase in gate and boarding satisfaction."

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Tesla crash continues as Musk doubles down on ‘blindingly obvious’ strategy

Tesla shares are stuck in a drawdown that has lopped more than $760 billion from its market value since the November 2021 peak.

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Tesla shares extended their extraordinary slump Monday and look set to open at the lowest level in more than 15 months, as investors brace for what could be a difficult first-quarter earnings report later this week.  

Tesla  (TSLA) , which has shed nearly $350 billion in market value this year, is suffering the second-longest drawdown of its share price since it went public in 2010. The slump has lopped more than $760 billion from its market value since the November 2021 peak. 

The drop has been triggered in part by aggressive EV price cuts, narrowing profit margins and a strategy shift that looks to prioritize self-driving technologies over traditional car production in the coming years.

Elon Musk is also attempting to win shareholder support for a massive $55.8 billion pay package, first agreed in 2018 but rejected by the Delaware Chancery Court last year, that would see him reclaim a big portion of the ownership stake that he surrendered to raise cash for his $44 billion purchase of Twitter in 2022.

Musk hasn't pinned his future with the group on a successful appeal of the pay award, which was deemed “an unfathomable sum” by Chancery Judge Kathaleen McCormick, but he has said that he'll pursue his artificial-intelligence and robotics ambitions outside the Tesla structure if he isn't able to secure 25% of the company's stock. 

His 13% stake makes him Tesla's biggest and most influential shareholder and he carries the full support of the board.

Elon Musk says he isn't betting the company's future on Full-Self-Driving, but he argues that 'going balls to the wall for autonomy is a blindingly obvious move.'

Variety/Getty Images

Still, the next few months could prove crucial for both the group's near-term performance as well as Musk's long-term commitment. He's lobbying shareholders to approve his 2018 pay deal, which he hopes will buttress his Delaware court appeal, and is preparing for the long-delayed unveiling of a Tesla robotaxi that could define the group's future.

Tesla pivoting to Full-Self-Driving, AI technologies

A least a portion of the definition was evident in last week's decision to execute the largest round of layoffs in company history. Tesla sacked as many as 14,000, or 10%, of its global staffers in what Musk called preparation for "our next phase of growth."

Musk has long argued that Tesla is a more than a carmaker. Rather, he sees it as a collective of tech-focused startups that he sees as pivotal to his broader ambition of a creating a world packed with self-driving cars powered by his company's AI-led technologies.

Morgan Stanley analyst Adam Jonas has said Tesla's DoJo supercomputer, which is powered by AI technologies, could add more than $500 million to Tesla's market value "through a faster adoption rate in mobility (robotaxis) and network services (software as a service)" over the coming years.

That could be why markets are so keenly focused on both the details of its first- quarter earnings report, slated for after the close of trading on April 23, as well as Musk's remarks to investors and analysts on the conference call that follows.

Wedbush analyst Dan Ives, who carries an outperform rating and a $300 price target on Tesla, says the April 23 conference call will be "one of the most important moments in the company's history."

Tesla earnings call in sharp focus

"The miscalculation of demand erosion in China has been a gut punch to the bull thesis, the Model 2 vs. Robotaxi debate has taken on a life of its own, major layoff including key assets for Tesla, and a global EV landscape that has turned Tesla from a Cinderella story to a horror show in the near term," he added.

A focus on robotaxis is likely to require scrapping a lower-priced Tesla model, which investors had expected to launch over the coming years. In turn that likely means a form of surrender to the intensifying competition of China-based rivals such as BYD, Nio and SAIC Motor. 

Related: Analyst overhauls Tesla price target amid major strategy shift

It also puts a sharper focus on Tesla's plans to license its driver-assistance technology, which the company calls Full Self-Driving, and its potential to boost profit margins over the near term.

That was called into question over the weekend, however, when Tesla slashed the price of an FSD software subscription by nearly a third, to $8,000 per year.

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The FSD price cuts were also matched by a series of changes to the cost of its Model Y, Model S and Model X lineup in nearly all its major markets, including China, Germany and the U.S. The changes will further pressure profit margins over the coming quarters. 

Margins under more pressure from price cuts

Analysts already estimate that Tesla's first-quarter profit margins narrowed from a year earlier, with LSEG data suggesting a median estimate of 17.2%, with estimates ranging between 14.7% and 20%. That's thanks to aggressive price cuts, a slump in deliveries and ever-expanding inventories. 

The EV maker handed over 387,000 new cars to customers over the three months ended in March, a 20% decline from the record 484,000 it notched over the final months of last year and the biggest miss to estimates since Wall Street began compiling data in the mid-2010s.

In terms of overall profit, analysts expect Tesla to post a bottom line of around 53 cents a share, down from 85 cents a share over the year-earlier period. Revenue is pegged to have fallen 5% to $22.15 billion, which would mark its first year-on-year decline since the 2020 pandemic.

Related: Analysts take aim at Tesla stock after Elon Musk makes unpopular decision

"I’m bracing for shares of Tesla to go lower after they report because consensus deliveries for 2024, 2025 and 2026 are likely too high," Deepwater Asset Management's Gene Munster said last week. "My long-term positive view is unchanged."

Tesla shares were marked 4.4% lower in premarket trading to indicate an opening bell price of $140.64 each, the lowest since January 2023 and a move that extends the stock's year-to-date decline to around 44%.

Short interest in the stock remains highly elevated, with data from S3 Partners suggesting it hit a 2024 high of 4.02% of the float outstanding last week. Short interest measures investors' bets that the stock price will drop.

Related: Veteran fund manager picks favorite stocks for 2024

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