Understand the complexities and nuances of the Bankruptcy Code to better advise clients and prepare for court.
By Daniel Gill
The real estate market supporting brick-and-mortar retailers must adjust to survive the threat posed by a sharp rise in spending on Amazon.com Inc. and other e-commerce sites, bankruptcy attorneys have told Bloomberg BNA.
Some major mid-market retailers are on a death watch, one attorney told Bloomberg BNA. And to adapt to changing market forces, these attorneys suggested strategies that commercial real estate owners are using or could use.
There has been astronomical growth in online e-commerce in recent years, led by Amazon shopping.
According to U.S. Census Bureau News, published by the U.S. Department of Commerce, online shopping has increased from about $200 billion in 2011 to almost $390 billion in 2016.
Although these amounts reflect less than 10 percent of the total retail sales nationally, the transformation in consumer purchasing preferences has had a profound effect on brick-and-mortar retailers, including chains.
Big names, like HH Gregg, Gymboree, Payless Shoes, Radio Shack, Gander Mountain, Golfsmith, True Religion Apparel, Eastern Outfitters, and American Apparel, all filed for bankruptcy in the past year alone. Other brands, like Macy’s Inc. and Sears Holdings Corp., also are contracting.
Total store closings could exceed 8,000 this year, Credit Suisse Group AG analyst Christian Buss estimated, according to a Bloomberg report Aug. 16.
Even the behemoth Walmart is blinking under the glare of Amazon’s popularity and scrambling to find its place in the online marketplace, Victor Sahn told Bloomberg BNA. Sahn is a partner at Sulmeyer Kupetz, a Los Angeles firm specializing in bankruptcy and insolvency law.
Walmart gave a lukewarm earnings forecast for the third quarter on Aug. 17, according to a Bloomberg report.
On Aug. 16, President Donald Trump broadcast his own opinion on the effect of Amazon on Twitter: “Amazon is doing great damage to tax paying retailers. Towns, cities, and states throughout the U.S. are being hurt - many jobs being lost!” he tweeted.
For its part, Amazon said January that it planned to create 100,000 jobs over an 18-month period.
“There’s going to be a lot of wreckage,” Donald L. Gaffney told Bloomberg BNA. Gaffney is a partner at Snell & Wilmer, Phoenix, and is the leader of the firm’s bankruptcy and reorganization practice group.
Gaffney was referring specifically to mid-level markets and stores that cater to them.
“Sears and JC Penney are on a death watch,” he said. And these retail giants anchor many of the country’s mall spaces. Consider how many Macy’s stores have closed, Gaffney said.
In January, Macy’s announced its intent to close 68 stores, and in February they announced another 34 closings.
We’re seeing a “hollowing out of the core of retail,” Gaffney said. “You have to have a unique brand draw to survive.”
Traditional malls face other problems beyond losing key anchor tenants.
For example, Sahn says, outlet malls continue to grow, allowing more manufacturers or brands to bypass department stores and reach the buying public directly.
A lot of malls are giving up even without a fight, declining to file for bankruptcy protection because of financing arrangements such as “bad boy guaranties,” Gaffney said.
Under these “bad boy” deals, shopping centers will take out non-recourse loans supported by insider guaranties that will take effect only if the borrower damages or impairs the collateral or interferes with the lender’s foreclosure or collection efforts, Gaffney explained.
The arrangement creates an incentive to keep borrowers out of bankruptcy. Gaffney said these kinds of deals are especially common in the Northwest, where more and more borrowers are simply turning over the keys to their retail mall space, rather than trying to reorganize.
Malls are going to need to shrink or repurpose for other uses, Sahn said. He said they’re going to have to focus on “right-sizing their footprints.”
Gaffney agreed. Many malls are closing up commercial space and building condominiums or apartments, he said. Others are building out sports or exercise facilities, spaces designed to draw visitors but not dependent on retail sales. Still others are trying to appeal to families by building playgrounds or similar attractions.
GGP, a REIT focused on owning high-quality retail space across the U.S., according to its website, expounded on such uses on its second quarter earnings conference call.
According to Jeffrey Langbaum, Bloomberg Intelligence, the company will seek to increase its cash flow and value by converting spaces for apartment, condo, office, hotel, data center, fitness and last-mile delivery uses.
Some malls are considering restructuring their spaces to replicate town squares, with living and office spaces and restaurants, and cinemas—again, breaking away from reliance on retail, according to a Bloomberg report.
Gaffney said Colorado is one state seeing creative repurposing of mall space, as marijuana growers are taking over spaces to feed that state’s new, perhaps controversial, market of legal marijuana.
Although he expects to see more mall spaces fail in the near future, Gaffney doesn’t expect these failures to lead to more work for lawyers.
“We’re seeing more and more a surrender to the tide,” with real estate owners simply giving up rather than fighting to stay alive in this increasingly difficult retail climate, he said.
Amazon is building and hiring aggressively and doesn’t look to be slowing down, and it’s leading the way for other online retail companies.
To contact the reporter on this story: Daniel Gill in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Jay Horowitz at JHorowitz@bna.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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