Certificate of Need laws require many types of health care providers to obtain the permission of a state board before they are allowed to open or expand in many US states. But there is a lot of variation from state to state in which types of providers are covered by these laws. I put together this map to show the 15 states that require new home health care agencies to obtain a Certificate of Need:
CON states see reduced competition, which tends to be bad news for patients and new entrants, but good for existing providers and the private equity firms consideringbuying them.
But some CON states like Rhode Island have proposed reforms that would exempt home health agencies from the CON process, putting them in line with the majority of states that put new entrants on an even footing with incumbent providers.
Red Lobster used to be a pretty profitable business. Then in 2014 its owners sold it to a private equity firm called Golden Gate Capital. This private equity firm promptly plundered Red Lobster by selling its real estate out from under it, with those funds going to the PE firm. Instead of owning their own land and buildings, now the restaurants had to pay rent to landlords. This put a permanent hurt on the restaurant chain’s profits. I don’t know this as fact, but because it is part of the usual PE playbook, I assume that the PE firm also made Red Lobster issue debt (bonds) so the PE firm could further plunder Red Lobster by having it pay “dividends” to its PE firm owners, using the money raised by issuing the bonds. After this glorious financial engineering, the private equity firm in 2019 sold a 49% stake to a company called Thai Union. Thai Union bought out the rest of Red Lobster ownership from Golden Gate in 2020.
Thai Union did a poor job managing the U.S. based restaurant chain, forcing cost-cutting measures that were counterproductive, and finally forcing a continual all-you-can-eat shrimp special, against the better judgment of on-the-ground Red Lobster management. That shrimp special made Red Lobster buy a lot of Thai Union’s shrimp, but led to large losses last year. The business had been suffering for a couple of years, with Covid shutdowns and competition from nimbler eateries, but the losses from the shrimp special sent it scurrying for bankruptcy protection back in May.
There are two main flavors of business bankruptcy. The direst form is Chapter 7, where the assets of the firm are sold off to meet obligations to creditors, and the firm goes out of business.
The more common form is Chapter 11, where the intent is to keep the business going (see Appendix). Somebody gets stiffed in the process, of course. Usually, common shareholders get almost nothing except maybe a reduced number of shares in the reorganized company. Preferred shareholders often get a few more shares. Unsecured bondholders may get 30-40 cents on the dollar as a settlement, or a reduced amount of bonds in the new company, or maybe stock shares. Sometimes the company will issue a new set of bonds which are “senior” to the old bonds, which reduces the value of old bonds. Other unsecured creditors like vendors may get something like 50 cents on the dollar.
Secured creditors are higher up in the pecking order, and so often get higher recoveries. (The “covenant” for a bond or loan would specify if the loan is secured by, say, the value of the equipment in the restaurant).
Red Lobster restaurants have kept operating this year (2024), while creditors were kept at bay via the protection offered by the bankruptcy filing. As of September, Red Lobster emerged from the chapter 11 bankruptcy. A private equity group has taken over operations. They have injected some $60 million cash, which is actually not very much for this situation.
I was curious about what happened to Red Lobster’s creditors, such as vendors and bond holders. A first-level internet search, even with AI help, did not tell me how they fared as part of the settlement. I had read earlier this year that Red Lobster had something like $ 1 billion in debt, so I assume that a lot of bondholders got stiffed in this process.
In May the company announced that it had “ voluntarily filed for relief under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Middle District of Florida. The Company intends to use the proceedings to drive operational improvements, simplify the business through a reduction in locations, and pursue a sale of substantially all of its assets as a going concern…Red Lobster’s restaurants will remain open and operating as usual during the Chapter 11 process, continuing to be the world’s largest and most-loved seafood restaurant company. The Company has been working with vendors to ensure that operations are unaffected and has received a $100 million debtor-in-possession (“DIP”) financing commitment from its existing lenders.”
The “working with vendors” is an important piece here. When I peered at the official Red Lobster court bankruptcy website to try to glean more intel on the fate of the creditors, there was a list of leading “Unsecured Creditors”. These included Pepsico (supplying beverages) and Gordon Food Services, a major Canadian food supplier, as well as the owner of the store properties (Realty Income Corporation), which was presumably owed a lot of unpaid back rent.
Ironically, after one private equity firm plundered Red Lobster, then sold it to the hapless Thai Union (which ended up taking a $540 million write-down on their investment), the restaurant chain is now in the hands of yet another PE firm. I could not find definite information on the deal, but again we may assume that the PE firm got the creditors (bondholders, vendors, etc.) to accept “haircuts” on what they were owed, as opposed to getting almost nothing if Red Lobster went Chapter 7 and shut down. Thus, the new PE firm will start off with a relatively virgin company to plunder again.
My Brave AI search agrees with that assessment:
The company’s restructuring efforts may prioritize the interests of new investors and creditors over those of existing bondholders, potentially resulting in a less favorable outcome for bondholders… It is likely that the bondholders will be subject to a restructuring plan that may involve debt forgiveness, debt-for-equity swaps, or other arrangements that could result in a loss of principal or interest for the bondholders.
The text below is from the North Carolina bankruptcy law firm Stubbs Perdue:
Chapter 11 bankruptcy is a legal process that allows businesses to reorganize their debts and operations while continuing to operate. Unlike Chapter 7, which involves liquidating assets to pay off creditors, Chapter 11 aims to restructure a company’s obligations to improve financial stability and pave the way for future growth. Chapter 13, on the other hand, is typically reserved for individuals with a regular income, focusing on debt repayment plans.
Typical Chapter 11 Process
Chapter 11 process typically involves several key steps:
Filing the Petition: The process begins with the company filing a petition in bankruptcy court.
Developing a Reorganization Plan: The company works with its creditors to create a plan that outlines how it will restructure its debts and operations.
Negotiating with Creditors: The plan is subject to approval by the court and the creditors, who may negotiate the terms to protect their interests.
Throughout this process, the court plays a supervisory role to ensure fair treatment of all parties involved.
A recent headline in the Dartmouth student newspaper reads, “Dartmouth’s endowment posts 46.5% year-over-year returns, prompting additional spending on students”. That seems like really great investing performance. But the sub-headline dismisses it as less-than-stellar, by comparison: “The endowment outpaced the stock market, but fell short when compared to other elite universities that have announced their endowment returns.” After all, fellow Ivy League university Brown notched a 50% return for fiscal 2021, which in turn was surpassed by Duke University at 55.9% and Washington University in St. Louis at 65%. The Harvard endowment fund managers are a bit on the defensive for gaining “only” 34% on the year.
The stock market has done well in the past year, but nothing like these results. What is the secret sauce here? Well, it starts with having money already, lots of it. That enables the endowment managers to participate in more esoteric investments. This is the land of “alternative investments”:
Conventional categories include stocks, bonds, and cash. Alternative investments include private equity or venture capital, hedge funds, managed futures, art and antiques, commodities, and derivatives contracts. Real estate is also often classified as an alternative investment.
It takes really big bucks to buy into some of these ventures, and it also takes a large professional endowment fund staff to choose and monitor these sophisticated vehicles. Inside Higher Ed’s Emma Whitford notes:
Endowments valued at more than $1 billion, of which there are relatively few, are more likely to invest in alternative asset classes like venture capital and private equity, recent data from the National Association of College and University Business Officers showed.
“Where you’re going to see higher performance are the institutions with endowments over a billion,” Good said. “If you look at the distribution of where they’re invested, they have a lot more in alternative investments — in private equity, venture capital. And those asset classes did really well. Those classes outperformed the equity market.”
…Most endowments worth $500 million or less invested a large share of their money in domestic stocks and bonds in fiscal 2020, NACUBO data showed. This is partially because alternative investments have a high start-up threshold that most institutions can’t meet, according to Good.
“You have to have a pretty big endowment to be able to invest in that type of asset class,” he said. “If you have a $50 million endowment, you just don’t have enough cash to be able to buy into those investments, which is why you won’t see big gains from alternatives in those smaller institutions.”
Virginia L. Ma and Kevin A. Simauchi report in The Crimson on Harvard’s Endowment, “Harvard Management Company returned 33.6 percent on its investments for the fiscal year ending in June 2021, skyrocketing the value of the University’s endowment to $53.2 billion, the largest sum in its history and an increase of $11.3 billion from the previous fiscal year.” This 33.6% gain, though, represents underperformance compared to Harvard’s peers; this is rationalized in terms of overall risk-positioning:
However, Harvard’s returns have continually lagged behind its peers in the Ivy League, a trend that appeared to continue this past fiscal year. Of the schools that have announced their endowment returns, Dartmouth College reported 47 percent returns while the University of Pennsylvania posted 41 percent returns.
Narvekar acknowledged the “opportunity cost of taking lower risk” in Harvard’s investments compared to the University’s peer schools.
“Over the last decade, HMC has taken lower risk than many of our peers and establishing the right risk tolerance level for the University in the years ahead is an essential stewardship responsibility,” Narvekar wrote.
In 2018, HMC formed a risk tolerance group in order to assess how the endowment could take on more risk while balancing Harvard’s financial positioning and need for budgetary stability. Under Narvekar’s leadership, HMC has dramatically reduced its assets in natural resources, real estate markets, and public equity, while increasing its exposure to hedge funds and private equity.
There it is again, the magical “hedge funds and private equity”.
Harvard’s fund manager went on to warn that the astronomical returns of the past year were something of an anomaly:
At the close of his message, Narvekar cautioned that despite the year’s success, Harvard’s endowment should not be expected to gain such strong returns annually. “There will inevitably be negative years, hence the importance of understanding risk tolerance.”
The following chart illustrates, at least in Harvard’s case, how extraordinary the past year has been:
The fiscal year of these funds typically runs September to September, so it’s worth recalling that back in September of 2020 we were still largely cowering in our homes, waiting for vaccines to arrive. The equity markets were still down in September of 2020, whereas a year later the tsunami of federal and Fed largesse had lifted all equity boats to the sky. So, it is not realistic to expect another year of 50% returns.
Final issue: can the little guy pick up at least a few crumbs under the table of this private equity feast? In most cases, you have to be an “accredited investor” (income over $200,000, or net worth outside of home at least $1 million) to start to play in that game. From Pitchbook:
Private equity (PE) and venture capital (VC) are two major subsets of a much larger, complex part of the financial landscape known as the private markets…The private markets control over a quarter of the US economy by amount of capital and 98% by number of companies….PE and VC firms both raise pools of capital from accredited investors known as limited partners (LPs), and they both do so in order to invest in privately owned companies. Their goals are the same: to increase the value of the businesses they invest in and then sell them—or their equity stake (aka ownership) in them—for a profit.
Venture capital (VC) is perhaps the more attractive, heroic side of this investing complex:
Venture capital investment firms fund and mentor startups. These young, often tech-focused companies are growing rapidly and VC firms will provide funding in exchange for a minority stake of equity—less than 50% ownership—in those businesses.
Some examples of VC-backed enterprises include Elon Musk’s SpaceX, and Google-associated self-driving venture WayMo.
Venture capital takes a big chance on whether some nascent technology will succeed (in the fact of competition) many years down the road, which has the potential to make the world a better place for us all. Private equity, on the other hand, tends to be somewhat more prosaic, predictable, and sometimes brutal. Here is putting it nicely:
Private equity investment firms often take a majority stake—50% ownership or more—in mature companies operating in traditional industries. PE firms usually invest in established businesses that are deteriorating because of inefficiencies. The assumption is that once those inefficiencies are corrected, the businesses could become profitable.
In practice, this often entails taking control of a company via a leveraged buyout which saddles the new firm with heavy debt, firing lots of employees, improving some strategy or operations of the firm, and sometimes breaking it up and selling off the pieces. This was the fate of several medium-sized oil companies that got in the cross-hairs of corporate raider T. Boone Pickens. “Chainsaw Al” Dunlop also became famous for this sort of “restructuring” or “creative destruction”.
Private equity activities can be very lucrative. But again, is there any way for you, the little guy, to get a piece of this action? Well, kind of. There are publicly traded companies who do this leveraged buyout stuff, and you can buy shares in these companies, and share in the fruits of their pruning of corporate deadwood. Some names are: Kohlberg Kravis Roberts (KKR), The Carlyle Group (CG), and The Blackstone Group (BX). The share prices of all these firms have more than doubled in the past year (100+ % return). If you had had the guts to plow all your savings into any one of these private equity firms a year ago, you would have had the glory of beating out all those university endowment funds with their piddling 50% returns.
Economist Writing Every Day 