March 17, 2018
As someone whose mother took him to Bargain Town (the original name for Toys ‘R’ Us) when I was a little kid, it’s hard not to feel sad to see Toys ‘R’ Us being liquidated. There were obviously many factors involved in the company’s collapse. It faced serious competition from first Walmart and then Amazon and other internet retailers in a rapidly changing environment.
This situation would have made prospering difficult for Toys ‘R’ Us in any case, but its takeover by private equity was what really pounded the nails in the coffin. In 2005, two private equity companies took over the company and immediately loaded it up with debt, a standard practice for private equity.
This can be a profitable strategy, since the interest payments are tax-deductible for the company, whereas dividends paid out to shareholders are not. Private equity companies also often use debt to pay out dividends to themselves so they can quickly recover much of what they spent to purchase the company. (To get the full story on private equity read Private Equity at Work: When Wall Street Manages Main Street, by my colleague Eileen Appelbaum and Rose Batt.)
Essentially, what the debt does is create a highly leveraged bet where the private equity company stands to make a huge return on its investment if the company survives and can again be taken public. If it fails, as was the case with Toys ‘R’ Us, they may still come out ahead from the dividend payouts and various management fees charged to the company.
If this strategy is good for private equity, then who ends up as losers? Well, most obviously the 33,000 workers who stand to lose their jobs with the liquidation. Apparently, there is a possibility that some of the stores may be sold off and operated by a competitor, so perhaps some of these jobs can be saved, but clearly, most of these people will be looking for new work.
The people who lent Toys ‘R’ Us money also stand to lose, as the bankruptcy likely means they will only be repaid a small part of their loans. There should not be too many tears shed here. Presumably, the lenders understand the risk of giving money to a highly indebted company. They should have charged a high-interest rate to compensate for the risk.
The more serious issue is with the inadvertent creditors. These are the suppliers that may have sold the company merchandise on credit. It may also include companies that provide services to Toys ‘R’ Us, such as a trucking company or a cleaning service. These companies didn’t intend to make loans to Toys ‘R’ Us, they just were following normal business practices in providing goods and services in advance of payment. Perhaps they should have been more careful, given the financial situation of Toys ‘R’ Us, but businesses don’t always do credit checks on their customers in advance of making sales. Anyhow, in addition to losing an important customer, these suppliers are likely to see big losses from the money owed to them by Toys ‘R’ Us.
There are things that can be done to rein in private equity. First, the asymmetric treatment of interest and dividend payments in the tax code makes little sense. One of the positive items in the Republican tax bill last fall was a cap on the deductibility of interest at 30 percent of profits. (The bill includes the Donald J. Trump exception for real estate.) This should provide less incentive for private equity companies to go the high debt route in the future.
It is also important to follow the assets. In many cases, the private equity company effectively shifts the profitable assets, like real estate, to other corporations under their control, so that creditors have no assets to seize. Bankruptcy courts have to police this shuffle the asset routine and hold the private equity company itself liable when a company under its control has not been properly compensated for the loss of an asset.
Most importantly, long-term workers should be compensated for their time with the company. The United States is the only wealthy country that allows workers to be fired at will with no compensation.
Some reasonable compensation, say two weeks of pay per year of work, would provide long-term workers with help transitioning to new employment. More importantly, it changes the incentive for companies. If they know they will have to pay 40 weeks of severance pay to a worker who has been with the company for 20 years, they will think more about keeping this worker on the payroll and training them to be more productive, rather than just dumping her.
While the Republican Congress is not likely to be interested in taking a step like this to help workers, severance pay is something that can be put in place at the state level. (Montana already has a law requiring compensation for long-term workers who are dismissed without cause.) More progressive states like California, New York, or Washington can take the lead here, as they have on other issues.
As long as we will have a capitalist economy, we will have companies that go out of business. But we should not structure our tax and bankruptcy laws to make going out of business profitable. And, we should ensure that workers end up treated fairly in the process.
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