10 posts from October 2017

Variation in Boilerplate: What Does it Mean?

posted by Mitu Gulati

Most of us who have had to read hundreds of commercial contracts for either our jobs as lawyers or for our research have also necessarily read lots of “choice-of-law” provisions. I know I have. But I am also embarrassed to say that I never paid much attention to many of the minor variations in language that frequently show up. For example, whether the clause says that the bond is “governed by New York law” or that its terms are to be “construed in accordance with New York law” is a variation that I’ve seen, but have never given much thought to. But as UNC Law School’s John Coyle points out in a wonderful new article, these small variations in the boilerplate language risk being interpreted as being quite different by a court. And particularly so by a New York court that pays a lot of attention to the text. Before going further, I should note here that John’s article showing that contract language that is assumed to be boilerplate is often not really all that boilerplate follows in the tradition of another super article out of UNC, this one by slipster Mark Weidemaier, appropriately titled “Disputing Boilerplate”.

The basic empirical inquiry that John engages in his article (“Choice-of-Law Clauses in U.S. Bond Indentures”, forthcoming in the peer reviewed Capital Markets Law Journal) has two parts. First, along the lines of Mark’s “Disputing Boilerplate” article, he uses a substantial sample of bonds (over 300) to document the extent of the variation. And second, he interviews senior lawyers to ask whether they think the small variations are supposed to signify different preferences (they are notindeed, in most cases, the lawyers don’t seem to have even been aware that the variation was meaningful). The second finding is particularly surprising and interesting, given that John is able to point to multiple actual court cases where these differences in language have turned out to be meaningful.

Continue reading "Variation in Boilerplate: What Does it Mean?" »

The Gender Gap Among Fancy Economists at the NBER Summer Institutes

posted by Mitu Gulati

The NBER summer institutes are where the fanciest economists go.  Anusha Chari and Paul Goldsmith-Pinkham have a cool new paper looking at the gender gaps in who gets on the schedule for the NBER summer institutes. 

Here is their basic finding:

Over the period of study (2001-2016), women made up 20.6 percent of all authors on scheduled papers. However, there was large dispersion across programs, with the share of female authors ranging from 7.3 percent to 47.7 percent. While the average share of women rose slightly from 18.5% since 2001-2004, a persistent gap between finance, macroeconomics and microeconomics subfields remains, with women consisting of 14.4 percent of authors in finance,16.3 percent of authors in macroeconomics, and 25.9 percent of authors in microeconomics.

The under-representation in in finance and macro is striking to me.  And got me wondering about what the data might look like if one were to look at the programs for, for example, ALEA or CELS.

The complicated questions, of course, have to do with matters such as causality--whether the results are being driven by choice or discrimination or some complicated interactive dynamic.  That authors do a super job of explicating the complexities, if anyone is interested in delving deeper.

Catalonian Bonds, Anyone?

posted by Mark Weidemaier

Joint post by Mitu Gulati and Mark Weidemaier.

Sovereign bonds issued under the government's own law are supposed to be riskier than bonds issued under foreign (typically, English or New York) law. The logic is simple: Local-law bonds can be restructured with the stroke of a legislator's pen; with foreign bonds, it's not so easy. One would expect that difference in risk to show up in bond yields, which should be higher for local-law bonds, especially in times of uncertainty. There's quite a bit of research to back up that intuition (e.g., Bradley et al. (2017), Nordvig (2015), Chamon et al. (2014), Clare & Schmidlin (2014), Choi et al. (2014)). 

Catalonian bond yields have been rising, thanks to jitters over the secession vote. But Nicolas Schmidlin, a fund manager (who worked on this topic as a graduate student and wrote the paper linked above), noticed something odd about bond yields.

Continue reading "Catalonian Bonds, Anyone?" »

If I Were a Holdout ...

posted by Anna Gelpern

Bond pricing has always been a puzzle to me, so I leave it to Mitu. But one thing has bugged me for more than a year. Ever since Venezuela has joined the ranks of the walking dead, market participants have differentiated among its bond contracts in a way that might seem sensible--even sophisticated--to those who think that investors do (or should) occasionally read the small print. In particular, Venezuelan bonds that require 100% of the holders to consent to an amendment of financial terms have fetched a higher price than comparable bonds with so-called collective action clauses, or CACs, which can be amended by either 85% or 75% of the holders, depending on the bond issue. The 100% bonds also have relatively more enforcement-friendly pari passu clauses, which could make it easier to replicate the fabulously successful holdout strategy in Argentina. The price premium must reflect rational investors on the eve of default paying for the power to veto a restructuring or drop out and get paid in full, right? Not quite. As you read the bond documents, the 100>85 reasoning unravels, and the 100% bond starts looking like a pretty fishy holdout vehicle.

Continue reading "If I Were a Holdout ..." »

Rights of Secured Creditors in Chapter 11: New Paper

posted by Melissa Jacoby

ABITed Janger and I have posted a paper of interest to Credit Slips readers called Tracing Equity. We still have time to integrate feedback, so please download it and let us know what you think.

As the image accompanying this post suggests, the project was inspired in part by recommendations of the American Bankruptcy Institute's Chapter 11 Commission. Discussion of those proposals starts on page 51 of the PDF.

One of the main insights of Tracing Equity is that both Article 9 of the Uniform Commercial Code and the Bankruptcy Code distinguish between (1) lien-based priority over specific assets and their identifiable proceeds, and (2) unsecured claims against the residual value of the firm. By our reasoning, even attempts to obtain blanket security interests do not give secured lenders an entitlement to the going-concern and other bankruptcy-created value of a company in chapter 11. We explain why our read of the law is normatively preferable and, indeed, is baked into corporate and commercial law more generally--part of a large family of rules that guard against undercapitalization and judgment proofing.

Looking forward to your thoughts.

 

 

Is the Trump Administration Causing a Reduction in Corruption in Public Companies?

posted by Mitu Gulati

In theory it is possible, I guess.  The Trump Administration comes in, promising to clean or drain or pump the swamp in Washington, and CEOs of public companies become scared and decide to reform themselves.  If so, one would expect to see fewer corruption prosecutions because, of course, there is less corruption to prosecute.

My dear friend and co author, Steve Choi, constructed a graph of the actions filed against US public companies and subsidiaries in the first fiscal year since the Trump Administration took office (that is, month by month data of filings, until September 30, 2017).  If you are interested, the graph is here (along with details about our data collection process, caveats blah blah).

Bottom line:  At first cut, the SEC, at least under the FCPA, seems to be bringing a lot fewer actions under the Trump Administration than they were bringing under the Obama Administration.

Is it because there is a lot less corruption now?  Because CEOs are running scared? Hmmmm . . .

Continue reading "Is the Trump Administration Causing a Reduction in Corruption in Public Companies?" »

Deus Ex Trumpina

posted by Mitu Gulati

Sometimes, a graph on Bloomberg says it all.

Wow, just wow.  There is no easy or ready mechanism to do this (of course).  But the statement just took a giant chunk out of a large set of portfolios.

HT: Darrell Miller 

Could Giving the Rohingya Refugees a Debt Claim Ameliorate the Current Crisis?

posted by Mitu Gulati

From Joseph Blocher & Mitu Gulati

Just a couple of weeks ago, the plight of the Rohingya, a muslim minority group in Myanmar, who are being oppressed (to put it mildly–they have been called “the most friendless people in the world”) was front page news. But, as has often been the case with the plight of the Rohingya over the years, news of their plight quickly receded as other human drama and tragedy took over (hurricane in Puerto Rico, Las Vegas shooting, Catalan secession vote/violence, North Korean craziness etc.)

We realize that we are likely engaged in a pointless task.  But we want to plead for the condition of the Rohingya, and indeed other refugees, not to be forgotten so quickly. As a threshold matter, we recognize that our government cannot be depended on to care much (if at all) about the plight of oppressed groups that are as far away, foreign and poor as the Rohingya. In other words, the top down mechanism isn’t going to work. The question then is whether, assuming that the oppression in question is clear and cognizable, there is some other solution—something bottom up--that the international legal system could provide to oppressed groups who are forced into refugee status that does not depend on other governments, such as the U.S., having a self interest in intervening.

Continue reading "Could Giving the Rohingya Refugees a Debt Claim Ameliorate the Current Crisis? " »

Lessons for the #BankBlack Movement from Mehrsa Baradaran's New Book

posted by Pamela Foohey

#BankBlack emerged on Twitter earlier this summer. The hashtag began as an encouragement to those protesting police brutality to move their money to black-owned banks, and is credited with growing the assets of black-owned banks by $6 million over the summer. A search on Twitter shows that the hashtag remains popular, and now is linked with #BlackWealth and #BuyBlack. Indeed, I found one tweet that claims that black-owned banks' assets have grown $20 million over the past 9 months as a result of the broader movement.

The motivation for these three hashtags relates to Professor Mehrsa Baradaran's recently-released (and fantastic) book, The Color of Money: Black Banks and the Racial Wealth Gap. In the book, she chronicles the rise and fall of black-owned banks as a vehicle to grow black wealth and combat predatory practices, such as red-lining, to help underserved, often low-income, predominately black communities. Since its release a couple weeks ago, the book has been reviewed in the Atlantic and the American Banker. Here, I want to highlight a couple of statistics and focus on what Baradaran's analysis suggests about the possibilities for the #BankBlack movement.

Continue reading "Lessons for the #BankBlack Movement from Mehrsa Baradaran's New Book" »

Could Puerto Rico be Expelled for its "Tremendous" Debt?

posted by Mitu Gulati

From Joseph Blocher & Mitu Gulati

We would not exactly call ourselves avid readers of the US Navy blogs. But there is an interesting post on the U.S. Naval Institute Blog today on Puerto Rico and debt by Commander George Capen (retired).

The context that inspired his blog post was the behavior of our president toward the current crisis in Puerto Rico. To quote: 

“Ultimately, the government of Puerto Rico will have to work with us to determine how this massive rebuilding effort—will end up being one of the biggest ever—will be funded and organized, and what we will do with the tremendous amount of existing debt already on the island.” – President Donald J. Trump, 29 September 2017:

Commander Capen, whose post is worth reading in its entirety, writes:

Puerto Rico didn’t ask to become a U.S. territory in 1898; nor do they get to vote in U.S. elections; nor do they have voting representation in Congress. But they are Americans. And they also voted to become a state (over 97 percent) earlier this year.

As an unincorporated commonwealth, our Congress holds the fate of Puerto Rico in their hands. Following their vote for statehood, our Congress can make Puerto Rico a state. Congress could also vote to cast Puerto Rico aside as an independent nation.

That final statement raises a question that we have been fascinated by (and have struggled with). Could Congress really “cast Puerto Rico aside as an independent nation,” even stripping Puerto Ricans of their US citizenship, because they have a “tremendous debt”?

Continue reading "Could Puerto Rico be Expelled for its "Tremendous" Debt?" »

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