17 posts from October 2017

So, Is the High Yield Market Efficient?

posted by Stephen Lubben

My inbox is being bombarded with law firm commentary on the Court of Appeals for the Second Circuit's decision that cramdown interest rates should be determined by "market rates," rather than by formula, when the relevant debt market is efficient. A good summary of the commentary can be found over at the Harvard Bankruptcy Roundtable.

And then we have a Bloomberg story this morning, filled with hand wringing about what might happen if a particular mutual fund were to sell a particular bond position – where the fund owns less than 20% of the issue. Nevertheless, the suggestion is that such a sale could have big, market moving effects. That does not sound like a very efficient market.

Given that the high yield market is apt to be the most relevant market to a chapter 11 case, what precisely, then, has the Court of Appeals achieved?

Refugee Clauses, the Allocation of Rescue Costs, and a (Really Old) Sticky Contracting Problem

posted by Mitu Gulati

HT: Joseph Blocher

I didn’t think it was possible for an article to hit all three of the issues mentioned in the title: Refugees, Allocation of the Costs of Refugee Care, and Sticky Contracting (I care because they are three topics near and dear to me –although I’ve never come close to combining them). But a recent article by Richard Kilpatrick of Northeastern Illinois University and the National University Singapore on the "Refugee Clause" does just this. The issue that Kilpatrick tackles is fascinating and highly relevant in the context of today’s refugee crisis, which is arguably at one of its worst points in history. The connection of Kilpatrick’s article (on the responsibilities of commercial ships) to the current crisis – particularly in terms of the horrors perpetrated by the regimes in Myanmar and Syria – is that many of the refugees flee in overcrowded and flimsy boats and then need to be rescued at sea.

It turns out that although there is a legal obligation on ship captains to rescue people who are in peril at sea (makes eminent sense to me – we want people rescued right away if they are struggling at sea), it is not clear who is to pay this cost. The question of allocation is particularly tricky when someone charters a ship and crew to transport goods from point A to point B.  If that ship has to take a detour along the way to rescue refugees they find struggling on the ocean, who is to bear the extra cost of the additional journey?  The charter-party or the ship owners? As an aside, it appears that the penalties on the ship captains for failing to rescue promptly can be quite substantial (there were “failure to rescue” issues with respect to the Titanic that received immense publicity).

Ordinarily, one would think that this allocation of the extra costs that result from a deviation from course to do a rescue would be clearly allocated up front; before the ship’s journey begins. As Kilpatrick explains, this is not the case. Even though there have literally been hundreds, if not thousands, of rescue operations needed over the past few years (and this is not exactly new – remember the Vietnamese boat crisis that went from 1975-1990, where many countries in the region desperately tried to push the refugees away), the standard contract form – that apparently lots of transactions use again and again – has not been changed. And this is a NY contract form that goes back to 1946. Wow. What is going on?

Continue reading "Refugee Clauses, the Allocation of Rescue Costs, and a (Really Old) Sticky Contracting Problem" »

Why is Netflix Listing its European Bonds on the Isle of Guernsey?

posted by Mitu Gulati

Netflix has long interested me as a company, not only because of shows like "Master of None" (Aziz Ansari and Alan Yang have delivered brilliantly), its darwinian management philosophy (very cool podcast on Planet Money), but because of its uncertain future. It is competing against rich giants like Amazon and Apple to deliver original content in a field that is getting increasingly crowded.  My guess is that it is having to spend more and more on content, but is unable to increase its prices very much. One solution for Netflix: borrow at a high interest rate from investors who are willing to bet on your future.  And that it has done, in spades. Most recently -- a few days ago -- it borrowed $1.6 billion (yes, billion). I was intrigued and trying to avoid doing my real work, so I went looking for its offering documents and while I didn't immediately find the current docs, I found the offering circular for the bond issue Netflix did a few months prior in Europe (Euro 1.3 billion) in an offering listed on the International Stock Exchange, which is an exchange licensed by the Bailiwick of Guernsey.  Yes, really. So, surely, at least some of you are asking the same questions I am. What? Where? Who?

Guernsey, for those of you who are clueless like I am, is a British Crown "dependency" (not sovereign, but not independent, and not quite like a former colony like the British Virgin Islands or Bermuda (they are "British Overseas Territories")). Basically, a cynic might say: Perfect for a tax haven. But it is the stock exchange that interested me, especially since it seems to have been quickly rising in popularity for US and EU companies over the last couple of years.

If I remember my basic corporate finance class (I don't), we were told that exchanges performed a monitoring and disciplinary role; they were "gatekeepers", as the fancy corporate types liked to say. So, is Netflix going all the way to the Isle of Guernsey to get extra special monitoring from the Channel Islanders? Curious, I went to the website for the Guernsey exchange, to see what it said. And it does say that it has wonderfully rigorous regulatory standards ("some of the highest regulatory standards globally"). But does it really?

Continue reading "Why is Netflix Listing its European Bonds on the Isle of Guernsey?" »

Merit v. FTI and the Missing Silver Bullet Argument?

posted by Jason Kilborn

On November 6, the Supreme Court will hear arguments in a case only a lawyer--and probably only a commercial or bankruptcy lawyer--could love, Merit Management Group v. FTI Consulting. Simplifying quite a bit, the issue is whether a payment by wire transfer (or presumably a check) is "made by" the bank who implements the funds transfer, or the customer who initiates the transfer. The issue arises from the safe harbor for securities contract-related settlement payments, insulating such transfers from avoidance (clawback) by a bankruptcy trustee, and the question whether a money transfer made by wire from the buyer of stock to the purchaser(s) was "made by or to ... a financial institution." 11 USC § 546(e). Several circuit courts have held the safe harbor applies even if the bank-transferor is a simple conduit, performing nothing more than the ministerial task of moving the money (so to speak) from buyer's account to seller's bank. The 7th Circuit held to the contrary in this case, noting that a letter might be said to be "sent by" either the sender or the Postal Service, but the former interpretation is more sensible and consonant with likely congressional intent in this context (again, vastly simplifying to prevent boring readers to death). 

Ordinarily I would leave it to those smarter than I to blog about these kinds of big-money cases, but after I was asked to write a little squib for the ABA about it, the extremely perceptive Henry Kevane of the famous insolvency firm Pachulski Stang in San Francisco saw my little piece and called me to ask about an argument relevant to the case. Did anyone point out, Henry asked me, that the definition of "financial institution" in section 101(22)(A) includes the bank's customer within the ambit of "financial institution" in cases where the bank is "acting as agent or custodian for a customer ... in connection with a securities contract"? Well, no, no one appears to have made this seemingly dispositive observation! A transferor bank implementing a wire transfer would certainly be acting as the customer's (account holder's) agent, and the whole point of the case is that the payment was made "in connection with a securities contract" (the same language in section 546(e)). If the Bankruptcy Code oddly defines the customer and the bank as both being a "financial institution" in this context, then regardless of who made the payment, it was made "by" and "to" a financial institution, since the same logic would apply on the recipient side, too. Hmmmmmmmm.

Continue reading "Merit v. FTI and the Missing Silver Bullet Argument?" »

CFPB Arbitration Rule Overturned

posted by Mark Weidemaier

By a 51-50 vote, with Vice President Pence breaking the tie, the Senate has voted to overturn the Consumer Financial Protection Bureau's rule forbidding the use of contract terms (in covered consumer loan products) barring consumers to bring or participate in class actions. The affirmative vote was supported by the usual narratives: Class actions make credit more expensive, arbitration is a better and more efficient means for resolving consumer disputes, class action lawyers are greedy parasites, etc. The truth of these narratives is irrelevant, it seems. For instance, though it is possible arbitration might be used to efficiently and effectively vindicate consumer rights, there isn't much evidence that it does so in practice, and there is evidence to the contrary. As a mechanism for collecting consumer debts, the history of arbitration is uglier still. And even if the availability of class actions increases the cost of credit--emphasis on if--it's not obvious this would be bad. If class actions deter lender misconduct--not that there's any history of bank misconduct!--, and if this increases some lenders' costs and ultimately the cost of their financial products, then... I don't know. Who cares, I guess? Why should consumers victimized by fraudulent lender conduct subsidize cheaper credit for others? The contrary narrative--that class actions are just so darn expensive to defend that banks settle even the bogus ones for large sums of money--is so implausible that it should not be taken seriously without credible supporting evidence.  

Venezuelan Debt: Call a Spade a Spade

posted by Mitu Gulati

Adam Lerrick, of the American Enterprise Institute, has offered an intriguing approach to the Republic of Venezuela/PDVSA debt problem. Call a spade a spade. The distinction in the market between Republic of Venezuela and PDVSA bonds has always been artificial and the market has normally perceived it as such. Only recently have market participants begun trying to figure out which bonds -- PDVSA or Republic of Venezuela -- will be more likely candidates for a debt restructuring and therefore which should trade higher in the market.

PDVSA accounts for 95 percent for the foreign currency earnings of the entire country. Without PDVSA, there is no credit standing behind Republic bonds.  At base, there is only one public sector credit risk in the country and Lerrick invites us to acknowledge this fact.

He proposes that the Republic assume the indebtedness of PDVSA and proceed to restructure that debt as part of a generalized Republic debt workout. As part of this process -- and to discourage potential holdouts from the Republic's offer to exchange PDVSA bonds and promissory notes -- he suggests that the Government take back PDVSA's concession to lift and sell Venezuelan oil. This risk has always been prominently disclosed in the PDVSA offering documents and should not come as a surprise to anyone.

Lerrick's proposal adds to the growing list of suggestions for how a future Venezuelan debt restructuring (and there almost certainly will be such a debt restructuring) may be accomplished without holdout creditors devouring the process. No one wants to repeat the experience of Argentina.

Recently, in the context of trying to work out the knotty problem of how to restructure Venezuela’s promissory notes, Lee Buchheit and I made a similar suggestion along these lines. (our friends, Bob Lawless and Bob Scott, two gurus of this world of secured financing and contracts, were invaluable in helping us figure this structure out -- all blame for errors is ours, of course).

The structure we suggest differs from the Lerrick proposal mainly on the question of what should happen to the PDVSA oil assets, including receivables for the sale of oil.  We suggest that PDVSA pledge those assets to the Republic in consideration for the Republic's assumption of PDVSA bond/promissory note liabilities (as opposed to transferring title to the assets back to the Republic).  Such a pledge is expressly permitted by the terms of the PDVSA bonds and promissory notes and should operate to shield the assets from attachment by holdout creditors.

Bankruptcy, Illness, and Injury: More Data

posted by Melissa Jacoby

A while back, political scientist Mirya Holman and I wrote a book chapter making sense of existing (and dueling) studies of the relationship between medical problems and bankruptcy, and presenting new findings from the 2007 Consumer Bankruptcy Project on debtors who entered into payment plans with their medical providers and fringe and informal borrowing for medical bills. Given the enduring interest in household management of out-of-pocket expenses associated with illness and injury, we recently posted an unformatted version of the chapter so it can be useful to more researchers and advocates.  Download it here.

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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