postings by Pamela Foohey

Does J&J Have a Patriot Coal Problem?

posted by Stephen Lubben

J&J has put its Talc subsidiary into bankruptcy in North Carolina. Trick is, the only basis for venue in North Carolina is that the talc assets were put into a Texas LLC this past Tuesday, and then that Texas LLC converted into a North Carolina LLC the same day.  

Put to one side the problematic question of how the talc assets (and liabilities) ended up in the Texas LLC – what is the reason for the conversion to a North Carolina LLC?  It seems to be a rather transparent attempt to manufacture jurisdiction in North Carolina.

Arguably venue should be transferred to Texas. Perhaps the Western District of Texas – not that other Texas district – since J&J's only clear connection with Texas is incorporation ... 

Five reasons to read Unsettled by Ryan Hampton

posted by Melissa Jacoby

UnsettledRyan Hampton, author of a book about the Purdue Pharma bankruptcy published earlier this month, is a "national addiction recovery advocate, community organizer, author, and person in long-term recovery" who also was a member of the Purdue Pharma bankruptcy official unsecured creditors' committee. On Purdue's committee, Hampton and three other personal injury claimants sat alongside five institutional/corporate creditors, at least some of which were defendants in other opioid crisis lawsuits.  This is a quick post to recommend that the bankruptcy world read Unsettled for at least the five following reasons: 

Continue reading "Five reasons to read Unsettled by Ryan Hampton" »

More on Belize: Marine Conservation is Nice; Deeper Haircuts Are Better

posted by Mark Weidemaier

A couple of additional thoughts on Belize’s debt workout, especially the relatively novel aspect involving the pre-funding of a marine conservation trust. The deal has featured prominently in the financial press lately, with great coverage in the FT (here by Robin Wigglesworth and here by Tommy Stubbington), Bloomberg (here), and elsewhere. For details, see Mitu’s posts here and here. Mitu has a relatively optimistic take, which I’m mostly on board with. It would be wonderful if countries could both ease debt burdens and increase investment in marine conservation and other forms of sustainable growth. It would be even more wonderful if investors paid for some of this by granting significant debt relief. But even if that’s what happened with Belize—and I’m not entirely sure that it is—the Belize deal may not be replicable at a scale that would matter.

The plan is for Belize to repurchase and retire its outstanding international bond. Reports suggest that negotiations over the repurchase price were stalled at around 60 cents on the dollar. Ultimately, investors agreed to take 55. In return for that concession, Belize will prefund a $23.4 million trust to support future marine conservation projects. One potential takeaway is that investors agreed to the additional 5 cent reduction after being presented with the debt-for-nature idea, perhaps in part because intense media coverage created pressure to demonstrate their ESG bona fides.

The first point to note here is that the additional 5 cents per dollar is very large in comparison to the concessions investors seem willing to make to achieve ESG goals in other contexts.

Continue reading "More on Belize: Marine Conservation is Nice; Deeper Haircuts Are Better" »

The Super Cool Belize "Debt for Coral Reefs" Restructuring

posted by Mitu Gulati

This blog post draws on ideas developed with Ugo Panizza (Professor of International Economics, Graduate Institute) that form part of a paper we are working on. I am to blame for any errors though. 

In 2020, the stock of public debt in debt in developing and emerging market economies surpassed $19 trillion and reached 63% of the group’s GDP (up from 55% in 2019). Such levels of debt significantly increase the risk of multiple devastating debt crises hitting the global economy at the roughly the same time; a situation not seen since the Latin American debt crisis of the 1980s. This is a scary prospect at a time when nations need to scale-up investment in climate change and sustainable growth.

The recent restructuring of Belize’s sovereign debt is an example of how a country can address a debt crisis while preserving investment that can promote sustainable growth. Hard hit by covid-19, Belize is restructuring its sovereign debt for the fifth time in two decades. So, why is this debt restructuring so exciting?

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Scholars' Letter in Support of Saule Omarova

posted by Adam Levitin

President Biden has nominated Cornell Law Professor Saule Omarova to be the next Comptroller of the Currency. While the Office of the Comptroller of the Currency is not a well-known government agency outside of bank regulation circles, it is among the most important in financial regulation because it is the prudential regulator of national banks—the largest banks in the United States. The OCC is also the primary consumer protection regulator of all national banks with less than $10 billion in net assets, and the Comptroller is a member of the FDIC board. In short, this is a position with substantial influence over the banking industry. 

This week, numerous scholars of financial regulation (including me) sent a letter in support of the nomination to the Chair and Ranking Member of the Senate Banking Committee. We believe that Professor Omarova would make an outstanding Comptroller, and we hope that she will receive a fair hearing even from those who might disagree with her on policy questions. Professor Omarova is a lawyer's lawyer with impeccable credentials for the job. After completing a PhD and JD, she worked at the leading banking law firm and then in the GWBush Treasury Special Advisor to then Under Secretary Randal Quarles, now the Fed's Vice-Chair for Supervision. Her scholarship is careful, restrained, and masterful, and her co-authors include the top banking attorney in the US.  Not only is Professor Omarova's knowledge of banking regulation unsurpassed within the academy, but she would bring a welcome change to the OCC as the first Comptroller who wasn't a either a banker, bank lawyer, or bank lobbyist when nominated. Her independence is much needed at an agency that has often seen banks as its customers, rather than as its regulatory charges. 

Unfortunately, some of the financial services industry opposition to Professor Omarova has veered into xenophobic and McCarthyite dog whistling based on Professor Omarova having grown up in the former Soviet Union. The hypocrisy in this anti-immigrant prejudice is astounding given the way that the same folks who are claiming that Professor Omarova is suspect because of her childhood in the Soviet Union have celebrated another former Soviet bloc immigrant-turned-bank regulator. The dog-whistling has gotten so bad that in a remarkable press release Senate Banking Committee Chair Sherrod Brown (D-Oh) threw down the gauntlet at the "Red Scare" character assassination coming not just from bank lobbyists, but from the Committee's Ranking Member, Senator Pat Toomey (R-Pa). 

The banking industry's decision to proceed through dog whistling suggests that it is reluctant to have it out over the substantive policy positions supported by Professor Omarova. But if you want to see a more sober and measured take on Professor Omarova from a law firm with numerous financial services industry clients, see Gibson Dunn's take here. What the law firm's take for its clients—rather than for political theater—suggests is that the sky won't fall with Comptroller Omarova, but that she will take a more skeptical view of bank activities outside of traditional core activity areas. In other words, it won't be business as usual. And that's the banking industry's real concern here. 

ED announces PSLF overhaul, aims to boost 2% approval rate

posted by Alan White

Education Department Secretary Cardona today announced a remarkably bold, yet sadly incomplete, emergency suspension of regulatory barriers to the Public Service Loan Forgiveness program. The Secretary is using statutory authority to suspend, temporarily, some of the needless regulatory hurdles (as I and others have advocated) that have produced a 98% rejection rate for the program for the past five years. On the other hand, today’s announcement does not appear to address all of the hurdles, and some details remain vague. The Department estimates it can immediately approve 22,000 additional loan cancellations, increasing the approval rate from 2% to 5%, and another 27,000 need only obtain employment certifications for periods in which they already made payments, bumping the approval rate up another 3% to 4%. Another 550,000 borrowers may receive several years of additional credit towards the ten-year required total payment period, lining them up for discharges in future years.

In its biggest improvement the Department will allow all payments made on all loan types and all repayment plans to count towards the 120 month required total. Less clear is how the Department is addressing the two remaining hurdles. Many borrowers find payments are not counted because the payment is not within 15 days before or after the due date or is not in the exact amount the servicer requires. Early or lump-sum multi-month payments don’t receive full credit. The Department’s press release says the waiver will address this issue, but does not say how, or to what extent. Extending the window by 15 or 30 days, or the payment amount tolerance by 10% or 20%, will not do.  UPDATE: at negotiated rulemaking today, USED announces they will stop counting payments, and instead count time in repayment. If true this is a HUGE improvement. They mentioned in some cases borrower payment counts now go from zero to 120.

Borrowers also face a third hurdle, having to get employer certifications that their jobs qualify as public service covering each and every one of the 120 qualifying months. The Department’s servicer has rejected many certifications, the Department has failed to establish a universal database of qualifying employers, and some borrowers simply have difficulty filling gaps of long-ago employment. The Department says it will improve its employer database and audit prior rejections, but does not propose as I have recommended to allow borrower self-certification of qualifying employment.

Continue reading "ED announces PSLF overhaul, aims to boost 2% approval rate" »

The Cheekiest Artist of Modern Times?

posted by Mitu Gulati

One of the students in my 1L Contracts class pointed me to this delightful article from the New York Times -- delightful because this is going to be so fun for us to discuss in class (here)

Here is the story as I understand it. A Danish artist, Jens Haaning, was commissioned by a Danish museum (the Kunsten Museum of Modern Art) to reproduce a couple of his prior works, where he had framed piles of real euros and kroner to symbolize wages and work in Austria and Denmark.  To do the reproduction work, the artist was paid 10,000 kroner and then also given a bunch of cash (532, 549 kroner) to put in the installation pieces.

The cheeky artist sent in a couple of blank canvases titled "Take the Money and Run", which seem to describe exactly what he did.  (The Times article literally has multiple photos of guests to the museum admiring the blank canvases -- or at least looking at them with interest).

The artist says that he gave them art -- symbolizing taking the money and running, (a modern critique of capitalism?). The museum director, Mr. Lasse Anderson (representing the capitalist museum?), appears neither amused nor pleased. He says: breach of contract.  

It is simply not possible to make this stuff up.  Maybe Tess and Dave will do an episode about this case for their brilliant Promises, Promises podcast?

I very much want the artist to win the contract suit. But if the museum director is right that the contract was for a reproduction of the prior piles of cash pieces (which seems likely from what the Times piece tells us), Jens will probably have to give the moolah back.  But not until after having gotten international notoriety as the cheekiest artist of modern times. And maybe that's all he was going for after all. Win win. 

I can only begin to imagine the kind of fun opinion someone like Richard Posner might have written on a case like this.

Many thanks to Maggie Rosenberg, 1L at U Virginia.

Scott & Kraus on the Private Law Podcast -- Magnifique!

posted by Mitu Gulati

Last year, when I was in zoom teaching hell and desperately looking for videos or podcasts with my contracts heroes to try and give my students a window into the magic of contract law and theory, I was unable to find anything at all that I could use for class from Bob Scott and Jody Kraus.  Lots of erudite law journal articles, yes. But I hate lengthy law review articles. I wanted to hear them talk and answer questions. 

My prayers have been answered, thanks to Felipe Jimenez's wonderful Private Law Podcast (here). The episode posted today is about Bob and Jody's wonderful and special collaboration that has given the world of contract law so much. And Felipe is brilliant in his gentle but insightful questioning (as an aside, if you are a fan of contracts theory, you might also like the episode with Brian Bix; I loved it).

Thank you, Felipe. Thank you, Bob and Jody. 

Hawkins & Penner--Marketing Race and Credit in America

posted by Bob Lawless

Past Credit Slips guest blogger, Jim Hawkins from the University of Houston, and his student, Tiffany Penner, alerted me to their recent publication in the Emory Law Journal entitled, "Advertising Injustices: Marketing Race and Credit in America." The paper takes an interesting approach to the issue of how consumer credit gets marketed in the United States. They visited fringe lending establishments as well as the web sites of these establishments and mainstream banks and looked at the persons used as models in their advertisements.

Although I have some questions about the magnitude of the effects--questions that come from how different government agencies Latino or Hispanic heritage sometimes as an ethnicity and sometimes as a racial identity--the core finding of the paper seems right. The models used in the advertisements send a signal about whether the financial service is "for people like you." How those people differ between mainstream banks and fringe lenders will not surprise anyone who has paid even a bit of attention to the structural racism that defines our economy. Hawkins and Penner close the paper with some thoughts on how the Equal Credit Opportunity Act and the Community Reinvestment Act might help fix the problems they identify.

UPDATE (9/26): My apologies to Ms. Penner for misidentifying her in the original title to this post.

SBRA technical amendment = technical foul?

posted by Jason Kilborn

A great Arabic folk idiom describes an all-too-common occurrence: Literally, "he came to apply eye liner to her, but blinded her." [اجا يكحلها عماها  izha ikaHil-ha, cama-ha] In other words, someone attempted to improve a situation but ended up ruining it. I believe I've encountered an example in the "technical amendment" made by the CARES Act to the Small Business Reorganization Act of 2019.

As Bob pointed out almost exactly two years ago, the original SBRA definition of a "small business debtor" was designed to keep out large public companies and their subsidiaries, but the language was ... inelegant. The first of two subsections (laid out in Bob's post) excluded companies subject to reporting requirements under the Securities Exchange Act of 1934 (that is, a company with shares widely held by "the public," as defined by the SEC), while an immediately following exclusion applied to such a company that was an affiliate of a debtor (that is, another company already in bankruptcy). Well, whether you're an affiliate of a debtor or not, if you try to file under subchapter V, and you're subject to the '34 Act reporting requirements, you're excluded by the first subsection, so isn't this second provision redundant?

Yes, but ... in 2020, the CARES Act came to put eye liner on this section and blinded it. Rather than fixing this by saying what seems to have been the intention--that an affiliate of a public reporting company cannot file under subchapter V--instead, a "technical amendment" changed the final provision entirely by simply excluding an affiliate of an "issuer, as defined in section 3 of the Securities Exchange Act of 1934." [the same language was inserted in both sections 101(51D)(B)(iii) and 1182, so this change is not temporary]

The problem, it seems to me, is that the definition of "issuer" in the '34 Act includes far more than a big, public reporting company--it includes any company that issues so many as one share of stock (or other "security"). The '34 Act is generally about trading of public securities, but that's not the only thing it's about, and the definition of "issuer" in the '34 Act is simply reproduced from the '33 Act, with far broader application.

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Coral Reef Protection in Exchange for Debt Relief: Could it Really Work?

posted by Mitu Gulati

Belize, as of this writing, is undertaking a restructuring of its sovereign bonds. Hard hit by covid and general economic woes, this is that nation’s fifth debt restructuring over the past decade and a half. This time though, Belize is trying to do something different with its restructuring.  Something that just might contain lessons for other emerging market nations struggling with covid related economic downturns.

Using funding from the environmental group, The Nature Conservancy (TNC), Belize is doing a bond buyback, offering investors around 50% of face value.  Once purchased, the bonds are to be cancelled.  Belize has collective action clauses in the so-called superbond in question, so the deal will be binding on all holders of its external debt if a supermajority of creditors (75%) agree to the deal.  The dynamics of collective action clauses have been examined in excruciating detail elsewhere and I won’t get into that here. What interests me, and has intrigued many in the financial press (e.g., see here,  here, here, here, and here) is Belize’s attempt to tie a promise to behave in a greener fashion in the future to its request for debt relief from investors.

Specifically, Belize is promising investors that it will, in conjunction with TNC set aside a significant portion of the funds that it will save from doing the restructuring for environmental protection endeavors in the future (Belize's gorgeous coral reefs feature prominently in most accounts of the deal). As explained by a Belizean official:

As an integral part of the offer to repurchase the bonds, Belize will commit to its bondholders to transfer an amount equal to 1.3% of the country’s 2020 GDP to fund a Marine Conservation Endowment Account to be administered by a TNC affiliate. After a period in which the Endowment Account will retain its investment earnings in order to reach a targeted aggregate size, the annual earnings on the Account will thereafter be used, in perpetuity, to fund marine conservation projects in Belize identified by TNC and approved by the Government of Belize.

I have at least four questions that strike me as relevant to figuring out whether this strategy can work for other nations also facing covid related debt restructuring needs.

Continue reading "Coral Reef Protection in Exchange for Debt Relief: Could it Really Work?" »

Further Thoughts on Coinbase: Two Mysteries

posted by Adam Levitin

I've been puzzling over two mysteries in the Coinbase saga:  first, why does Coinbase care so much if Lend is deemed a security, and second, why did the SEC want the list of Coinbase customers who had signed up in advance for Lend. I don't know that I've got all of this sussed out, but I figure I'll put my thinking out into the Internets and see if others have thoughts.

Continue reading "Further Thoughts on Coinbase: Two Mysteries" »

Coinbase and the SEC

posted by Adam Levitin

"All fintech is regulatory arbitrage, to some degree," Felix Salmon writes at Axios. And he's right. In the last couple of days we've seen two striking examples. First, the CFPB entered into a consent order with the provider of Income Share Agreements, a type of education financing. The consent order makes clear that the CFPB will be treating ISAs as student loans--that is credit--and therefore subject to the Truth in Lending Act and Equal Credit Opportunity Act.

And then we saw crypto-Twitter blow up over Coinbase's spat with the SEC regarding what is a security. Coinbase is the largest crypto exchange in the United States. It wants to offer a cryptocurrency lending product called Lend. According to Coinbase, the SEC told Coinbase that it thinks the product is a security and that it will sue if Coinbase offers the product without first registering it. After Coinbase got a Wells Notice from the SEC, Coinbase got huffy and decided to take its case to Twitter with a thread by it's CEO calling the SEC's behavior "sketchy".

There's a lot of confusion about the Coinbase matter, so I'm going to spell out what the stakes are, how I think the product works, and then why (assuming that I have the product's operation correct) Lend is obviously a security.

Continue reading "Coinbase and the SEC " »

Bypassing the Indenture Trustee?

posted by Mitu Gulati

Mark Weidemaier & Mitu Gulati

Earlier today we had a great time recording a Clauses and Controversies episode about the Province of Buenos Aires restructuring, which should post sometime next week. Our guest was Bloomberg reporter Scott Squires, who knows the Argentine context inside out and has also taken a deep dive into the mechanics and details of this restructuring. We got to talk about the PBA’s various shenanigans, and one aspect of our conversation continues to confuse us all. PBA offered to pay past due interest to creditors who consented to the restructuring; non-consenters did not receive the payment.

In the post linked above we wondered whether this payment, when added to PBA’s various threats, made the deal coercive. And we wondered why creditors, despite receiving fairly generous financial terms, were willing to accept this treatment. One answer we got from multiple sources is that it is simply too difficult and time consuming to deal with the trustee. Basically, it’s hard to get the trustee to act. First, holders of 25% in principal amount must instruct it to bring suit, then they have to negotiate the trustee’s indemnity, etc. And all this takes time. Meanwhile, the so-called “no action” clause in the indenture blocks individual bondholders from filing suit unless and until the trustee fails to act for 60 days. Perhaps any challenge the PBA’s conduct required quick, forceful legal action, but bondholders upset by the deal couldn’t muster the required 25% support or viewed the delay inherent in this process as a deal-breaker.

This would all make sense, were it not for the unusual drafting of another contract term. The clause played an important role in a lawsuit initially filed by Goldentree, one of PBA’s biggest creditors. Goldentree later changed course and were viewed as one of the drivers of the eventual deal. But the lawsuit was premised on the ability of individual bondholders to circumvent the trustee, found in this language (emphasis ours):

[E]ach Holder of Debt Securities shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest on (including Additional Amounts) its Debt Security on the stated maturity date for such payment expressed in such Debt Security (as such Debt Security may be amended or modified pursuant to Article Eleven) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.

Our issuer-side friends have scoffed at this reading, telling us that the “no action” clause plainly requires all bondholder litigation to go through the trustee, at least until the bond has matured. That may be the common understanding. But that reading isn’t easy to square with the language above, which can plausibly be read to give individual investors the right to sue for missed coupon payments. Investors have a right to get “principal and interest on . . . the stated maturity date for such payment.” This is an unusual formulation. It is natural to say that principal comes due on the maturity date. But interest? Does interest “mature?” Our issuer-side friends would say, we assume, that the use of “stated maturity date” reinforces their understanding of the effect of the no action clause. But that reading seems to ignore the language “for such payment” (underlined above). This seems quite clearly to refer to individual payments, and the clause refers to both principal and interest. And it seems perfectly reasonable to interpret all of this to mean that, on the date when the interest is due, the interest obligation matures. Under this reading, investors can always sue for missed payments. It is other litigation—such as an acceleration in response to a cross-default trigger—that must go through the trustee.

Anyway, reading further, the clause says that an investor’s right to “such payment” – i.e., the interest that was due – and to institute suit” cannot be impaired “without the consent of such Holder.” That would at least arguably have enabled individual bondholder suits for past interest.

Again, many of our contacts in the market think this reading is nonsense and ignores the purpose and history of this clause. And we don’t really have a strong opinion as to which reading is correct. But we do think the reading above—which is presumably the reading underlying Goldentree’s suit—is plausible. Certainly there is a fairly straightforward argument to that effect based on the text of the clause, and text seems to matter quite a bit to judges applying New York law. It never ceases to amaze us how many seemingly settled questions—at least in the eyes of market participants—are not well reflected in contract language.

Personal Insolvency in Asia and Currency Comparison

posted by Jason Kilborn

While Shenzhen has gotten all the good press since its March launch of the first personal bankruptcy regime in Mainland China, a number of other Asian regimes have also been on the move. I recently examined the rapidly developing personal insolvency system in Singapore, and others have done great work on the unique processes in Japan and Korea. As an outsider, I struggle to capture the real feeling of life under these procedures. The challenge is expressed brilliantly by my favorite article on the difficulty of examining legal phenomena that are utterly foreign to the examiner, a paper that sought to answer the question "what was it like to try a rat?" This struggle is particularly acute in a new paper I've just posted on the fascinating evolution of Shenzhen's new law from its roots in a little-known 2008 consumer insolvency law in Taiwan. The Taiwan law is still in effect, of course (as amended in important respects), and the rocky experience of its first decade offers important lessons for personal insolvency policymakers in Asia and beyond. In both Taiwan and Shenzhen, a potential continuing challenge that intrigues me is among the most important and impactful in any such law--the measure of "necessary" household expenses to be budgeted to debtors for the purgatory period of three years (in Taiwan, it's six!) preceding a discharge. Both Taiwan and Shenzhen chose the social assistance minimum income; basically, the poverty level. Taiwan recently increased this by 20% after years of criticism of forcing bankrupt debtors into the extreme austerity of living within these tight budgets. Shenzhen has decided not to go beyond the poverty level, at least for now.

Expressing the strictures of these poverty levels in useful comparative terms is really difficult for me. Official exchange rates are quite misleading when the question is "what is it like to try to make do on X [local currency units] for three years in [X country]?" Purchasing power parity exchange rates likely get closer to the mark, but with China, I'm not even sure that approach captures the pain (or ease) that debtors in the "discharge examination period" must endure. The figures I'm wrestling with are 1950 yuan in Shenzhen and about 18,000 new Taiwan dollars (15,000 x 1.2) in Taipei (less in the outlying areas). I vaguely understand these to correspond to about US$465 and US$600, respectively, per month, but this just seems untenable to me. How could anyone survive on these amounts for 36 months in Shenzhen or 72 months in Taipei? Granted, both sets of figures are per person, so a debtor caring for parents and/or children might end up with several multiples of these figures per month, but even then, supporting a family of four on US$1860 per month for three years in a major city like Shenzhen still strikes me as so austere as to dissuade people from seeking relief. Am I just out of touch with the reality of modern financial struggles generally (I know some low-income Americans also strain to make ends meet on somewhat similar budgets), or am I not understanding something about life in big-city China, or are the figures just not reflecting the feeling of life within these limits? Any insight would be greatly appreciated.

Massachusetts Throws in the Towel with Credit Acceptance Corporation

posted by Adam Levitin

In 2020 the Massachusetts Attorney General brought one of the most significant consumer finance cases in years, a suit against subprime auto lender Credit Acceptance Corporation.  If you haven’t heard of CAC, it’s a one of the largest subprime auto lenders, and its stock has been one of the hottest growth stocks in recent years.  CAC is an indirect lender, meaning that it doesn't make the loan directly to the consumer, but instead purchases the loan from the dealer (who will not make the loan until the purchase is lined up).  

The suit contained a couple of really revolutionary claims, and Massachusetts was initially successfully, winning summary judgment on one count this spring and defeating the motion to dismiss on all challenged counts. The suit recently settled and for a surprisingly low amount and with virtually no meaningful prospective relief. CAC certainly had some possible defenses, but Massachusetts really seemed to be in a strong position, so it's a bit of a head scratcher what happened. 

Continue reading "Massachusetts Throws in the Towel with Credit Acceptance Corporation" »

Might PBA Creditors Take a Lesson From the Black Widow?

posted by Mark Weidemaier

Mark Weidemaier and Mitu Gulati

We’ve had lots of interesting responses to our earlier post on debt restructuring shenanigans engaged in by the Province of Buenos Aires. Many on the creditor side are miffed. Two issues raised by these responses seemed worth another post. So here we go.

Why not use the Black Widow Strategy?

At first, we didn’t understand the reference. But Google helped. Black Widow is the new Marvel movie starring Scarlett Johansson, who is suing Disney because it, and its subsidiary Marvel, did not do an exclusive release of the movie in theaters before selling it on the new Disney Plus streaming service (here). Instead of suing Marvel for breach of contract, she is suing Disney for tortious interference with contract. This is a standard move for parties bound, like Ms. Johansson, by an arbitration clause they would prefer to avoid. By suing a related third party, they get to proceed in court—unless the third party can argue that it is a third party beneficiary or otherwise entitled to invoke the arbitration agreement.

Why mention tortious interference in the context of the Province of Buenos Aires’ recent exchange offer? Tortious interference is an old common law tort action. It is typically brought against a non-party who induces one of the contracting parties to breach. Since it is a tort, one has to show causality and, in some circumstances, also that the non-party not only interfered but did so with some improper motive or by some improper method. (And defining what counts as improper has proven difficult). A senior lawyer who hated Ecuador’s original exit exchange in 2000 once commented that he was inclined to organize a tortious interference action and believed he would win. The logic then and now is that, by inducing participating creditors to vote to impair the rights under the contract they are exiting, the issuer is inducing a breach of that contract.

But we are less confident that tortious interference is a helpful way of thinking about behavior like PBA’s.

Continue reading "Might PBA Creditors Take a Lesson From the Black Widow?" »

Why Are Creditors OK With The Province of Buenos Aires’ Dodgy Use of Exit Amendments?

posted by Mark Weidemaier

Mitu Gulati and Mark Weidemaier

For the most part, the financial press has not scrutinized the details of the ongoing restructuring by the Province of Buenos Aires (PBA), which is nearing completion. The details are worth considering. Some aspects of the exchange offer might have crossed the line between good and bad faith and might have been subject to legal challenge. But this turns out be an uncertain area of law.

The basic transaction is structured as an exit exchange, and this technique raises some legal uncertainties even if we ignore the dodgy particulars of PBA’s restructuring. A debtor in financial distress needs to negotiate a debt reduction with its creditors. The debt contracts allow creditors to consent to reduce the amounts owed them, but only on condition that a majority or supermajority vote in favor. Let’s say, hypothetically, this requires the support of 90% of creditors. And let us say that the debtor has managed to persuade only 60% of creditors to support its restructuring proposal. So the debtor would seem to be out of luck.

Enter the exit exchange.

Continue reading "Why Are Creditors OK With The Province of Buenos Aires’ Dodgy Use of Exit Amendments?" »

Investors in Province of Buenos Aires Bonds Might Want to Look at their Prescription Clauses

posted by Mitu Gulati

Mark Weidemaier & Mitu Gulati

The Province of Buenos Aires (PBA) is about to conclude its much delayed exchange offer. The exchange offer has been revised over and over and has featured many restructuring techniques detested by investors (Pac Man, re-designation, hard-nosed exit consents). But it seems as if the exchange may finally go through.

Rather than write about redesignation or any of the more salient features of the exchange, we want to discuss a more obscure feature, which differs in the two types of bond contracts PBA is offering. (Investors don’t have a choice; those with old bonds (from 2006) get one set of provisions and those with newer bonds (from 2015) get another.) This post is about the different prescription provisions being offered to the two types of bondholders, old and new.

Continue reading "Investors in Province of Buenos Aires Bonds Might Want to Look at their Prescription Clauses" »

Recommended Reading: Bannon and Keith on Remote Court

posted by Melissa Jacoby

Virtual court proceedings, an important public health intervention, have prompted many a judge and lawyer to envision heavy use of virtual hearings in more ordinary times - including in bankruptcy courts, which carry the highest federal court case load and feature financially distressed parties. The benefits of remote court are often touted, but what about the costs? Can "virtual justice" be achieved? To explore these issues, check out an article by Alicia Bannon and Douglas Keith of NYU's Brennan Center for Justice published in the Northwestern University Law Review.  

Here is the abstract

Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has varied substantially depending on the nature of the proceedings, the rules and procedures courts put in place, and the relevant court users’ resources and tech savvy. Critically, the challenges posed by remote court have often been less visible to judges than the efficiency benefits. Drawing on these lessons, this Essay identifies a series of principles that should inform future uses of remote technology. Ultimately, new technology should be embraced when—and only when—it is consistent with fair proceedings and access to justice for all.

Afsharipour on "Women and M&A"

posted by Mitu Gulati

I'm writing to second Melissa's wonderful post (below) on Afra Afsharipour's recent article.  My thanks to Melissa for pointing out this super piece.

There is a rich literature on the question of the gender gap in the legal profession, with wonderful work by scholars such as Elizabeth Gorman, Ronit Dinotvitzer, Fiona Kay, Joyce Sperling and others. One of the gaps in this literature that I've found over the years though is the lack of in-depth analyses of particular practice areas or individual firms.  Many of the analyses look at the gender gaps in the fractions of law students, junior associates and partners and stop there (I am guilty as charged on this). But, of course, we know (or at least suspect) that there is likely tremendous variation across fields. Understanding that variation might help us better understand what causes the gender gap and how to remedy it.

Continue reading "Afsharipour on "Women and M&A"" »

Recommended reading: Afsharipour on Women and M&A

posted by Melissa Jacoby

For many reasons and no reasons, blogging on Credit Slips during the COVID-19 pandemic has not come easy, or at all, for me (Twitter, a different story). Rejoining the Credit Slips conversation by recommending scholarship relevant to bankrupty-land even if not directly about bankruptcy-land. 

Today's recommendation is an empirical study, Women and M&A, by Professor Afra Afsharipour.  

Chapter 11 has become the forum for lots of mergers and acquisition activity, including and particularly in sales outside of plans. Some think that's great and others are skeptical (I have work in progress that further tallies the costs of unbundling chapter 11's package deal, or what I call bankruptcy a la carte). While Professor Afsharipour's article does not focus on M&A in bankruptcy, the law firms appearing in the study will be familiar names in the larger chapter 11 practice world. 

Many readers likely will have a prediction about the demography of the people taking the lead in M&A. Check out how your prediction compares to Professor Afsharipour's findings and why her findings matter. Read more about and download the article here.  

In Memoriam: Walter W. Miller, Jr. (1932–2021)

posted by Stephen Lubben

Wally Miller, my bankruptcy professor at BU Law back in the 1990s, has passed away. He is quite directly the reason why I became interested in bankruptcy.

Now Is the Time for Bankruptcy Venue Reform

posted by Adam Levitin

Judges Joan Feeney and Steven Rhodes and Professor Jay Westbrook and I have an op-ed supporting bankruptcy venue reform running in The Hill. Forum shopping has long been a problem in chapter 11, but with mass tort cases like Purdue and Boy Scouts of America, we're seeing it have effects on an previously unprecedented scale. It's time to do something about for the good of the system. 

Thoughts on Student Loans and the FRESH Start Act

posted by Bob Lawless

A new bill from Senators Durbin and Cornyn promises a way out of student loan debt through a change in the bankruptcy laws. The Fresh START Through Bankruptcy Act of 2021 makes one principal change. After 10 years from the date they first came due, federal student loans would be freely dischargeable. Before 10 years, student loans would be dischargeable only if the debtor could show undue hardship, which is the standard currently. Private student loans would remain nondischargeable at all times except upon a showing of undue hardship. This is not the bill I would write, but it's a step in the right direction.

How could the bill be improved? First, ten years is too long. It is the entire regular repayment period for a federal student loan. Do we really think that debtors should have to struggle for ten years before becoming eligible for a student-loan discharge. For example, from our "Life in the Sweatbox" paper, 60% of the people who reported they struggled for at least two years before bankruptcy said they went without medical attention and 47% said they went without a prescription they needed. 

Continue reading "Thoughts on Student Loans and the FRESH Start Act" »

Does Purdue Have a 203 N. LaSalle Problem?

posted by Adam Levitin

I was really struck by a line in the Purdue Pharma plan objection of the Distributors, Manufacturers and Pharmacies (DMP). They called the Sacklers mere "out-of-the-money shareholders."  That's 100% accurate. And it has important implications, one of which is in their objection, and one of which is not.  The point the DMP were making is that the release of the Sacklers has no reorganizational benefit to Purdue—it does nothing for Purdue's business.  This isn't like a release of litigation against folks who will remain officers and directors of a reorganized company and will be distracted by on-going litigation.  It's a good point.  But I think there's actually a stronger one. 

If one thinks of the Sacklers as out-of-the-money shareholders, then their release creates a 203 N. LaSalle Street P'Ship problem. 

Continue reading "Does Purdue Have a 203 N. LaSalle Problem? " »

Purdue Continues to Peddle Malarkey About Why It's in White Plains

posted by Adam Levitin

Purdue Pharma continues to peddle some malarkey about why it filed for bankruptcy in White Plains, New York.  In response to my House Judiciary testimony yesterday, Purdue told the Stamford Advocate:

Purdue Pharma Inc., the general partner of Purdue Pharma LP, has been a N.Y. corporation since its incorporation on Oct. 1, 1990. White Plains is about 15 miles from our corporate headquarters and is the closest federal bankruptcy courthouse. Thus it was the most appropriate place for us to file.

Let’s get real. Purdue—and that really means the Sacklers, who were still in control when Purdue's bankruptcy filing strategy was worked out—filed in White Plains because it wanted its case to be heard by Judge Robert Drain. If Judge Michael Wiles—who has held that bankruptcy courts do not have the power to issue third-party releases—had been the judge sitting in White Plains, there’s no chance Purdue would have gone anywhere near White Plains. On top of that, Purdue’s claim about convenience doesn’t pass the smell test. Convenience to corporate headquarters is never a real consideration in bankruptcy filings. If it were, would GM and Chrysler have filed in NY? Would Nieman Marcus or Belk have filed in Houston? Would anybody ever file in Delaware?

Continue reading "Purdue Continues to Peddle Malarkey About Why It's in White Plains" »

Nondischargeability and the Sacklers

posted by Adam Levitin

In the wake of today's House Judiciary Committee hearing, I got a text from an attorney who pointed out that if the Sacklers themselves filed for bankruptcy, creditors could raise non-dischargeability challenges under section 523, including for "willful and malicious injury by the debtor to another entity or to the property of another entity" or, or under section 1141(d)(6) for false claims acts violations. But with a non-debtor release, there's no opportunity or process to raise non-dischargeability challenges.

In other words, the Sacklers will be able to get greater a type of relief by piggybacking on Purdue's case that they could if they were debtors themselves.  Bruh. 

If that isn't a strong indication that the Bankruptcy Code does not contemplate non-debtor releases outside of the asbestos context, I'm not sure what is.

Puerto Rico and the Professionals

posted by Stephen Lubben

It is Congress week on Slips. On Thursday I will be testifying in front of the Senate Committee on Energy and Natural Resources in support of S. 375, Puerto Rico Recovery Accuracy in Disclosures Act of 2021 or PRRADA. The bill, which has already passed the House, would supplement PROMESA's existing requirements that professionals file fee applications with various disclosure requirements that are familiar from chapter 11. My written testimony is here.  

Is DOJ Supporting the Purdue Pharma Plan? Or Not?

posted by Adam Levitin

The Department of Justice appears to be mumbling out of both sides of its mouth in the Purdue Pharma bankruptcy.  On July 19, DOJ filed a "statement" regarding the release of the Sacklers. Not an "objection," but a statement that sure reads a lot like an objection.  Then today we learn that DOJ did not bother to vote its multi-billion dollar claim. The plan deems a vote not cast to be an acceptance. 

So which one is it?  Is DOJ for the plan or against it?  Or trying to keep its head down and avoid political heat while not really derailing anything?  Whatever position DOJ wants to take, this approach is not exactly a profile in courage.  (And failing to vote is not exactly in keeping with DOJ's brand... And failing to exercise governance rights on a multi-billion dollar asset? Bruh.)

I'll be very curious to see if DOJ actually argues anything at the confirmation hearing or joins in any appeal. The appellate point is key--there's a long-shot chance that the district court or 2nd Circuit might stay the effective date of the plan--but I think the odds of that are close to zero unless DOJ is among the parties making such a motion. If DOJ fails to seek a stay of the plan going into effect, it will be hard to see DOJ's "statement" as anything more than political posturing.

House Judiciary Testimony on Chapter 11 Abuses

posted by Adam Levitin

I'm testifying before the House Judiciary Committee on Wednesday at a hearing entitled "Confronting Abuses of the Chapter 11 System."  My written testimony can be found here. It touches on six topics:

  1. Non-debtor releases
  2. Judge-picking
  3. Lack of appellate review (especially equitable mootness)
  4. Increased use of sub rosa plans
  5. Increasingly brazen fraudulent transfers
  6. Payday before mayday executive bonuses

By the way, since my draft article on Purdue has been public, I've heard from a number of attorneys, including folks I had not previously known, confirming various insights in the paper and wanting to tell me their own stories.  I have really appreciated that and learned a lot from it.  I have not seen this scale of a reaction to a paper previously. So if you've got your own tale of aggressive restructuring transactions being blessed by a hand-picked judge and then evading appellate review, I'm eager to hear them (and won't attribute them to you). 

The Department of Education Can Help With Student Loans in Bankruptcy

posted by Pamela Foohey

With the Second Circuit's decision last week regarding private student loans, student loan discharge in bankruptcy is in the news. As Slipster Adam Levitin blogged, the "big picture" effect of this decision--and the 5th and 10th Circuits--is unclear. They could affect a broad swath of private student loans and they possibly could bring more bankruptcy filings to deal with a portion of people's student loan debt. Regardless, though, federal student loans remain presumptively non-dischargeable.

If the people who file bankruptcy with both private and federal student loans (which, I suspect, likely is many people with student loans), debtors will need to bring undue hardship discharge requests. A possible additional effect of these decisions may be to increase undue hardship requests, provided that debtors and attorneys think they are worth making. Research by Jason Iuliano (Utah Law) suggests that debtors may be more successful in these actions than the general public or even many consumer bankruptcy attorneys presume.

For federal students loans, the Department of Education plays a crucial role in undue hardship discharge requests. I recently published an essay in Minnesota Law Review Headnotes, co-authored with Aaron Ament and Daniel Zibel, who co-founded the National Student Legal Defense Network, regarding how the Ed Department should update its internal guidance for determining whether to contest a borrower’s request for an undue hardship discharge. The Ed Department presently seems to be wasting resources going after debtors with little ability to repay, regardless of whether their student loans are discharged. In the essay, we provide two options for how the Department can update its approach to bankruptcies to ensure that it calibrates its actions to make the promise of a fresh start more real for student borrowers.

Continue reading "The Department of Education Can Help With Student Loans in Bankruptcy" »

The Texas Two-Step: The New Fad in Fraudulent Transfers

posted by Adam Levitin

There's a new fad in fraudulent transfers. It's called the Texas Two-Step. Here's how it goes. A company has a lot of tort liabilities (e.g., asbestos, talc, benzene, Roundup). The company transforms into a Texas corporate entity (the particular type doesn't matter). The new Texas entity then undertakes a "divisive merger" that splits the company into two companies, and it allocates the assets and liabilities as it pleases among the successor entities.

The result is that one successor entity ends up saddled with the tort liabilities (BadCo) and the other with the assets (GoodCo).  The companies then convert to whatever type of entity the want to be going forward for corporate governance (or venue) purposes, and the BadCo files for bankruptcy, while GoodCo keeps chugging away. The tort victims find themselves creditors in the bankruptcy of BadCo and get bupkes, while the bankruptcy plan inevitably includes a release of all claims against GoodCo. Pretty nifty way to hinder, delay, or defraud creditors if it works, right?

Well, that's the question:  does this work?  We've only seen two Texas Two-Steps to date. There have been a few Texas Two-Steps to date (and one might be a Wilmington Waltz). First was BestWall's asbestos bankruptcy. BestWall (formerly part of Georgia Pacific) is a subsidiary of Koch Industries, and its bankruptcy is pending in the Western District of North Carolina. No plan has been confirmed, but the case has been dragging on since 2017, and the asbestos victims have been enjoined from suing any of the non-bankrupt Koch entities. Plan exclusivity has long-lapsed, but the court won't dismiss the case and doesn't seem willing to consider any alternatives. Even if the Two-Step isn't completely successful in the end, it will surely reduce whatever settlement the Koch entities have to pay.

Then there's DBMP (CertainTeed), another asbestos case, again in the Western District of North Carolina. Same story going on there; there's an adversary proceeding pending about the preliminary injunction. Also in WDNC, before the same judge is Aldrich Pump. Same judge as DBMP, and again a preliminary injunction. And then pending in Delaware is Paddock Enterprises, LLC, the rump of Owens-Illinois. The UST filed an examiner motion over the divisive merger transaction. Denied.

In any case, the Two-Step looks promising enough that Johnson & Johnson is supposedly considering using it for its talc liabilities.

Continue reading "The Texas Two-Step: The New Fad in Fraudulent Transfers" »

15 Years of Credit Slips

posted by Bob Lawless

The Debt Hole.White BannerToday marks fifteen years of the Credit Slips blog. We started modestly on this date in 2006 while we were in the throes of doing all the tedious ground work for what would be the 2007 version of the Consumer Bankruptcy Project. After 15 years, I think I can reveal that I had originally proposed--and I am not making this up--a different name for the blog. Proof of the bona fides of that big reveal are to the right, which was the original mockup of the blog banner. Much, much wiser heads prevailed. The blog got a different name, and Credit Slips was launched. Many thanks to all of our bloggers over the years, both regulars and guests, but especially many thanks to our readers who have helped us create this little corner of the Internet that we will keep going as long as you'll have us.

The Emperor's Old Bonds

posted by Mitu Gulati

Andres Paciuc, Mike Chen & Charlie Fendrych, have just published their delightful paper on Chinese Imperial Debt in the Duke Journal of Comparative and International Law. This is a version of a paper that they did for my sovereign debt class with Mark Weidemaier a few years ago. Bravo! The paper is available here.

Here is the abstract:

Recent news articles have suggested that Trump’s trade war may finally provide relief to American holders of defaulted, pre-1950s Chinese bonds. Here, we examine the hurdles set before these bondholders, namely establishing jurisdiction over the People’s Republic of China as a sovereign and the long-lapsed statute of limitations. We also evaluate the Chinese government’s possible recourse.

Our investigation yielded key takeaways. First, to establish jurisdiction in the U.S., the bond must be denominated in U.S. Dollars or state a place of performance within the country. Second, to overcome the long-expired statute of limitations and win an equitable remedy, it must be shown that the PRC violated an absolute priority or pari passu clause and is a “uniquely recalcitrant” debtor. Finally, despite China’s commitment to the odious debt doctrine, the doctrine is unlikely to provide meaningful legal protection in an otherwise successful suit. Overall, it is a difficult suit to bring. However, through our investigations, we have discovered one issue in particular which holds the greatest danger—or perhaps the greatest promise: the Chinese Government 2-Year 6% Treasury Notes of 1919.

Second Circuit Holds Many Private Student Loans Are Dischargeable in Bankruptcy

posted by Adam Levitin

The 2d Circuit this week joined the 5th and 10th Circuits in holding that the discharge exception in 11 U.S.C. § 523(a)(8)(A)(ii) for "an obligation to repay funds received as an educational benefit, scholarship, or stipend" doesn’t cover private student loans, only things like conditional grants (e.g., a ROTC grant that has to be repaid if the student doesn't enlist). It's another important student loan decision. At this point ever circuit to weigh in on the issue has said that private student loans aren't covered under 523(a)(8)(A)(ii).  Instead, a private student loan, if it's going to be non-dischargeable, would have to fit under 523(a)(8)(B), but that provision doesn't cover all private student loans. It only covers "qualified educational loans," which are loans solely for qualified higher education expenses (itself a defined term).

In this case, the debtor alleged that the loan was not made solely to cover his cost of attending college, and the loan was disbursed to him directly. The creditor, Navient, did not claim that the loan qualified as a "qualified educational loan," and instead relied on the 523(a)(8)(A)(ii) exception.The Second Circuit wasn't having any of it.

So what does this mean big picture?

Continue reading "Second Circuit Holds Many Private Student Loans Are Dischargeable in Bankruptcy" »

Sacklers Withdraw Their Threatened Sanctions Motion

posted by Adam Levitin

The Sacklers decided not to proceed with their threatened sanctions motion. Their counsel wrote to the case distribution list:

After having heard from several parties that the motion served yesterday may be counterproductive to the deal, we are withdrawing the email we sent yesterday serving the Rule 9011 motion.  It was not our intention to do anything counterproductive to concluding the deal, and we take seriously the views that have been expressed to us.  The motion has not been and will not be filed. 

Not every day you see a party put out a 201 page sanctions motion and then to yank it back the next day. 🤦🏻‍♂️🤦🏻‍♂️🤦🏻‍♂️  Wonder what the billing was for this episode?

Why Aren't All Judicial Recusal Lists Public?

posted by Adam Levitin

Judges sometimes have to recuse themselves from hearing cases because of financial or personal interests. Some of those conflicts can be spotted in advance, and judges will have standing recusal lists filed with the clerk of the court to keep those cases from being assigned to them in the first place. Of course, these recusals can be weaponized:  if there are two judges in a district, and I know that the son of one is a partner at local law firm, I can hire that firm as my co-counsel and ensure that the case will go before the other judge.

I got interested in this issue precisely because it enables judge-picking in two-judge divisions or districts. Some courts have their recusal lists up on the court's website. Others do not publish it. I was surprised today to be rebuffed when I asked the clerk's office for the Bankruptcy Court for the Southern District of Texas about getting the recusal list for the two judges who presided last year over half of the large, public company bankruptcies in the entire nation.

I wasn't given an explanation of why it isn't publicly available. As far as I can see, it should be. Parties should have a right to know why their case got assigned to a particular judge, not least because if the case assignment was the result of another party deliberately conflicting out a judge that might be grounds for seeking some sort of relief.  Perhaps there's some sort of privacy concern I don't see, but it strikes me that as a matter of course, all judicial recusal lists should be public and published. 

But this also brings up another matter, which is the variation in practice among courts on a range of issues. It's beyond me why there isn't much greater uniformity in administrative practices among clerks' offices. As I've been crawling through courts' websites, I've been struck by the lack of uniformity on all sorts of things (e.g., some courts' ECF systems include time stamps, and others don't). The decentralized nature of the court administration doesn't strike me as optimal or even the result of a lot of thinking, but more the outgrowth of traditional local fiefdoms. It doesn't make a lot of sense in an internet-driven age with national practices. 

The Sacklers Try to Strong Arm the Non-Consenting States with a Threat of Sanctions

posted by Adam Levitin

Every time I think the Purdue Pharma bankruptcy couldn't get crazier, it does. The latest development is that some of the Sacklers (the Raymond branch) are seeking sanctions against five of the holdout non-consenting states for allegedly false statements in the states' proofs of claim. It's a blatant litigation tactic. The clear motivation for this motion is to bully the non-consenting states into dropping their opposition to the plan (and the release of the Sacklers) in exchange for the Sacklers dropping the sanctions motion. It’s absolutely outrageous.

Continue reading "The Sacklers Try to Strong Arm the Non-Consenting States with a Threat of Sanctions" »

Cheeky Cruise Company Lawyering

posted by Mitu Gulati

This past week’s episode of Andrew Jennings’ Business Scholarship Podcast tells a wonderful story of sneaky cruise ship lawyering. Andrew’s guest was John Coyle, contracts/choice-of-law guru. The discussion focused on the 11th Circuit’s recent decision in Myhra v. Royal Caribbean Cruises, Ltd., and John’s new article about that case, “Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses”  

The backdrop to this story is US federal law that constrains cruise companies from contracting to limit liability in the small print of their contracts with customers; contract provisions that few read and fewer still pay attention to.  John explains:

46 U.S.C. § 30509 . . . prohibits cruise companies from writing provisions into their passenger contracts that limit the company’s liability for personal injury or death incurred on cruises that stop at a U.S. port.  The policy goal underlying this statute is simple.  A cruise contract is the prototypical contract of adhesion.  Absent the constraints imposed by the statute, a cruise company could write language into its passenger contracts that would absolve the company from liability for passenger injuries even when the company was at fault.  The statute clearly states that such provisions are void as against U.S. public policy and directs courts not to give them any effect.

That strikes me as a pretty clear dictate to the courts.  And if I were a cruise company contract lawyer, I’d be worried about trying to draft around such a clear dictate.  (Wouldn’t courts, customers, and just about everyone else look with disfavor upon such sneakiness?). Cruise company lawyers though, at least in the 11th Circuit (which is the key circuit for such matters, since it covers Florida) have figured out a back door way around the explicit prohibition by using a combination of forum selection and governing law clauses.  This enables them to limit liability to foreign customers, even though they are taking the same cruise as their US counterparts.  John’s article explains:

Notwithstanding this clear statement of U.S. policy, cruise companies have worked diligently to develop a workaround to Section 30509 for passengers who reside outside the United States. First, the companies write choice-of-law clauses into their passenger contracts selecting the law of the passenger’s home country.  In many cases, the enforcement of such clauses will result in the application of the Athens Convention, a multilateral treaty which caps the liability of cruise ship companies.  When the Athens Convention applies, an injured cruise ship passenger generally cannot recover more than $66,000 in a tort suit against the cruise ship company.  In this way, the cruise company seeks to accomplish indirectly through a choice-of-law clause what it could not achieve directly via a contract provision limiting their liability.

I’m astonished.  Surely a US federal court would not permit such a sneaky workaround.  And John’s article explains, after canvasing a large set of cases across a range of subject areas, that that is the case. Except, maybe, if you are a cruise company litigating in the 11th Circuit against a foreign customer.

Continue reading "Cheeky Cruise Company Lawyering" »

(Why) Are ESG Sovereign Bonds (Such) Scams?

posted by Mark Weidemaier

Mark Weidemaier and Mitu Gulati

Environmental, social, and governance (ESG) investing is all the rage, with heaps of money pouring into sovereign and corporate bonds intended to finance efforts to meet climate-related goals and other worthwhile objectives. We have been skeptical of these commitments for some time, mostly because we aren’t persuaded investors care about much other than yield. And in fact, yields on ESG bonds seem to be a bit—but only a bit!—lower than yields on non-ESG bonds (the so-called “greenium”). As Matt Levine pointed out a couple of days ago, it’s not obvious how socially responsible investing will affect investors’ returns. But we are a little bit suspicious of the market for sovereign ESG bonds.

In part, we’re suspicious for the usual reasons. The basic transaction structure is that the bond issuer says it will use the proceeds for some beneficial environmental or social purpose. But the commitments are often defined so vaguely that it is hard to verify compliance. This is a pretty standard complaint, and a lot of smart people are thinking about how to define “green” investments and develop verification tools. But we’re suspicious for a more fundamental reason: The contracts are absolute b.s. Many issuers don’t commit to anything at all, or so the documentation suggests.

Continue reading "(Why) Are ESG Sovereign Bonds (Such) Scams?" »

Available now, wherever books are sold.

posted by Stephen Lubben

I'm pleased to announce the publication of the second edition of American Business Bankruptcy. Now featuring coverage of the Small Business Reorganization Act (subchapter V) and a nifty endorsement from a fellow Slipster.

Let Consumers Control Their Financial Data

posted by Adam Levitin

I have an op-ed out in The Hill about who should control consumer financial data. Consumer financial data is basically the most valuable type of consumer data you can find because it is so easy to monetize. Not surprisingly, banks have been very reluctant to let consumers share their data with nonbanks (or other banks). Fortunately, there's a tool for addressing this issue. Section 1033 of the Dodd-Frank Act gives consumers a right to control their financial data. What's still needed, however, is a CFPB rulemaking implementing section 1033. The shape of a future 1033 rule will be key for setting forth the parameters for competition in consumer financial services for the next generation. There are certainly security and privacy issues that need to be addressed, but it should be no surprise that I am strongly in favor of broad data portability.

Purdue Retaliates Against the Parent of an Opioid Victim Who Dares to Speak Out

posted by Adam Levitin

Another recent Purdue docket item caught my notice. It is an order approving a settlement between Peter Jackson, the parent of a teenage opioid overdose victim, and Purdue and the Personal Injury Ad Hoc Committee regarding discovery requests that Purdue and the PI Ad Hoc Committee served on Mr. Jackson. It's a minor episode in the overall bankruptcy, but shows just how nasty Purdue is willing to get to push through its plan.

Continue reading "Purdue Retaliates Against the Parent of an Opioid Victim Who Dares to Speak Out" »

Getting Ahead of Consumer Loan Defaults Post-Pandemic

posted by Pamela Foohey

On this Tuesday, the Supreme Court refused to lift a ban on evictions for tenants that the Centers for Disease Control and Prevention recently extended through the end of July. The eviction moratoria is one of a handful of debt pauses put in place by the federal government during the COVID-19 pandemic that are set to expire soon. The student loan moratorium ends on September 30. The mortgage foreclosure moratorium ends on July 31. In anticipation of the end of the foreclosure moratorium, this week, the CFPB finalized new rules that put into place protections for borrowers that servicers must use before they foreclose.

Student loans and mortgages are most people's two largest debts. But they are not the only large loans that people are in danger of getting behind on post-pandemic. Indeed, when student loan and mortgage debts become due, people may prioritize paying them ahead of car loans, credit cards, and similar. In a new op-ed in The Hill, Christopher Odinet, Slipster Dalié Jiménez, and I set forth how the CFPB can use its legal authority to steer a range of loan servicers to offering people affordable modifications. As a preview, we suggest that the CFPB should issue a compliance and enforcement bulletin directing loan servicers to make a reasonable determination that a borrower has the ability to make all required, scheduled payments in connection with any modification.

The piece is a short version of our new draft paper, Steering Loan Modifications Post-Pandemic, which we wrote as part of the upcoming "Crisis in Contracts" symposium hosted by Duke Law's Law & Contemporary Problems journal. The paper contains more about what federal agencies already are doing to get ahead of mortgage modification requests, about why similar is needed for the range of consumer loans, and about the reasoning behind our suggestion that the CFPB use its prevent what we term modification failures.

District Judge to Purdue: "You Don't Get to Choose Your Judge"

posted by Adam Levitin

"[Y]ou don't get to choose your judge." That's what US District Judge Colleen McMahon wrote to Purdue Pharma, in response to an ex parte letter Purdue had written to her addressing a possible motion to withdraw the reference to the bankruptcy court for a third-party release and injunction. 

The irony here is incredible. I suspect that Judge McMahon does not realize that judge picking is precisely what Purdue Pharma did to land its case before Judge Drain, rather than going on the wheel in Bowling Green and risking landing a judge who does not believe that there is authority to enter third-party releases.

The problem with judge picking is that it creates an appearance of impropriety. And judge picking is the original sin in Purdue's bankruptcy. It has tainted everything in the case. It will mean that however much money the Sacklers pay, there will always be the suspicion that they would have had to pay a lot more had the case been randomly assigned to another judge, who might not have stayed litigation against them for nearly two years.

Continue reading "District Judge to Purdue: "You Don't Get to Choose Your Judge"" »

Collins v. Yellen: the Most Important (and Overlooked) Implication

posted by Adam Levitin

The Supreme Court's decision in Collins v. Yellen has garnered a fair amount of attention because it resulted in a change in the leadership at the Federal Housing Finance Agency and largely dashed the hopes of Fannie and Freddie preferred shareholders in terms of seeing a recovery of diverted dividends. But the commentary has missed the really critical implication of the decision:  the Biden administration can undertake a wholesale reform of Fannie and Freddie by itself without Congress.

Continue reading "Collins v. Yellen: the Most Important (and Overlooked) Implication" »

What's Up With Oral Opinions in Bankruptcy?

posted by Adam Levitin

I've been reading a lot of bankruptcy court transcripts this past year, and I've noticed how frequently judges issue rulings orally from the bench. Sometimes these rulings are clearly drafted out, complete with pincites, etc. Yet these decision are never published. The only way to find them is to dig through the transcripts, which are usually not available on the free public dockets, but only in PACER. 

I've got a trio of concerns about this practice as well as some general questions about why this practice exists that I'm hoping our readership (particularly judges) can answer. 

Continue reading "What's Up With Oral Opinions in Bankruptcy?" »

Venue Reform: Once More Unto the Breach

posted by Adam Levitin

Chapter 11 venue reform is back and not a moment too soon. The perennial problem of forum shopping has devolved into naked judge picking with what appears to be competition among a handful of judges to land large chapter 11 case. The results are incredible: last year 57% of the large public company bankruptcies ended up before just three judges, and 39% ended up before a single judge. When judges compete for cases, the entire system is degraded. Judges who want to attract or retain the flow of big cases cannot rule against debtors (or their private equity sponsors) on any key issues. If they do, they are branded as "unpredictable" and the business flows elsewhere. The result is that we are seeing a weaponization of bankruptcy and procedural rights, particularly for nonconsensual or legacy creditors being trampled.  

Recognizing this problem, Rep. Zoe Lofgren (D-CA) and Ken Buck (R-CO) introduced the bipartisan Bankruptcy Venue Reform Act of 2021, H.R. 41931. The bill would require debtors to file where their principal place of business or principal assets are located—in other words in a location with a real world connection with the debtor's business. 

Continue reading "Venue Reform: Once More Unto the Breach" »

Antique Chinese Debt - The Latest

posted by Mitu Gulati

Mark Weidemaier and I have talked about antique Chinese (mostly Imperial) debt often on this site.  And we've also discussed these debts on our podcast with sovereign debt gurus Tracy Alloway and Lee Buchheit (here).  Yes, we are a bit obsessed. Part of our fascination with this topic is that the Chinese government asserted a defense of odiousness to paying these debts.  The lenders (backed by western powers, seeking influence in China) and the Imperial borrowers (seeking to sell access to their country in exchange for self preservation) had, in essence, sold out the people of China.  End result: Revolution and refusal of successor communist governments to pay these debts, no matter what - even today, when China is a financial behemoth.  

Below is the abstract for a wonderful new paper, "Confirming the Obvious: Why Antique Chinese Bonds Should Remain Antique" in the U Penn Asian L. Rev. by two of our former Duke students, Alex Xiao and Brenda Luo.  Bravo! We are so proud.

As the Sino-U.S. relationship goes on a downward spiral, points of conflict have sparked at places one might not expect: antique sovereign bonds. In recent years, the idea of making China pay for the sovereign bonds issued by its predecessor regimes a century ago have received increasing attention in the U.S. This note takes this seeming strange idea seriously and maps out the possible legal issues surrounding a revival of these century-old bonds. Although two particular bonds show some potential for revival—the Hukuang Railways 5% Sinking Fund Gold Bonds of 1911 and the Pacific Development Loan of 1937—the private bondholders would unlikely be able to toll the statute of limitations on the repayment claims based on these bonds. Even in the unlikely scenario that they succeed, the Chinese government would have an arsenal of contract law arguments against the enforcement of these bonds, most notably defenses based on duress, impracticality, and public policy. By going into the details of the legal arguments and history behind these bonds, we seek to confirm the obvious, that is, the idea of making China pay for these bonds is as far-fetched as it sounds and would not be taken seriously by courts.

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