Bad Bankruptcy bill clears Senate

The Senate on Tuesday rejected further opposition to approval of the horrific bankruptcy “reform” legislation, which clears the way for a final Senate vote on the bill over in the next couple of days. House Republican “leaders” have already publicly announced that they would approve the Senate bill next month and send the bill to the White House later this spring.
Harvard Law professor Elizabeth Warren wrote the following about this special interest-backed abomimation on a temporary “subweblog” on the bankruptcy bill that she has been contributing to over on Josh Marshall’s blog:

So the bankruptcy bill moves forward, speeding toward inevitable passage in the Senate and the House. That’s good news for credit card companies, particularly those that are loading their cards up with surprise interest rate jumps and a dozen other tricks and traps. Good news for payday lenders, for banks raking in profits on overdraft accounts, and for car lenders that focus on no-credit-check lending. Good news for all of those who squeeze the American family when someone loses a job, gets sick, or otherwise falls behind in a tough economy.

Previous posts on this dubious legislation may be reviewed here, here, here and here.
Banks, credit-card companies and retailers have poured money into Republican campaign war chests for the past decade while pushing for this ill-conceived legislation. The demagouges supporting the bill contend that it is “too easy” for consumers to run up debt and then use bankruptcy protections to bail themselves out.
The Senate bill would limit the ability of individuals to use a liquidation under chapter 7 of the U.S. Bankruptcy Code to eliminate credit-card debt or certain loans. It would require those with the means to pay some of their debts to file under chapter 13 of the Bankruptcy Code, which requires that the debtor propose a plan for repayment of a portion of his debts from future income.
On the other hand, wealthy individuals will not be affected all that much by the legislation because the bill retains many of the same exemptions that can be used to shelter valuable assets from the bankruptcy estate that is established upon the filing of a bankruptcy case. The new legislation even retains a loophole that permits people to set up so-called “asset protection trusts,” which are exempt from being used to pay off debts in a bankruptcy case.
The most important change in the legislation makes it more difficult and expensive for families under heavy debt loaks from filing a chapter 7 liquidation case, which provides the “fresh start” discharge of personal liability for debts that is central to American insolvency law. The new legislation will force more debtors to file Chapter 13 cases, in which the Bankruptcy Court oversees a three to five year repayment plan. About 70% of individuals currently filing for bankruptcy do so under chapter 7.
The legislation does retain the liberal real estate homestead exemption of Texas and several other states, which allows wealthy debtors to come out of a bankruptcy case retaining the value of their high-priced homestead. However, the legislation does limit the exemption by requiring that debtors own their homes for 40 months to qualify for the exemption.
During yesterday’s Senate debate on the bill, the Senate also rejected efforts to drop the loophole in the legislation that permits wealthy people to protect assets by opening special trust accounts in several states, including Alaska, Delaware, Rhode Island, Nevada and Utah. Doctors in those states have been setting up these asset-protection trusts for years to protect themselves from potential malpractice liability, and many business executives are now doing the same out of concern for potential liability for corporate accounting scandals. Experts estimate that approximately 1,500 domestic asset-protection trusts holding more than $2 billion in assets were created between 1997 and 2003.
Finally, the reform legislation also provides a potential procedural nightmare for bankruptcy courts in that it imposes a strict “means test” to assess whether a prospective debtor would be allowed to liquidate under chapter 7, and adds new paperwork and legal burdens on debtors’ lawyers that will undoubtedly increase the cost of filing bankruptcy.
Make no mistake about it, I am against this bankruptcy “reform” legislation because it is an ill-conceived modification of a well-thought out but underappreciated bankruptcy system that contributes much to the strength of the American economic system. The “fresh start” of a bankruptcy discharge encourages entrepreneurs to take risk and create businesses and jobs, and gives individuals hope that they can rebound from a financial disaster to rebuild wealth for their families. I, for one, am not interested in giving that system away for the parochial benefit of the credit card industry.
Meanwhile, as Republican legislators harp about this “business-friendly” bankruptcy legislation, the Bush Administration’s criminalization of business continues unchecked. When are business leaders going to wake up and realize that the marginal benefit to business interests of “reforming” bankruptcy legislation pales in comparison to the damage done by the federal government’s increasing regulation of business through criminalization of merely questionable business transactions?

Feds bear down on Berkshire

On the heels of Warren Buffett’s annual letter to Berkshire Hathaway shareholders that was silent on such matters, federal and state investigators are focusing on whether a four year old transaction between Berkshire Hathaway’s General Reinsurance Corp. and American International Group Inc. transferred sufficient risk to AIG to allow the company to account for it as an insurance policy. Here is an earlier post on this investigation.
AIG booked the transaction as insurance, which increased its premium revenue by $500 million and added another $500 million to its property-casualty claims reserves. Generally accepted accounting principles require insurance and reinsurance transactions to transfer significant risk from one party to another if either party accounts for the transaction as insurance. Absent risk transfer, such transactions must be booked as financing, which defeats the purpose of the transaction. In the General Re-AIG deal, $600 million of potential losses were transferred from General Re to AIG in return for the $500 million premium paid by General Re. Investigators are evaluating whether the risk transfer was illusory based on the structure of the transaction. AIG confirmed last month that the Securities and Exchange Commission, the Justice Department, and New York Attorney General Eliot Spitzer’s office are examining its accounting for certain reinsurance contracts.
You know, doesn’t all of this sound eerily similar to this case?

Warren Buffet’s annual letter to shareholders

Uber-investor Warren Buffett‘s 2004 performance letter to Berkshire Hathaway, Inc‘s shareholders was published over the weekend. While citing such diverse characters as W.C. Fields and Jesus Christ, Mr. Buffett accepted blame for a drop in Berkshire’s 2004 earnings. Here is a prior post about Mr. Buffet’s letter from last year.
Mr. Buffett candidly admitted the following:

My hope was to make several multibillion dollar acquisitions that would add new and significant streams of earnings to the many we already have, But I struck out.

As a result, Berkshire’s change in book value increased only 10.5% in 2004, lagging behind that of the S&P 500-stock index’s 10.9% return, a performance that Mr. Buffett characterized as “lackluster.” However, it’s important to remember that Berkshire generated that return while remaining quite liquid — the company has $40 billion in cash reserves earning a small return, but putting the company in an enviable position to make acquisitions. Unfortunately, Mr. Buffett commented that there are currently “very few attractive securities to buy,” continuing a theme that was also used in last year’s letter.
Mr. Buffett’s currency investments allowed him to include the quote from W.C. Fields in his report. Inasmuch as Berkhire’s bets nearly doubled in 2004 to $21.4 billion, Mr. Buffet quoted Mr. Fields’ famous comment to a a beggar’s approach: “Sorry, son, all my money’s tied up in currency.”
Mr. Buffett also criticized U.S. policy makers for the growing current-account deficit and warned that net ownership of U.S. assets by foreign countries over the next decade will amount to about $11 trillion if account deficits continue at current levels. He did not explain why he thought that it was a bad idea for foreigners to overpay for U.S. assets.
Somewhat surprisingly, Mr. Buffett’s letter did not mention investigations by state and federal regulators into transactions between insurance clients and Berkshire’s General Re and other company reinsurance subsidiaries. Those investigations are examining whether some companies have used finite-risk insurance to hide financial obligations and make their results appear stronger than they actually are. You know, sort of like the criminalization of structured finance transactions of Enron fame.
Mr. Buffett also quoted Scripture in defending the independence of Berkshire’s board, which includes several Buffett family members and their friends, including Microsoft Corp.’s Bill Gates. Mr. Buffett contends that the board members’ substantial holdings in their own companies’ stock aligned them with the interests of other shareholders, and then cited Matthew 6:21, in which Jesus is quoted as saying “For where your treasure is, there will your heart be also.” Mr. Buffett concluded that “measured by the biblical standard, the Berkshire board is a model.”

Cap One to buy Hibernia Bank

The venerable Louisiana bank, Hibernia Corp., has agreed to be acquired by McLean, Va.-based Capital One Finance Corp. in a $5.35 billion deal that allows one of the nation’s leading credit card issuers finally to enter the retail banking industry. With a market value of approximately $20 billion, Cap One is nearly five times Hibernia’s size.
Hibernia is a Louisiana institution that established in the post-Civil War years. It became best known during the Great Depression, when the late Louisiana Governor and demagogue Huey Long leaned on Hibernia and other banks to finance huge public works projects for the construction of bridges, roads and other infrastructure in Louisiana during the 1930s. Hibernia has more about $22 billion in assets, about 300 branches and operations in Texas, Louisiana and Mississippi.
Cap One’s acquisition is a clear response to a shrinking market share in the credit card business, where competitors such as Bank of America Corp. have invested billions in new products over the past several years. That’s why your and my teenage children continue to receive so many solicitations for credit cards in the mail. Acquiring a retail bank will give Cap One low-cost retail deposits, which it can then use to generate loans at more profitable interest rates to its borrowers.
Hibernia’s banking operation will will fit nicely into Cap One’s business, which also provides financial services such as health insurance and personal loans. Cap One was also attracted to Hibernia’s presence in the Texas banking market, which is growing much faster than Louisiana’s market. The deal is is expected to close by the third quarter of this year. Hibernia shareholders will receive $33 for each of their shares, split into roughly half cash and half Cap One stock, which means that Hibernia stockholders will receive about a 24% premium on their shares’ $26.57 price on the New York Stock Exchange as of this past Friday.

Buying an apartment in New York City

You know, some things are just different in Manhattan.

Nervous times at Citgo HQ

This NY Times article reports on the concern in Houston business circles about Houston-based Citgo Petroleum Corp.’s status as the political football of choice for Hugo Ch·vez‘s Venezuelan government, which has controlled Citgo since government-owned PetrÛleos de Venezuela acquired a controlling interest in the company in 1990.
Basically, Mr. Ch·vez and his government have promoted popular sentiment in Venezuela against Citgo’s links to the United States while, at the same time, taking actions that indicate that the government is going to exercise greater control over the company. Citgo brands its name to over 14,000 independently owned gas stations in the U.S. and generates about 15 percent of the U.S. oil refining output.
About a month ago, Ch·vez fired Citgo’s chief executive Luis MarÌn and replaced him with Felix RodrÌguez, who is a senior executive at PetrÛleos de Venezuela and a political hack for Mr. Ch·vez. Then, last week, PetrÛleos de Venezuela purged the entire Citgo board of directors and replaced them with another group of Mr. Ch·vez’s political supporters.
Although the Times article tends to view the Venezuelan government’s control of Citgo as perilous to the U.S. energy market, I’m not buying it. Frankly, it is far more likely that Mr. Ch·vez and his government will make bad decisions regarding Citgo, which will present opportunities for its competitors.

The regulatory-induced syndrome of irrational exuberance

Temple University mathematics professor John Allen Paulos, author of Innumeracy (Hill 2001) and the more recent A Mathematician Plays the Stock Market (Basic 2003), wrote this insightful Wall Street Journal ($) op-ed yesterday in which he describes how even a bright mathematics professor who knows better can get caught up in the irrational exuberance of a stock bubble:

Bernie Ebbers’s testimony yesterday that he emphatically was not aware that his accountants were cooking WorldCom’s books while he was CEO brought back unpleasant memories of my disastrous “relationship” with the man. It began in 2000, when I received a small and totally unexpected sum of money. I considered it “mad money,” a term that, in retrospect, seems all too appropriate. Nothing distinguished the money from my other assets except this private designation, but being so classified made my modest windfall more vulnerable to whim. In this case it entrained a series of ill-fated, and much larger, investments in what WorldCom’s ads called “the pre-eminent global communications company for the digital generation.”

Professor Paulos goes on to explain how his limited research into WorldCom validated his interest in the stock, so he bought a few shares. And then:

After buying the initial shares, I found myself idly wondering, Why not buy more? I didn’t think of myself as a gambler, but I willed myself not to think, willed myself simply to act, willed myself to buy more shares of WCOM, shares that cost considerably more than the few I’d already bought. Usually a hard-headed fellow, I nevertheless succumbed to confirmation bias, looking disproportionately hard for what made my investment look good and essentially ignoring everything that made it look bad. This wasn’t difficult, given the stellar reports and strong buy recommendations that analysts kept bringing forth. In any case, I fell in love with the stock and saw every drop in its price as bringing about an even better buying opportunity. So-called averaging down (buying more shares when the price drops) is often indistinguishable from catching a falling knife, and in my case the result was thoroughly bloody hands.

Unfortunately, Professor Paulos found his initial bias toward the WorldCom stock hard to shake:

I’d grown tired of carrying on one-sided arguments with TV and online commentators as they delivered relentlessly bad news about WorldCom. So, in late fall 2001, some six months before its final swoon, I contacted a number of them and, having spent too much time in the immoderate atmosphere of WorldCom chatrooms, I chided them for their shortsightedness and exhorted them to look at the company differently.
Finally, out of frustration with the continued decline of WCOM stock, I even e-mailed Bernie Ebbers in early February 2002, suggesting that the company was not effectively stating its case and quixotically offering to help in any way that I could. WorldCom, I fatuously informed him, was well positioned, but dreadfully undervalued.
Even as I was writing them, I knew that sending these electronic epistles was absurd, but it gave me the temporary illusion of doing something about the free-falling stock. The realization that doing so had indeed been a no-brainer was glacially slow in arriving, and I didn’t dump it until April 2002, after it had lost almost all value. I gradually woke from this nightmarish infatuation with WorldCom to wonder how it had transformed me from a prudent investor in low-fee index funds into a monomaniacal speculator in a single dubious company.

Mr. Paulos concludes by answering his own question in the context of the ongoing sriminal trial of Mr. Ebbers:

Whatever the [Ebbers] trial’s outcome, however, I’ve long since come to a verdict on my behavior: guilty of stupidity in the first degree. No jail term, just a very substantial fine.

Yet, the ever-insightful Professor Ribstein notes in this post that attempting to deter this type of investor bravado through government regulation really just ensures that such irrational exuberance will eventually reappear:

A cause of the recent frauds is investors’ belief that they can outguess the market. Unfortunately, this erroneous belief is perpetuated and entrenched by court decisions and regulation that convey the impression that the markets are, again, safe for this foolish activity.

Quoting from a draft of his paper, Market v. Regulatory Responses to Corporate Fraud, 28 J. Corp. L. 1 (2002, Professor Ribstein observes:

Corporate frauds arguably were facilitated because there was too much investor confidence, as indicated by investors’ willingness to ignore what the market knew about questionable accounting and to not question firms’ extravagant claims about unproven business plans. Overselling regulation might perpetuate this misjudgment and mislead investors back into the same complacency that contributed to the recent frauds.

Justice tees up another investigation of Halliburton

In what seems like a weekly event, the Justice Department is investigating whether former employees of Houston-based Halliburton Co. conspired with other companies to rig bids for large overseas construction projects. Halliburton disclosed the bid-rigging investigation in its annual 10K filing with the Securities and Exchange Commission. This new antitrust investigation has grown out of an earlier investigation into whether a consortium of companies bribed Nigerian officials to win a lucrative contract to build a liquefied natural-gas plant there.
Although Halliburton is a major provider of oilfield services, it also owns the giant construction and government-contracting unit called Kellogg Brown & Root. KBR is one of the world’s largest overseas construction firms and specializes in building large and complex projects in foreign countries. Halliburton announced in late 2004 that it would likely sell its KBR unit, but that such a sale would take considerable time to finalize and consummate.
The antitrust and Nigeria investigations are focused on Albert J. “Jack” Stanley, who was the former chairman of the Halliburton unit Kellogg Brown & Root. Halliburton canned Mr. Stanley this past June for allegedly receiving improper payments from an agent of the Nigeria construction consortium. The Justice Department is looking into Mr. Stanley’s activities dating back to the mid-1980s when he worked for construction firm M.W. Kellogg. Dresser Industries acquired Kellogg in 1988 and then Halliburton bought Dresser in 1998 while U.S. Vice-President Dick Cheney was CEO of Halliburton.
This current probe is just one of many investigations that are confronting Halliburton, which appears to be defense lawyer’s dream client. Another federal grand jury is investigating whether the company violated U.S. sanctions against doing business in Iran, while another investigation is attemptting to determine whether Halliburton overcharged the U.S. military for running dining halls in Iraq.

Is the end of the line near for Foley’s?

In a deal that may well be the equivalent of Custer’s last stand for department-store retailing, Federated Department Stores Inc. — the owner of Macy’s and Bloomingdale’s — has agreed to buy its longtime and smaller rival May Department Stores Co. for about $11 billion. May is the owner of Houston’s venerable chain, Foley’s.
Federated will pay about $36 a share in cash and stock, and assume about $6 billion in debt, to buy May, which also owns the Marshall Field’s and Lord & Taylor chains. Although the proposed merger will create a huge company of nearly 1,000 department stores, the deal underscores the critical condition of department-store retailing, which has to undergo a transformation to survive in the brutal American retailing market. Big-box retailers such as Wal-Mart Stores Inc. on the low end and upscale stores such as Neiman Marcus Group Inc. on the high end are squeezing the profits of big department chains, which have been losing market share steadily over the past 25 years.
Although Federated operates only one Macy’s store in Foley’s home base of Houston, divestitures are still expected to occur, particularly in the 94 malls across the nation in which Federated and May both maintain locations. The merger is subject to regulatory approval, which is expected given the deteriorating condition of the department store-retailing sector.
Update: Dylan has interesting inside observations about May in this post.

Would you like to buy a note on a Houston downtown hotel?

There is an old saying among investors and insolvency lawyers that a hotel is such a bad investment that no owner makes any money on it until at least three prior owners have gone bust.
Well, it appears that the City of Houston is about ready to experience the truth of that observation. Following on the news from last week that the downtown Hyatt Regency Hotel has been posted for a foreclosure sale, the Chronicle reports that two other hotels — The Magnolia downtown and the Crowne Plaza Hotel in the Medical Center — have defaulted on a total of $15 million in redevelopment loans that the City provided in connection with the recent rehabilitation of the hotels.
It occurs to me that if I were a downtown or Medical Center hotel owner, and the City of Houston had subsidized two competitors of mine with a tax on my business, I’d be rather angry right now.

Continue reading