Chairman Ben S. Bernanke on Financial Innovation and Consumer Protection!

Since I've been busy for a few weeks with exams and all, there is much to catch up on. Chairman Bernanke spoke on April 17, 2009 at the Federal Reserve System's Sixth Biennial Community Affairs Research Conference, Washington, D.C. Bernanke commented "financial innovation, it seems, has fallen on hard times" in that it is often now seen as the problem (for a transcript, see the Federal Reserve website). Bernanke made some important points about the potential link between complexity of financial products and the potential for "unfair and deceptive" practices. That is, even a diligent consumer may not be fully aware of the whole host of potential fees associated with each credit card they have. The complexity of financial products can reduce transparency either because the terms are hard to deduce or perhaps to understand.

When turning to the problems faced by the Federal Reserve in drafting regulations to enhance consumer education, Bernanke placed great emphasis on the benefits of consumer testing. The caution to testing, though, is that disclosure does not always lead to consumer understanding. Therefore, sometimes the Federal Reserve must prohibit certain practices, such as double-cycle billing. I couldn't agree more with some of these observations. Transparency cannot solve all ills in the financial industry. It is not enough to say that consumers should find another provider if all providers use the same practices or consumers do not fully understand the practices. In the end, the Federal Reserve must address both complexity and transparency.

- JSM

Seton Hall Call for Papers

Seton Hall Law Review Symposium

October 30, 2009
Seton Hall Law School
Newark, NJ

Securities Regulation and the Global Economic Crisis: What Does the Future Hold?

CALL FOR PAPERS

The Seton Hall Law Review will be hosting a Symposium on October 30, 2009, at Seton Hall Law School in Newark, NJ, to address the role of securities regulation in the current global financial crisis. Specifically, this event will examine the origins and genesis of the crisis, address the future of securities regulation domestically and internationally, and attempt to anticipate the role of government agencies, self-regulatory organizations, and private market participants in shaping and effectuating regulation. This Symposium will bring together experts from both public and private sectors, as well as from the legal and academic communities, to explain, debate, and assess the challenges and opportunities presented by the current and prospective landscape of global securities regulation.

Persons interested in participating as a speaker and/or in publishing a piece in the special Symposium issue of the Seton Hall Law Review should submit a CV and a 200-word abstract of their presentation to Laura Fant, Symposium Editor, by May 15, 2009. Laura Fant may be reached at (617) 480-7428 / Laura.Fant@student.shu.edu. Prospective speakers or panelists should indicate whether they would be interested in submitting a paper based on their presentation for publication. Contributions are welcome from scholars and practitioners in all disciplines.

- JSM

Bankruptcy Commercials

Lawyer advertising has always received a bad rap. Its hard enough to tell whether lawyers are capitalizing on people's misfortunes when charging clients to sort out their problems (I don't have a problem with charging clients, but I do recognize the perception outside of business circles that lawyers make money on the heels of tragedy). That being said, I don't know how you produce a "classy" commercial. If you use empathy, it just looks shallow -- i.e. the single mom at a table with a stack of bills at 2:00 in the morning and the voice over of someone that sounds like a televangelist talking about no hope, and "there's a way out." If you try a business approach, you just look like a non-caring SOB that is going to get paid -- i.e. two attorneys posing, usually in front of bookshelves, sitting 3/4's on a desk, or some other office setting, and telling you "you have rights," (by the way that we will convert into dollars in our pocket). I point this out because I am not really sure what to do with this one. Is it anger, comedy, both or neither?



Here is another.


Marc (MLR)

iPhones, Kindles, and Digital Rights Management -- When the Sale of Things are not the only things that matter

So I have been thinking of how to talk about (shamelessly plug) my recent work on Apple's iPhone warranty. The article argues that Apple might be better off not litigating its intellectual property rights against consumers and instead using their warranties as a bait to convince consumers to act with good behavior to the iPhone (i.e. not hack it and therefore avoid the service arrangement Apple receives comensation through with AT&T). Last week I wrote a column for the Los Angeles Daily Review in which I said that gateway sales were possibly more important to certain vendors of high end consumer products than the thing itself:

In the high-tech consumer arena, device sales often are the gateway to other profits beyond the sale. Apple receives monthly compensation from AT&T for every iPhone that reaches the AT&T network. X-Box, Sony, and Nintendo reap profits from pay-to-play online gamer services like X-Box Live, Nintendo DSi, and Playstation Network, in addition to the stand alone games they sell in stores. Sony Blueray sells DVD Players -- but is far more interested in selling consumers DVD's from the Sony library. And the recent Amazon Kindle is poised to make a significant dent in the book seller market. Post-sale profits have become such a large factor that some manufacturers value those profits more than those made on the device itself. If those post-sale profits don't materialize, the potential loss for companies like Apple is enourmous -- conservatively between $3 million and $18 million per month for iPhones that never reach the AT&T network.

So how do you entice consumers to act better with their products. One means of doing so has been to "brick" the device so that the cnsumer has no more functional use (or desired use from the product). Hackers use the term brick because to them, the device obtains the value of a brick. Microsoft has been successful in "bricking" users from their x-Box Live accounts for invalid use, by banning user accounts for 7992 years (or until 12/31/9999). And Amazon, most recently terminated a user account for "frequent returns" effectively blocking the user from using his Kindle. Amazon ultimately relented, but the warning was served.

The problem with "bricking" is that it is only a temporary solution until consumers (or another third party) catch up technologically to offer a better use. In fact, the reality is that there are consumers that actually do buy the product to have the product. Consumers that have been bricked will eventually grow weary of paying for new accounts, buying new devices or whatever means the manufacturer has used to keep the user out. Then, those bricks will eventually form cities/ communities of disgruntled dwellers that have the technological knowledge and incentive to find alternative uses for their product, particularly in ways that do not benefit the manufacturer.

The solution I have offered, in both the Duke Law and Technology piece and the L.A. Daily Review, is that manufacturers should reevaluate how they approach these consumers. Indeed, Manufacturers may find better profits by approaching consumers on a negotiated terms basis utilizing things like warranties as enticements. By enticing the consumer to be better stewards of the product, they can probably avoid most hackers (except for those that do so for the pure sport of it).

Over the next few weeks I will say more about the longer piece including the Behavioral Economics Aspect of the article and some other commercial solutions for a not entirely commercial problem.

Marc (MLR)

2009 AALS Workshop on Transactional Law

Workshop on Transactional Law
Why Attend

"Transactional law" refers to the various substantive legal rules that influence
or constrain planning, negotiating, and document drafting in connection with business transactions, as well as the "law of the deal" (i.e., the negotiated contracts)produced by the parties to those transactions. Traditionally, the law school curriculum has emphasized litigation over transactional law. However, many modern lawyers serve corporate clients, and a significant percentage of lawyers engage in some form of transactional practice. Hence, law schools must place greater emphasis on training law students to be transactional lawyers, and should support law faculty engaged in scholarship focused on transactional law. To this end, in 1994, the AALS held a workshop on the transactional approach to law, which sparked experimentation and innovation in teaching and scholarship related to transactional law. Since that time, there have been significant developments in transactional law. This Workshop not only will take stock of those developments, but also will enable participants to gain some in-depth perspective regarding the relative benefits and drawbacks of those developments.

Law schools have attempted to respond to the demand for increased transactional training in a variety of ways, from integrating transactional law into traditional law school courses to developing stand alone "Deals" or "Business Planning" courses. A number of law schools have developed innovative programs in transactional law. This Workshop will enable participants to discuss specific methods of teaching transactional skills with an eye towards ferreting out best practices. Should professors interested in teaching transactional law focus on substantive law, "transactional skills," (i.e., planning, negotiating, and drafting), economic or other theories of business transactions, or all of the above? Should transactional skills be taught in separate courses or integrated into substantive courses? If taught in separate courses, should such courses be part of the first-year curriculum, integrated throughout the three years, or focused on the upper-level curriculum? How do you modify or supplement the traditional case method to teach students useful transactional skills?

The Workshop also will explore the challenges and benefits that arise for those who write or would like to write transactional scholarship. An as initial matter, the Workshop will address how best to define "transactional scholarship" in a way that accurately captures the potential breadth and depth of transactional law, and how transactional scholarship differs from traditional legal scholarship. The Workshop also will explore best practices for writing scholarship in this area, including methodologies for researching the legal, financial and practical effects of various corporate transactions.The Workshop will feature concurrent works-in-progress sessions, enabling participants to exchange ideas and insights regarding new scholarship related to transactional law.

One important goal of the Workshop is to bring together faculty from different doctrinal areas of law, including faculty who teach in the clinical setting. Transactional law touches many substantive areas of law, and it is closely identified with bankruptcy, business associations, contracts, commercial law, intellectual property, labor and employment law, securities regulation, and taxation. The Workshop will provide a unique opportunity for faculty members to make connections between their primary fields and transactional law, and thus should appeal to a broad spectrum of scholars and teachers.

Early Bird Deadline: Wednesday, May 20

— JSM

Children as Payment Devices??!!

Photo by M.ADA.
The depths to which overwhelming debt will push some people are vividly illustrated by a story covered by CNN this weekend.The headline zeroed in on the public-interest and human-rights angle, decrying a Saudi judge's ruling refusing to annul an arranged marriage of an 8-year-old girl to a 47-year-old man. The part most interesting to me was a passing comment on the reason why this girl's father had arranged the marriage of his young daughter: to settle his debts with the 47-year-old man, "a close friend" of his. Whatever one might think about arranged marriages, child marriages, or marriage in general, using this institution as a means of settling debts doesn't strike me as consonant with the ideas behind the institution in any religious tradition. Using children as payment devices can't be consistent with what either G*d or the Prophet had in mind . . .

Teaching Real Estate Wearing Commercial Law Glasses

When I was a new professor, eager to meet any and all institutional needs, I agreed to teach Real Estate Transactions, a common law class in a civil law state. It really is a property course properly within the property curriculum, but inadequate staffing there (apparently few property profs want to teach real property these days, the rage being IP) pushed it my direction as the junior person. And that is how I became a real estate teacher. I run hot and cold on the course, but teaching it this semester has been wildly fun with the economic/mortgage crisis. When I am left to the traditional commercial law curriculum, the time is rare when the subject for the day is all over the papers and television, nearly every day. Now I know how my Con Law colleagues feel, talking about this new development or that new case.

Interestingly, I have found that the class, and the task of mastering real estate law, have broadened significantly my perspective on general commercial law. First, you realize what a truly grand and amazing achievement the UCC in fact is. Property law is scattered all over the place--radical disuniformity at the common law, disparate state perspectives and approaches, periodic interventions of federalization, but there is nothing, no statutory supplement or code, that you can pick up and wave with any sort of authority and state "this is the law you must know." The students love this, as you might imagine. Nearly every NCCUSL foray into real property areas has crashed and burned, which makes me less uptight--and almost pragmatic--about the impending failure of the Revised Article 2 project. I have spent the last couple of weeks on state statutory redemption and anti-deficiency laws, and the chaos in that area of mortgage law elevates Grant Gilmore from "Great" to "Bodhisattva who walked among us once" in my pantheon of Commercial Law idols. Mucking through the mess that is real property secured transactions law, you can truly appreciate the amazing accomplishment that is Article 9.

Another interesting thing about a tour of duty in Real Estate is that you see how the doctrine of good faith purchase permeates all of commercial law. You see it with transfers of deeds, foreclosure sales, recording acts. No property casebook does this doctrine to my satisfaction, and I always end up rephrasing things to put them into my Article 3/4 framework. I now see holder in due course less as an Article 3 anachronism to be viewed in isolation, but rather as simply the UCC's play on a comprehensive commercial law doctrine that extends throughout all of transactional law.

In semesters such as these where I am doing a Code class and Real Estate the same day, there is an exciting juxtaposition. In the mornings there is the precision and clarity of the UCC for my Article 2 class, followed up by the chaos and indeterminacy of mortgage law. I would like to say that each legal approach makes me appreciate the other more, but I have to admit that each foray into the regulation of real estate makes me admire and understand the whole enterprise that is the UCC just a bit more.

Geithner on Face the Nation

Today, Treasury Secretary Timothy Geithner appeared on CBS' Face the Nation in an interview with Bob Schieffer. Schieffer had plenty of questions for Geithner, including whether the government was trying to force General Motors into a managed bankruptcy. Interestingly, Geithner did not deny it, but focused on the place that a strong General Motors will hold when it is stronger. When asked about whether the government was giving the banking executives a pass, while being harder on the auto industry execs (as we've suggested here, see Wagoner Steps Down) Geithner responded that the government has changed leadership in some companies such as AIG. Geithner said that banks needing "exceptional" assistance might also find themselves with changes in leadership as well.

Geithner was pretty coy about what "exceptional" assistance might be, perhaps for good reason. Certainly, removal of GM's Wagoner is unprecedented, but these are unusual times. Yet, removal of company management is a drastic step with ramifications in the markets. Geithner was wise to not suggest that the government will in fact affect management, even if that ultimately happens. It certainly seems advisable to leave the door open on this issue as the stress testing of banks is just beginning. In the event that banks (perhaps CitiGroup and Bank of America) still require exceptional assistance, management changes might follow. Traditional lenders and creditors do affect management and management decisions. The government, in this case, is operating less like the government as regulator and more as the government as lender and stabilizer. Will we see more management changes?

Watch CBS Videos Online

— JSM

EC Decides Not to Challenge MasterCard's Cross-Border Fees, For Now, and Then Issues a Statement of Objections to Visa

Update: Within days of its tentative deal withMasterCard, the EC issued a statement of objections to Visa, stating the Commission's tentative conclusion that Visa's unilaterally set multi-lateral interchange fees restrain competition without providing technological or economic benefits to consumers.

EU Competition Commissioner Neelie Kroes announced that the EC will not pursue MasterCard for failing to comply with a 2007 Commission decision that the card network's cross-border multilateral interchange fees constituted a restrictive business practice.

After repealing its cross border fees in June 2008, MasterCard increased other fees in October of that year, raising the Commission's concerns. Recently, however, MasterCard has agreed to implement a new fee methodology that is expected to substantially reduce average weighted cross-border interchange fee levels compared with those that the EC previously found to be in breach of EU antitrust rules.

Although Commissioner Kroes hailed the new methodology, arguing that "[t]his will mean lower charges for retailers accepting payment cards, which should in turn be passed on to consumers," some merchant representatives characterized the compromise as "appauling."

MasterCard's agreement was conditioned on the EC's decision not to pursue fines against it for failure to comply with the Commission's earlier decision. MasterCard also maintained that these lower fees are actually too low to support sustainable competition, and thus should be viewed as temporary while it continues to pursue its appeal of the Commission's 2007 decision in the European Court of First Instance.

For its part, the Commission cautioned that the EC will continue to monitor the implementation of the new methodology to ensure that it has the anticipated fee reducing effect. Commissioner Kroes also emphasized that the Commission would continue to investigate Visa, which currently has fees that are twice the level of MasterCard's new fees. "I have no intention," Kroes explained, of "allow[ing] Visa to benefit at the expense of MasterCard."

Interestingly, the Commission seems to be more interested in fee levels than it does with ensuring that fees are set competitively. Despite lowering their fees recently, MasterCard and Visa have maintained the long standing percentage based fee structure. EuroCommerce lobbiest Xavier Durieu contends that a truly competitive interchange fee could be less than a fixed €0.05 per transaction, substantially less than even MasterCard's new fees for all but the smallest transactions.

It will be interesting to see how, if at all, the EC's approach is cited in the on-going multi-district interchange fee litigation in the U.S.

Revised Article 2 Finally Adopted!

Today's news included an announcement that all states have finally agreed to adopt the Revised Article 2, which many thought to be pretty much a dead letter at this point. As you might expect, consumer groups are thrilled and the Business Roundtable is irked commenting:

"While the Roundtable supports uniform drafting efforts, clearly this is
the result of mischief. This will put market opportunities and innovation
on hold. The benefits will not outweigh the cost."

The Obama administration announced, though, that "we cannot afford half measures" and suggested that the drafters instead return to the bargaining table to get the thing done for real.

For those of us who just finished writing Professor Doug Whaley's co-authored competition, we are thrilled! The problem involved rewriting the section of Doug Whaley's Sales text on statute of limitations presuming that revised Article 2 was in force. Of course, under today's announcement, the new statute of limitations goes into effect immediately. Revised Article 2 retained the basic 4 year limitations period but has some gems in the accrual rules meant to tackle some of the more troubling portions of prior Article 2. Particularly important to the Revised 2-725's exceptions on accruals is a rule whereby sellers cannot reduce the limitations period on consumer contracts.

Happily, I will now go through my home looking for broken items that failed way before they should have.

— JSM

Ford says no to auto bailout

In an interesting twist, Ford executive Mark Fields went on American Morning to say that they have been restructuring for three years now and are making progress. And, no bailout needed or expected. Fields said that consumer confidence is the biggest issue facing Ford. Ford is announcing an "Advantage Plan" whereby new Ford purchasers will have Ford pick up twelve months of car payments if the customer loses their job.

— JSM

Pawnshops and iPods

Last year, while living in Tulsa my wife and I were broken into and my iPod was stolen. About three months ago, I received a letter from Tulsa PD that my iPod was identified. Pawn shops in Oklahoma have to register all items into a centralized database by serial number (if available); when my iPod's serial number was entered it triggerd a stolen item report to the Tulsa PD. We executed the various affidavits and designated a former student to recover the property. She had to go to court to get an order to recover the property and this is what she said about the process:

Apparently Tulsa releases stolen property once a month. There were about 12 people there wanting to recover. The judge called each name individually…asked if they were there to pick up “x” (mostly GPS’s by the way), whether there was anyone there from “x” pawn shop or if the individual who pawned it was there (there wasn’t for anyone), then said she’d sign the order and to sit down. This took about 15 minutes. Then we were instructed to go to the hallway while we waited for our paperwork. That took about 5 minutes. Then off to the pawn shop (apparently Tulsa does it this way because there’s no room in their property room). The pawn shop, as you know, was in north Tulsa. It was pouring down rain that day so it “wasn’t very busy” (apparently pawn shops are local hangouts). The manager took my paperwork then went looking for it…this took about 30 minutes! I was worried that he had sold it since he kept saying he couldn’t find it. But, after enough searching he found it. It was all wrapped up in cellophane with a City of Tulsa sticker on it stating it was stolen property. He checked my ID and I was on my way. Apparently, if it was a gun that was stolen they have to verify that you can legally be in possession of a fire arm before they can release it.

Pretty much uneventful, but interesting nonetheless.

1-201's Buyer in the Ordinary Course exclusion rule in action! Kudos to Sandy Cooper for braving the pawn shop and the courts to recover my iPod. I am curious what music, if any, is left after sixteen months....

Update Sandy also noted that the pawn broker checked the serial number on the pleadings meticulously, which caused me to remember how we came across the serial number. We contacted Apple Inc. who had the serial number. Even though Apple was more than willing to give us the serial number, they were not willing to let us know who reregistered the iPod. I suppose I can imagine why Apple might not be willing to police its stolen merchandise.

Wagoner Steps Down and Obama Grants GM/Chrysler More Time

Over the weekend, the announcement came that Rick Wagoner, CEO of General Motors, was stepping down amid government pressure. Apparently, Washington wasn't too thrilled with the reorganization plans for either GM or Chrysler. President Obama spoke regarding the restructuring plans for the companies that fell short of expectations:

And so today I'm announcing that my administration will offer GM and Chrysler a limited additional period of time to work with creditors, unions, and other stakeholders to fundamentally restructure in a way that would justify an investment of additional taxpayer dollars. During this period they must produce plans that would give the American people confidence in their long-term prospects for success.

Obama's speech:

So, do we know what is really needed to save the U.S. auto industry? Clearly, Obama is committed to companies standing on their own, "not as wards of the State." I am all for forcing companies to make difficult decisions. But, there is a bit of a double standard here that we've noted here before (Power of the Sequel: TARP II). My larger concern is not the ousting of Wagoner, perhaps that is overdue and new leadership may help push change forward. But, wouldn't the same be true over at some of the banks? Edward Liddy assumed the helm over at troubled AIG at the request of former Treasury Secretary Hank Paulson, but there has not been much movement in management over at the banks that are in the worst trouble. The same accountability to which Wagoner is held should mandate changes in management at some (though clearly not all) of the banks that took TARP monies.

Thankfully, President Obama noted that some of the trouble in the auto industry is the economy as a whole. People just aren't buying cars right now. Even if the auto industry was in better shape, it would be hurting due to the poor economy overall. Auto sales for the first two weeks of March 2009 were down a whopping 40%! As Obama noted, he cannot promise that there is not "more difficulty to come." GM seems most likely headed toward bankruptcy unless something changes (not sure what that would be). Whether the government will pitch in for Chrysler seems to depend on whether a "marriage" can be made with Fiat. The government is certainly looking for dramatic changes from the auto sector. Modest reform will not be enough. While how that is accomplished is unknown, it is hard to disagree that substantial change is in order.

— JSM

Money for Madoff Victims?

So, now that Madoff is off to prison, what happens to the victims of the fraud? Apparently, there is about $2.6 billion in assets so far recovered by the trustee, Irving Picard. The losses in the ponzi scheme are estimated at about $65 billion. Picard recently commented “I have confidence there is sufficient money at SIPC to satisfy all claims.” SIPC, the Securities Insurance Protection Corporation, created under the Securities Investor Protection Act, is a fund that broker members contribute to in order to cover insolvency, but not fraud. The Madoff ponzi included both, so it would be protected under SIPC. So, how could SIPC have enough money when the amount of the assets recovered is far eclipsed by the losses? The SIPC coverage is limited, up to $100,000 is covered for cash investments and up to $500,000 for actual securities invested. Since there is not much evidence that Madoff bought securities the ceiling may be at issue for some clients. Moreover, "clawbacks" may result in some investors owing money if they make a SPIC claim. For instance, if an investor withdrew more over time then they initially invested originally, they could end up owing money back.

While Picard has paid 12 claims thus far at the $500,000 limit, the potential for clawbacks and the clearly limited pool of assets will lead to disappointed expectations for investors. For now, most seem to be waiting to see how Picard will distribute the assets for the SIPC. Investor claims were due March 4, 2009, but claims will also be considered up to July 2, 2009 for customers. Undoubtedly, there is also more to come about the failure of the SEC to investigate Madoff's business as contributing to increasing losses. Updated claims information is available at the Madoff Trustee website.

For a short primer on the SIPC:

— JSM

Southpark's Theological View of the Economic Crisis

Trey Parker and Matt Stone have created a theological view of the economic crisis. Bravo!

Click here to watch SouthPark in a new window.

Marc (MLR)

Subscribe to the NYT Online? Another Fun Mixed Goods Case

Another lively case from the forthcoming ABA Sales Survey is Wall Street Network, Ltd. V. New York Times Co., 66 U.C.C. Rep. Serv. 2d. (West) 261 (Cal. Ct. Appeals 2008). The court considered a breach of contract claim arising out of an Internet marketing agreement between New York Times Co. (NYT) and Click2Boost, Inc. (C2B). Under the agreement, C2B was to solicit subscriptions to the New York Times by means of “pop up” advertisements on web sites. The pop up ads would ask the user for their zip code and, if suitable for home delivery of the newspaper, would prompt the user to subscribe. NYT agreed to pay C2B for each subscription. After NYT terminated the agreement two weeks early due to believed deficiencies in the subscription submissions, C2B’s assignee, Wall Street Network, Ltd., brought suit.

Was the subscription agreement governed by Article 2? The court ruled that the contract between NYT and C2B was not a sale of “goods” because the agreement was “for the placement of advertising.” Sure, the newspaper is a good, but that is not the determining fact. The newspaper as the good is more of a distraction here. What is really being sold? The court observed that even though C2B was paid a fee for each submission, C2B was not selling the names and addresses of the potential subscribers, but rather to place advertisements for the New York Times in designated locations and to forward to NYT the responses to the advertisements. Since advertising is not a good, Article 2 did not apply.

— JSM

Signs of a Troubled Airline

I am on the road this week looking for houses in Southern California, and one thing struck me on the plane ride. U.S. Air sold advertising space to Zicam on its fold down tables -- ALL OF THEM. Little billboards under your drink as you fly.  Is this just a smart allocation of space or signs of an Airline in trouble? Also slightly troubling, U.S. Air is now charging for WATER, soda, snacks, and of course spirits. I did not see a pay slot for the restroom but perhaps that innovation is not too far away. Are these things signs of desperation that might make you think twice about flying with that airline or is the airline efficiently using its assets.

Marc (MLR)

The Power of the Sequel: TARP II

Christine Hurt over at The Conglomerate recently gave a thumbs up to Race to Witch Mountain (See Family Fun Blogging: Race to Witch Mountain). And who doesn't like a good sequel? I've not seen it myself, but with three little kids in my house, it is sure to be in my future (from Christine's post, the movie may frighten the younger ones). Admittedly, I am old enough to remember the two original Witch Mountain films, so the nostalgia of the whole thing will get me to the theaters.

Speaking of sequels . . . the U.S. Treasury today announced plans to purchase toxic assets off the balance sheets of banks. Haven't we been here before (see $700 Billion Mystery)? This time the focus is on a public-private program aimed to remove about $1trillion off the balance sheets with the government financing the purchases by private parties using about $100 billion of the remaining TARP monies. Like Race to Witch Mountain, details are sketchy. Happily, though, the markets responded well today at least, particularly shares of Citigroup Inc. and Bank of America Corp. Open issues, of course, include commitments from the banks to sell and buyers to purchase.

Others, including former Secretary of Treasury James Baker, are still urging that a non-sequel, original plan is needed here, in the form of a temporary bank nationalization (See Jason Kilborn's Banks Extending Crisis Pt. II). Surely, whether some of the troubled banks will be solid after removing toxic assets and whether management will make better decisions are debatable.

Larry Summers commented:

“We’re not managing to markets in the short run,” he said. “We don’t panic when markets go down and we don’t become euphoric when markets go up.”

But is Summers correct? It is easy to be happy with the government initiatives when they bear fruit and impatient when they do not. We've already been down the road of an alphabet soup of bank programs. The public is troubled by the loss of wealth across the country. The end game of a long term market fix is correct, but that does not mean that short term fluctuations do not matter. But more about TARP II.

If purchasing troubled assets is such a good idea, they why did the Bush administration abandon it? Why a sequel here? The success of TARP II will depend on pricing of the toxic assets. If the government doesn't offer enough sweeteners, the banks won't sell and buyers will not buy. And, why should they? Government handouts without accountability come now on a regular basis. Like Jason Kilborn, I find little to persuade me that banks are able to make the difficult sacrifices toward recovery. That is, these same banks that are in financial difficulty may prefer to hold onto these assets. Not that the banks believe the government will let them go into bankruptcy. If these banks don't think the government is offering them enough money to clean up their balance sheets, they won't do it. They don't believe they will go into bankruptcy, as we've all been convinced they are too big to fail. Instead, they may wait for yet better deals from the government. The banks may not yet believe that they need to take the hit to their financial statements.

I remember late last year the outrage over auto executives flying private jets to ask Congress for bailout monies. Congress' stern response to the auto industry seemed well placed. The message being, if you want government bailout monies then an element of frugality is in order. The current hullabaloo over the AIG bonus/retention payments (See Jim Chen's Best and the Brightest!) sends the clear message that some of the banks/executives have not yet gotten the frugality message.

My biggest concern with TARP II is simply that it will not succeed if the banks that need it haven't realized that we operate in a new marketplace. At least, David Trone, an analyst at Fox-Pitt Kelton Cochran Waller in New York, claims the private investors will now shun government programs as the bonus scandal has led to a “deep distrust” of the government and may cause a "massive brain drain" for those in the banking industry. Trone commented:

“Barring a miraculous reversal of this fear and distrust, we believe the toxic asset programs, as well as the existing TALF, will fail to reach the levels of activity necessary to unclog the system, heal the country’s financial system and improve credit availability . . . .”

Either the banks need the toxic assets off their balance sheets or they don't. Quite simply, the government is not obliged to keep offering new menus of bailouts. The banks that don't need TARP II should not participate. Those that need the assets off their balance sheets should find a way to make it work. After that time, the government should evaluate the health of banks and simply nationalize those that failed to take responsibility to clean up their balance sheets. While I have been known to see many a movie sequel with enthusiasm, I, for one, do not want to see a TARP III.

— JSM

Train wreck

Train wreck at Montparnasse Station, Paris, France, 1895.

From Daphne Merkin, If Looks Could Steal, N.Y. Times (March 22, 2009):

[T]o call Mr. Madoff a sociopath isn’t really to explain him so much as to explain our failure to pick up on his scam. “Everything that deceives,” decreed Plato, “can be said to enchant.” Enter the sorcerer, the ganef, the man without qualities but with steady returns — and, I might add, a family man to the end. . . .

Enter us, the believers, the ones who signed on for the ride until it went off the rails, leaving wreckage as far as the eye could see.

Let's repeat that Platonic formula: “Everything that deceives can be said to enchant.” These are words worth remembering. Et encore, cette fois en français:

Le Renard s'en saisit, et dit :"Mon bon Monsieur,
Apprenez que tout flatteur
Vit aux dépens de celui qui l'écoute:
Cette leçon vaut bien un fromage sans doute."

State Business Court Specialization

Today at lunch, between watching the 1st round NCAA games (Geaux Tigers), we were talking about specialized courts in various fields. For example, there is currently legislation, called the Patent Pilot Program (Senate Bill 299 and House Bill 628) to designate special district court judges as "patent judges." Under the bill, not less than $5,000,000 would be set aside to provide training to judges and staff, and for the hire of specialized law clerks to assist the new "patent judge." This discussion started me thinking about State Commercial Courts. I am wondering what the impact of State Commercial Courts are on decisions to arbitrate by clients. These business courts have been established to create a forum for specialized decision making by tribunals. For example, Maryland's Business and Technology Court Case Management Implementation committee provided for specialized training for judges in handling technology for easing the case burden on certain cases. New York's Commercial Division was created to "improve the efficiency with which such matters were addressed by the court and, at the same time, to enhance the quality of judicial treatment of those cases." Likewise, the North Carolina Business court was specifically created to oversee specialized complex commercial litigation matters.

There are currently sixteen states that have either ventured to create specialized forums for commercial litigation or have entertained the idea in some form. It seems that most of these courts are designed around the complex nature of the litigation, rather than the subject matter; specifically the expertise seems to be handling document intensive litigation. So is business court or commercial court division a misnomer? Do litigants expect that Judges hearing these matters have a greater expertise than an ordinary judge in accounting principles or transactional work. If there is a higher level of expertise in transactional matters, does that have a trickle down impact on negotiating to arbitrate disputes by the parties -- (there may be other reasons for preferring arbitration, like not wanting to risk the resolution of disputes on a jury trial, but putting that aside, does the creation of a specialized forum for business problems alter parties dispute resolution choices?). Do these courts have actual technical commercial expertise, or are they just better at handling document intensive litigations than their district court counterparts. I am curious to hear from anyone that has experience with these courts.

Marc (MLR)