Labor/Employment

Report: U.S., Canadian Oil Company Bankruptcies Surge 50 Percent in 2019



A report released yesterday by Dallas law firm Haynes and Boone said that the number of oil and gas company bankruptcies in the U.S. and Canada increased 50 percent in 2019 over the previous year, and is likely to increase as a slide in energy prices continues to shake producers, Reuters reported. U.S. and Canadian oil and natural gas exploration and production company bankruptcies totaled 42 in 2019, up from 28 in 2018, the law firm said. A total of 208 oil and gas production companies filed for bankruptcy between 2015 and 2019, according to the report. "This increase in year-over-year filings indicates that the reverberations of the 2015 oil price crash will continue to be felt in the industry through at least the first half of 2020," Haynes and Boone said in the report. Oilfield service companies were again hit hard with the number of bankruptcies nearly doubling from 12 in 2018 to 21 in 2019, the largest being the $7.4 billion filing by Weatherford International in July. Midstream companies that provide storage and pipelines to producers fared better, with only two bankruptcies in 2019 out of a total of 28 since the beginning of 2015.

U.S. Regulator to Move on Low-Income Lending Overhaul Without Fed



A top U.S. banking regulator said yesterday that he plans to push ahead with a proposal to overhaul rules governing billions of dollars of lending in low-income neighborhoods despite objections from the Federal Reserve, the Wall Street Journal reported. Comptroller of the Currency Joseph Otting said that he doesn’t see that there is time to compromise with the Fed regarding a December proposal that would update federal regulations under the Community Reinvestment Act. The proposal was crafted jointly by his office and the Federal Deposit Insurance Corp. Otting said that the Office of the Comptroller of the Currency will receive comments on its proposal until March 9 and issue a final rule about 60 days later. The growing rift among federal banking regulators makes it likelier that banks will have to navigate different sets of rules under the community reinvestment law, which was enacted in 1977 to end “redlining” — the practice of avoiding lending in certain areas, often lower-income communities, which served to deepen racial disparities in housing and education. The OCC oversees roughly 70 percent of activity under the rules, and its proposal would apply to some 1,200 banks — including some of the biggest, such as JPMorgan Chase & Co. and Wells Fargo & Co. The Fed oversees about 15 percent of CRA activity. Earlier this month, Fed governor Lael Brainard, who is leading the central bank’s efforts to update the act, criticized the joint proposal by the OCC and FDIC. She said that it could encourage some banks to meet their CRA requirements through a small number of large loans or investments, potentially reducing many poor and middle-class Americans’ access to financing. (Subscription required.)

110 Million Consumers Could See Their Credit Scores Change Under New FICO Scoring



Americans who are struggling to pay off their debt could see lower FICO credit scores in their future, especially if they miss payments, CNBC.com reported. Fair Isaac Corp., the company behind the popular FICO credit score, announced the launch of its latest FICO 10 model today, Jan. 23, that will start incorporating consumers’ debt levels into their scoring model. This comes as total household debt in the U.S. has steadily increased for about two years, and currently sits at about $13.95 trillion as of September 2019, according to the Federal Reserve Bank of New York. That’s higher than the previous high of $12.68 trillion seen right before the 2008 financial crisis. FICO estimates that about 110 million consumers will see a change to their score under the new credit score model, with most people seeing less than a 20-point swing in either direction. Roughly 40 million will see a shift upward over 20 points and another 40 million will see a shift downward, FICO says. The new scoring model will also likely create a wider gap between those who are considered good credit risks and those who are not. Consumers who already have good credit, for example, and who continue to whittle down their existing loans and make on-time payments will see higher scores. But those who score below 600 will see bigger dips in their scores under the new model.

Commentary: Chicago Doubling Down on Dangerous ‘Securitized Bonds'



Chicago's already sold off its share of future sales tax revenue that flows from the state to secure other bonds, and new bondholders will be taking a junior ownership position in that, according to a Crain's Chicago Business commentary. The city indeed will get about $250 million up front, from refunding savings, to put toward this year's budget. The exact numbers on that and some other aspects of the new bond offerings were still pending as this was being written. While chances may be remote that Chicago would go bankrupt, bond buyers are not that optimistic. That's why they want conveyance of full ownership of streams of income to collateralize their loans, called "securitized bonds." Prevailing legal opinion says they are likely, though not entirely certain, to get priority for payment over everything else, even in bankruptcy. The big losers may end up being taxpayers, service recipients, public pensioners and everybody else with a stake in government except the muni bond community: bondholders, underwriters, bankers, lawyers and so on, according to the commentary. Securitized bonds raise the risk of an "assetless bankruptcy," the worst of all outcomes. The debtor then has nothing to work with to get a fresh start, and there's nothing left for unsecured creditors. Those unsecured creditors would include pensioners insofar as pensions are underfunded.

Shadow Banks Come into the Light in Global Lending



According to Bank for International Settlements data released this week, nonbank financial institutions are leading the growth in cross-border lending, with cross-border banking claims in the third quarter up 17 percent from a year earlier. That’s the fastest growth in at least six years, when records began, the Wall Street Journal reported. Banks’ cross-border claims on and liabilities to nonbank financiers have risen by nearly $8 trillion since the end of 2013, while their cross-border exposure to other banks has actually declined slightly under the weight of increasingly stringent regulations. Shadow banks typically include brokers, clearinghouses, funds, investment trusts and structured finance vehicles. While there is nothing inherently wrong about their becoming more important, the shift raises questions among experts about how they’ll behave in a sharp slowdown or financial crisis. (Subscription required.)

First Published Opinion on Retroactive Application of the HAVEN Act References ABI's Veterans Affairs Task Force



Hon. Robert Jones of the U.S. Bankruptcy Court for the Northern District of Texas provides good supporting authority in a Nov. 21, 2019, dicta opinion for the retroactive application of the HAVEN Act to cases that were pending when the President signed the bill into law on Aug. 23, 2019. The In re Price opinion is also notable for its reference to ABI's Veterans Affairs Task Force. See below:

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As Americans Sour on Milk, Could Famous Dairy Brands Disappear?



As consumers increasingly turn to milk alternatives and thousands of dairy farms are collapsing, milk producers are now faltering, too, putting thousands of jobs at risk and threatening their brands, USA Today reported. The recent chapter 11 bankruptcies of two major milk producers, Dean Foods and Borden Dairy, have shown how a sharp decline in milk sales poses an existential threat to leading dairy brands like Land O' Lakes and TruMoo. Consumption of dairy milk fell about 41 percent from 1975 to 2018, dropping from 247 pounds per person annually to 146 pounds, or about 17 gallons, according to the Department of Agriculture’s National Agricultural Statistics Service. The trends have contributed to a financial crisis for dairy farms for years. More than 94,000 family dairy farms shut down from 1992 to 2018, according to the National Farmers Union. Part of the problem is that even as dairy farms disappear, overall milk production has increased — in part due to improved techniques for cow milking — which has flooded the market with milk. Now, after several years of price drops due to excess supply, farmers have boosted milk prices to try to make up for their own losses. In November, the most recent month in which data was available, the price of raw milk was $21 per 100 pounds, up 22 percent from November 2018, according to the USDA.

CFPB Director Assailed Over Restricting Power to Police ‘Abusive’ Conduct



The Consumer Financial Protection Bureau’s leader came under criticism Thursday from U.S. House Democrats over recent enforcement guidance that some critics said would undercut the regulator’s ability to crack down on abusive industry practices, the National Law Journal reported. Appearing before the House Financial Services Committee, CFPB Director Kathy Kraninger was scolded by Democratic lawmakers over the guidance, in which the bureau said that it was aiming to bring clarity to an enforcement area that financial industry advocates have described as poorly defined. Indeed, in the decade since the Dodd-Frank Act created the CFPB, the financial industry has broadly bemoaned the agency’s power to police “abusive” practices, authority that came in addition to long-established standards for pursuing “unfair or deceptive” conduct. U.S. Rep. Maxine Waters (D-Calif.), chairwoman of the House financial services committee, described Kraninger’s leadership of the bureau as “misguided” and said the new guidance “undercuts” its enforcement abilities. Kraninger’s appearance came two weeks after the CFPB released the guidance. The new policy said the agency would only challenge conduct as “abusive” if the harm to consumers outweighed the benefit. The CFPB also said it would generally avoid labeling conduct “abusive” in addition to “deceptive” or “unfair,” instead bringing standalone cases that would more clearly demonstrate how the agency defines “abusive.” The bureau said it would impose fines only in cases where there has been a “lack of a good-faith effort to comply with the law,” although the agency plans to continue seeking restitution for harmed consumers. 

In related news, Kathy Kraninger, director of the Consumer Financial Protection Bureau (CFPB), said today that she asked the Supreme Court to strip her immunity from President Trump to settle “uncertainty” lingering over the agency, The Hill reported. Kraninger said that she is supporting a legal challenge to the bureau before the Supreme Court in order to resolve questions about the agency’s structure. The Supreme Court is set to hear arguments in March on Seila Law vs. CFPB, a lawsuit that accuses the bureau of being unconstitutional because it infringes upon the president's authority. Kraninger and the Trump administration filed a brief in September asking the Supreme Court to strip a provision from the Dodd-Frank Act, which created the CFPB, that protects her from being fired at will by the president. Under Dodd-Frank, the president may only fire the CFPB director “for cause,” which is generally understood to be misconduct or incompetence. “Congress obviously provided a clear mission for this agency, but there are some questions around this and I want the uncertainty to be resolved,” Kraninger said in testimony before the House Financial Services Committee. “I would very much like to see a resolution on this question because it has hampered the CFPB and its ability to carry out its mission virtually since its inception.”

Analysis: How the Risk Profiles of Large U.S. Bank Holding Companies Changed After the Global Financial Crisis



After the global financial crisis, regulatory changes were implemented to support financial stability, with some changes directly addressing capital and liquidity in bank holding companies (BHCs) and others targeting BHC size and complexity. Although the overall size of the largest U.S. BHCs has not decreased since the crisis, the organizational complexity of these same organizations has declined, with less notable changes being observed in their range of businesses and geographic scope, according to an analysis by the Federal Reserve Bank of New York's "Liberty Street Economics" blog. The analysis explores how different types of BHC risks — risks that can influence the probability that a BHC is stressed, as well as the chance of systemic implications — have changed over time. The results are mixed: Levels of most BHC risks tend to be higher than in the years immediately preceding the crisis, but are markedly lower than the levels seen during and immediately following the crisis.

Commentary: Reforms May Be the Downfall of Pension Funds



The shock of U.S. state and local pension fund losses in 2008 led to a flurry of reforms. These may not have actually improved aggregate funding ratios, but they did stop the decline, according to a Bloomberg commentary. In the next potential recession, the reforms of 2008-16 may prove to be the undoing of a system that has staggered along for decades. The next recession could be mild, or perhaps the current system will prove resilient, according to the commentary. It would still be very painful, of course, to public sector workers, government creditors and taxpayers, but alternative ways of resolving underfunded pension funds might be more painful. Much of the focus has been on the funding ratio of pensions, which is the ratio between the value of assets in a fund to the present value of its liabilities. But this is a theoretical calculation that depends on several hard-to-estimate parameters. Moreover, it only tells us that at some point in the future either someone will have to kick in more funds or promised benefits cannot be paid. It doesn’t tell us when that will happen. Funds can survive for decades — perhaps forever — without full funding. Looking at aggregate numbers is misleading, as a crisis will be triggered by the funds in the worst financial shape, not the average fund, according to the commentary. It is possible for an optimist to hope that aggregate pension assets could cover aggregate benefit obligations with perhaps a few only mildly painful adjustments. But even if that’s true in the aggregate, if enough of the 6,300 state and local pension plans fail, it will cause legal and political changes that will likely end the current system of partially funded defined-benefit plans for public sector employees.

Upcoming ABI Webinar and New Website Will Help Practitioners Navigate the Small Business Reorganization Act Before It Takes Effect on Feb. 19



As the Small Business Reorganization Act of 2019 (SBRA) takes effect on February 19, ABI is holding a special webinar next Tuesday with a panel of experts to identify key provisions to be aware of within the new law. ABI also launched the "SBRA Resources" website to help practitioners and struggling small businesses learn about the new law and stay updated on SBRA developments. To register for free for the "What's the Last Word on SBRA?" Webinar on February 11 at 1 p.m. EDT, please click here.

To visit ABI's SBRA Resources site, please click here.

Duberstein Bankruptcy Moot Court Competition – Call for Preliminary Round Judges



Each year, the American Bankruptcy Institute and St. John’s University School of Law co-sponsor the Duberstein Bankruptcy Moot Court Competition, which brings teams from law schools throughout the country to New York to argue two sophisticated bankruptcy issues. This year, 60 teams are participating in the competition in New York, which will be held from Saturday, February 29, through Monday, March 2, 2020. More than a dozen bankruptcy, district and court of appeals judges will judge the advanced oral rounds and attend the Gala Awards Reception at Gotham Hall on March 2. This year’s hypothetical addresses §§ 365(c)(1) and 1129(a)(10) as tied together by a compelling business bankruptcy fact pattern. The hypothetical can be viewed here.

The Duberstein Competition is looking for volunteers to serve as judges for the preliminary rounds of the competition on Saturday, February 29, and/or Sunday, March 1, at St. John’s University’s Queens campus. We have a particular need for judges on Sunday morning. CLE credit is available, and the commitment is only for one half-day (unless you are interested in participating in multiple sessions). To register to serve as a judge for one or more sessions of the preliminary rounds, please complete this Preliminary Judge Form.

If you have any questions about the Duberstein Competition or serving as a preliminary round judge, please do not hesitate to contact Paul R. Hage, co-director of the Duberstein Competition, at (248) 840-9079 or phage@jaffelaw.com.

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