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Archive for January, 2009

SCOTUS Delivers Five Unanimous Decisions and March Agenda

Posted by Trevor Reid on 29th January 2009

The Supreme Court of the Unites States has posted its oral argument calendar for the March session of this term:

  • 03-23-2009 | Yeager v. U.S. (08-67) . Issue: prohibition of retrial after defendant is partially acquitted.
  • 03-24-2009 | Citizens United v. Federal Election Commission (08-205). Issues: constitutionality of restricting of political video against a candidate for president and the validity of disclosure rules.
  • 03-252009 | U.S. v. Denedo (08-267) Issue: jurisdiction of military court of appeals in cases of former servicemen.
  • 03-30-2009 | Travelers Indemnity v. Bailey (08-295) and Common Law Settlement Counsel v. Bailey (08-307). Issue: federal bankruptcy power to bar related litigation.
  • 03-31-2009 | Gross v. FBL Financial Services (08-441) Issue: burden of proof in mixed motive job discrimination suit.
  • 04-01-2009 | Polar Tankers v. City of Valdez  (08-310) Issue: validity of municipal tax on heavy vessels that use a city’s harbor.

And the Court made five unanimous rulings:

  • Crawford v. Metropolitan Government of Nashville: anti-retaliation provisions of the Civil Rights act of 1964 protect a worker who alleges sexual harassment in an investigation arising from someone else’s complaint.
  • Arizona v. Johnson: police officers can search passengers during a traffic stop.
  • U.S. v. Eurodif: enrichment and re-import of raw nuclear material for power plants is a sale of goods rather than a service, and subject to regulation by U.S. Deptartment of Commerce.
  • Van de Kamp v. Goldstein:  preserved immunity for criminal prosecutors from civil suits when a defendant is convicted on faulty evidence; in this particular case false testimony.
  • Kennedy v. DuPont Plan Administrator, the employee’s benefit plan controls in disputes between divorcees’ pension payments.

Posted in Business, Civic Arts, History and News, Law | Comments Off

How To Push Your FaceBook Status to Twitter

Posted by Trevor Reid on 29th January 2009

Since a few friends found me on Twitter and started following I figured it was time to post tweets more often.  I’ve had a Twitter account for a while. But, I don’t pay nearly as much attention to it as I do my Facebook page. I didn’t want to divide my attention any further, so I set out on a hunt for a way to keep the two sites in sync with a single update.

There is a Facebook application that will post your twitter updates to Facebook. It’s easy to find and easy to use, but–like I said–I’m Facebook-centric. And I intend to stay that way for now. I strongly prefer to push whatever “Trevor is…” to Twitter. So, how do you operate in that direction? The key lies with an infuriatingly obfuscated feature on the Newish Facebook: your public facing status RSS feed. Skip the drama, to find this feed just login to Facebook and browse to this link:

http://www.facebook.com/minifeed.php?filter=11

Near the bottom right of that page you will see a link, MyStatus, that points to your public facing feed. It’s standard RSS so you can use this with any reader or RSS aware application. For sending your Facebook status to Twitter the tool of choice is Twitterfeed.  It lets you update Twitter with any RSS feed, including facebook, as often as every 30 minutes.

Posted in Civic Arts, Law, Technology | Comments Off

Good Banker or Lender Liability: A banking conundrum?

Posted by Steven Fried on 14th January 2009

I was prompted to write this article because of the reflections I had on my own training and career in banking contrasted with my experience as an expert witness in finance related cases.  I was also thrilled to legitimately sneak in the word conundrum as the new buzz word in economic circles.  Years from now, people will be able to date this article for using that word much like the buzz word of several years ago – gravitas.  Nevertheless, I am concerned about the conundrum that exists between my training as a lender and my recent experience testifying as an expert witness in financial litigation. 

I spent more than 30 years as a lender in commercial banks including over 20 years as a senior policy-making officer and turnaround specialist for troubled banks.  In all the training I received and in the experiences I had, good judgment was a most valued ability.  I have always worked in a decentralized lending environment where authority, analysis, judgment and responsibility were left to line lenders.  After a long period of supervision and assessment of your skills, you were given authority to evaluate lending circumstances and make the decision on every type of loan situation; aggressive new loans, borderline customers and workouts.  In fact, the loan administrations in which I worked insisted that the originating officer handle the workout if that circumstance should arise, in order to “learn from your mistakes.”

A bank, like any of its customers, is organized to make a profit.  It, therefore, requires sales which are usually generated, in large part, by the very same officers responsible for granting loans.  Banking is the only industry where the Salesman and the Credit Manager are one and the same person.  One of my old bosses told me that being a loan officer was like “a barrel tapped at both ends.”  The tap on one end is that you must provide intelligent loan decisions to establish and maintain the bank’s loan relationships while the tap at the other end represents your duty to protect the bank’s capital.  Between those two tapped ends lies the conundrum.

There isn’t a business in the world that hasn’t run into difficulties at some point in its history.  Sometimes difficulties arise from good things happening such as when sales growth outstrips working capital or problems can occur from not so good things like an unexpected supply shortage, rise or fall in market prices, etc.  Sometimes the difficulties are just a “bump in the road” and sometimes they aren’t.  It’s at these times that even the most experienced loan officer gets to really earn their pay; “Do I make the next advance or not?”.  Interestingly enough, whether you decide to support your customer or “pull the plug,” you need to keep in mind two words – Lender Liability.  Regardless of which way you decide to go, if things don’t work out well, you may be hearing them all too soon.

As I said at the outset, what prompted me to write this article was the apparent conflict between my training (and I think I had great training) and the rising volume and sophistication of lender liability claims.  Judging by the inquiries I get and recent cases I have been involved with, lender liability claims are skyrocketing in number and size.

Banks, bank counsel and other interested parties have tried mightily to limit this expansion.  Many states have passed laws to limit lender liability claims.   Loan documents frequently contain mandatory arbitration clauses and a waiver of jury trial and courts have tried to narrow lender/borrower disputes to within the “four corners” of the loan documentation.  All to no avail.  In the “old days” a borrower might say “you should have never lent me that much money because you knew I couldn’t handle it.”  Now the claims involve Fraud, RICO, at least five kinds of negligence along with the milder old favorites of Breach of Contract and the Covenant of Good Faith and Fair Dealing.  Having watched the process frequently and at very close range over the past few years yet firmly believing in the tremendous economic benefits for all concerned of a well-trained, intelligent loan officer; what is a banker to do?  (Conundrum – A paradoxical, insoluble, or difficult problem; a dilemma)

There are three things to do:

Hopefully, you have been doing this all along; but certainly when a borrower hits that first bump in the road and you are called upon to make difficult decisions; DOCUMENT, DOCUMENT, DOCUMENT.  Assuming there are no blatant facts to undermine your actions to this point, the first place an experienced opposing counsel will look is to the bank’s policies and procedures searching for deviations between policy/procedure and actions.  There are many other places they will look based upon the individual circumstances which are precluded here by space limitations.  The key ingredient is that it’s okay to deviate from policy so long as you follow proper procedures and DOCUMENT the valid business reasons for your actions.

Second, I strongly suggest you read an article entitled “THE TEN COMMANDMENTS FOR AVOIDING LENDER LIABILITY” By Helen Davis Chaitman.   Paraphrasing Commandment Number 1 (and I don’t believe it is a coincidence that this is the first commandment); “Thou Shall Take No Precipitous Action”.  I have seen an awful lot of situations where the bank could have eliminated litigation, perhaps resurrected the relationship and saved tremendous amounts of money by only living up to this commandment.  By following the other 9 commandments as well, you stand a good chance of avoiding further, very substantial liability and litigation.

Thirdly, should you find yourself in a potential lender liability situation, call us (a shameless self-promotion).  Seriously, an experienced, credible and totally independent third party to vouch for the bank’s faithfulness to industry standards and practices can make the difference between recovery and loss.


Mr. Fried is a principal in Capital Finance, a litigation consulting and support firm specializing in complex banking and commercial finance matters.  He can be reached at  (760) 776-5749  or Steven.Fried@BankingExpertWitness.com

Posted in Business, Law | 1 Comment »

The Russian Gas Trap

Posted by Peter Zeihan on 13th January 2009

At the time of this writing, the natural gas crisis in Europe is entering its 13th day.

While the topic has only penetrated the Western mind as an issue in recent years, Russia and Ukraine have been spatting about the details of natural gas deliveries, volumes, prices and transit terms since the Soviet breakup in 1992. In the end, a deal is always struck, because Russia needs the hard currency that exports to Europe (via Ukraine) bring, and Ukraine needs natural gas to fuel its economy. But in recent years, two things have changed.

First, Ukraine’s Orange Revolution of 2004 brought to power a government hostile to Russian goals. Ukrainian President Viktor Yushchenko would like to see his country integrated into the European Union and NATO; for Russia, such an evolution would be the kiss of death.

Ukraine is home to most of the infrastructure that links Russia to Europe, including everything from pipelines to roads and railways to power lines. The Ukrainian and Russian heartlands are deeply intertwined; the two states’ industrial and agricultural belts fold into each other almost seamlessly. Eastern Ukraine is home to the largest concentration of ethnic Russians and Russian speakers anywhere in the world outside Russia. The home port of Russia’s Black Sea Fleet is at Sevastopol on Ukraine’s Crimean Peninsula, a reminder that the Soviet Union’s port options were awful — and that Russia’s remaining port options are even more so.

Ukraine hems in the south of European Russia so thoroughly that any hostile power controlling Kiev could easily threaten a variety of core Russian interests, including Moscow itself. Ukraine also pushes far enough east that a hostile Kiev would sever most existing infrastructure connections to the Caucasus. Simply put, a Ukraine outside the Russian sphere of influence transforms Russia into a purely defensive power, one with little hope of resisting pressure from anywhere. But a Russified Ukraine makes it possible for Russia to project power outward, and to become a major regional — and potentially global — player.

The second change in recent years is that Russia now has an economic buffer, meaning it can tolerate a temporary loss in natural gas income. Since Vladimir Putin first came to power as prime minister in 1999, every government under his command has run a hefty surplus. By mid-2008, Russian officials were regularly boasting of their $750 billion in excess funds, and of how Moscow inevitably would soon become a global financial hub. Not surprisingly, the 2008-2009 recession has deflated this optimism to some extent. The contents of Moscow’s piggy bank already have dropped by approximately $200 billion. Efforts to insulate Russian firms and protect the ruble have taken their financial toll, Russia’s 2009 bu dget is firmly in deficit, and all talk of a Russian New York is on ice.

But Russia’s financial troubles pale in comparison to its neighbors’ problems — not in severity, but in impact. Russia is not a developed country, or even one that, like the states of Central Europe, is seriously trying to develop. A capital shortage simply does not damage Russia as it does, say, Slovakia. And while Russia has not yet returned to central planning, rising government control over all sources of capital means the Russia of today has far more in common economically with the Soviet Union than with even the Russia of the 1990s, much less the free-market West. In relative terms, the recession actually has increased relative Russian economic power — and that says nothing about other tools of Russian power. Moscow’s energy, political and military levers are as powerful now as they were during the August 2008 war with Georgia.

This is a very long-winded way of saying that before 2004, the Russian-Ukrainian natural gas spat was simply part of business as usual. But now, Russia feels that its life is on the line, and that it has the financial room to maneuver to push hard — and so, the annual ritual of natural gas renegotiations has become a key Russian tool in bringing Kiev to heel.

And a powerful tool it is. Fully two-thirds of Ukraine’s natural gas demand is sourced from Russia, and the income from Russian natural gas transiting to Europe forms the backbone of the Ukrainian budget. Ukraine is a bit of an economic basket case in the best of times, but the global recession has essentially shut down the country’s steel industry, Ukraine’s largest sector. Russian allies in Ukraine, which for the time being include Yushchenko’s one-time Orange ally Yulia Timoshenko, have done a thorough job of ensuring that the blame for the mass power cuts falls to Yushchenko. Facing enervated income, an economy in the doldrums and a hostile Russia, along with all blame being directed at him, Yushchenko’s days appear to be numbered. The most recent poll taken to gauge public sentiment ahead of presidential elections, which are anticipated later this year, put Yushchenko’s support level below the survey’s margin of error.

Even if Yushchenko’s future were bright, Russia has no problem maintaining or even upping the pressure. The Kremlin would much rather see Ukraine destroyed than see it as a member of the Western clubs, and Moscow is willing to inflict a great deal of collateral damage on a variety of players to preserve what it sees as an interest central to Russian survival.

Europe has been prominent among these casualties. As a whole, Europe imports one-quarter of the natural gas it uses from Russia, and approximately 80 percent of that transits Ukraine. All of those deliveries now have been suspended, resulting in cutoffs of various degrees to France, Turkey, Poland, Germany, Italy, Hungary, Romania, Austria, the Czech Republic, Greece, Croatia, Macedonia, Bosnia, Serbia and Bulgaria — in rough order of increasing severity. Reports of both mass power outages and mass heating failures have been noted in the countries at the bottom half of this list.

A variety of diversification programs have put Europe well on its way to removing its need for Russian natural gas entirely, but these programs are still years from completion. Until then, not much can be done for states that use natural gas for a substantial portion of their energy needs.

Unlike coal, nuclear energy or oil, natural gas can be easily shipped only via pipeline to previously designated points of use. This means the decision to link to a supplier lasts for decades and is not easily adjusted should something go wrong. Importing natural gas in liquid form requires significant skill in cryogenics as well as specialized facilities that take a couple of years to build (not to mention a solid port). Alternate pipe supply networks, much less power facilities that use different fuels, are still more expensive and require even more time. All European countries can do in the immediate term is literally rely upon the kindness of strangers until the imbroglio is past or a particularly creative solution comes to mind. (Poland has offered several states some of its share of Russian natural gas that comes to it v ia a Belarusian line.) Some Central European states are taking the unorthodox step of recommissioning mothballed nuclear power plants.

Because Russia’s goal in all this is to crack Kiev, there is not much any European country can do. But one nation, Germany, is certainly trying. Of the major European states, Germany is the most dependent upon Russian resources in general, and energy in particular.

German Chancellor Angela Merkel and Putin spent three nights this past week on the phone with each other discussing the topic, and the pair has a two-day summit set for later this week. The Germans have three primary reasons for cozying up to the Russians at a time when it seems they should be as angry as anyone else in Europe.

First, because most of the natural gas Germany gets from Russia passes not through Ukraine, but through Belarus — and because the Russians have not interrupted these secondary flows — the Germans desperately want to avoid rocking the boat and politicizing the dispute any more than necessary. The Germans need to engage the Russians in discussion, but unlike most other players, they can afford not to be accusatory, because they have not been too deeply affected so far. (Like all the other Europeans, the Germans are working feverishly to diversify their energy supplies away from Russia, but while Berlin can keep the lights on, it doesn’t want to ruffle any more feathers than it needs to.)

Second, as any leader of Germany would, Merkel recognizes that if current Russian-Western tensions devolve into a more direct confrontation, the struggle would be fought disproportionately with German resources — and perhaps even on German soil. Germany is the closest major power to Russia and would therefore be the focus of any major action, Russian or Western, offensive or defensive. France, the United Kingdom and the United States enjoy the buffer of distance — and in the case of the last two, a water buffer to boot.

German national interest, therefore, is not to find a way to fight the Russians, but to find a way to live with them. Germany traditionally has been Russia’s largest trading partner. Every time the two have clashed, it has been ugly, to say the least. In the German mind, if Ukraine (or perhaps even adjusting the attitude of Poland) is what is necessary to make the Russians feel secure, so be it.

Third, Germany has a European angle to think about. To put it bluntly, Merkel is always on the lookout for any means of easing Germany back into the international community with a foreign policy somewhat more sophisticated than the “I’m sorry” that has reigned since the end of World War II. After the war, France successfully hijacked German submission and used German economic strength to achieve French political desires. Since the Cold War’s end, Germany has slowly wormed its way out of that policy straitjacket, and the natural gas crisis raises an interesting possibility. If Merkel’s discussions with Putin result in restored natural gas flows, then not only will Russia see Germany as a partner, but Germany might win goodwill from European states that no longer have to endure a winter without heat.

Still, it will be a tough sell: the European states between Germany and Russia have always lived in dread that one power or the other — or, God forbid, both — will take them over. But Germany is clearly at the center of Europe, and all of the states affected by the natural gas crisis count Germany as their largest trading partner. If Merkel can muster sufficient political muscle to complement Germany’s economic muscle, the resulting image of strength and capability would go a long way toward cementing Berlin’s re-emergence.

[Courtesy  www.stratfor.com]

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Is America’s Climate Czar Apparent a Radical Socialist?

Posted by Trevor Reid on 9th January 2009

Yes. President-elect Obama has made Carol M. Browner his first choice for Assistant to the President for Energy and Climate Change. She would coordinate all policies that touch upon global warming, fossil fuels, energy security, and the efficiency of national commerce. Brown has been a leading member of the Commission for a Sustainable World Society a strategic front of worldwide democratic socialism. If she in fact takes up the post this radical socialist will significantly shape federal governance for years to come.

Browner’s commission was set up by the ideological successor to the  Second International with the avowed purposes of mapping out a new form of democratic global government. CSWS and the Socialist International clearly view global warming as an engine of crisis that will propel their revolutionary re-imagining of human life on Earth. While Brown was administrator of EPA her vision of a world where regulatory muscle is flexed for the sake of demonstrating the beneficent presence of environmental regulation in daily life led her to back policies like these:

  • ordering Virginia to drastically reduce ambient nitrogen oxide from safe levels
  • banning life saving inhalers used by millions of asthmatics to eliminate trace CFC’s
  • suing Toyota because its check engine lights were not sensitive enough to yield a satisfactory level of false positives
  • launching a crackdown on transportation industry emissions, spuriously claiming these were responsible for cases of death and respiratory disease—despite incontrovertible evidence to the contrary put forth by the Centers for Disease Control

Unfortunately, Browner’s appointment to this key position is likely to accomplish less for dwindling polar bears than for poorly devised bureaucratic oppression.

Posted in Civic Arts | 2 Comments »