Wednesday, February 01, 2017

So How Fragile IS the Economy?

Macy's in Holladay is finally closing.  Congratulations, Holladay, you've finished the job of turning a regional mall into a cow pasture.  For those of you keeping score, Macy's is also closing the Layton Hills store and the stores at the Three Rivers Mall in Kelso and the Everett Mall.  Sixty-eight stores, over 10,000 jobs.  Lowe's is chopping 2,400 full-time employees in effort to cut costs by using more part-time workers, in the further Walmartification of the US job market.  The Limited has filed Chapter 11, but it isn't reorganizing, it's liquidating.  American Apparel is gone, along with its 110 stores.  Albertsons is shutting down stores all over the territory.  Sears is closing the Vernal, Layton, and Tacoma K-Marts and the Alderwood Mall Sears (I'm waiting for the K-Mart next to Ivy Place to go.).  And in local tech news, Endurance International Group, which went public in 2013 and is still trading below the IPO price, is closing its Bluehost business in Orem (I wonder if Governor Available is going to mention that while bragging about all the jobs he's brought in.).

These aren't just lost jobs.  They're a sign that people aren't buying because they can't buy.  And as more people lose their jobs, more people can't buy.  That's called "spinning in."

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If Small Business is the Backbone of the Economy...

...the economy is an invertebrate.  I know, I know, small business owners are the scrappy folks who keep it all going.  And most of my clients are small businesses.  And I'm a small business.  But....

Too many small businesses have no clue how things work (as I've noted several times, such as here and here).  And they also tend to be clueless on just how badly the deck is stacked against them (such as our glorious, bad check statute, which I discussed here).  But I am now witnessing Transatlantic delusion.

First, the UK is in the throes of Brexit.  A recent study of small businesses indicates that a plurality exporters and a majority of importers believe Brexit will have no effect on them.  Wow.  Just wow.  Pulling out of a free trade zone and putting a large hole in your financial industry isn't going to leave a dent.  That isn't optimism, that's insanity.  Meanwhile on this side of the pond, small businesses are expecting Trump to stabilize things for them.  Yeah.  Uh, no.  Trump is stirring the pot into a hurricane, and he's doing it for the greater glory of the big boys.  That includes ACA repeal, which frankly was a big win for small businesses.  If that goes, good look offering your employees a benefit package of any kind, let alone one that can match the bigs.  And if you can't attract talent, where are you?  Going dark, that's where.

So keep ignoring reality, small business owners.  It is sort of a requirement for club membership.  Just don't be shocked and whiny if reality doesn't ignore you and bites you in the backside.

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Monday, December 05, 2016

A Word to Landlords

In case you simply aren't paying attention to your own business, which I submit a number of you aren't, let me break this to you: Everything is overbuilt.  Office space class A through Z, retail, office-retail, warehouse, light industrial, manufacturing, name it, there is more of it than there are folks who can afford to lease it.  So if you think your little strip mall is some special snowflake, think again.  Retail is really bad.  Anchors are going dark everywhere, and the little guys who depend on the anchors for traffic are following them into the ground.  This is not the time to jerk tenants around.

But some of you haven't gotten the memo.  There is a strip mall near where I live that has a visibility problem.  Most of the spaces in the mall can not be seen from the street.  That includes the restaurant space.  All retail depends to some extent on passing eyeballs, and restaurants die without them.  The prior restaurant in this space avoided dying by moving to the west side with lower rent, higher traffic, and much better visibility.  I don't know if the current one will make it that long.  One thing is certain: The landlord is not helping.  No extra signage or anything.  It's a recipe for high turnover, and that can't be good business.

Then there is the Reams plaza in the neighborhood (Reams doesn't own it, it just anchors it along with Rite-Aid, with Walgreen's on its own pad.).  For those keeping score, the west end has to be 60% vacant.  The east end has at least two vacancies and will soon get more.  Reason?  Lease hikes.  In this market.  At least two of the former west end tenants relocated to more reasonable space, because there is plenty of it.  At least one of the east end tenants is about to do the same.  Nonanchor space will be at 50% for the new year.  I hope they have sweet deals from the anchors, because that's all the revenue there is, but knowing Reams and the pharmacies, I doubt it.  Makes you wonder what sort of business planning goes on at the landlord's headquarters. 

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All the News...

Well, let's take a look at a few things that have been happening out there in the freak show called reality.

First, the Florida Supreme Court dealt mortgage borrowers an expected blow in  Bartram et al. v. U.S. Bank NA.  Florida is a judicial foreclosure state, so it does not have a lot of effect in Utah and Washington, but it is a good view of how things are going.  The court held that a prior case dismissed for a reason other than the merits of the issues has no issue preclusion effect on a later case.  Put another way, if the lender's first foreclosure claim was dismissed for procedural defect and not because the lender failed to state a claim, the lender can re-accelerate the note for later nonpayments and sue again.  Yet another blow to the "I can get you a free house" hucksters.

Second, the Supremes are reviewing the latest example of US courts trying to get jurisdiction over other countries (See here, here, and here.).  A US oil drilling company owned a subsidiary that was a Venezuelan corporation that it used for drilling there.  Venezuela got behind on payments, the company stopped drilling, and Venezuela seized the rigs to keep them operating.  The drilling company sued Venezuela in US court.  Ordinarily you can't sue a foreign sovereign in a US court, but both the DC District Court and the DC Circuit Court decided the "violation of international law" exception applies, and that's the issue before the Supremes.  The problem I see, and that Venezuela has raised all along, is that this isn't a matter of international law.  The rigs were seized from a Venezuelan corporation, not the US parent.  As far as I'm concerned, that ought to be the end of it.  But the courts are playing around with the political ramifications.  And that's the real problem.  Because every time our courts decide to reach out and touch someone overseas, it increases the justification for anyone who wants to do the same to us.  And that ought to scare you.

In a rare instance of bad news for banks, Bank of America, while not actually having to face the music for all the messes it has created, might at least have to hum a few bars.  The 1st Circuit in Boston has ruled that a fraud case against BOA can proceed.  In 2007 BOA was pushing auction-rate securities hard, marketing them as extremely liquid, practically cash substitutes.  The problem with that liquidity was that it depended on the dealers continuing to trade those securities.  In February 2008 they stopped, and all that lovely liquidity turned into solid lead.  BOA said, "Hey, we warned them in the prospectus what could happen if the market froze up."  The court, in a wonderful moment of lucidity rare in banking litigation, responded, "Yeah, but you just kept selling after it looks like you saw the market was headed south, and you changed your sales pitch not one bit."  Expect BOA to settle this dog soon and put a big gag clause on the settlement.

Finally, in the latest maneuver in the farce that is the prosecution of our last two AGs, John Swallow is trying to get a big chunk of the case thrown out.  He's making certain legal arguments, but in reality I think he figures that since Shurtleff skated, and since he was just doing what Shurtleff did, he should skate too.  Poor John.  He never learned the first rule of poker: When you sit down at the table, look around for the mark; if you don't see him, he's you.  You're the only one left they can turn into a sacrificial lamb, John.

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Friday, November 11, 2016

Former Client

I see that a former client has pleaded guilty to a pair of felonies for an "only in Utah" scam.  I represented him a number of years ago in a business dispute.  He was also trying to get some kind of mining company off the ground.  Our politics were quite different, which thoroughly upset him, so he ended up getting a different attorney.  Over the next few years, I saw his mining company being praised in the local media.  I reached out a couple of times to congratulate him and see what he was up to, but he never responded.  I guess now I know what he was up to.  It's a rare attorney whose clients tell him everything, and probably a miserable one too.  And by the way, just because someone is being praised in what passes for the news media around here, it doesn't mean he isn't a total fraud.

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500 South and Main Street

I was downtown yesterday, and I saw that work is moving apace on the new Sim Gill Monument, aka the new DA building.  Maybe when it's finished, he'll have adequate facilities to actually respond to defense counsels' discovery requests as he's obligated to under the court rules and the Constitution, instead of just shining us off by claiming he gets to decide what's exculpatory and what isn't.  But I doubt it.  I almost miss Lohra Miller.  She was owned and clueless, but it least she wasn't claiming to be some knight in shining armor.

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Wednesday, November 02, 2016



And in case there is any confusion:

CUBS WIN!!!!!!!!!!!!!!

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Wednesday, October 26, 2016

If it Sounds too Good to be True... is.  I've been hearing a lot about crowdfunding and have been asked about it be clients.  To put it mildly, I've been leery.  Basically just going out and asking people for money?  First, how do you honestly distinguish it from panhandling?  Sure, the solicitation says it will give you a return if it succeeds, but given the rate of success with start-ups, what are the odds?  Second, how can you even remotely provide adequate disclosure?  The whole thing sounds like a securities fraud charge waiting to happen, and that's what I've told clients.

Over the summer I had a chance to attend a lecture by Joseph Nowoslawski, who is an angel investor who has really dug into crowdfunding issues and the new SEC regs on the process.  His results?  Crowdfunding can work if you have the right circumstances, but compliance is expensive with a capital E, and as he and I discussed afterward, a good old Reg D offering under 506 still makes more sense for the overwhelming number of start-ups.

After the lecture, I overheard a discussion among a few of the other attendees, all of whom were involved in alternative medical treatments.  One was swearing up and down that his liver cancer was gone.  He had quit chemo, gone on some special diet (palm grass and who knows what all else) and was feeling great.  Of course everyone else in the discussion was affirming him all the way.  Folks, there is a very large difference between relieving symptoms and removing a cause.  He had reduced the load on his liver and so was no longer presenting the symptoms the weakened liver had caused, but that in no way means the tumor is gone or will remain gone.  Another issue I have with Orrin Hatch and his efforts to protect all the local alt-med outfits.

Quick fundraising and quick cancer cures.  They both sound too good to be true.  And they both are.

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What is Going on with the Washington State Supreme Court?

The Washington Supremes used to be a place you could count on for rational decisions.  Apparently things have changed.  First they come down with Deggs v. Asbestos Corp.  This case involved the estate of a man who died of asbestosis suing for wrongful death.  Washington has an odd wrongful death statute.  The survivors don't get to sue; the decedent's personal representative sues, not on behalf of the estate, but rather on behalf of the survivors.  By tautology, the survivors' wrongful death action does not accrue until there is a death.  The PR brought the action within three years of the death and should have been OK.  Not according to five members of the Washington Supremes.  They ruled that the clock started running when the decedent learned of his injuries.  This wholly conflates an assault or battery or negligence action the decedent could have brought while he was alive with a wrongful death action that of necessity could not accrue until decedent's death.  According to these five's ruling, the statute of limitations on the survivors' right of action ran before their right of action even accrued.  There is a great deal of pseudo-research and pseudo-reasoning in the majority's opinion, but the bottom line is it was written with a shovel.

But wait, there's more.  Last week they decided Newman v. Highland Sch. Dist. No. 203, with another five-member majority (albeit a different line-up) deciding to reject Burger's concurrence in Upjohn Co. v. United States, 449 U.S. 383 (1981), which effectively every other court has followed, and hold that attorneys' interviews of a client's former employees concerning actions taken during the course of their employment are not protected by the attorney-client privilege.  There is honestly no basis for ruling this way.  I invite you to read the majority's tortuous "reasoning" that it applies to justify its result and then read the laser-scalpel dissection of that "reasoning" performed by the dissent.

Two justices joined in both dissents: Justice Wiggins, who wrote the Newman dissent, and Chief Justice Madsen.  I hope they don't retire soon.


Wednesday, October 05, 2016

Breathless Bilge

I'm aware that marketing requires a certain amount of overstatement, but I sometimes have to wonder if PR people even have the capacity to read their releases with any objectivity at all.  Case in point: Avvo's latest CLE offering, If You're not on Facebook, You're Committing Malpractice.  Really?  I acknowledge that if, as they say in their example, I'm cross-examining a witness about social media and have no clue about social media, I'm in trouble.  But if I don't go dinking around on Facebook or Twitter on a regular basis I'm committing malpractice?  I really don't think so.

First, Avvo, I don't need to spend significant time cruising timelines or posting to figure out how Facebook works.  It isn't rocket science.  If I need specialized knowledge for a case, I'll go get it.  And promptly forget it thereafter.

Second, cruising and posting to Facebook is actually a huge waste of time.  Have you bothered to look at what people post there?  Have you bothered to figure out what people actually look for there?  There's a reason I call it "Wastebook."  Sure, if they're looking for an attorney, they may want to find some background there.  Frankly, that's a good reason to set up a site and keep it as lean as possible.  TMI is real, kids, and it isn't good.

Third, USING social media is likely to be the malpractice.  If you post some opinion, especially on Twitter, there is NO WAY you can post sufficient disclaimers to cover your butt.

So sorry Avvo, either this class is an absurdity, or your title is simply a lie.

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Monday, October 03, 2016

Bankruptcy Uptick

Most bankruptcy filings are down due to yet more easy financing allowing everyone to extend and pretend, but there is one area facing a big increase: oil and gas, including its myriad support industries.  Financing in this area is already hitting the wall, and when it does, the party's over.

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I've concluded they call it "Middle Age" because you're too old for birthdays to be exciting and too young for them to be an accomplishment.