April 8, 2009

News Briefs

  1. Panel Discussion Highlights Issues Surrounding Risk Mitigation and Counterparty Risks
  2. Credit Professionals Split on Effect of Stimulus
  3. Proposed Bill Aims to Revise Bankruptcy Code and Impact Rights of Trade Creditors
  4. House Passes "Pay for Performance" Legislation for TARP Recipients
  5. Federal Judiciary Faces Budget Crunch As Bankruptcies Soar
  6. FASB Approves New Fair Value Rules
  7. Small Firms Stymied by Era of Cautious Investment
  8. Paper Recovery Hits New Peak, But Sector Continues to Slip
  9. U.S. Legislators Pledge Collaborative Effort on Regulatory Modernization

Upcoming Events


Panel Discussion Highlights Issues Surrounding Risk Mitigation and Counterparty Risks

More often than not, when credit professionals utilize instruments such as financial guaranties, letters of credit, credit default swaps, receivables puts or credit insurance, they find themselves ultimately having a better grasp of the counterparty risks they are facing. With the economic slump, such instruments have emerged from precautionary to en vogue.

"I think there's much more importance placed on these tools now," said Tom Corbett, Northeast regional vice president, Atradius Trade Credit Insurance. "I think you'll find they're always right below the horizon when times are good economically, as they were for a long time. But now, the point is you want to be in a better position than your competitors or other people selling to the same customer."

At this year's Credit Congress, Corbett will be moderating the panel discussion "Risk Mitigation and Counterparty Risk," which will highlight risk analysis and prioritization, as well as mitigating measures such as personal guarantees, UCC filings, puts and credit insurance. The speakers will cover a number of tools that credit managers can use to improve their position.

"Any technique that you can use that will put you in a better position, even if it's just to the degree of a better negotiating position as you fight to keep your accounts kept current, is a big plus and has senior management support," noted Corbett. "People that never would have seriously considered buying a put—which is a pretty expensive way to mitigate risk—or even really had a deep interest in investigating credit insurance, are doing so. From senior management on down there is this push to explore all those options and see what's available."

With bank and hedge fund defaults capturing headlines, counterparty risk—the risk that an institution does not pay out on a derivative, insurance contract, bet or trade—has been pushed to the forefront. Probably more than ever, credit managers need to be sure that they are doing the analysis to determine that the party guaranteeing payment—should a customer not pay—is financially capable of shouldering the debt. If not, companies lose out twice if they purchase a guarantee and the guarantor is simply unable to make due on the claim.

"On the insurance company side, it's the same thing," explained Corbett. "You want to look at 'A' and best ratings here in the U.S.—S&P ratings and Moody ratings—to make sure you know what the insurer is rated because you want an investment grade entity standing behind your guarantee, whether it be insurance or a put or whatever. You want to make sure that, should your customer fail, that the people that are supposed to pay you will be able to."

The panel at NACM's 113th Credit Congress will also discuss other options related to the difficulties credit insurers are facing in the current global economic climate. Even though credit insurance use is increasing, it's becoming harder and harder for insurers to structure policies to provide coverage because so many industries and countries are financially dysfunctional.

"Nonetheless, you see a lot of activity and a lot of people that are trying to find a way to protect and mitigate the risk of their portfolios by using credit insurance," said Corbett.

Matthew Carr, NACM staff writer

Get Some Sun!

NACM's 2009 Credit Congress, to be held in gorgeous Orlando, FL at the renowned Rosen Shingle Creek Resort, marks 113 years of superior conferences offered for the benefit of business credit and financial management professionals. There's no better place than this year's conference for relevant and timely educational sessions, information on the latest B2B products and services and valuable networking and relationship-building events to help you weather today's current economic troubles.

For more detailed information on educational sessions, networking opportunities, certificate sessions and the annual exposition, click here.

Credit Professionals Split on Effect of Stimulus

Credit professionals across the country are decidedly split on the nation's most recently passed stimulus bill, the American Recovery and Reinvestment Act (ARRA), and the effects it'll have on their business. According to NACM's March 2009 Monthly Survey, when asked "Do you think the stimulus package will have a financial impact on your business?," 37.3% of respondents said "yes," 39.7% said "no" and another 23% said that they weren't sure.

Of the "yes" respondents, most noted that they were in construction and that the legislation's investments in infrastructure could deliver a slight pick-up in their business. "I expect to see an increase in orders from some of our large contractor customers as the state pulls the trigger on some major infrastructure projects," said one participant. "The money the states will receive from the stimulus package will enable them to renovate or build schools, hospitals, roads, bridges, etc. There should be a need for our equipment on most of these types of projects," said another. Others noted that there could be a number of obstacles that block much of the bill's $787 billion from getting all the way back to manufacturers and suppliers, and any real economic benefit could be a long time coming. "It won't happen quickly, but we should feel the impact in about nine months," said one respondent. "Although there are funds being directed to infrastructure programs, the impact to my business will depend on how those funds filter through the system," said one participant. "If they make it to the point where new equipment is purchased or existing equipment is repaired, then it will benefit my business."

One of the bill's stated goals was to get banks lending and businesses spending again, but some survey participants noted that they doubt the recipients of ARRA's largesse will do what the government wants them to do with their money. "With the current economy and recent changes in our government, I believe small- to mid-sized businesses will hold on to any stimulus funds they may receive, making only necessary minimum payments," said one respondent. "Far too many have had to deplete their bank accounts just to stay operational and may see these funds as a way to regain a temporary sense of minimal security by choosing to hold the funds rather than spend them." Others echoed this sentiment. "I think most people will use the stimulus to either pay off accounts accruing interest and/or for major necessities such as rent, utilities, etc.," said another participant.

Other respondents were fairly pessimistic about the bill's prospects, with many stating that the cost will inevitably endanger the country as a whole and, in some instances, have an overall negative effect on their business. Some "yes" answerers noted in their comments that, indeed, they think the bill will have a financial effect on their business, but "not a positive one."

Some respondents complained about the bill's targeted spending measures and the caustic presence of pet projects and earmarks in the bill. "I think the stimulus is more earmark than stimulus. Government spending won't help businesses," said one respondent. Overall though, the theme was one of uncertainty about the government's actions and the future of the economy. "I'm sure that the stimulus package will have some kind of impact," said one participant, "but it's unclear what that will be."

NACM's April Monthly Survey deals with preference statutes. Click here to take this one-question survey.

Jacob Barron, NACM staff writer

What do YOU think of preferences?

In a commercial bankruptcy case, preference claims are often the bane for an unsecured creditor. But as Capitol Hill continues to look for ways to speed up the nation's economic recovery, the House Judiciary Committee has started to look at the Bankruptcy Code and whether or not its provisions hamstring the availability of credit. Do you think preference statutes limit your company's willingness to lend credit? Take part in NACM's April Survey and make your voice heard!

Participation also gets you .1 roadmap points toward an NACM designation and enters you in a drawing to win a FREE teleconference registration.

Proposed Bill Aims to Revise Bankruptcy Code and Impact Rights of Trade Creditors

Corporate bankruptcies are earning their spot on the media marquee. As the pace of economic recovery continues to be unclear, the thousands of positions shed by major corporate insolvency adds to a growing sense of unease as it drives the unemployment rate further beyond 8%. There are now questions being aimed at the system that is supposed to allow troubled companies to reorganize and recover, which apparently has instead turned into a fight to pick the bones of failed companies clean.

The public outcry over Circuit City's Chapter 11 filing that was pushed from reorganization to liquidation—costing more than 34,000 jobs because the company was unable to secure financing—has been heated and ongoing. Congressional action has matched the tone, with legislators setting their sights on failures in the federal Bankruptcy Code and picking up the torch of reform.

In an effort to prevent further switches from Chapter 11 to Chapter 7, Jerrold Nadler (D-NY), chairman of the House Judiciary Committee on the Constitution, Civil Rights and Civil Liberties has introduced the Business Reorganization and Job Preservation Act of 2009.

"In an economy as depressed as ours, we must be cognizant of the many difficulties facing American businesses and avoid placing unnecessary hurdles in their paths," said Nadler. "It's essential that we give retailers, which are often the job providers of our communities, the means to reorganize and stay in business."

Nadler's bill looks to amend and repeal provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), including sections pertaining to 503(b)(9) administrative priority claims, reclamation rights for pre-petition claims and the assumption of executory contracts, all of which would have a direct impact on the recovery efforts of trade creditors.

Because the proposed bill would seek to eliminate or amend tools that are important for creditors if a customer files for bankruptcy protection, NACM and its Government Affairs Committee are actively working with Nadler's office to ensure that fair, public policy is ultimately enacted. It is widely recognized that reclamation, as it exists under BAPCPA, is broken and is not working as it was originally intended. It has earned the reputation as an "illusory remedy." Administrative priority claims under section 503(b)(9) continue to represent a significant tool for trade creditors, and the association feels that it would be detrimental to make any changes that would restrict their scope.

As the association continues to communicate with Nadler and policymakers on Capitol Hill, NACM wants to hear from its membership about their experiences with 503(b)(9) administrative priority claims. This is an opportunity for members to have their voices heard about the value that 503(b)(9) claims provide creditors, as well as possible amendments that could help drive the flow of credit in the current economy. Credit managers and professionals are key players in this economic recovery and NACM wants Congress to be informed about what policies are going to help facilitate their work and not further deteriorate conditions, ultimately prolonging the current recession.

For more information on Nadler's Business Reorganization and Job Preservation Act of 2009, members can visit here on the NACM website, which provides a link to the documents that were introduced.

Members wishing to share their experiences with Bankruptcy Code provisions like section 503(b)(9) can send them to .

Matthew Carr, NACM staff writer

Is Your Customer Planning to File Chapter 11? What You Can Do to Protect Yourself

You just saw an article in the morning newspaper reporting that one of your customers is in some financial trouble and may be considering filing Chapter 11 bankruptcy. What do you do to protect your company? Join Mark Berman, Esq., a partner at Nixon Peabody LLP, to find out! This NACM added advantage teleconference (April 8, 3:00-4:30pm) will review the issues a credit manager should consider upon learning that a customer is considering filing Chapter 11. Issues to be discussed will include credit enhancement strategies, preference exposure analysis and strategies for reducing any exposure, how to manage future business, collections, ongoing contractual relationships, reclamation, stoppage of goods in transit, obtaining adequate assurance of future performance of contractual obligations and much more.

For more information, or to register, click here.

House Passes "Pay for Performance" Legislation for TARP Recipients

The U.S. House of Representatives recently passed legislation that would tie wages to performance for companies receiving government financial aid under the Troubled Asset Relief Program (TARP). Named the Grayson-Himes Pay for Performance Act after the two congressmen who introduced the bill, the Act would prohibit certain types of compensation at companies who receive TARP funds and would aim to further align the interest of financial institutions with that of the public.

"This bill was passed for the sake of our financial survival. Taxpayers should not bankroll executives whose ridiculous gambles brought America's financial system to the brink of collapse," said Rep. Alan Grayson (D-FL). "The power the bill grants is pretty standard. The taxpayers now have an ownership stake in these companies and owners of companies set salaries for their employees. Any company bent on paying its employees unreasonable and excessive compensation can do so after the American taxpayers get their money back."

Specifically, the bill would prohibit any company or institution that has yet to repay their TARP funds, regardless of when they received them, from paying any executive or employee compensation deemed "unreasonable or excessive" by Treasury Secretary Timothy Geithner and from paying any bonus or supplemental payment that isn't tied directly to performance-based standards, which will also be established by Geithner. The Act will also cover companies given investments by the Housing and Economic Recovery Act, meaning Fannie Mae, Freddie Mac and the Federal Home Loan Banks fall under the bill's broad umbrella. "The Pay for Performance Act is based on a principle we can all agree on—if you perform well, you should be paid accordingly," said Congressman Jim Himes (D-CT). "In companies where the taxpayers are now shareholders, we have the right to ensure that people within those institutions are making prudent decisions that will help stabilize and grow their long-term value."

The bill passed by a vote of 247-171 and also revokes a provision included in the previous stimulus bill, the American Recovery and Reinvestment Act (ARRA), that exempted bonuses due under employment contracts signed and entered into prior to February 11, 2009, making those bonuses subject to the bill's provisions as well.

The Senate has received the legislation and action is pending.

Jacob Barron, NACM staff writer

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Federal Judiciary Faces Budget Crunch As Bankruptcies Soar

Last year, bankruptcy filings increased more than 50% year-over-year to the highest levels seen since the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA). The projection for 2009 is that this trend will continue to increase at an elevated rate. For the Federal Judiciary system, that translates into considerable strain, particularly in light of the fact that bankruptcy filings in the wake of BAPCPA come with new docketing, noticing and hearing requirements that make addressing the petitions far more complex and time-consuming.

To tackle the daunting workload, the U.S. Courts system is seeking an 8.7% budget increase to $7.03 billion for FY 2010. Most of the request, some 80%, is to address personnel and space requirements.

"A court system that is adequately funded and operates efficiently can be an anchor in these uncertain times," Chair of the Budget Committee of the Judicial Conference of the United States Judge Julia Gibbons told the House Appropriations Subcommittee on Financial Services and General Government. She conceded that the overall requested increase will likely be reduced.

According to Gibbons, the Judiciary is already feeling the pinch from the continued deterioration of the economy. Bankruptcy courts are reporting significantly increased filings compared to a year ago, and there is the looming fact that the courts' criminal caseload involving thousands of fraud investigations, many of which stem from the current financial crisis, are going to begin to work their way through the system.

"The economic situation we face is far reaching and affects all aspects of the Judiciary's work," said Gibbons. "Courts provide a forum for individuals or companies who are forced to file bankruptcy proceedings, for those who have suffered losses and are seeking civil monetary remedies and for those accused of crimes."

The majority of the additional staff the Judiciary is anticipating will be needed to handle the workload increases in bankruptcy, probation and pretrial services. The court system also wants to add six additional magistrate judges and staff, as well as make some courtroom technology improvements, including electronic reporting system kiosks and a Decision Support System that will allow probation and pretrial officers instant access to a warehouse of data.

Matthew Carr, NACM staff writer

On the Road Again

Imagine meeting your spouse or a significant other's parents for the first time. Your partner has, hopefully, given you a short tutorial on how to conduct yourself, on what topics of conversation to avoid and maybe on how their father feels about the local baseball team's front office. Maybe they've given you a crash course on their parents' style and senses of humor. Whatever your significant other has told you, it's all in the interest of ensuring the meeting's success and providing you with the tools you need to make a good, lasting impression. The point is, in many instances, preparation is everything.

As it is in these memorable meetings with someone you care about, so it is when credit professionals visit their customers. An ill-prepared credit professional who visits without clear goals can wind up causing more harm than good, while a poised, polite and prepared creditor can extract a great deal of valuable information from a customer visit, all the while showing the customer their company's commitment to a mutually beneficial relationship.

For more information on how to properly visit a customer, and why you should do it, be sure to read this article in the April 2009 issue of Business Credit magazine. Click here to get your subscription started today.

ASB Approves New Fair Value Rules

Facing criticism from angry legislators and struggling bankers, the Financial Accounting Standards Board (FASB) recently announced that it would relax some of its guidance surrounding fair value accounting, which has been blamed for its negative influence on the banking sector throughout the financial crisis.

Fair value, also known as mark-to-market, accounting requires banks to value assets according to market prices, which at the onset seems fairly agreeable. However, critics in the banking industry complain that forcing financial institutions to "mark to market" has required them to mark down certain assets in order to stay in compliance and can wind up erasing much of a bank or financial institution's overall worth. Especially with markets the way they are now, these rules have forced banks to write down much of their assets, even when the market may not reflect the actual, real-world worth of the illiquid item itself.

Specifically, the new FASB guidance offers banks a bit more leniency, allowing them to use their own judgment when measuring prices for illiquid assets and potentially reducing write-downs while increasing net income. The move drew cheers from prominent banking executives and the American Bankers Association (ABA). "Today's decision should improve information for investors by providing more accurate estimates of market values," said Edward Yingling, president and CEO of ABA, who also expressed concern that the FASB didn't reverse some of their other rules, namely, one that requires financial institutions to value "held to maturity" securities according to market losses. ABA contends that these instruments should never be subject to market volatility. "To prevent further confusion as to the nature of these losses, it will be important for the FASB to consider this during the next phase of its project on financial instruments," said Yingling.

Democratic and Republican legislators also applauded the FASB's approval of the new fair value rules. "I applaud the very important actions taken by FASB today, which has made significant progress toward addressing inaccurate asset valuations in the markets," said House Financial Services Committee Chairman Barney Frank (D-MA). "The FASB believes the rule can be applied more fairly and take into account the currently dysfunctional state of some markets. The integrity of the standard-setting process is preserved, while avoiding the pro-cyclical effects of improper valuation practices."

A full copy of the FASB's changes can be found on the board's website, www.fasb.org.

Jacob Barron, NACM staff writer

Liens & Bonds: Building the Optimal Credit Department

The construction industry is facing an uphill climb as projections for the residential housing sector remain dismal and non-residential firms are shedding positions at a rapid pace as they watch profit margins vaporize. For credit managers, construction credit is a one-of-a-kind animal. Grantors are often asked to extend lines of credit beyond their customer's net worth. Even the terminology is unique to construction credit, with back charges, NTOS, pay-if-paid and retainage. Then there are powerful tools like liens and bonds that can make or break a company. As such, construction-oriented credit professionals need to be experts in maximizing the leverage provided by lien and bond claim statutes. NACM will hold a half-day session April 24th in Atlanta, Georgia, where Greg Powelson, director, NACM's Mechanic's Lien and Bond Services (MLBS), will lead credit managers through the basics of collecting job information on through foreclosure, to addressing liens and bonds from a national perspective, as well as when credit managers must take action.

Members interested in attending the event can register here.

Small Firms Stymied by Era of Cautious Investment

A lot has taken place over the last 18 months. Brett Favre went from the Green Bay Packers to the New York Jets' Gang Green, and then announced his retirement once again. The Olympics were held in Beijing, China, where Michael Phelps won some gold medals and broke a few world records. The Philadelphia Phillies won the World Series, ending the title-less streak for the City of Brotherly Love, while the Boston Celtics dominated the NBA, extending their legacy as a powerhouse franchise. The Pittsburgh Steelers did the same, winning their sixth Super Bowl, a feat never before accomplished in NFL history. And Illinois Senator Barack Obama was elected as the first African-American President of the United States.

Of course, during all these moments of glory, some stuff happened with economy. Unfortunately, it's that stuff that Congress says is leading to major losses for small businesses.

Both the House and Senate Small Business Committees have made small business access to capital their main prerogative over the last couple weeks, but the mounting pressure to provide more assistance to small businesses is handcuffed to the fact that the firms employ roughly half of the nation's workforce and have been hit the hardest in recent months by lagging consumer spending, suffering 80% of the job losses seen since November.

"With the right idea, hard work and sufficient capital, a new business can grow into a large enterprise which employs hundreds of people," said House Small Business Committee and Investigation and Oversight Subcomittee Chairman Jason Altmire (D-PA). "Unfortunately, today many entrepreneurs are finding that they cannot secure capital when they need it the most."

In the past, when the economy hit a rough spot, small businesses were able to find funding from investors that were willing to enter into high-risk, high-growth partnerships, like venture capital firms and angel investors. Apparently, that is no longer true as many experts have claimed that venture capital investments are down a third of what they were a year ago. Shaken by the rising tide of insolvency, firms willing to put up cash in exchange for a stake in a new business are becoming more difficult to find as "caution" has become the motive of the times.

"If sources of capital continue to dry up, it will stifle the development of new businesses and hinder our entire region's economic growth and prosperity," warned Altmire.

Senate Committee on Small Business and Entrepreneurship Chair Mary Landrieu (D-LA) and Ranking Member Olympia Snowe (R-ME) echoed that call, asking Treasury Secretary Timothy Geithner to consider a program that would allow the federal government to use Troubled Asset Relief Program (TARP) funds to guarantee lines of credit for qualifying small businesses. "Without our help, small firms won't be able to fulfill their role as the engine of economic growth at a time when our economy needs them more than ever," wrote the senators.

Matthew Carr, NACM staff writer

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Paper Recovery Hits New Peak, But Sector Continues to Slip

The backlash from the financial woes experienced in the United States and around the globe has been far-reaching. Every sector of the economy has suffered, and though a turnaround is in sight, job losses continue to mount. For the paper and forest products industry, the downturn has meant both celebration and sobering reality.

In 2008, according to the 49th Annual Survey of Paper, Paperboard and Pulp Capacity from the American Forest & Paper Association (AF&PA), the United States experienced a record 57.4% paper recovery rate. That represents a clear victory for recycling efforts across the country and is a bright spot for the industry mired in the throes of a sagging economy.

Last year, paper and paperboard capacity in the U.S. inched downward 0.8% to 96.3 million tons. That was below the 1% annual rate of contraction seen in the prior six-year period. Since 2000, paper and paperboard capacity has declined by 7.3% and the outlook for 2009 is a further decline of 1.8%, with a slight uptick of 0.3% projected for 2010 and 2011.

The association credits the growth in the recovery rate in 2008 to robust demand worldwide for recovered fiber during the first three quarters of the year. This was shouldered by the sound recycling infrastructure and the commitment from millions of Americans.

"It's important that in the wake of a global recession, the resulting decline in paper demand and the decline in value of recovered paper, that we protect both our infrastructure and personal commitment to recycling, so that we are prepared to again meet growing demand as the market rebounds," said AF&PA President and CEO Donna Harman.

Weak economic conditions forced 18 mills in the United States to close last year and there is at least one mill already announced to shut its doors this year. More than a dozen machines were permanently shut down at various mills around the country and several mills and machines have been left idle indefinitely in response to the current economy. These losses add to the 17 mills and 38 machines permanently taken offline in 2007.

Matthew Carr, NACM staff writer

Distressed Business Services

Many of NACM's Affiliates are involved in a national network to provide assistance in the rehabilitation (if possible) or liquidation (if necessary) of businesses in severe financial difficulty. Working in conjunction with the business and its creditors, this service is designed to provide the business with the opportunity to re-establish its financial credibility through time and planning, or to assist in ceasing its existence while minimizing losses to its creditors.

As a quick, efficient and cost-effective alternative to bankruptcy, NACM Affiliates provide forums and facilities to rehabilitate or liquidate the affairs of financially distressed companies as a viable option to bankruptcy court proceedings. These alternatives are often less cumbersome for all involved and less expensive—which means more return to creditors and more money left in the business to regain its footing.

While courts can take several months or more to get a reorganization plan started, NACM Affiliates can assist in getting a plan approved in as little as 30 days. Most helpful is the knowledge that experienced professionals are ready to step in at the most difficult time. NACM Affiliated Association staff members can serve as secretary to creditors' committees, provide other needed advisory services, and are fully aware of the prevailing laws and regulations relevant to each situation.

Click here to learn more about NACM's Distressed Business Services.

U.S. Legislators Pledge Collaborative Effort on Regulatory Modernization

French President Nicolas Sarkozy, who, prior to the Group of 20 (G20) meeting in London last week, threatened a walkout of the proceedings if the collective of industrial and developing nations failed to agree to a revamp of global financial oversight, was not alone in his hopes that the meeting would create a more effective global regulatory scheme. In addition to German Prime Minister Angela Merkel, who voiced concerns similar to those of Sarkozy, two prominent U.S. legislators, Senator Chris Dodd (D-CT), chairman of the Senate Committee on Banking, Housing and Urban Affairs, and Congressman Barney Frank (D-MA), chairman of the House Financial Services Committee, both pledged their commitment to regulatory modernization in a letter to U.S. President Barack Obama, sent just prior to his departure for London.

"Given the importance to our economic future of this set of issues, I will do everything I can to achieve the broadest possible support for legislation that is effective and comprehensive," said Frank. "As we prepare to write legislation that will modernize our financial regulatory system for the 21st century, the Banking Committee has strong partners both across the Capitol and in the White House," said Dodd. "I will also continue to work closely with Ranking Member [Richard] Shelby (R-AL) and my other Republican colleagues to build upon our bipartisan record."


Congress, along with much of the world, has obviously sought to enhance financial regulations in order to prevent major crises, such as the one currently battering the global economy, from taking place again. In addition to prevention, however, legislators like Dodd and Frank have made attempts to rebuild the confidence in the nation's financial system that was decimated by the financial meltdown and is fundamental to the recovery and future success of the banking sector. "We have already begun an intensive series of hearings, briefings and meetings on this subject which, combined with the important work of the House Financial Services Committee, will help us pave the way for this significant undertaking," said Dodd. "I am confident that through this process we will be able to design a system to better protect consumers and restore confidence in our banking system."

Jacob Barron, NACM staff writer

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