June 2, 2009
*Please Note: There will be no eNews issued next week, June 16, 2009, due to NACM's 113th Annual Credit Congress in Orlando, FL. eNews will resume on Tuesday, June 23, 2009.
Prepare your goals in advance. Make sure you know exactly what it is you want to take away from Credit Congress. Prepare a list ahead of time and match up your goals with the sessions offered—what do you want to achieve professionally and personally, and how can Credit Congress help you reach that goal?
Explore the conference schedule (click here to review online). Take a look at the sessions offered now—don't wait until you get to the conference! By making your decisions now, you can save yourself valuable time and effort once you get to Orlando. Make a master schedule, plotting your time at Credit Congress. Don't forget the social events! Educational sessions are important, but the social engagements are just as vital to your business relationships. Casual meetings at a dinner may turn into a priceless industry connections. Make sure you take a colleague or peer with you—they may know some people you don't and can make the appropriate introductions. Put these on your schedule so you can be sure to attend!
Prepare your "elevator speech." This is your quick introduction, overview of your job and your company, for use in those brief moments everyone experiences. Have three versions at the ready:
a) The 30-second version for the briefest moments
b) The one-minute version for those you'd like to network with
c) The slightly longer version for when someone asks you to tell them more
Dress for success! The official Credit Congress dress code is business casual, but the more professional you appear, the better the impression you will leave in your wake. Professionals look for fellow professionals—books may be judged by their covers!
Hand out those business cards. And, conversely, collect as many as you can. Keep a pen or pencil handy and write a short note on the back of each one about the person or your conversation; this will jog your memory when you start your follow-up calls after the conference.
Make notes about your key conversations. At the end of each day, write down a few things about the day—answers to important questions, facts and figures you want to remember, the name of an especially dynamic speaker, etc. There will be so much new information swimming around in your head, you may forget the answer to the one question you came for!
Reflect on your conference experience. After Credit Congress, go back to your list of important goals and questions. Did you achieve what you wanted to? If no, why not? What would you do differently the next time? Keep this list while you prepare for next year's event so you can gain even more knowledge from the group at Credit Congress.
Invest in conference recordings. Many Credit Congress sessions are recorded and available for purchase with copies of the handouts, if available. This is a great way to flush out your experience by obtaining information on the sessions you weren’t able to attend or fill you in on parts of a speech you may have missed. It’s also a great way to share the knowledge with your peers and coworkers, a reference you can come back to time and time again. Order your CD-ROMs on-site and after the conference for a limited time.
And the most important step in gaining all you can from attending Credit Congress...
Commit to keeping in touch with all the new contacts you made at the conference. Networking is vital in the business world. Make sure you take full advantage of all the key people you met, as they will have different areas of expertise from which you can pull ideas, assistance or just gain another perspective on a problem.
Thinking Globally, Working Locally: A New Era in Credit Insurance to Manage Risks in a Changing Economy
The United States has quickly grown from a string of fledgling colonies trying to buck the rule of one of the world’s most influential nations into a global economic, military and political powerhouse. The nation has continued to expand and is now the third most populous country in the world and the third largest country in terms of size. These aspects have greatly influenced the way American business has evolved, from railroads, to ranching, to farm production, to the automobile, bottled beer, the airplane, space flight, the Internet and beyond.
Despite the fact that trade credit insurance companies actually first appeared in the United States in the late 1800s, with the predecessors to Coface and Euler Hermes sprouting in American soil about a decade before European counterparts, the product has not been readily embraced by American businesses. It’s considered one of the few receivables protection products that is under-developed in the country. The structure of the U.S. economy has simply not let it be cultivated as rapidly as seen in Europe and Japan. But times are changing. Read how in this month’s issue of Business Credit. For subscriptions, click here.
The Senate Judiciary Committee is scheduled to consider a new bankruptcy bill, S. 257, the Consumer Credit Fairness Act, this week, including a proposed amendment that could have major ramifications for businesses dealing with a customer in bankruptcy. The bill was originally scheduled for consideration at an Executive Business Meeting on June 4, but any discussion was held over until the committee’s next business meeting set for June 11 at 10am.
Any amendments to S. 257 will be proposed at this business meeting, and Sen. Jeff Sessions (R-AL), the committee’s ranking member, is set to introduce an amendment to the bill that would combat the controversial practice of forum shopping, which is when businesses choose where they file bankruptcy. Specifically, the amendment would require debtors to file for protection from their creditors where their principal base of operations is located. A nearly identical measure was recently proposed by NACM as part of the association’s Issue Brief and Proposed Changes to the BAPCPA, which was submitted to the House Judiciary Committee and will be circulated among other like-minded associations in the future.
The bulk of S. 257 applies to consumers and aims to amend the Bankruptcy Code to require courts to disallow any claim arising from a “high cost consumer credit transaction.” A number of banking and business associations have come out in opposition to the bill, saying that its cost to consumer creditors would outweigh its benefits to consumer debtors.
NACM’s Government Affairs Committee, and specifically its Bankruptcy Work Group, has been hard at work monitoring the progress of the association’s proposed changes, as well as any other legislation that could affect business-to-business creditors. For more information on NACM's efforts, visit the advocacy page on the organization’s website by clicking here. If you have anything you’d like to share regarding any legislative issues, feel free to send your comments to firstname.lastname@example.org. All future updates on Senator Sessions’ amendment, the NACM Issue Brief and all related issues will be posted in NACM's eNews and on the advocacy page.
Jacob Barron, NACM staff writer
Protect Your Assets—Get the Best Working for You
Unemployment claims are on the rise, but credit and finance professionals are more important for your company's bottom line than ever. Protect your assets, keep your credit positions and fill them with high-quality talent.
Discover who's out there with NACM's Careers in Commercial Credit, Collections & Finance (C4F), the online resource for employment connections in the business credit industry. No more endless piles of resumes from unqualified applicants lacking relevant experience. No more countless returns at other job board sites to sift through.
Click here to get started!
C4F: Employment Connections for the Business Credit Community
With unemployment pushing beyond the veil of 9% and bankruptcies marching toward monumental, the attention paid to small businesses and their survival has only grown as an issue. Awarded the mantle of "drivers of the economy," small enterprises are continually praised as the keys to financial recovery for the nation. An escalating number of programs has been launched to kick-start growth in the sector, while efforts to remove barriers are being viewed as imperative.
During the final days of May, Congressman Hank Johnson (D-GA) introduced H.R. 2568, the Fairness and Transparency in Contracting Act of 2009, to continue to level the playing field for small firms. The bill is designed to ensure that small business government contracts actually go to small businesses instead of subsidiaries of large conglomerates. This is not a new issue—there have been more than a dozen investigations into such claims of abuse by goliaths like Wal-Mart, Microsoft and Home Depot—but it is one that does stir emotions for small business advocates.
"It's unconscionable that some large corporations are the beneficiaries of small business contracts," said Johnson. "Especially given how many small businesses are struggling in this recession."
If the legislation is ultimately championed by legislators, it would require that the Small Business Administration (SBA) submit an annual report to Congress detailing the nature of complaints and their resolution. SBA's Inspector General reported in 2002 that at least 4.4% of every 1,000 contractors awarded federal funds designated for small businesses failed to even meet the most basic requirements to be eligible for the contracts.
"Small businesses truly need as much support as they can get, especially in today's economy," said Georgia's DeKalb County Chamber of Commerce President Leonardo McCarthy. "Hopefully this bill will close loopholes and make it more equitable so small businesses can compete, grow and succeed in the marketplace."
According to the American Small Business League (ASBL), which authored the original draft of the bill and has been carrying the torch for this issue for years, H.R. 2568 would redirect over $100 billion per year in current federal infrastructure spending into middle-class firms. Using the "Obamanomics" equation that every billion dollars in infrastructure spending translates into 40,000 new jobs, the association contends the math speaks for itself: four million new jobs would be created by the bill's implementation.
"Small businesses create more than 97% of all net new jobs, and this bill will do more to help those firms than any stimulus plan proposed so far," said ASBL President Lloyd Chapman. "It will create millions of new jobs and provide a dramatic boost to the middle-class economy."
Matthew Carr, NACM staff writer
Distressed Business Services
Many NACM 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.
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.
Even before the economy fell hard and fast into recession, the lower bankruptcy filing numbers driven by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) were already starting to fade into memory. Now, as the effects of the recession reach their apex and the federal government looks to redefine the nature of bankruptcy to better aid the country's economic convalescence, it's as important a time as any for B2B creditors to be fully aware of the ways of the Bankruptcy Code, both as it stands now and how it could change in the future.
"We're living in unprecedented times in terms of bankruptcy," said Bruce Nathan, Esq. of Lowenstein Sandler PC, plainly referring to the unique circumstances under which credit professionals are working right now. During a recent NACM-sponsored teleconference, "Bankruptcy Point/Counterpoint," both Nathan and colleague Wanda Borges, Esq. of Borges & Associates, LLC offered a thorough, two-sided look at the Chapter 11 process and illuminated the way things work, the way things are supposed to work and the way they might work in the future.
First on the program was the 20-day administrative priority claim granted to sellers of goods under Section 503(b)(9). This claim, established by the BAPCPA, has often worked as a safety net for the ever-growing number of vendors who have been unable to assert reclamation claims over the last several years. Complications arise, however, when companies want to actually assert this claim. "It's not such an easy answer," said Nathan, noting that the Bankruptcy Code isn't very specific about how it's supposed to work. "The guidelines say that the claim is subject to a notice and a hearing, but the answer is it depends on the case. This is one of the problems: there are no uniform rules for asserting these priority claims and they're being decided on an ad hoc basis." To make the most of this claim, he suggested that credit professionals keep their eye on any news from the court. "Creditors should be checking the dockets to see if there are orders to see deadlines for asserting these claims," he said.
"This claim isn't working as well as we'd like it to, but it's still working better than reclamation," said Borges, who noted that, despite this, creditors should still be filing their reclamation claims. "There are tremendous problems with them, but every once in a while there's a case where reclamation works, so don't stop doing your reclamations." Borges then turned to discuss the concept of critical, or essential, vendor status, which allows debtors to choose which of their creditors it needs in order to stay operational and gives them the chance to negotiate with these sellers for future credit extension. "Interestingly, you're not going to find a section in the Code that says that if you do the following, you are critical to the debtor. There is no such animal in the Code," she said, referring to the fact that what constitutes a critical vendor isn't always a simple question. "First, it ran rampant and, when it did, the courts were granting critical vendor status to anyone the debtor wanted to do it with," said Borges. "The Kmart case was the apex where the court went too far. The judge held no evidentiary hearing and she granted critical vendor status to anyone the debtor wanted to give critical vendor status to, and it was shot down in the court of appeals," she said, adding that another more recent case helped flesh out critical or essential vendors. "In Re Dana Corp. probably set the stage for what is and is not critical." Number one, Borges said, was that the vendor had to be critical or essential because to not deem it so would cause immediate and irreparable damage to the debtor's operations. "It is up to the debtor to decide who you are to decide and choose and select you," she said. "You can beg and plead and file a motion to be deemed critical, but it's up to them."
Problems arise, however, when a vendor that believes it is critical and wants critical status does not receive it. "The problem is even if you are important, you aren't necessarily going to be deemed a critical vendor," said Nathan, who added that even a promise to do so doesn't guarantee anything. "Whether they promise it to you or whether they put it in writing, that is not enforceable." Additionally, creditors cannot use their position as one who is owed money to muscle their way into critical status. "You cannot threaten. You cannot say ‘I am going to withhold services or goods if my pre-petition debt isn't paid,'" he added, noting that critical vendors are often privy to payment on their owed debt, provided that they agree to extend credit to the debtor in the future. "The problem with that is two-fold: if you're operating under a contract where you're obligated to keep shipping goods, you're required to do so. You are contractually obligated and to threaten and say we're not going to ship could be a breach of contract," he said. "Worse than that, this threat could be considered a violation of the automatic stay."
Additional topics discussed by Nathan and Borges were preferences, preference defenses and other pertinent subjects. For more on NACM's teleconference series, or to register, click here.
Jacob Barron, NACM staff writer
FCIB's New Webinar Teaches How to Use Incoterms Correctly for Smoother Trade Transactions!
Are you prepared for the global trade realities of the 21st century? Possessing a strong working knowledge of Incoterms has become essential for anyone involved in international trade. Join FCIB on June 23-25 for "Incoterms: Keys to a Better Understanding." This three-day program runs each day from 11:00am-Noon ET.
Whether you are an experienced veteran in international transactions looking to polish your knowledge or you are new to the international arena and want to learn more, this webinar provides an extensive overview to help you gain a better understanding of what Incoterms are and how to use them correctly in your trade transactions (including both import and export transactions regardless of the payment terms).
To view the webinar curriculum, click here.
Webinar seats are limited, so register now to reserve your spot!
Just a handful of years ago a mélange of accounting scandals grabbed headlines and undermined the financial health of the country. Congress was forced to respond to restore public confidence and, in turn, the Sarbanes-Oxley Act of 2002 (SOX) was enacted. The sweeping legislation brought about a new era of securities regulation and created a new arm of the Securities and Exchange Commission (SEC) to register, inspect and discipline public accounting firms, as well as issue new auditing standards. On the surface, the Public Company Accounting Oversight Board (PCAOB) doesn't seem like it would be a lightning rod for controversy, but almost since its creation, groups have fought for its dismantling claiming it is endowed with too much power.
Now, the battle has reached the legal peak as the United States Supreme Court has agreed to hear questions as to whether PCAOB's establishment is constitutional or if it's a violation of the separation-of-powers doctrine and appointments clause. The Supreme Court will tackle whether PCAOB's Board members have executive powers that outstrip the President's authority to appoint or remove them. The justices will also consider facts concerning "inferior officers" at PCAOB who are under the direction of and are appointed by the SEC, but for whom the agency has no authority to supervise personally and can only remove if they "willfully violate" laws or "willfully abuse" their authority, unable to take the route of cause.
The Free Enterprise Fund (FEF) and the accounting firm Beckstead and Watts, LLP, which originally brought the suit against PCAOB in 2006 suggesting that Board members should be decided by presidential or SEC chairman appointment, lost in a divided decision in the U.S. Court of Appeals last August. The plaintiffs have continued to charge that the creation of PCAOB is a deliberate attempt by Congress to reduce presidential powers and have claimed that the mountain of red tape constructed in PCAOB's first year of operation resulted in more than $35 billion in compliance costs imposed on American businesses. The groups also complain that PCAOB members should not have the authority to set their own salaries. In 2003, PCAOB paid its chairman $556,000 while four other Board members received salaries in excess of $450,000, all of which the plaintiffs deemed "excessive." In 2008, these figures rose to a salary of $650,000 for PCAOB's chairman and four other members received salaries of more than $530,000.
For FEF and Beckstead and Watts, the appeals court ruled that the manner in which PCAOB members are appointed and overseen by the SEC is constitutional, upholding an earlier lower court decision. But it wasn't a unanimous ruling with the dissenting comments from Circuit Court Judge Brett Kavanaugh siding with FEF and Beckstead and Watts and stating there were clear constitutional violations. The plaintiffs are revitalized that the Supreme Court has agreed to hear their case.
"The costs to comply with [SOX] are a 'barrier to entry' for small entrepreneurial and developing companies," said Beckstead and Watts Managing Partner Brad Beckstead. "Inclusive in those costs are the regulatory burdens for auditors of small companies to comply with the standards established by the PCAOB. Auditors ultimately pass those compliance costs to their clients by driving up audit fees. Consequently, the burdens have pushed the majority of micro-cap and 'development stage' companies either out of business or offshore."
The opposition to PCAOB's establishment is backed by some high profile figures, such as Kenneth Starr and former U.S. Assistant Attorney General Viet Dinh, who both provide counsel for the plaintiffs and claim that the Board's existence stands as a roadblock to President Obama's success.
Oral arguments in the case are expected to begin this fall with a final ruling anticipated by the middle of 2010.
Matthew Carr, NACM staff writer
FedEx Shipping Benefit
If you are looking for reliable and cost-effective shipping, you can count on FedEx to deliver. NACM members can now save up to 26% on select FedEx® shipping services. There are no costs and no minimum shipping requirements to take advantage of this great member benefit.
For more information or to enroll in this program, please click here and enter passcode 51JVYT or call 1-800-MEMBERS (1-800-636-2377, 8:00am-6:00pm EST, M-F).
A recent poll conducted by the American Bankruptcy Institute (ABI) indicates that the country's bankruptcy professionals greatly disapprove of the Obama Administration's handling of the recent Chapter 11 filing by Chrysler LLC. When asked to respond to the statement that "the Obama administration took the correct approach in actively engineering the Chrysler bankruptcy, including dictating the terms of who will own the new entity and how much bondholders will be paid," a whopping 76% of respondents "disagreed strongly" and another 4% "disagreed somewhat."
The most objectionable portions of Obama's efforts to engineer a quick and successful reorganization have been the administration's decision to alter the terms regarding ownership of the new post-Chapter 11 entity that is expected to arise from Chrysler's ashes and the amount certain secured creditors would be paid for their claims. In what President Obama referred to as a "surgical bankruptcy," the United Automobile Workers (UAW), through their retirement plan, will share control of Chrysler with Italian automaker Fiat as junior partners. Additionally, under the plan, secured lenders will receive approximately $.29 on the dollar of their claims in cash. Originally, these lenders vehemently objected to this portion of the plan but backed down following sharp criticism from the White House.
A mere 16% of respondents agreed with the statement that the administration was taking the correct approach in its active engineering of the bankruptcy. Eleven percent of participants "agreed strongly" and 5% "somewhat agreed." Only 1% of respondents did not know or had no opinion on the issue.
Chrysler's bankruptcy filing paved the way for the other struggling member of the "Big 3" automakers, General Motors Corporation, to follow suit, which it did, filing for government-assisted Chapter 11 bankruptcy protection on June 1. In the interest of transparency in both of these extremely high profile bankruptcy cases, the U.S. Bankruptcy Court for the Southern District of New York announced that it would make digital audio recordings of all court proceedings related to the Chrysler and GM bankruptcies available online. They will be accessible though the Public Access to Court Electronic Records (PACER) system and each audio file will cost $.08. For more information on accessing these recordings, visit the court's website at http://www.nysb.uscourts.gov/.
Jacob Barron, NACM staff writer
The days of milk and honey ended long ago for a majority of U.S. companies as businesses in nearly every industry sector have cinched tight their belts. The national unemployment rate bounded upwards to 9.4% with predictions still looming that it will eventually explore the realm of double-digits. The hardest hit sectors, like the construction industry, where the national average jobless rate is well above 18%, saw many regions of the country struggle with sector unemployment jumping toward 30%, sparking a call for the immediate injection of critical stimulus funding.
"Job loss figures like these are exactly what prompted Congress and the Administration to craft a stimulus package designed to get Americans back to work as quickly as possible," reminded Ken Simonson, chief economist, Associated General Contractors of America (AGC). "Putting these funds to good use as quickly as possible is the best way to get Americans back to work and the economy back on track."
Numbers from the housing markets offered some evidence of stabilization as pending home sales ticked up 6.7%, representing the third straight month of increases. But the economy at large contracted 5.7%, making it the first time the country has experienced three consecutive quarters of contraction since 1975.
Unfortunately, for the construction sector the "Buy American" provision of the stimulus plan has led to uncertainty and has potentially delayed projects and created further deterioration. According to the AGC, the provision has helped drive up the costs of some construction projects and has even resulted in pipes that were already laid for one project in California to be ripped up, while some municipal water and sewer agencies have abandoned stimulus funds because of certification and reporting requirements. For a sector that employs one-fifth of American workers and has been hit hard, accounting for 20% of all job losses in the past year, the forecast is still hazy.
"We need to make sure needless red tape and regulations don't keep construction workers off the job," said Simonson. "There's a real risk that 'Buy American' provisions, for example, could undermine the very purpose of the stimulus."
For white collar workers, the short-term is being dominated by the waiting game. A recent survey by Robert Half International (RHI) found that only 5% of chief financial officers are expecting to hire full-time employees during the third quarter, though only 8% are anticipating staffing reductions. An overwhelming 85% are planning to keep personnel levels the same and see how things go.
"Many companies remain hesitant to commit to adding staff until they are certain of an economic recovery," explained Max Messmer, chairman and CEO, RHI. "In the meantime, most firms are working with their current teams to manage key initiatives, with some employers also bringing in project professionals to assist with rising workloads and support full-time personnel."
The gloomy, non-committal outlook is only abetted by the fact that consumer bankruptcies rose 37% year-over-year nationwide in May, though they were basically flat from month-to-month. "As consumers continue to face increasing levels of unemployment and rising foreclosure rates, bankruptcy filings will continue to accelerate as families seek financial relief from the tough economic climate," said Samuel Gerdano, executive director, American Bankruptcy Institute (ABI). "We predict more than 1.4 million new bankruptcies by year end."
There is still the looming thunderhead of the General Motors bankruptcy and its backlash on the economy.
Matthew Carr, NACM staff writer
Employees’ Stress Levels Rising Globally; Majority of Firms Taking Action to Lessen Economy’s Repercussions on Staff
Difficult economic conditions have had a substantial impact on accounting and finance departments around the globe according to a new survey of finance and human resources managers. Respondents reported that economic conditions have contributed to heavier workloads, higher stress levels and lower morale. The study also found that firms are adapting their management strategies to maintain productivity and alleviate the burden on their employees.
The global survey was developed by Robert Half International for the company's third annual Robert Half Global Financial Employment Monitor and conducted by an independent research firm. The study, focusing on hiring difficulties, retention concerns and other staffing-related issues, is based on a survey of more than 4,800 hiring managers in finance and human resources across 21 countries. This year, the report also examined the effects of the global economic downturn on financial teams around the world.
Employers Addressing Economy's Impact on Workers
In the report, 32% of U.S. respondents, compared to 40% globally, stated that their finance and accounting departments had been affected by the downturn. Among that group, 49% of U.S. respondents have a hiring freeze in place, 47% have consolidated roles and 38% have experienced layoffs. Executives from Hong Kong and France (60% in each country) and Brazil (56%) reported the highest levels of personnel change.
Asked how current economic conditions have affected their individual employees, nearly half (48%) of U.S. respondents cited increased stress, compared to 39% globally. Managers surveyed from Australia and Ireland, along with those from the United States, reported the highest levels of stress among their financial teams (48%). The next most commonly cited effects, both globally and in the United States, were heavier workloads and decreased morale. Less than one-third of all respondents both in the United States (32%) and around the world (29%) said their accounting and finance teams have remained unaffected.
In response to the economic downturn and its impact on their employees, the majority of managers surveyed (62% in the United States and 70% globally) said they have taken some form of action to better support their teams. The most common measures employers worldwide are taking include redistributing workloads, increasing communication with staff and postponing projects. Increased communication was a particularly notable trend among firms in Ireland and Singapore, where nearly half (46%) of managers surveyed from each country cited this as a best practice.
"Leaner teams mean that everyone is doing more work with fewer resources, which ultimately produces diminishing returns," said Max Messmer, chairman and CEO of Robert Half International. "As a result, managers are re-balancing assignments in an effort to prevent overwork and ensure team members are focused on the most critical projects."
Recruiting and Retention Concerns Persist
Despite slowing economic conditions, most managers (56%) worldwide said they were still having difficulty finding skilled job candidates for accounting and finance positions, the same percentage as in last year's survey. Recruiting challenges have eased the most in the United States, where only 32% reported difficulty locating good people, down from 72% last year. Countries having the hardest time finding skilled workers are Hong Kong (87%), Brazil (79%) and Japan (73%).
Even in countries where recruiting is easier, retention worries remain. In the United States, 40% of respondents reported concerns about losing key staff to other job opportunities in the next year, compared to the global average of 53%. In New Zealand, less than half of the managers surveyed (44%) reported difficulty finding skilled job candidates, but two-thirds (67%) expressed concern about losing their top performers in the next year. Significant levels of concern over potential staff turnover also were cited by managers in Hong Kong (89%), Spain (87%) and Singapore (82%).
Messmer added, "Even in a downturn, companies make holding on to their top performers a priority. They cannot afford to lose good accounting and finance employees without also experiencing productivity and performance losses."
Source: Robert Half International
To view past eNews issues or visit the NACM Archives, click here.