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eNews Weekly Update - National Association of Credit Management
March 17th, 2009

News Briefs

  1. Letters of Credit, from the Fundamentals to the Nitty-gritty
  2. Government Looks at Bankruptcy Code: A Call to Action!
  3. Is the Chapter 11 Process Unfair to Retailers?
  4. House Explores Mark-to-Market Realities
  5. House Small Business Committee Recommends Raising SBA Budget
  6. Proposed EFCA Ruffles Feathers in Manufacturing and Construction Sectors
  7. Corporate Income Taxes Cost the Average American Household $3,190


Letters of Credit, from the Fundamentals to the Nitty-gritty
In November, U.S. exports grew by more than 14% year-to-date to a hefty $1.7 trillion. The global marketplace has kept the nation afloat, supporting 13.7% of gross domestic product in the third quarter alone. The usual suspects like Canada, Mexico, China and Japan remain the hungriest markets for U.S. goods, but potential free trade partners like Korea, Colombia and Panama have increased exports by 13%.

For credit managers dealing in international trade, the documentary credit cycle deserves unparalleled importance. Letters of credit (LCs) are what get exporters paid, by enabling an importer to offer secure terms of payment. The process is complex and failure can be rooted in mundane mistakes, even as simple as a missing period or comma, a premature expiration date or the inability to produce a particular document when asked. An estimated 70% of all LCs submitted to banks for payment are initially rejected due to incorrectly issued documentation, meaning payment delays, additional fees and even nonpayment in some cases. Danielle Austin, Export Trade Associates, LLC, said that the discrepancies in LCs typically occur due to a lack of education.

"There is a tremendous gap between beneficiaries—the exporters—banks and freight forwarders," explained Austin. "The beneficiaries aren't getting the support they need and the resources are not available in today's environment."

The realities are that because there are so many details that must be addressed on the export side prior to shipping, credit managers can no longer afford to "ship and learn" or "ship and pay."  There is simply too much at stake. At NACM's 113th Credit Congress in Orlando, Florida, Austin will present two sessions: "Letters of Credit 101: The Fundamentals" and "Letters of Credit 102: The Nitty-gritty."

"We need the education to help our exporters grow, facilitate trade, get them paid in days—which is possible—without the initial fear and knowledge to take the first step," stressed Austin. "An LC is still the safest way to do business internationally."

Austin has 14 years' experience specializing in LCs. Her Credit Congress sessions will not only discuss the importance of the fundamentals to avoid costly elementary mistakes, but also the importance of LC instructions, Incoterms and how to read an LC. She will be targeting ways credit managers can get paid in a matter of days versus weeks or months, and how to reduce discrepancies.

"I provide shortcuts and streamline the learning curve," said Austin. "By the end of my classes, credit managers will be prepared to ship internationally via an LC with the best possible tools to secure payment."

Matthew Carr, NACM staff writer


Credit Scorecard

Credit professionals are often inundated with reports, but if they aren't using the right metrics and if management isn't able to fully digest the information, the reports are nothing more than wasted man hours and paper. Credit is larger than just DSO or past due percent. There is a wide spectrum of metric flavors, each best-suited for a particular situation and company.  In the NACM-sponsored teleconference, "Credit Scorecard," Val Venable, CCE, SABIC Innovative Plastics will delve into the variety of reports available to credit managers, including financial metrics, annual Goals and Objective dashboards, and reporting on special initiatives and projects. She will discuss the usage of these metrics and share simple templates and designs that credit managers can adopt to make their reports quick and easy to create, while maintaining the highest value possible for the credit department.

Members interested in attending this event can register here.



Government Looks at Bankruptcy Code: A Call to Action!
Recent hearings in the House Judiciary Committee have indicated that Congress may be willing to open up the Bankruptcy Code in their efforts to shorten the current economic crisis. With the recent passage of "cram down" mortgage provisions that place more power in the hands of bankruptcy judges, as well as a recent hearing in the House Judiciary's Subcommittee on Commercial and Administrative Law regarding the role of Chapter 11 filings in an economic downturn, the time for action in the interest of trade creditors everywhere is now.

In order to get a better idea of how the Bankruptcy Code affects a company's ability to lend credit, NACM is seeking comments from you, the trade credit professional, about any experiences you've had in dealing with a customer's Chapter 11 filing and its effect on your business. We're looking at how some of the code's provisions enhance or inhibit your company's willingness and ability to extend credit, with specific reference to preference claims.

Much has been made of a debtor's right to collect preference claims on payments made to their vendors 90 days prior to their bankruptcy filing and many articles in NACM's eNews and Business Credit magazine have offered trade creditors advice on how to defend themselves from these claims. The House Judiciary Committee would certainly be interested in hearing about how preferences affect credit extension, specifically in our current economic downturn. Do you believe that the risk of preference claims diminishes your willingness to lend credit? The goal of the Bankruptcy Code is to provide for the orderly liquidation or reorganization of an insolvent debtor's estate, but it was also designed to aid economic growth, so if you think preferences or other provisions in the code are hindering your business' ability to extend credit, make your voice heard!

As legislators look at the code and aim to make it more conducive to economic recovery, it would be dangerous for them not to consider the interests of trade creditors, who provide the lifeblood of the nation's economy. If you have a story about preferences and how they affect your company's ability to lend credit to keep your customers in business, or experiences with other parts of the code, share them with us! Send all your comments, data or stories to jakeb@nacm.org and don't forget to share this email address with your colleagues as well. Every bit of information will help us provide committee members with an accurate depiction of whether the Bankruptcy Code is helping or hurting our country's economic recovery.

Jacob Barron, NACM staff writer


Get Ready for the FTC's Red Flag Regulations and Guidelines

After a six-month delay, the May 2009 deadline for companies to be in compliance with the Federal Trade Commission's (FTC) Red Flags Rules is fast approaching. The regulations will require most creditors and financial institutions to adopt a written program to detect, prevent and mitigate identity theft in connection with the opening of a covered account or any existing covered account. The ambiguous wording of the FTC regulation means its jurisdiction can be far-reaching, and NACM is advising members to proactively develop their own Red Flags program. In the March issue of Business Credit magazine, NACM provides members a detailed explanation and breakdown of the rules' tenets, as well as a sample policy that credit managers can use as a guide to construct their own Red Flags program.

Not a subscriber? Click here for the NACM Bookstore to start your subscription now.




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 company'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, president, 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.



Is the Chapter 11 Process Unfair to Retailers?
With the passage of 2005's Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA), the process of actually filing for protection under the Bankruptcy Code received its first major changes in nearly 30 years. The belief that drove the bill's passage was that bankruptcy was tilted too far in favor of debtors and that the BAPCPA would balance the interests of the bankrupt with the interests of their creditors. Much has been said about whether or not the act has succeeded, but as the economy has collapsed and a number of high profile retailers have gone under, Congress has given the BAPCPA provisions another look in order to see whether or not the code is helping or hindering economic recovery.

Circuit City's bankruptcy has been one of the most visible filings to come as a result of the nation's current recession, a fact not lost on the House Judiciary's Subcommittee on Commercial and Administrative Law, who used Circuit City's Chapter 11 filing and subsequent liquidation as a frame for confronting Congress' issues with the Bankruptcy Code. In a hearing titled "Circuit City Unplugged: Why Did Chapter 11 Fail to Save 34,000 Jobs?," a varied selection of witnesses with different opinions examined the goal of Chapter 11 filings and offered their explanations about why so many jobs were lost even after an attempt at reorganization. Their testimony and the subcommittee's actions could have repercussions for trade creditors who rely on administrative claims to protect themselves in the event of a customer bankruptcy.

The first witness, Harvey Miller, Esq. of Weil, Gotshal & Manges, LLP in New York, blamed a shift in creditor constituencies for Circuit City and other retailers' inability to restructure successfully. "The major creditors are secured creditors and that has changed the dynamic of reorganization drastically," he said, noting that most of a retailer's financing is held by secured creditors like banks and offshore suppliers with letters of credit (LCs). "That syndicate has a different view of restructuring. It sees the inventory as a liquid asset, easily convertible into cash." Unsecured creditors and vendor suppliers, Miller noted, have more of an interest in the retailer's continued success because they depend on their customers for their livelihood more so than banks and secured lenders.

The absence of debtor-in-possession (DIP) financing was also listed as a culprit in retail reorganization failures. "We have to deal with the issue that DIP financing in this code is generally not available," said Miller. "The restrictions of the 2005 amendments have stopped the rehabilitation of businesses and led more of them to liquidation."

"While Circuit City may have been bigger, the major factors are presently inherent in all retailer bankruptcies," said Richard Pachulski of Pachulski, Stang, Ziehl & Jones in Los Angeles, citing a difficult economy, stingy lenders and Section 503(b)(9) administrative priority claims as the three main reasons for increasing retailer liquidations. "Section 503(b)(9) makes any Chapter 11 more problematic," he said, adding that these claims have to be paid to vendors by the time any plan of reorganization is approved and make it harder for retailers to use that financing to create and confirm a plan. "This signals the death to retailers on day one."

Another witness, Professor Todd Zywicki of George Mason University, supported the 503(b)(9) provisions and noted that it just might've been Circuit City's time to fail. "The point of Chapter 11 is not to try and save companies that have economically failed, or prop companies up when it's just their time," he said. "The goal is to distinguish between companies that can be reorganized and those companies whose time has passed."

A full video webcast of the hearing is now available on the House Judiciary's website. To view it, click here.

Jacob Barron, 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.

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.



House Explores Mark-to-Market Realities
The current financial crisis has left no shortage of opinions on where blame should be shouldered. As such, the oft-debated mark-to-market and fair value accounting standards have garnered their fair share of attention, with many contending they have exacerbated the current woes. The rule requires companies to value assets they hold at current market values. Because this makes the standard problematic to apply to frozen assets or severely diminished valued assets that may recover in the future, the U.S. Securities and Exchange Commission (SEC) as well as the Federal Accounting Standards Board (FASB) have come under fire.

"Illiquid markets have resulted in great difficulty in valuing sizable assets," said Chairman of the House Financial Services Subcommittee on Capital Markets, Insurance and Government Sponsored Enterprises Paul Kanjorski (D-PA). "In short, I want to find a way—within the existing independent standard-setting structure—to still provide investors with the information needed to make effective decisions without continuing to impose undue burdens on financial institutions."

Kanjorski cited the failures prevalent in fair value accounting with the case of the Federal Home Loan Bank of Atlanta. Last September, the bank estimated that it would lose $44,000 in cash flows on three private label mortgage-backed securities starting in 15 years. Because of the way the mark-to-market standard works, the bank had to treat it as a loss of $87.3 million.

"I find that accounting result to be absurd," said Kanjorski. "It fails to reflect economic reality. We must correct the rules to prevent such gross distortions."

Because companies have been forced to write-down billions of dollars in assets, there exists a bullish market regarding complaints about fair value accounting, with plenty of parties seeking to eliminate it. The House Subcommittee heard heated testimony from a range of financial industry players during a hearing on March 12th to try and determine what should be done with mark-to-market and fair value accounting standards.

"There is nothing 'fair' about the misleading and destructive accounting regime promoted by the SEC and the FASB under the rubric of 'fair value accounting,'" said William Isaac, chairman, Secura Group, LECG and former FDIC Chairman. "Mark-to-market accounting has destroyed well over $500 billion of capital in our financial system. Because banks are able to lend up to 10 times their capital, mark-to-market accounting has also destroyed over $5 trillion of lending capacity, contributing significantly to a severe credit contraction and an economic downturn that has cost millions of jobs and wiped out vast amounts of retirement savings on which millions of people were counting."

"Congress and the White House have tried every 'solution' in this crisis—from billions in bailouts to partial nationalization of banks—but the cost-free step of suspending these recently mandated accounting standards remains the third rail," said John Berlau, director, CEI Center for Investors & Entrepreneurs. "There are worse things than Congress interfering in the setting of accounting standards when a bipartisan group of experts says the standards are inaccurate and contributing to the crisis."

Berlau added that he thought it was time that Congress asserted some control.

Cindy Fornelli, executive director, Center for Audit Quality (CAQ) defended that fair value accounting standards have provided increased transparency for over 30 years, and helped navigate the crises of the 1980s in the U.S. and in Japan during the 1990s.

"The current crisis has created an appropriate desire for swift and meaningful action," said Fornelli. "Fair value accounting did not cause our difficulties, and abandoning it will not solve them." She reaffirmed her belief that steps could be taken to improve the standards going forward.

Fornelli, as well as James Kroeker, acting chief accountant, SEC noted that a December 2008 study done in consultation with the Department of Treasury and the Federal Reserve Board on mark-to-market accounting concluded that there was no reason to suspend the fair value accounting standards, but it did provide several steps on how the rule could be improved.

Matthew Carr, NACM staff writer


Hot Issues in Bankruptcy in Today's Economic Climate

There's a lot of anxiety brewing in the credit world. The economy is sputtering and last year, business bankruptcies spiked upward 54%. This places an onus on a credit professional's knowledge of the bankruptcy landscape, particularly with recent cases seeing a re-emergence of "Critical Vendor" orders, Chapter 11 proceedings with the priority claim for unpaid suppliers of goods and those that have made reclamation a more problematic remedy. To help keep members abreast of the latest strategies on the bankruptcy battleground, NACM will sponsor a teleconference on March 26th entitled "Hot Issues in Bankruptcy in Today's Economic Climate," presented by two of NACM's legal icons, Wanda Borges, Esq., Borges & Associates, LLC and Bruce Nathan, Esq., Lowenstein Sandler PC.

The duo will highlight important recent court decisions and orders, including rights and obligations with respect to supply agreements, recoupment and setoff agreements, as well as other executory contracts. The discussion will also key in on the newest developments in preferences, featuring recent cases on whether credit card payments are recoverable and on the new value and ordinary course of business defenses. With the trend in liquidation becoming more prevalent in Chapter 11 filings, legal steps to enhance collectability on trade claims will also be a point of focus credit professionals won't want to miss.

To register for this teleconference, members can click here.



House Small Business Committee Recommends Raising SBA Budget
The House Committee on Small Business, chaired by Rep. Nydia Velázquez (D-NY), recently submitted its recommendation for the Small Business Administration's (SBA's) budget for fiscal year 2010, doubling prior budgets by proposing $1.43 billion in funding for agency programs geared toward economic recovery and long-term small business success. "Now is not the time to shortchange small businesses," said Velázquez. "Given the current economic difficulties, we need a revitalized SBA with the resources to foster small business growth and help drive our economy out of this downturn."

In anticipation of the contracting opportunities that will result from the recent passage of the $787 billion American Recovery and Reinvestment Act (ARRA), the committee approved $69.5 million for targeted SBA contracting programs that will increase small firms' access to lucrative federal projects. Specifically, the money would increase funding for the hiring of more procurement center representatives (PCRs) and commercial marketing representatives (CMRs), both of whom will promote small business participation in government contracts and subcontracts.

The committee also proposed another $29 billion in loans and investments aimed at freeing up credit that has been especially elusive for small businesses over the last several months. This comes in addition to the $21 billion in new small business lending already enacted by the ARRA. "The single biggest issue blocking small businesses from growing and contributing to economic recovery is access to affordable credit," said Velázquez. "The Committee's budget recommendation would mean additional loans for small businesses, so they can weather the downturn, expand and hire new employees."

Other budget measures included full funding for entrepreneurial development programs aimed at specific markets like women-, veteran- and Native American-owned businesses and also for Small Business Development Centers (SBDCs) and the SCORE program, which offers business advice and counseling for smaller firms. Previous usage of entrepreneurial development programs has received rave reviews as, statistically, they return $2.87 in tax revenues for every $1 spent on them.

Jacob Barron, NACM staff writer


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Proposed EFCA Ruffles Feathers in Manufacturing and Construction Sectors
As the U.S. unemployment rate pushed beyond the envelope of 8%, with several states suffering rates in the double-digits, Congressional leaders have launched efforts to create some form of safety net for workers. There are dour expectations that the number of unemployed Americans could reach the 7 million mark rather quickly, with blue collar positions continuing to be the frontline victims.

To push more workers under the security umbrella of unions, the Employee Free Choice Act (EFCA), referred to as the "card check" bill, has been introduced. The bill has opposition from leaders in manufacturing, construction and other union-dominated industries because it would make it more efficient and easier for employees to form or join labor organizations, as well as provide for mandatory injunctions for unfair labor practices and establish heftier fines for employers found guilty of violating workers' rights to unionize. The bicameral bill, introduced by Chairman of the House Education and Labor Committee Rep. George Miller (D-CA), along with Chairman of the Senate Health, Education, Labor and Pensions Committee Edward Kennedy (D-MA) and Senator Tom Harkin (D-IA), wants more American workers to enjoy the benefits and security of belonging to a labor union during the economic downturn.

"We face a severe economic crisis, the likes of which we have not seen since the Great Depression," said Kennedy. "The causes of this crisis are not a mystery. Year after year, we accepted an economy that sent stock prices soaring, but left ordinary families behind. Our productivity grew, but workers never saw the benefits."

Kennedy stressed that union workers enjoy wages that are 30% higher than non-union workers. Just as important is that 80% of union workers have health insurance, compared to only 49% of non-union workers. With growing apprehension about the struggles Americans will face in their "golden years," Kennedy also pointed out that union workers are four times more likely to have a secure, guaranteed pension.

"Americans' wages have been stagnating or falling for the past decade. For far too long, we have seen corporate CEOs take care of themselves and shareholders at the expense of workers," said Miller. "If we want a fair and sustainable recovery from this economic crisis, we must give workers the ability to stand up for themselves and once again share in the prosperity they help to create."

For industry leaders, the bill is seen as nothing more than a torpedo to success and recovery. The bill has provisions that would give state workers the right to choose to hold a secret ballot vote on union formation or through majority vote of union authorized cards. As it stands now, employers can veto the majority sign-up and mandate a National Labor Relation Board (NLRB) election process, which Congressional leaders feel is slanted towards employers. The proposed "card check" bill also establishes a timeline that if a first contract drawn between workers and employers does not reach a deal within 120 days, an arbitration panel will be called in to hand down a decision that will be binding for two years.

"It is deeply disturbing that some in Congress would attempt to add yet another hardship to America's workers by seeking to deprive them of the right to a free, fair and private vote," said the Associated General Contractors of America (AGC). "The legislation also takes important business decisions away from workers and employers and puts them into the hands of Washington-appointed arbitrators with little to no experience in construction."

John Engler, president and CEO, National Association of Manufacturers (NAM), said, "If passed, EFCA would destroy jobs and place an even heavier burden on large and small companies." He cited research done by economist Dr. Ann Layne-Farrar, LECG Consulting, that showed for every 3% gained in union membership through card checks and mandatory arbitration, there would be a 1% increase in unemployment the following year. Using the legislators' assumption that the bill would add 1.5 million union members this year, there would be 600,000 jobs shed in 2010 as a result.

"EFCA is a dramatic departure from long-established labor law," added Engler. "It deprives employees of the privacy of the secret ballot, which has always been an integral part of the democratic process."

Matthew Carr, NACM staff writer


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Corporate Income Taxes Cost the Average American Household $3,190
From March 2-13, the Tax Foundation ran a 30-second television ad and a 60-second radio ad in the Washington, D.C. market to educate Americans about the burden that American families bear from the corporate income tax. These ads ran as a part of the CompeteUSA project, a campaign which aims to raise the public's awareness of America's high business taxes and how those taxes are affecting our competitiveness, wages and living standards.

The ads were created by Craig Kirchoff of Alexandria, VA, a winner in the Tax Foundation's CompeteUSA YouTube Contest held last October. They show that "Sally" and her family are burdened with corporate income taxes through lower wages and higher prices at the store. "Most people think corporate income taxes are paid by wealthy, anonymous companies," said Scott Hodge, president of the Tax Foundation. "But as economists have been teaching for years, people bear the burden of corporate taxes, not companies."

Research from the Congressional Budget Office shows that in a global economy where capital is highly mobile but workers can't easily move abroad, workers end up bearing the brunt of corporate taxes. In 2007, Economist William Randolph found that 70% of corporate tax burdens fall on employees through lower wages and productivity, while the remaining 30% fall on company shareholders. A recent Tax Foundation study shows the federal corporate income tax alone collected $370 billion in 2007. That's an average household burden of $3,190 per year—more than the average household spends on restaurant food, gasoline or home electricity in a year.

"Typically, the argument for cutting the U.S. corporate tax rate centers on improving the ability of American companies to compete globally," said Hodge. "While true, those arguments overlook the fact that individual households bear the corporate tax burden, and their pocketbooks will benefit most from reform."

The Tax Foundation's TV ad can be found at http://www.youtube.com/watch?v=1E9LkBRvdAw.

The radio ad can be found at http://www.youtube.com/watch?v=dQEOUkGpUx8.

Source: The Tax Foundation


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