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I came across this blog post by my friend Tom Gegax with regard to executive pay.  This blog post was written on June 12, 2009, and I am somewhat embarrassed that I did not read this before.  That being said, I think it has more relevance now, than it did when it was written.  After all, just 3 quarters after Henry Paulson gave his Dr. Evil speech " I need 1 Trillion Dollars or we are all going to die," Goldman Sachs, which received 10 billion dollars of TARP money was giving out over 1000 bonuses in excess of $1,000,000.00. 

Those are do not study history are doomed to repeat it, but this isn't history.  For g-ds sake, it isn't even recent history.  It is the present.  Corporate America has an addiction, I would call it "greed" but I almost agree with Gordon Gecko in that greed is good.  Greed, when properly directed, can lead to innovation, improvement of processes, advancement of technology.  This isn't greed, it is a pathology need for money you aren't entitled to.

As a bankruptcy attorney, many of these businesses will no doubt wind up in my office.  Maybe I should follow the pathology of the CEO's and encourage this type of behavior.  Then again, it has to stop somewhere.

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Why Joe Wilson is a Racist and Republicans Who Object to Obama's Health Care Plan are Patriots

I created quite a ruckus on my Facebook page this morning with the following posting:

"Two observations from last nights speech. First, President Obama's oratory skills will be what sells American's on the need for national health care. Second, there is still a strong undercurrent of racism at the highest level of media and politics."

While not mentioning Joe Wilson by name, I received over 15 comments(more than my biting commentary on who should have won last year's American Idol), some arguing that Joe Wilson's outburst showed the existence of overt racism, and some arguing vehemently that objection to Barack Obama's admittedly liberal agenda does not make them a racist. I agree completely with both of these statements, and they are anything but mutually exclusive.

First, with regard to Joe Wilson, I don't see how his outburst can be seen as anything but overt racism. The only question is who he is prejudiced against; African-Americans or Latinos. If the outburst was merely an uncontrollable reaction by a Southern white congressman who seemed to wake up after a 8 month slumber to find the country he loved taken over by an African American President, his hatred is focused against African Americans. In contrast, if his outburst is directed at the the phantom benefit of health coverage (god forbid) to the hard working undocumented members of out society, this uncontrollable anger against a group of people who can't vote and have no Constitutional rights, it is squarely directed at Latinos.

I don't know what is worse, anger at an African American in a position of power, or anger at 12 million nameless, faceless individuals who are currently handling the least desirable jobs in our immigrant nation (at the encouragement of corporate America) without full benefits of citizenship. Personally, I think that later, as Obama has proven to have shoulders broader than the city that birthed his political career. Regardless, this is a man unsuitable to public life, who should resign, or hopefully will be voted out by his constituents.

Now, getting to the fact that opponents to Obama's health care plan are patriots. I was amazed at how many of my conservative friends were concerned, I believe sincerely, that their opposition to the President creates the inference they are racism. Obama is a politician, a Democratic politician, who is the leader of a liberal progressive movement. Obama's race provides him no special status. In fact, Obama has argued for a post-racial look at our world; one in which he would be subject to the same standards of any of the previous 43 Presidents. As such, he should be subject to all the criticism, disdain, jeers, anger, etc. that any President would be. For conservatives and Republicans to exercise their right to dissent is patriotism, pure and simple. More than that, it is the responsible conduct of a minority party. Now I could argue that conservatives labeled any dissent from our march to war in Iraq as treason (Ann Coulter even wrote a book on that), but that really isn't the point.

I believe that guaranteeing health care for all American's is a moral imperative. That being said, I don't have an answer to how that goal should be accomplished. Applying the best that free market has to offer, while removing inappropriate and market-destroying profiteering, should be a part of the final plan. Conservatives have much to offer in formulating this solution. I believe that Obama's speech was an attempt to engage them in the process. A rogue Republicans inappropriate outburst with regard to a point which really isn't central to the debate distracted us from the real arguments. That is generally what racists do.

Death of Ted Kennedy

I have thought long and hard about whether, and how, I would comment on the death of Senator Ted Kennedy. There is no doubt he was an incredibly effective and powerful senator, and was integral in the passage of some incredibly important legislation. In addition, he was a man of who faced almost unfathomable tragedy, from the death of all three of his brothers, a plane crash, and bad health. Ultimately, however, he was a man who used his position of privilege and wealth to avoid responsibility for the death of another person. Like Robert Byrd's membership in the KKK, that incident is something that will, and in my opinion should, define his life.

However, there is no question that instead of dwelling on his life's limitations, he worked to overcome his past by doing great works for the public interest. His talent was the ability to craft and pass legislation with long lasting human benefits. Civil Rights was one of his focuses.

It was this arena in which his death has irony, poignancy, and in my position, is being under reported. President Barack Obama will be giving the eulogy at his funeral. The first major piece of legislation that Senator Kennedy pushed was the 1964 Civil Rights Act. A Bill that was intended, and did in fact, give African American's basic human rights in the United States. A bill that was in trouble at the time of the death of his brother, Jack Kennedy. Ted used the outpouring of grief to change the tenor in Congress, and push that bill through. 45 years later, the 45th President of the United States was sworn in; our first African American President. That was, and in an exclamation point on the success of that Bill.

Today, we face another civil rights issue, that being access to affordable health care. Without health care, noone is free from the fear of sickness without care. There was no more passionate Senator in favor of access to health care than Senator Kennedy. From Medicare to schip, Kennedy is was always pushing for increased access for all to health care.

Wouldn't it be wonderful if some senator and congressperson, from either party, took up the mantel of health care reform and used the death of Senator Kennedy to fulfill is mission and goal. In 45 years who will be giving his or her eulogy?

Are we really so miserable? | Salon Life

Salon.com, my favorite online magazine, asks the question of whether we are really so miserable.  After all, 1 of 10 American's is on anti-depressives.  Is this a new age of discontent, where we drift through life without meaning, wondering why we exist.  Blaming an obscure 1997 law which allowed drug companies to advertise, the article labels this companies as pushers with high priced marketing campaigns.  The article quotes a 1947 play, "the Age of Anxiety" and wonders whether we have simply replaced the bottle with what is in the bottles.  

There is some truth to this.  The marketing campaigns of drug companies have made consumers quite "knowledgeable."  As my friend, a urgent care physician notes, I don't diagnosis and prescribe any more, I give my patients what they "demand."  This is not a good trend in medicine with people self diagnosis and demanding, instead of seeking counsel and guidance from their physicians.   With drugs so readily available, it is possible, as Salon notes, our family doctor is replacing our friendly bartender. 

I look at our current situation as a bit different, however.  The current economic downturn should have brought our society together.  After all, in 1947 we had just clawed our way out of a recession and defeated Nazism.  We were probably due to a letdown.  In our current situation, by reverse analogy, we should be banning together, our minor mental concerns (and I am not making light of serious depression) pushed aside for the task of making ends meet in a very difficult economic society.

Quite the opposite, instead of pulling together, we are focusing on our differences.  We have seniors after all, who are already on national health care, protesting access of uninsured Americans who haven't reached the Golden Years.  At that same time, the 47 Million uninsured quietly suffer the lack of insurance without any visible anger; possibly aided by some form of anti-depressant.  Maybe if they felt a greater control over their lives, with guaranteed access to health care, and access to financial safety valves like bankruptcy, they would be off the drugs and out in force. 

 

Are we really so miserable? | Salon Life

Corporate vs Personal Bankruptcy Attitudes | Tamela Rich

Interesting blog post from Tamela Rich about the differing attitudes between personal and business bankruptcy.

Specifically, she wondered why there is such a stigma on individuals filing for personal bankruptcy as opposed to almost adoration for business that use bankruptcy as a financial tool.  This is an interesting and tough question, and deserves some analysis.

The reality is that there is a lot of mythology in business bankruptcy.  Most people really don't understand what is going on, and it seems quite above them.  That way, when it is used like a tool by the likes of Donald Trump, most people just shrug their shoulders, and strive to be that sophisticated.

In contrast, everyone can relate to someone filing personal bankruptcy.  Even people who make a good living often live hand to mouth at some point, and feel the financial cliff which is always lurking.  When someone choose to use bankruptcy to get out of a bad financial situation, they are demonized for not making good financial decisions. In my opinion, this relates to our culture of scarcity, which believes that what someone else is able to acquire is something that I can't have.  This "envy" is based on a belief that our society has limited resources.  If someone "else" files bankruptcy, it is affecting what "I" have.  In reality, the opposite is true, in that bankruptcy allows a crippled financial participant to get "back in the game."

To a lesser extent this is what is going on in the health care debate.  There is a belief that if everyone has access to health care, people with health care will someone loose what we have.

An efficient capitalist system does not require "losers" who are desolate, without food, clothing, health care, etc.  Quite the opposite, the healthier our population is, the more prepared we are as a society to compete globally.  We figured this out when the Russians launched Sputnik; and our current public education system is proof of what we can do.  To a lesser extent, personal bankruptcy is a necessary and important tool to assure that all members of our society can participate.  

Corporate vs Personal Bankruptcy Attitudes | Tamela Rich

My Article in Minnesota Bench & Bar on Counseling a Financially Distressed Business Client; Beyond the purely legal!

http://www.scribd.com/doc/18502559/Bench-Bar

Please read my new article in the Minnesota State Bar Association magazine Bench & Bar on counseling a financially distressed business client. Instead of dealing with the purely legal aspects of restructuring, it addresses the psychological, practical and spiritual issues that individuals in financial distress face.

I, along with my partner, Tom Wallrich, will be giving a seminar at the MNCLE Annual Closely Held Business Institute on August 20, 2009, called The Practical, Ethical and Psychological issues of representing a Business in Financial Distress. This seminar will be a panel discussion with Tom and I leading a licensed psychologist, a workout specialist, the former head of the Minnesota Lawyer's Board, and a brand expert through hypothetical situations.

See the brochure here.

http://www.minncle.org/materials/seminars/44210.pdf

Backstreet’s Back (In Court) - Bankruptcy Beat - WSJ

The Backstreet Boys launched my favorite, and yours, music revolution in the late 90's, the "boy band."  Now, the Backstreet Boys are trailblazing again, this time with regard to preference actions in Ponzi schemes. By way of background, Lou Pearlman, the manager of, among other groups as the BSB and N'Sync, was charged and convicted of criminal fraud in the form of a Ponzi scheme, and was sentenced to 25 years in jail.  An involuntary Chapter 11 bankruptcy ensued.

Now, the trustee in the bankruptcy case is pursuing fraudulent conveyance actions for all payments that were made to investors in Pearlman's ventures.  This is more than a novelty, as it could signal how other Ponzi schemes, such as Maddof and Petters, will be treated. It has been argued that as a Ponzi venture is by nature illegitimate, all payments to investors in those schemes are deemed in furtherance of the fraud.  This allows a trustee to pursue those payments as fraudulent conveyance, either under Bankruptcy Code Section 548 (with a two year look back), or under state court fraudulent conveyance statutes (most likely the adoption of the Uniform Fraudulent Conveyance Act), which can have a much longer look back (as much as 8 years). 

To make matters worse for the investors, these statutes do not necessarily require the showing of an action intent to defraud.  Instead, what is generally required is proof that the transfer was made without adequate consideration while the debtor was insolvent.  As the payments were not paid pursuant to a valid investment, it can be argued that no consideration was paid for the transfer--insolvency is easy.

If the Trustee is successfully in this case, expect this to embolden other trustee's across the country in similar schemes.  So it is possible that the BSB will be breaking hearts in both decades.

Backstreet’s Back (In Court) - Bankruptcy Beat - WSJ