More on the Delaware Judgment Arbitrage Case (Alberta Securities Comm’n v. Ryckman)

Over at Letters Blogatory, friend of the blog Ted Folkman has published his take on Alberta Securities Commission v. Ryckman, the recent Delaware decision that (as I wrote last week) provides a good example of judgment arbitrage. Thank you again, Ted, for bringing the case to my attention.

Judgment arbitrage is a term I coined for a particular strategy for enforcing unenforceable judgments. It is a method of forum-shopping that allows creditors to exploit a quirk in American law that allows them to enforce foreign-country judgments in a forum where they would not otherwise be able to. There’s more discussion of the strategy in my Ryckman postthis symposium piece, and the original article where I lay out the theory.

In Ryckman, the creditor sought to collect Delaware assets in satisfaction of a Canadian judgment. The twist here was that the creditor first got its Canadian judgment recognized in Arizona, hopped a plane east, and then sought to use what was at that point technically an Arizona judgment to collect assets in Delaware. It was undisputed that the underlying Canadian judgment—a fine imposed by a Canadian agency—was not enforceable in Delaware, yet the Delaware court ordered enforcement anyway, because it was enforcing the Arizona judgment. It did so in the name of Full Faith and Credit, falling back on an articulation of that principle that I believe to be an incomplete. (There is a growing consensus, which I discuss at pp. 487-91 of the article, that FF&C does not compel states to grant full credit categorically to sister-state judgments.)

Ryckman is a good example of arbitrage. The creditor was able, with minimal friction, to profit from a major difference between Arizona and Delaware law governing the recognition of foreign judgments. Merriam-Webster defines arbitrage as “the practice of buying something (such as foreign money, gold, etc.) in one place and selling it almost immediately in another place where it is worth more.” The Canadian judgment wasn’t simply more valuable in Delaware for having transited Arizona first; it would have been completely worthless under Delaware law otherwise. The cost of unlocking additional assets for the creditor via the Arizona judgment was a little legal complexity and paperwork. It’s the essence of arbitrage.

Ted’s post disputes that the case is really arbitrage because the debtor, not the creditor, was the one to choose Arizona as the recognition forum—after all, he moved his domicile there. I find this point logically appealing, but my read of the law is that many courts wouldn’t place much stock in it…

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Delaware Endorses “Judgment Arbitrage”

A Delaware court has just issued a clear endorsement of the controversial enforcement strategy I call “judgment arbitrage.” I commend the slip opinion (hereto anyone interested in the enforcement of judgments across state or national borders. The case is Alberta Securities Commission v. Ryckman, 2015 WL 2265473.

As I argued in a 2013 article in the Harvard International Law Journal, “Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States,” judgment arbitrage is a three-step enforcement strategy that allows a party to enforce a foreign judgment in a U.S. jurisdiction where it would otherwise have been barred from doing so.

It’s uncontested that this is exactly what has just happened in Delaware. Here are the facts:

  • Ryckman, who lived in Alberta, was fined about $500,000 Canadian by the Alberta Securities Commission (ASC) for violating Alberta securities laws. The ASC obtained a judgment (the “Canadian Judgment”) in this amount against Ryckman, who then moved his residence to Arizona.
  • The ASC sought recognition and enforcement of the Canadian Judgment in Arizona.
  • The Arizona state trial court ordered recognition and enforcement of the Canadian Judgment (now the “Arizona Judgment”). Ryckman appealed, and the Arizona appellate court affirmed. The Arizona Judgment simply embodies the Canadian Judgment, but is domestic rather than foreign.
  • The ASC later sought enforcement of the Arizona Judgment in Delaware, where Ryckman is believed to have assets.
  • Delaware recognition law is so different from Arizona’s that the Delaware court would have rejected the Canadian Judgment had it been presented with it. This is undisputed; the ASC concedes that the Canadian Judgment would not be enforceable in Delaware for two independent reasons:
    1. The Canadian Judgment constitutes a fine or penalty, and
    2. The applicable Delaware statute of limitations has run.

And here is the holding:

  • The Delaware court orders enforcement of the Arizona Judgment. Now that the ASC has domesticated the Canadian Judgment in Arizona, its foreignness is irrelevant. It’s just an Arizona judgment. The court ignores the Canadian Judgment.
  • The court holds that this result is compelled by (1) the Full Faith and Credit Clause of the U.S. Constitution and (2) the Delaware out-of-state judgment registration statute (the Uniform Enforcement of Foreign Judgments Act).

This is a major decision in the law of recognition and enforcement, and a clear example of judgment arbitrage. The court here reached a conclusion that, to my mind, deepens the already considerable doctrinal and theoretical confusion around the issue. I suggested legislation was desirable to address the possibility of judgment arbitrage, but many doubted the phenomenon even existed. In fairness, who could blame them? At that time I was unable to “identify a single real-world example of judgment arbitragethat is, a creditor receiving a judgment in a foreign country and then enforcing it in a U.S. state where it would otherwise have been barred from enforcing. An online symposium was held on the article, and the title of the critique summed up this good-natured skepticism well: Is There Really Judgment Arbitrage? (Yes, I replied.)

The linchpin of the strategy, I argued, was to insert a third jurisdiction between the foreign court (where the merits judgment is rendered) and the enforcement court (where it’s ultimately collected). The purpose of this middle jurisdiction is to recognizeand thereby domesticatethe foreign judgment, stripping it of its foreign character and transforming it into a U.S. judgment that other American courts will treat as an ordinary sister-state judgment. This step is key, because many scholars and courts believe that American courts are obligated to enforce sister-state judgmentsincluding recognition judgmentsunder the Full Faith and Credit Clause and state and federal registration statutes. No such requirement exists for foreign-country judgments.

Judgment arbitrage is best represented graphically (these charts appear at p. 477 of “Ending Judgment Arbitrage”). Here is a typical cross-border judgment enforcement lawsuit, in simplified formit occurs in two jurisdictions:

Classic Cross-Border Litigation

And here is judgment arbitragenote the addition of a third jurisdiction:

Judgment Arbitrage

I refer to this three-stage dance as “judgment arbitrage,” because of the relative frictionlessness of sidestepping a hostile U.S. recognition law in favor of a more lenient recognition forum. (Some cases have suggested there isn’t even a jurisdictional nexus required to choose this middle forum.) And once the foreign judgment has been domesticatedhere, once the Canadian Judgment was rechristened the Arizona Judgment—the process of enforcing it is essentially mechanical.

As I discussed in an October 2014 post, a Pennsylvania court decision (citing “Ending Judgment Arbitrage”) endorsed the possibility of judgment arbitrage. The circumstances of that case left the court’s holding open to future narrowing. After all, the “arbitrage” element was not directly teed up: the two states involved (NY & PA) used the same recognition statute.

But that is not the case here. Arbitrage was directly presented in the Delaware case, where Delaware recognition law would have rejected the Canadian Judgment. Yet the court squarely held that Delaware was obligated to enforce, because the Canadian Judgment was recognized in Arizona before the creditor came to Delaware. That the Alberta Securities Commission probably did not diabolically plot its litigation strategy in a smoke-filled room but instead simply followed the asset trail of a nonpaying debtor is irrelevant to the holding. The court noted the ASC’s lack of an “improper purpose” in pursuing this strategy, but the cases it cited on that subject establish a very high standard for such a purpose. The arbitrage may have been unintended here, but it was real and it was effectiveoutcome-determinative, in fact.

Alberta Securities Commission v. Ryckman is now the leading example of judgment arbitrage on the books. As the court notes, this means there is now a split among states. Delaware and Pennsylvania now hold that Full Faith and Credit and mechanical registration statutes compel the enforcement of sister-state recognition judgments, and the District of Columbia holds that they do not. It will be very interesting to see how other states proceed.

h/t Ted Folkman, who brought this decision to my attention.

Does the Fed Have the Legal Authority to Buy Equities?

Here is guest post I wrote on the Fed’s open-market operations authority for Confessions of a Supply-Side Liberal, a blog on financial economics (and other subjects) run by University of Michigan economist Miles Kimball:

Greg Shill: Does the Fed Have the Legal Authority to Buy Equities?

This is the second guest post by Greg Shill, a lawyer and fellow at NYU School of Law, on the legal scope of the Fed’s powers in the area of unconventional monetary policy.  His work focuses on financial regulation, corporate law, contracts, and cross-border transactions and disputes, and his most recent article, “Boilerplate Shock: Sovereign Debt Contracts as Incubators of Systemic Risk,” examines the role of financial contracts in the Eurozone sovereign debt crisis. (His first guest post was “So What Are the Federal Reserve’s Legal Constraints, Anyway?”)

As a longtime follower of Miles’ work, it’s an honor and privilege to write for his blog and to put my ideas in front of his diverse and sophisticated audience.  So, thank you, Miles, and your devoted readers.

I.

For the past several years, the Federal Reserve has used many levers to stabilize and stimulate the economy.  One of its most controversial has been the use of so-called unconventional monetary policy, chiefly three rounds ofquantitative easing (or QE, beautifully explained in this clip) from 2008 to 2014. Although the wisdom of these policies has been widely debated, the Fed’s legal range of action largely has not.  In fact, as I have notedpreviously, policymakers and observers have been remarkably quiet about the scope of the Fed’s legal authority to conduct unconventional policy, and when they do describe it they often offer timid visions of the Fed’s powers.

Economists and other observers have often urged the Fed to do more to juice a recovery that was, until recently, broadly disappointing.  These proposals have included not only calls to cut interest rates and launch quantitative easing in the first place (both of which the Fed did), but to target higher inflation, introduce electronic money, conduct direct monetary transfers to the public, extend QE beyond its wind-down in October 2014, and expand the range of assets eligible for purchase under QE.  The Fed of course did none of those more ambitious things, and today, with QE finished and policy normalizing, defining the legal limits on the Fed’s monetary policy arsenal may feel less urgent.  Yet it is a startlingly important question to leave open, given persistent overall weakness in the global economy today combined with the strong likelihood that the Fed will need to consider aggressive and creative measures in the future.

The general question is: in a future recession or crisis, does the Fed have the tools it needs to go beyond what it’s done in the past?  This is one of the most important open legal questions in public policy today…

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So What Are the Federal Reserve’s Legal Constraints, Anyway?

Many in the Federal Reserve—both the Board of Governors in DC and the reserve banks around the country—have come to view low inflation as the main threat to the economic recovery. Fed Chair Janet Yellen is the most prominent advocate of this view, and Chicago Fed chief Charles Evans is among its more prominent reserve bank proponents (see this interview yesterday with the New York Times). The Bank of Japan and the European Central Bank are now laser-focused on the same problem. Those institutions, along with Japanese Prime Minister Shinzo Abe, have staked their reputation on the power of monetary policy to stimulate economic growth, and there are growing calls in and outside the Fed for the US central bank to do more.

Federal Reserve Board of Governors

The basic problem everyone is trying to address is that with inflation expectations low—and they have been very low since 2008—firms and individuals have little incentive to invest or take other economic risks, which means the virtuous cycle of spending and hiring leading to more spending and hiring hasn’t really had the opportunity to get going.

The Fed has sought to address this collective action problem through something called unconventional monetary policy. This has come to mean the use of unusual monetary measures to stimulate demand. The scope of this authority is unclear. I will soon be writing more about it here and at Miles Kimball’s blog, Confessions of a Supply-Side Liberal. Miles, an economist at the University of Michigan, has written extensively on how to combat the so-called Zero Lower Bound problem. This is shorthand for when the economy is stuck in a rut for an extended period and the Fed’s conventional policy channels for increasing demand are gummed up: it can’t stimulate lending by reducing interest rates (because it has already cut them to near-zero) and it can’t juice inflation by expanding the money supply (because people aren’t spending the money in the first place, so merely increasing the supply doesn’t devalue it).

The general question I’ll be looking at is, how far can the Fed lawfully go in unconventional policy beyond what it’s already done. The Fed’s most prominent use of unconventional policy post-crisis took the form of the three consecutive rounds of “quantitative easing,” during which the bank bought US government bonds and government-backed asset-backed securities (Fannie and Freddie mortgage-backed securities (“agency MBS”)). Many economists believe quantitative easing served as a major stimulus to the economy and was particularly helpful given the inadequacy of the 2008 and 2009 fiscal stimulus measures. However, many “dovish” economists and Fed officials (seemingly including Yellen and Evans) want the bank do more.

When I began to look at the legal dimension of monetary policy—after all, that policy is conducted pursuant to a legal mandate—I was surprised to find very little in the way of scholarship or (publicly available) policy guidance…

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Did Pennsylvania Just Endorse “Judgment Arbitrage”?

The process of recognizing and enforcing foreign-country judgments has emerged as a critical issue in international business. Human rights groups see foreign and domestic courts as playing an indispensable role in holding multinational corporations accountable when they operate in developing countries, while those businesses worry that vulnerable foreign legal systems are being exploited to shake them down for political purposes. Somewhat more prosaically (but in my view more significantly on a day-to-day basis), the cross-border share of global capital flows has become enormous and with it has grown the need to more clearly define the standards that determine whether a judgment rendered in one country can be enforced against assets located in another. Judgment enforcement tends to be dictated by sources of domestic law and in the US is normally governed by state law.

In a recent decision in a judgment enforcement case, Standard Chartered Bank v. Ahmad Hamad Al-Gosaibi & Bros. Co., the Pennsylvania intermediate state appellate court held that a New York judgment recognizing a foreign money judgment was enforceable in Pennsylvania. This is significant in part because of the scope of the ruling: the court held that a foreign-country money judgment, once recognized by a single US court, is – poof! – rendered enforceable by a court in any other. The force of this holding is all the more potent considering that New York lacked personal jurisdiction over the judgment debtor. So a court can render a judgment compelling a party over which it lacks jurisdiction to pay a bunch of money, and then another court – in this case, one that appears to have jurisdiction – must enforce it.

This is a strong endorsement of the possibility of what I have called “judgment arbitrage.” In “Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States” (which the court cited), I explain the implications of the fact that the law governing the process of collecting on a foreign judgment in the United States formally consists of two stages – recognition and enforcement – that do not need to occur in a single forum or under a single forum’s law. I posit judgment arbitrage as a natural, rational exploitation of that system: a judgment creditor can be expected to seek recognition in one US state and enforcement in a second where doing so serves its interests. (While creditors normally bring recognition and enforcement actions in a single proceeding, they are not obligated to.) Where, for example, the bulk of the debtor’s assets are located in a state where the recognition law is less creditor-friendly, the creditor may choose to bring a recognition action in a pro-creditor jurisdiction and then an enforcement action where those assets lie. That does not appear to be what happened here – New York and Pennsylvania use the same recognition statute, the 1962 Uniform Foreign Money-Judgments Recognition Act – but while the court notes this fact it does not condition its holding on the identity of the two states’ recognition laws.

When I developed the theory of judgment arbitrage, some questioned whether it really exists. My intuition, informed by my experience practicing transnational litigation, was that judgment creditors litigating enormous judgments are very sophisticated actors who would probably consider the option where it’s available, and so I set out to try and see if I could find a case where it had been used successfully. (I did not encounter sister-state judgment arbitrage while in practice.) The article cites (at p. 478) a practice manual that endorses its use, but I couldn’t find a reported case where it had actually been approved. I had noted in the article (e.g., at p. 478-80) that by definition judgment arbitrage is the kind of phenomenon for which it is hard to find traditional legal sources, because it will tend to result in confidential settlements rather than reported decisions, and further explained this challenge in a symposium the journal later held on the article. Although I was confident in my analysis of the relevant legal sources, it would have been nice to be able to point to something more concrete to demonstrate the availability of judgment arbitrage.

The Standard Chartered decision is a pretty solid data point in favor of judgment arbitrage. The opinion does a few things I had said courts might do when confronted with an enforcement action implicating three forums: a foreign merits forum (F1, here Bahrain), a US state recognition forum (F2, here New York), and a US state enforcement forum (F3, here Pennsylvania). Specifically, it endorses the enforcement by F3 of an F2 judgment recognizing the original F1 foreign judgment. And in so doing, the decision offers an energetic and thorough defense of the duty states possess to enforce one another’s judgments under the Full Faith & Credit Clause, both as a matter of constitutional law and public policy. It even says that Pennsylvania will enforce a sister-state recognition judgment where doing so would contradict Pennsylvania public policy, in the name of national unity. It emphasizes that this includes cases when the merits are litigated abroad, in F1. This is consistent with my argument in “Ending Judgment Arbitrage” (see, e.g,. pp. 488-91) that while the judicial duty to enforce sister-state judgments is far from absolute as a matter of constitutional law (the Supreme Court said in Pink v. AAA Highway that it is “not an inexorable and unqualified command”), courts often construe it to be very robust. This court not only doesn’t push back on the scope of that obligation, it offers a powerful and clear endorsement of it – and specifically of the duty to enforce sister-state judgments where the underlying judgment originates in a foreign country.

Here are some passages that support judgment arbitrage (all pages cite to the slip opinion):

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How Do We Know if Higher Capital Requirements Really Will Make US Banks Less Competitive?

The Federal Reserve

The Federal Reserve

Federal Reserve Governor Dan Tarullo is reportedly set to reveal to the Senate Banking Committee today that the Fed is planning to boost capital requirements for too big to fail (TBTF) banks. Wall Street objects, saying it’ll place US banks at a competitive disadvantage to their European counterparts. This is said to be causing US banks to consider moving some trading operations out of the US. I may be missing something, but to me this is an unsatisfying debate, from both an epistemic and policy standpoint.

The postcrisis drive to boost capital requirements—in the main, an effort to require TBTF banks to hold more cash relative to their riskiest liabilities, so as to reduce the chance that they will go under—has been a mixed success. Basel III (not in force till 2019) is the leading international effort in this regard, but it has been widely attacked as weak, including for imposing too-low capital requirements. And so when some agency or commentator calls for new capital requirements in the US or another jurisdiction that exceed Basel minima, banks often say the proposed rule will place US banks at a disadvantage relative to European banks and hint that it will be self-defeating (since many regulations can be dodged by financial engineering or by moving the regulated activity overseas, though the latter can actually be quite difficult).

As regulators, finance professionals, and scholars begin to think about the new proposed rule, let’s stop and define our terms. If I were working for the Senate Banking Committee, I’d be curious about the following question today:

Do we know, in fact, that if this rule is adopted, banks in the US will be required to hold more capital than their European counterparts?

On the surface, the answer appears to be “yes,” because the proposed ratios in the Fed rule are higher than those in Basel III. But by itself this is not terribly revealing. The Fed’s new rule will presumably determine capital ratios on the basis of Generally Accepted Accounting Principles, or GAAP (which is mainly used in the US). Europe and most of the rest of the world use the International Financial Reporting Standards accounting system, or IFRS. This distinction can have systemic consequences when it comes to calculating capital ratios, because apples are not always being compared to apples. As this note from Ernst & Young explains (PDF):

IFRS and US GAAP differ substantially in their treatment of what is included in the exposure measure (i.e., the denominator of the leverage ratio [of assets to liabilities]).

This is largely because of differences in GAAP and IFRS netting rules, which in turn mean the volume of liabilities that need to be backed by a given percentage of assets differs. The International Swaps and Derivatives Association further explains (PDF):

The different offsetting requirements [imposed by IFRS and GAAP] result in a significant difference between amounts . . . [calculated] in accordance with IFRS and amounts [calculated] in accordance with U.S. GAAP, particularly for entities that have large derivative activities.

According to these FDIC figures, GAAP is overstating US bank capitalization ratios relative to IFRS, sometimes by 50% or more. In other words, differences in accounting treatment may be painting an unduly rosy view of the health of US banks, and it could be that new rules like the one the Fed is proposing are a corrective, or at least are not going to make Europe as appealing as opponents contend, because of IFRS.

Public and political debates over bank capital requirements should address the role of these accounting differentials. The banks themselves and the organizations that have a role in overseeing the implementation of capital requirements, like the Bank for International Settlements, clearly appreciate the challenges of measuring assets using two different metrics (see discussion of “calibration”). The political debate over the possible flight of trading operations should likewise consider these crucial accounting differences rather than assuming that a given ratio in Europe is automatically equivalent to that ratio in the US.

Photo: Wikipedia

The Undead Norm of Unenforceability in Sovereign Debt

True story: two years ago, U.S. hedge fund NML Capital seized an Argentine navy vessel in Ghana. NML recently won an important series of rulings in US courts on defaulted sovereign bonds issued by the Latin American nation.

True story: two years ago, U.S. hedge fund NML Capital seized an Argentine navy vessel in Ghana. NML recently won an important series of rulings in US courts on defaulted sovereign bonds issued by the Latin American nation.

As the Argentina sovereign debt litigation hurtles towards its thrilling conclusion (or at least a new phase), I’ve sketched this proposal for a new paper and welcome any thoughts:

The Undead Norm of Unenforceability in Sovereign Debt

Historically, sovereigns have repaid their debts not because they feared court orders if they didn’t but to preserve their good name in global capital markets. Courts played along, tolerating transgressions of their enforcement authority even beyond what sovereign immunity would require. This dance has allowed courts to lend their expressive support to the fiction of enforceability while avoiding the downsides—for courts and markets—that aggressive attempts at enforcement against foreign sovereigns would bring. However, in NML v. Argentina, the latest round of litigation over Argentina’s 2001 default, the SDNY signaled a shift: it issued an unprecedented injunction prohibiting the world payments network from processing Argentina’s bond payments unless the sovereign also tendered payment in full to a group of holdout creditors. This ultimately pushed Argentina into default in July 2014, prompting some legal scholars and the financial press to declare that the episode would seriously impair future efforts to restructure sovereign debt.

In The Undead Norm of Unenforceability in Sovereign Debt, I intend to argue that the NML decision (which was upheld on appeal) is poised to close the gap between the rhetoric of obligation and the reality of enforcement, but only temporarily, and that the systemic effects many fear are unlikely to materialize. NML provides a clear example of some of the dangers I write about in Boilerplate Shock: Sovereign Debt Contracts as Incubators of Systemic Risk: standard terms in private, foreign-law contracts—in this case, a provision known as the pari passu clause—are driving macroeconomic events to a degree that no one anticipated.

However, the magnitude of the harm here will probably be contained. The near-term systemic impact has not been (and was unlikely to be) great in part because, unlike Greece (whose bonds I use as an example in Boilerplate Shock), Argentina is not a member of a monetary union. On a longer horizon, the effects seem even likelier to dissipate. Argentina’s contract-driven default is just the type of salient event that will prod the market to update boilerplate terms, in this case probably by restricting the reach of pari passu in future bond issues and perhaps in existing ones (by adding Collective Action Clauses, for example, which virtually eliminate the holdout problem). This should allow restructurings to continue on the flexible, ad hoc basis on which they currently occur—which is to say, without excessive judicial interference at the enforcement stage. Far from demonstrating that the norm of unenforceable sovereign debt is dead, this episode suggests it can’t be killed.

For this article, I’ll be standing on the shoulders of a rich literature on the Argentina dispute and drawing on research I’ve done at the intersection of commercial law, private international law, and financial regulation. In Boilerplate Shock, for example, I argue that currency and governing law clauses in Eurozone sovereign bonds are magnifying systemic risk in ways no one imagined when they selected those contract terms. In Ending Judgment Arbitrage: Jurisdictional Competition and the Enforcement of Foreign Money Judgments in the United States, I argue that fragmentation in the U.S. judgment enforcement regime post-Erie renders that system ripe for manipulation by savvy judgment creditors via a process I call “judgment arbitrage.”

Undead shares many commonalities with these two articles (particularly Boilerplate Shock). Perhaps most important, together they posit that private contracts—combined with choice of law rules and expansive conceptions of jurisdiction that make it possible to secure and actually enforce judgments based on them—are driving international economic events to a degree that no one anticipated. This is mainly a story of cascade effects, amplified by standardization: the interpretation of a given contract term impacts other actors (whose rights are determined by similar contracts) in the relevant market, and where that market is systemically significant, it can affect the global financial system.

As I suggest above and in the Boilerplate Shock abstract, I think the risk of contract-driven systemic failure (which I call “boilerplate shock”) is far more manageable today in the case of Argentina than in the Eurozone sovereign lending market. Let’s hope the risk does not materialize in Europe either; we already live in pretty exciting times.

Photo: Reuters/NYT