bankruptcy Catch-22

In re BearingPoint Bankruptcy;

First off, IANAL, but my analysis seems to jive with the judge’s actions (and inactions) and what has been argued by legal teams on both sides.

Ex-BearingPoint employees seem to be asking…

“Why can’t the judge just instruct the PTO to be paid out?”

In the Bankruptcy law, Section 507,  it specifies the priority of claims.  ‘Fourth-tier’ claims are “allowed unsecured claims” which include “wages, salaries, or commissions, including vacation, severance, and sick leave pay earned by an individual”.  Our accrued Personal Time Off (PTO) would fit this description.  The code specifies a limit of $10,950 and anything above and beyond ($11K+) is considered an unsecured claim, and it gets lumped in with all the general creditors. That is both codified law (Section 507) and tested/demonstrated in precedent (referenced in the objections by the Creditors in #688 “Order to Vacate” — see a list of references at the end).

So for those of us owed under $10K, the good news is that we are in line to get it.  The bad news is it’s not considered an “administrative expense” (expense to keep the business going thru bankruptcy), and so it is to be paid out once the firm liquidates (Chapter 7 Bankruptcy).

“Why can’t the judge instruct that PTO under $11,000 be paid out immediately/ASAP?”

The reason is that only administrative expenses can be paid out right now (§ 503).  503(b)(1)(A) specifies “wages, salaries, and commissions for services”, but makes no mention of vacation or severance, as was specfically indicated in section 507.

The reason that PTO payout is not an admin expense seems to be a kind of catch-22; it’s obviously important to the ongoing operations to keep employees on-board; but once the employee is terminated (which would trigger the PTO payout) the PTO payout doesn’t provide any benefit to the company (or the creditors) — after all, the ex-employee is no longer contributing anything to the company. The promise of the PTO payout is a benefit, but the actual payout isn’t — see the distinction there? And while the judge controls the $$, he doesn’t control the actions/promises of executives, so there is no real remedy that the judge can offer.  If he allows the payout to , it denies the creditors their rightful claim to the money in liquidation.

So, we have to wait for liquidation (Chapter 7).

“How is this fair?  I earned that vacation time…”

I couldn’t agree with you more.  It’s not fair.

The lesson to be learned here — and this is a lesson for all employees everywhere — is that if you ‘bank’ vacation time, you have to consider that vacation time is at some risk.  One letter to the judge, by someone who I followed on the corporate wiki and respect and who I don’t mean to criticize, stated (emphasis mine):

The Debtors* [sic] entered into a risk-based investment with BearingPoint and stand to lose those investments.  The BearingPoint PS Group employees took no risk. We worked hard, earned the PTO… and now we just want what we were promised.

* I’m pretty sure he meant Creditors, those who extended loans or bonds to BearingPoint.

Well… that’s like saying I took no risk driving to work today:  I drove within the speed limit, I stopped completely at every stop sign, I wore my seatbelt, I have airbags… so it’s riskless, right?  We all know that just getting in your car in the morning includes an assumption of risk, and signing on to work for any firm or organization has to include a similar assumption of risk.  Continuing to stay on with BearingPoint through the past few years was an implicit acceptance of an increasing amount of risk…  and I know, I did the exact same thing, underestimating the risk involved each step of the way.

“How is this fair?  Those executive are getting bonuses for selling off the pieces and we get nothing!”

Yeah, this one is tough to swallow, but it makes sense if you look at the bankruptcy framework.

Those bonuses are related to selling off pieces of the company and bringing in cash, cash that will go to creditors.  That sounds like it would fit “commissions for services” per 503(b)(1)(A).  And ultimately that cash goes to the creditors, and the PTO payout is fourth-tier priority on that money — so we should get it before the Committee of Unsecured Creditors.

An optimistic (kool-aid flavored?) spin would be this:  “we needed the execs to sell off the pieces so there will be any money left when we go to liquidation; if we didn’t throw them a bone to make that happen, we would have virtually zero-chance* at getting up to paid for our PTO… (the up-to-$10K part)”

[* there I go again, thinking we have a greater-than-zero-chance at this moment in time…  mmmm, kool-aid.]

Seriously, this makes me sick, but it seems to be legal and legit.

“But I’m mad as hell; what can we do?”

Unfortunately, I don’t think sending letters to the judge is going to change anything.  There is the bankruptcy code, and legal precedent, and beyond that the judge doesn’t have the latitude to do what many ex-employees are asking.

There have been claims, in letters and in the objections by Deloitte, that failure of the judge to act will set a precedent and that in the future employees might be denied these kinds of payouts.  The truth is, at least from what I can see, our case is proceeding according to existing precedent — I can see no reason why BearingPoint management should have assumed that PTO would be considered an adminsitrative expense.

It seems that BearingPoint bankruptcy lawyers should have known this was the probable outcome.  They had to know pretty early on that there were some people with way more than $10K in PTO — this should have raised a flag for them.

If (and this is a big if) it can be proven that management (Harbach) was told by the lawyers that this was the probable outcome, and he continued to state to employees that he thought PTO would be paid out on termination, knowing full well that our continued service would mean higher value for the assets and therefore a bonus for himself — is this enough to add up to Fraud?  Not just a fraud, like we all know it’s a fraud, but real criminal Fraud?

If the lawyers missed it, maybe we can get back some of the legal fees for their negligence.  Or is that just getting desperate?

“What does fourth-tier priority unsecured mean?”

Paraphrasing Section 507, the priorities are:

1. Spouse and Child Support (I guess the same code applies to personal bankruptcy as to corporate bankruptcy).
2. Administrative Expenses allowed under section 503(b).
3. Unsecured claims allowed under section 502 (f) — this gets a little convoluted.
4. Allowed unsecured claims for wages, salaries, commissions, and vacation.
5. Allowed unsecured claims for contributions to an employee benefit plan.
6. Allowed unsecured claims of persons engaged in the production or raising of grain, or engaged as a United States fisherman.  (Seriously.  Crazy specific get worked into these laws, no?)
7. Allowed unsecured claims of individuals of money in connection with the purchase, lease, or rental of property, or the purchase of services.
8. Allowed unsecured claims of governmental units.
9. Allowed unsecured claims based upon any commitment by the debtor to a Federal depository institutions regulatory agency.
10. Allowed claims for death or personal injury resulting from the operation of a motor vehicle or vessel if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.

After all that, then I think the creditors get to fight over the scraps.

—————–

alright, that’s it for now.  if there is any good news, it’s that liquidation may happen by the end of this week, so at least we’ll have some closure.

Links

SaveMyPTO.com was a blog set up to rally employees.  There are only really three posts, and the comments have fallen victim to spam.  Still, there is some useful content in the early comments:

• I want my PTO
• BearingPoint Hearing Rescheduled for June 29-Write to the judge ASAP!!
• Judge doesn’t have it in him to make a decision

BearingPointInfo.com has the case docket and all the petitions, objections, and letters to the judge:

• First Day Motion to pay Employees Wages, Salaries, and Benefits (#9)
• Motion of Order to Vacate Severance and PTO (#688)

AT&T: Hands Off My Earned Leave!

You heard me Ma Bell.  You too Mellon Bank…

BACKGROUND

This is going to be brief, but here’s the gist of it:

• the company I worked for went into Bankruptcy
• from the beginning we were assured that wages and accrued Paid Time Off (PTO) would be paid
  • THIS WAS CRITICAL because if 15,000 people started using up the PTO they had accrued, the entire company would have fallen apart before it could have been pieced-out and sold-off
  • it was also policy to pay out PTO if you left the company; there was no “use it or lose it”
• now the Committee of Unsecured Creditors has objected to the PTO payout, calling them “golden handshakes” and bonuses
• … nothing could be further from the truth — those who accrued the most hours are those who worked the hardest for the company, and for the creditors during this bancruptcy period — people who put off vacations and time off to BILL HOURS to clients which is the sole source of revenue for the company.  It’s painfully ironic that those who worked hardest are positioned to lose the most…
• for the record, I wasn’t one of those working the hardest — I used 101% of my annual PTO last calendar year; and I still had over 90 hours in the bank when I left…

Many of my colleagues are writing to the judge to explain their position and situation — that’s all well and good, but there seems to be a very real chance that the judge could find legal reasons to support the objection.  Changing that one man’s mind seems like a slim chance to me…

It’s getting a little late in the process, but it just occurred to me that maybe we can find support in the employees of the Committee members, or in their customers.  Do you want to work for, or give your consumer dollars to, a company that demonstrates such disrespect forhard working employees and their families?  Especially in the middle of a recession?

CALL TO ACTION

1. If you work for AT&T, tell management that you are aware of this situation and you think it’s a shame.  Feel free to email your corporate lawyers at James.Grudus@att.com (full address below).Mellon employees and customers:  same thing, and Mellon’s lawyer is at david.m.kerr@bnymellon.com

2. If you agree that this is wrong and want to spread the word:
   LINK TO THIS POST; blog about it, email the link, etc.
   TWEET it — I don’t get fully get twitter, but have at it.
   Visit SaveMyPTO.com for more viewpoints and updates
   If you are a lawyer or legal buff, the case dockets are at BearingPointInfo.com

[untitled]

so I walked the long walk across the parking lot from our client site, thinking I’d treat myself to a Baconator.  the line is suprisingly short, and the gentleman at the register places his order.  nothing out of the ordinary…

then the gentleman turns to his companion (likely his daughter).  she has a cell-phone up to her ear, and rattles off her order: one of their super-deluxe salads I think (I honestly don’t remember).  then she orders a cheeseburger, or something.  (ordering details from this point forward get fuzzy, as my rage builds.)

then she cancels that burger.  she asks the cashier for clarification on the #2, does that come with [something]?  the cashier says yes, she says yes into the phone, the voice on the phone says OK (I can only imagine), and she says OK.  “does it come with cheese?”  same cycle of relaying information through the cell phone…

“so what would your brother like,” she asks…

I’M STANDING BEHIND A WOMAN WHO IS TAKING HER ORDER FROM HER KIDS OVER HER CELL PHONE — NOT AHEAD OF TIME, BUT IN FRONT OF THE REGISTER WHILE A LINE OF PEOPLE GATHER BEHIND HER.

now, I’ve waited behind people writing checks at the grocery store, and I’ve stood behind people that dispute their charges to the cash register, but this was ABOVE AND BEYOND.  I cleared my throat a few times, hoping she’d realize there were people behind her.  I made eye contact with the cashier as if to say, “uh, can you move us along…” and no dice.

apparently unable to get the order translated through her other child, she says “well, then put him on.”

I burst out, “OH COME ON! You’ve got to be kidding me!”  She doesn’t flinch.

“Seriously,” I plead to the cashier, “you’ve got to ask her to step aside and write down her order.”  I say this because she has been writing down the order on a napkin the whole time, and is using it to verify the order with the cahsier — 50% of which is wrong each time, and they have to start again.

I know this has only taken 30 seconds to describe to you, but it was no less than several minutes in line.  the cashier shrugs, the b*tch on the phone is oblivious, and waits for her other kid to get on the phone and place his order.  and another kid.

the next five minutes are a bit of a blur, as there is discussion over what comes on a 1/4 single with cheese, etc, etc — all of it being relayed from cashier to customer to her kid (via cell phone) to customer to cashier.  oh, and then she wants a baked potato, but gets all high-maintenance about what is going on it.  bacon?  LIKE SHE DOESN”T REALISE SHE”S AT A WENDY”S…

the kicker, the really really aggrevating thing, is that at the end of all of it she didn’t even attempt to make nice.  she didn’t hang up on her kids and say, “sorry” to the rest of us.  and this really wasn’t a 30-second delay, it was a good chunk of the 30-minute lunch break I was giving myself before some other meeting back at the office.

I understand that the Baconator is engineered by the good people at Wendy’s to crank my blood pressure up to (something horrifically bad), but this time it was there before I even placed my order.

luckily, nothing a little ‘mayo on the side’ couldn’t cure.

there is hope

 […]  Joseph LeDoux, a neuroscientist at New York University and perhaps the world’s leading expert on emotional memory, has found that whenever we bring to mind a strong emotional memory and think about it differently than we had before, it actually gets chemically recorded in the brain in a whole new way. A process of introspection can actually change the way that memory is imprinted on our brains, providing a neural basis to lasting changes in our behaviors and habits of mind.

Interesting article in an interesting magazine, Greater Good (tagline: The Science of a Meaningful Life).

New Year, New Fears

Several months ago, I asked the question that named this blog — to Name Your Fear.  The answers in the comments were not entirely surprising:

• failure
• marsupials
• our future
• preparing our children for their future
• “my mom” (not mine, for the record)

With the new year, and maybe a few new readers, I pose the question again — what do you fear?

And maybe a follow-up:  Any fears assuaged in 2007? 

what do you think? Ambulance at Wendy’s

so, I’m walking into Wendy’s the other day, and these guys are getting out of their ambulace [sic], leaving it running.  I figured they were going to grab a burger (maybe a salad?) and run, but they sat and ate their meal as I left.  Walking past the ambulace [sic], I took some pics on my mobile phone thinking their dispatch might agree with me that this was a waste…  I emailed the station, asking if it was standard procedure to waste gas (fuel) like that, and got this response:

Thank you for bringing this to light.As trained hazmat responders we do care about the enviroment. A few things to talk about. First: the fuel consumption is diesel not gas. Diesel as you know has  a low sulphur emission and better rate of consumption for the size engine involved. This means that any carbon will stay low to the ground.Just like “18 wheelers do at a rest areas” ,keeping there motors running to keep possibly the food you receive cold,before and durring its trip to your favorite grocery store.

Second: again these type of vehicles (diesel) are cheaper by amount of consumption to keep the vehicle running at propper temp. This, infact, will burn less fuel and also, less carbon that you receive and see and choke on upon start up and shut down vs at a constant rate..

Third:  an ambulace is the type of vehicle that has a lot of emergency equipment that receives a charge. This, infact, will put a large strain on the vehicles battery system. In order to keep this equipment charged for use, the engine needs to be running at the propper speed to keep the charge up on this emergncy equipment. Sometimes we can plug these vehicles in to a land line and shut the vehicle off. However, there is no land line available at your local fast food place.Are policies incourage the vehicle to be shut down with the propper facilities present.This is the prefered method. Again the mind set of patient care and safety comes first.

With this being said I’m sure you can agree that a person’s life is more important then any of the above mentioned problems.in the time limit to stop and eat at a fast food restaurant.,this all being derived from an operational risk management assessment. Hopefully, when and if you ever need an emergency service, I hope you never do, that all the equipment is in working order,to include the vehicle being able to start, thanks to a crew making sure that their equipment is charged up by keeping the vehicle at the propper engine speed tus keeping the batteries in good working order.

If there are any other questions or training they can be forwarded to myself at the above email.Thank you for your attention to detail.

Again thanks for your attention to detail,

Anybody want to guess how I interpreted this responce [sic]?  For the record, I had considered the power generation requirements of onboard equipment while I was at pondering all this at Wendy’s, but if that’s the case I’d assert that standard procedure should be to only stop at locations with appropriate power facilities (even if that’s only the station house).  I didn’t even tell you what these EMT’s ordered (the next heart attack may be their own…)

an open letter to MIKEFOX

First of all, MIKEFOX, let me tell you how much I admire people with vanity tags, especially ones that spell out their own names. I imagine it’s so you can figure out which car is yours in the parking lot. But I guess it’s fortunate for me — it gives me a chance to address this to you.

Not that I haven’t considered vanity tags myself. In fact, I’ve thought up some really hysterical ones that play off my name, and others that combine my name with the model of the car — Oh! they are funny. But I won’t bore you with them here. See, every time I start to seriously contemplate applying for those tags, I punch myself in the face as hard as I can, just to remind me why I should never do that. Apparently nobody punched you in the face soon enough, so you shall be known to all who cruise down I-270 and around the Capitol beltway as MIKEFOX. (Maryland tag MIKEFOX, I should specifiy — there may also be a Virginia tag MIKEFOX but I don’t want to get them involved.)

Yes, you daftly demonstrated how you could maneuver your Lexus GS350 as you virtually merged into me getting from the HOV lanes on the 270-spur to bear right onto 495. Cut off is too gentle a word — your rear wheel and my front wheel were about to become one wheel until I tapped the brakes. I hope you didn’t interpret my hand gesture rudely — I was simply holding my hand out in front of me like a serving plate towards your rear-view mirror (not that you’d regard your mirrors): “This space is kindly reserved for you, MIKEFOX,” — that’s all I was saying. Not a stray finger was extended…

I was pretty sure you got the point since you then proceeded to slow down and drive within the posted limits IN THE PASSING LANE… ON 495… It had to be a conscious gesture, as driving that slow in the far left on 495 is a death wish, an invitation to be overrun.  A moment later you confirmed that too, and I bet your pants got all tight when you dropped the hammer, belched out a puff of black smoke from your tinny Japanese exhaust, and accelerated left into the merge lane. A beautiful display. Seriously, I have done a lot of pointless, aggressive things in my car (you have to when it’s a precision-engineered sports coupe as Blue as a Smurf’s birthday suit), but the random “slow down, then gun it” thing has always escaped me — it’s just never been my thing. Luckily I didn’t have to put my car in Sport-mode or drop into 5th gear to match your pace after your short lead. I knew the merge lane would end soon enough.

And it did, and just as you did with me, you cut off another car. This time a hapless minivan. Wow MIKEFOX, you must have really felt a rush of superiority racing a Chrysler Town and Country and scaring a soccer-mom. Nice. I dropped into the lane causally behind the van, no need to cause a scene. You can imagine my surprise when I passed you a few miles later, me cruising at normal Beltway speeds and you meandering in the FAR LEFT LANE.   Again. Ugh.

So how is that 2007 Lexus GS350? It sure is a pretty car. Was it your wife that said you could go for the GS350, or did you get it to impress your girlfriend? How is your midlife crisis treating you, MIKEFOX? Must be pretty treating you pretty well. I have to wonder, did you cut me off because of the way I was flirting with that G35 back on 270? I know you had command position in the left lane, and I darted up the two right lanes which were flowing alternatingly left and right, the G35 chasing and passing in a little dance, two youngsters playing while the crusty old guy sits behind a row of traffic in the left hand lane… I really love it when I catch a flow between traffic like that, it’s fast and it’s fun. And I’m not so aggressive that anyone would get hurt… and the G35 veered off to the right towards Virginia, another all-too-brief morning-commute interlude.

Is that what you miss MIKEFOX? Is that why you felt the need to catch up later with your raw straight-line acceleration, and why you’re so angry that you cut people off? Or is it that you don’t know how far your back-end extends? Middle age can do that to you MIKEFOX — I learned this the hard way: if your slacks look short, you aren’t getting taller, your ass is getting big. It’s true. I’m not sure if I’m talking about your butt or your bumper at this point, but really, it’s all the same.

Maybe our paths will cross again, MIKEFOX. Maybe I won’t notice because you’ll blend in with all the other dirty-black Lexi and Toyoti on the roads… but if I see your tags, Maryland: MIKEFOX, I’ll be sure to tip my hat and clear the way. God speed.

[btw, if by some bizarre twist of fate MIKEFOX = Michael J. Fox, let me retract this whole thing and just say that I idolized Alex P. Keaton growing up and I sincerely hope you kick Parkinson’s ass.]