Elizabeth Warren vs. the Bankruptcy Bar

A Reminder That Disruption Takes on Many Forms

Warren pic.jpg

PETITION is, broadly speaking, a newsletter about disruption. As loyal readers have surely noticed, the predominant emphasis, to date, has been tech-based disruption. But, spoiler alert, there are other forms. Earlier this week, Senators Elizabeth Warren and John Cornyn proposed a bill that swiftly reminded a cohort of (mostly Delaware) legal professionals that legislation, if passed, can be an even more immediate, powerful and jarring form of disruption.

Let’s take a step back. Shortly before Christmas, the Commercial Law League of America (CLLA) indicated that the U.S. Senate should consider a new bankruptcy venue reform bill. The gist of the proposal is that a debtor should have to file for bankruptcy in its principal place of business (or where their principal executive offices reside) - as opposed to, as things currently stand, its state of incorporation (the "Inc Rule"), where an affiliate is located (the "Affiliate Rule"), or where a significant asset is located (the "Abracadabra Rule"). Notably, a large percentage of companies are incorporated in Delaware, a state with well-established and well-developed corporate laws and legal precedent. Consequently, thanks to the "Inc Rule," Delaware is typically the most sought after venue by debtors, perennially topping annual lists with the most bankruptcy filings. In other words, the state of Delaware is the biggest beneficiary of the status quo. 

Putting aside the Inc Rule for a moment, the “Affiliate Rule” and “Abracadabra Rule,” respectively, have provided debtor companies with wide and crafty latitude to file in jurisdictions other than that of their principal place of business. Again, typically Delaware (and then, to a lesser extent, New York). Have a non-operating subsidiary formed in Delaware? Venue, check on the "Affiliate Rule." Got a random (unoccupied) office you set up last week in a WeWork in Manhattan? POOF, venue! Check on the "Abracadabra Rule." Got a bank account set up (a week ago) with JPMorgan Chase Bank in New York? Venue, again check on the "Abracadabra Rule". It is, seemingly, THAT optional. All of this is like saying that despite the entire automobile industry being manufactured, headquartered and principally-based in Detroit, General Motors ($GM) should file for bankruptcy in New York rather than Michigan. Oh, wait. That actually happened. Take two: that’s like saying that despite the entire automobile industry being manufactured, headquartered and principally-based in Detroit, Chrysler should file for bankruptcy in New York rather than Michigan. Damn. That also happened. Ok, here’s a good one: that’d be like saying it’s okay for the Los Angeles Dodgers to file for bankruptcy in Delaware rather than California. Wait, SERIOUSLY!?!? WTF. Who is to blame for this outrage? 

We'll keep this simple, lest this become a treatise absolutely nobody will want to read: federalism. Bankruptcy law is federal but every state has their own courts, circuit courts, and legal precedent. Some states have bankruptcy courts that are historically more favorable to debtors (cough, Delaware...need that incorporation business) - which, speaking commercially and realistically - are de facto clients of the state. Currently, debtors typically choose the venue so if you want to drive debtors to your courthouse steps, favorable corporate and debtor-favorable bankruptcy case precedent goes a long way towards filling court calendars. Not to mention hotels. In this regard, the bankruptcy court isn't all too dissimilar from a large tech company. Go fast and furious to market, aggregate a ton of users (here: debtors), acquire talent (read: judges), and build a database full of information (read: precedent) to then use against everyone else who tries to compete with you. That aggregation is the moat, the competitive advantage. Say, "we're the most sophisticated due to our talent, data, and predictability" and win. Boom. Dial up the Hotel Du Pont please!  

As a consequence of federalism, one jurisdiction's "makewhole provision" enriching bondholders is another jurisdiction's "no recovery for you" enraging bondholders. One jurisdiction's "restructuring support agreement" is another jurisdiction's "meaningless bound-to-be-blownup-worthless-piece-of-paper." That's the beauty of venue selection, currently. The system allows debtors to choose based on that precedent. Ask any of your biglaw buddies about "venue analysis" and watch their eyes roll into the back of their heads. That is, if you're even still reading this. They've all had to do it. It's a big part of the filing calculus. And everyone knows it. 

Enter Senators Warren and Cornyn. They're saying, "No way, Jose. This sh*t needs to stop." Okay, they didn't say that, exactly, but Senator Warren did say this, "Workers, creditors, and consumers lose when corporations manipulate the system to file for bankruptcy wherever they please. I’m glad to work with Senator Cornyn to prevent big companies from cherry-picking courts that they think will rule in their favor and to crack down on this corporate abuse of our nation’s bankruptcy laws.” The argument goes that the bill “'will strengthen the integrity of the bankruptcy system and build public confidence' by availing companies, small businesses, retirees, creditors and consumers of their home court." Ruh roh. 

A few years ago, a heavy hitter lineup of restructuring professionals were asked by The Wall Street Journal what they thought about this venue debate. The general upshot was "nothing to see here." With apologies for the paywall attached to the following links, you'll get the general idea. See, e.g., "the myth of forum shopping." See, also, "venue reform is a solution in search of a problem."
“allowing fiduciaries to exercise their business judgment about what filing location might maximize enterprise value or reduce execution risk or both.”“If it ain’t broke, don’t fix it.”"the current status quo of wide venue choice – should win out.”“It’s not clear that these rules are problematic, so don’t apply a fix with its own set of unintended consequences.”“The truth is that venue provisions are very appropriate and do not need to be adjusted”"Letting debtors choose as they can now is 'good business sense.'"; and "current venue requirements 'strike a fair balance.'” In summary, you've got Senators Warren and Cornyn up against a LARGE subset of the bankruptcy bar. And those aren't all Delaware practitioners. That's a cross-section of the entire bar - with some financial advisors and investment bankers thrown in for good measure. Pop us some popcorn.

Now, we've been highlighting venue shenanigans since our inception. Not because it's wrong to leverage a favorable venue with uber-favorable precedent if you have that option; rather, because it has gotten so FRIKKEN OBVIOUS. Clearly an industry with $1750/hour billing rates isn't known for its subtlety. Want a third-party release to shield the private equity bros? St. Louis here we come! Have the opportunity to take advantage of a "rocket docket" and get those billable rates rubber stamped? Godspeed. Want to issue a "Standing Order" to divert bankruptcy traffic (back) into your court? May the Force be with you. 

That last bit is particularly notable. Venue gaming got so blatant that even the courts got in to the game. That "Standing Order" is as patent an acknowledgement of venue manipulation as anything we've seen of late. Why did this happen? Take a look at the case trends. After a few early (small) oil and gas exploration and production companies (E&P) filed in Texas and things, uh, didn't go particularly well for professionals, a deluge of E&P debtors mysteriously started popping up in Delaware. That's basic cause and effect. The subsequent cascading secondary effect was the "Standing Order" which, in response, guaranteed professionals that they'd get one of two judges and that, effectively, the Texas courts were open for business. Once that Order came out, debtor traffic curiously reverted back to Texas. E&P management teams and creditors could be heard in their home jurisdiction. Local firms could become "local counsel." Delaware counsel's loss was Texas counsels' gain. (If only the same could be said for lead counsel). Naturally, then, both the Texas Bankruptcy Bar Association and Texas Hotel & Lodging Association back the proposed bill: it basically fortifies the Standing Order. Also, guess where Senator Cornyn is from? Alexa, please cancel that Hotel Dupont reservation. 

We're not taking a position in this debate. We have no skin in that game. But we can't help but to chuckle at the timing. Ironically, it seems that more and more debtors are filing near their principal place of business rather than Delaware anyway (cough, third party releases!). See, e.g., Toys R Us, rue21, Payless Shoesource. And so this has the potential to reinforce a recent trend and compound the issues that have already surfaced for Delaware professionals. 

This is nerdy sh*t. But it’s still big deal disruption. Just disproportionately for the Delaware bar and the city of Wilmington. It’s so big that even iHeartRadio released a podcast discussing it. Without irony. Dramatic disruption AND comedy. 

Who knew bankruptcy could be so entertaining?

The Quill decision (Short Wayfair)

You'll recall that, in September, we wrote about the disparity that exists in e-commerce taxation. In summary, e-commerce players have been able to avoid state taxation because of a lack of "physical presence." As we pointed out, Amazon ($AMZN) benefitted from this for years - at least until it decided that it wanted to conquer the "last mile." Did this help spark the #retailapocalypse? You betcha. But South Dakotans - all 3 of them - don't like to be effed with and so they're back in South Dakota v. Wayfair for a second bite at the apple in the Supreme Court. You legal bro-dorks may want to dust off your Commerce Clause know-how. This hyperbolic piece describes what's at stake, arguing that the SC's previous Quill decision ought to be fixed to accommodate technology and disruption. The briefers write, "Four negative effects of the physical presence requirement merit emphasis. First, the physical presence rule poses a much more serious threat to the fiscal stability of state and local governments than the Quill Court could have anticipated. Second, the rule results in economically inefficient consumption choices to an extent that the Quill Court could not have foreseen. Third, the physical presence rule distorts firms’ decisions about production, distribution, and corporate structure in ways that perversely discourage businesses from expanding across state lines. Fourth and finally, the physical presence rule likely raises the aggregate cost to consumers and businesses of complying with state sales and use tax laws." No wonder Overstock ($OSTK), which is also implicated, is shifting from e-commerce to bitcoin. 

Entertainment 3.0 (Short Hollywood, Long Subsidized Data Plays & Will Smith?)

More Data = More Crap Like "Bright" 

We've addressed algorithmic-based books and music, we might as well triple-down with movies. It's well known by now that Netflix ($NFLX) and Amazon ($AMZN) are using their respective data sets to develop new original projects. This circumvents the otherwise costly endeavor of licensing deals for outside content which, naturally, is fragmented in such a way that is costly to Netlfix/Amazon and frictionful in certain respects for the end user. Why is some content available internationally while other content is not? Why is certain content downloadable but other isn't? All of that has to do with "rights" for licensable content. 

This is precisely why we get "Bright," the new Will Smith vehicle that "feels like it was produced by an algorithm to fit in as many genres as possible (crime, fantasy, cops, etc.)." Netflix has said that 11mm people watched the movie in the first three days of release. At an average movie price of $8.90/ticket, that's the equivalent of nearly $98mm in revenue in three days. A sequel has been green-lit. This movie was an experiment dripping with data-based motivation and it seems to have worked. What does this portend for Hollywood?

Oh, Hollywood. This week we also learned that moviegoing has fallen to its lowest rate in a generation: theater admissions fell nearly 6% in 2017.  Choice quote“'The industry should be concerned if the metric falls again in 2018,' said Geetha Ranganathan, a Bloomberg Intelligence analyst. 'Especially with a stronger film slate for this year, fewer moviegoers would be a warning sign that the industry may be in secular decline.'” Ruh Roh. 

And so should we really be surprised that there's a company out there now attempting to exploit data relating to Hollywood-produced theatrically-released movies? Enter Moviepass, a subscription-based business that lets movie-goers go to an unlimited amount of movies per month for only $9.95/month (subject to a one movie in 24 hours restriction). The movie theaters are like, "What the hell?" but consumers are like, "Sign me up!" 1 million of them. The movie theaters are like, "That's our data!" and Moviepass is like, "We don't care, go fly a kite home-slice." 

This Tren Griffin piece does a deep dive into the Moviepass business and leaves much to unpack. The piece is long but it provides some real insights into the movie theater business and the numbers are bleak. For theaters. For Moviepass. For basically everyone other than the moviegoers who ought to enjoy the Moviepass-subsidized movie-going while it lasts. And that probably includes malls - many of which are betting their futures on moviegoers seeking the moviegoing "experience." 

All of which would explain the recent waive of consolidation. In the past month alone, Cineworld Group Plc agreed to buy #2 U.S. movie chain Regal Entertainment Group for $3.6 billion. And Walt Disney Co. ($DIS) awaits approval of its proposed $52.4b acquisition of 21st Century Fox Inc., including the company’s movie studio. Content is king right now. It helps drive more data for more content. Yes, this is becoming very circular. 

And so back to Will SmithRumor has it that the actor famously performed a data-based analysis to determine how he could best catapult himself to stardom. Then came Independence Day. And Men in Black. Those movies weren't luck: they were strategy. Which is to say that if streamers are all about data, and Hollywood is (now) all about data, and actors are all about data, consumers probably ought to get used to movies like Bright. 

Is Spotify Ultimately the Death of Music?

Spotify Made Liam Gallagher Make His Own Coffee. That's Bad. 

Source: Pexels.com

Source: Pexels.com

It’s 2018 and that means that, unless side-tracked by $1.6b litigationSpotify’s “direct listing” is imminent, marking the company’s latest foray screwing over (read: disrupting) professionals who endeavor to make money. No, we don’t have much sympathy for the bankers who will lose out on rich underwriting fees. If anything, the blown IPOs for Snapchat ($SNAP) and Blue Apron ($APRN) kinda made the direct listing alternative a fait accompli. Now the market will be watching with great interest to see how the stock does without the various IPO-related safeguards in place. 

The real professionals on the short end of Spotify's stick, however, aren’t the bankers but may just be the artists themselves. Recall this video from Liam Gallagher. Recall this chart highlighting the juxtaposition between digital and physical sales. But that's not all, there's this piece: it stands for the proposition that Spotify really ought to go f*ck itself. Indeed, "To understand the danger Spotify poses to the music industry—and to music itself—you first have to dig beneath the “user experience” and examine its algorithmic schemes. Spotify’s front page “Browse” screen presents a classic illusion of choice, a stream of genre and mood playlists, charts, new releases, and now podcasts and video. It all appears limitless, a function of the platform’s infinite supply, but in reality it is tightly controlled by Spotify’s staff and dictated by the interests of major labels, brands, and other cash-rich businesses who have gamed the system." To point, Spotify has perfected "the automation of selling out. Only it subtracts the part where artists get paid." There is so much to this piece. 

And then there is this piece - from a musician - which really puts things in perspective, as far as second order effects go. One choice quote (among many in this must read piece), “As a dad seeing my kids fall for an indistinguishable blob of well-coiffed brandoid bands and Disney graduates, I’m not at all shocked that amid their many fast-germinating aesthetic and creative ambitions, my own offspring have never seriously taken it into their heads to pick up an instrument or start a band. The craft of music has entirely succumbed to its marketed spectacle.” 

Against this backdrop, the distressed state of Gibson Brands Inc. and Guitar Center Inc.makes more sense. Here is Gibson Brands:

Given these disturbing downward trends, it's no wonder that Jefferies is working with the company to address the company's balance sheet and that Alvarez & Marsal LLC is helping streamline costs on the operational side. Indeed, last quarter the company negotiated some amendments (EBITDA, for one) with its lender, GSO, and even more recently negotiated, per reports, an extension of time to report financials to GSO. We can't wait to get our hands on those.

Guitar Center Inc., meanwhile, reported pre-holiday YOY increases in top and bottom line numbers, including a 1.3% increase in same store sales. Which surprised basically everyone. They have yet to release holiday numbers. They did, however, get a nice downgrade leading into Christmas. And there are debt exchanges to come in '18 for the company to manage an over-levered balance sheet unsustained by recent revenues.

Remember, Spotify did all of this with the help of $1b in venture debt (and NYC taxpayer subsidies, but we digress). Which, unless something has changed, is a ticking timebomb getting more expensive with each quarter the company fails to go public. 

Lest anyone fail to appreciate the growth trajectory of Spotify, there's the chart below to put it in perspective. 

One last note here. A few weeks ago Josh Brown wrote a piece entitled, "Just own the damn robots." If you haven't read it, we recommend that you do. The upshot of it is that the massive stock moves of the FANG stocks and other tech stocks are rooted in people's fear of being automated out of relevance. 

In that vein, maybe Spotify's imminent listing is the BEST thing that could possibly happen to creatives. Get a significant part of the company out of Daniel Ek's hands, out of the hands of the venture debt holders (assuming they have an equity kicker), and the venture capitalists. Get it in the hands of the artists themselves. Perhaps that way they can have SOME manner of control over their own commoditization. 

Entertainment (Short Book Stores, Long Myopic Groupthink & Algorithms)

Barnes & Noble May Follow Book World into Obsolescence

Book store sales are down 39% from a decade ago. Why? Well, avid PETITION readers know we love to discount the "Amazon Effect," generally, as most failed retail is more complicated and nuanced than that. Just ask the private equity bros. But books: that's a different story. Amazon ($AMZN) owns that sh*t. And so Book World, the nation's fourth largest physical book seller, is liquidating. And Barnes & Noble Inc. ($BKS) is slowly unraveling before our eyes. The book retailer reported holidays sales for the 9-week period ending 12/30/17 and MAN O' MAN were they crappy. Total sales were down 6.4%. At least they nailed e-commerce, right? Wrong. Online sales declined 4.5%. Comp store sales declined too, "primarily due to lower traffic." The book business declined 4.5%. And the stock collapsed 14+%. Ouch. Luckily there's some in-demand non-controversial political book out there that people are literally lining up to purchase. You know, that little one about @realdonaldtrump. Hopefully they can capitalize on that

Ironically, of course, Amazon has launched 15 physical book stores and they're a sight to behold. We checked in on one for the first time over the holidays and several things struck us. One, the footprint of the place was dramatically smaller than the typical, say, BKS, with reduced inventory to match. Two, the signage/placards emphasized the online reviews in lieu of prices. Third, most of the displays emphasized best sellers and wish list selections. You know, that old data play. There isn't much discovery there. Just a small selection of "popular" books force fed to the populace so that everyone can come to the very same conclusions from the very same books. Awesome.

Takeaways: Jamie Clarke, Live Out There

An Entrepreneur Seeks to Turn the Tables on Disruption

Source: Live Out There

Source: Live Out There

Sometimes the disrupted need to become the disrupter.

If anyone can rebound from disruption, dust himself off, and get back on his feet ready for battle, we suppose it’s a man who has summited Mount Everest. Twice. And plans to again - wearing gear he designed and manufactured himself. Enter adventurer and serial entrepreneur, Jamie Clarke, the founder and CEO of a new direct-to-consumer (DTC) outdoor-wear brand, Live Out There.

Source: Live Out There

Source: Live Out There

Several weeks ago Jamie received a deluge of press coverage after the launch of Live Out There (LOT). Most of the coverage – here (Fast Company), here (GearJunkie), and here (WWD), for example - was thematically similar, touting LOT’s (i) proposed radically-transparent production, (ii) get-people-off-their-phones-and-off-their-asses-into-the-outdoors mission, and (iii) DTC-powered lower price point. We’ll come back to all of that. There’s more to this story. To Jamie’s story. That is, Jamie, for better or for worse, is a manifestation of the retail apocalypse. His experience encapsulates many of the themes pervasive in retail today.

For 14 years prior to launching LOT, Jamie owned and operated the Out There Adventure Center, an 8000 square-foot brick-and-mortar retail location in downtown Calgary. The business featured apparel and equipment for the outdoor set; it was also an early attempt at the current retail-fad-of-the-moment: experiential retail. The Center had a warehouse in back with a theater space, a travel agent kiosk and hosted events; his business sought to engender community before “community” became a trite buzzword shamelessly used by everyone. Including us. 

All of this, however, simply wasn't enough to counteract today’s vicious retail reality. We discussed the notion of community, the #retailapocalypse, retail survival and more with Jamie. What follows are the highlights, edited for length and clarity. 

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PETITION: What’s interesting…is the experiential aspect of what you were trying to do. That’s the big deal right now and now everyone’s talking about experiential retail….

Jamie: We were in part, perhaps, ahead of our time or maybe that’s a convenient excuse to cover up that we didn’t execute property. I think maybe it’s a combination of both. That said, hosting events and having a travel agent among other things was a powerful way to really challenge the notion of retail. You’re not just here to buy things, you’re here to gain access to experiences.

PETITION: Give us some specifics…that contributed to the downfall of this brick and mortar location.

Jamie: We had big competitors who could negotiate with suppliers deeper discounts on their volume purchases which meant they could go on sale and still maintain margin. So we were constantly under margin pressure because the bigger players had better margin. Two, the transformation of late which ultimately began pounding the nails into our brick and mortar coffin was that our suppliers became competitors. Great companies that I admire and with whom we had worked for years wanted to go direct to consumer.

Here, Jamie is referring to the Arcterx, Northface and Icebreakers of the world.

PETITION: Did they offer experiential retail?

Jamie: Not to the degree that we were striving but they merchandize their stores beautifully. They were doing retail well in that old sense of retail. They looked nice. They were well lit. All the rest.

PETITION: Did you have e-commerce at all?

Jamie: We launched e-commerce seven years ago. So we were in our eighth year. As a small operator we had a hard time scaling that experience.

PETITION: Did you also have the burden of an onerous lease that you could no longer justify from a revenue perspective?

Jamie: Have you suck in behind the scenes to read my lease agreement? Yes. The number one item that made our business untenable was that you had that market pressure. There are lots of levers as entrepreneurs. You know you can manage expense. You can shift promotion. You can change the way you staff the floor. You can even change the way you buy. But every month you run this monstrous nut for a chunk of rent. Its unavoidable and it ultimately rose as a percentage of revenue. And it was untenable for us.

And so Jamie shut the doors on June 9, 2017.

Jamie: I tell you it was heartbreaking. It was definitely devastating financially. Personally.

PETITION: Is there anyone in that space now?

Jamie: Empty. I think they’re going to struggle to fill it. The landlord wants a big national with a good covenant. You’re going to have another big brand go in there and the little guy is gone.

PETITION: So you closed the brick and mortar and you got rid of those partners. You're embracing your brand as your core competency. Now you're going direct to consumer. Talk to us about the decision making process on going DTC.

Jamie: The whole partner-slash-competitor issue escalated and that’s when we had to do a monstrous pivot and really challenge the industry and make that shift from being the disrupted to the disruptor. Do we want to continue being the victim? Do we want to continue being part of the problem here which is markup and middlemen or do we want to shift our business? Do we have the courage to be part of the solution even though doing that is filled with so much unknown? And it's entirely a shift in retail and we came to that conclusion in part by desperation because we had no other choice.

We've always known that outdoor is beyond reach for many many many people. We could see it when things go on sale how quickly our revenue would jump when we put a discount. And not just hungry people looking for deals. It was because a lot of people just couldn't afford it. And couple that with our investigation we began to realize that elevated price was the issue. For instance, a down hooded jacket on the market for $329. When we began to dig in there we found that those jackets are being built for say $80. What? An $80 jacket being sold for $329? What's going on here? And that's when we realized...we are the problem. We’re the middle. We're the retailer in the middle and that jacket gets sold to us for $150. We mark it up by $150 and then sell it for $329.

It's not working. It's failing the customer.  Failing people who are sitting on the couch not getting outside doing stuff. That's when we found the courage to say we know gear. We can make our own. We'll go direct to consumer. We'll take that markup out of the antiquated distribution model. And here's the kind of radical transparency that we're challenging industry with. We need to put more money into the materials so that the environment is protected. So that working conditions are improved. We need more money in the manufacturing process. Not negotiating with those manufacturers or the mill to grind them on price. We need to actually put more money into the making of those jackets so that people are paid well. So the air conditioning gets turned on. So the maternity leave is instated. All the things that are reasonable working conditions to improve manufacturing. We need to be more transparent, need to share what's going on. And that was the disruption piece. This may not work. We may go down in a barrel or ball of flames but we're going to go down swinging. This is what needs to be done.

We're proposing to pay more money for manufacturing of our product than our competitors. And in part that is a scale issue. They're just making tens of thousands of jackets and we're making hundreds. So through that alone we're paying more. Plus I'm trying to ensure that we put the best material in our product. The savings that we have on our price point is purely on the distribution side not on the manufacturing side. I got to make stuff equal to or better than the most in the market primarily because I get to use and I want to make sure it works.

PETITION: Who are your models for DTC?

Jamie: Everlane is a company in the states that is DTC and transparent. They're in the fashion industry. But we have marveled at what they were doing and the courage it took to do it and felt that that was something that we should do. There’s a company in the States called Kuju. They make high altitude hunting apparel. Clearly Contacts.

PETITION: What’s your reaction to the fact that Everlane just opened up brick and mortar store in New York City?

Jamie: For me our long-term vision will be to return to where we were 15 years ago: to create a physical space that is an experience of the brand.

PETITION: So, basically you’re going to go that direct to consumer digitally native vertical brand route like others have recently. Everlane is a great example. Away would be another good example. Warby Parker. Get the community. Get the brand recognition. Get the following. Build the brand, And then reengage in the brick and mortar for purposes of scaling further. That is that a fair synopsis of what you're thinking?

Jamie: Yes, yes exactly. I want to do what we couldn’t do originally. I want to do a smarter more efficient store, not in the old school way. We won’t carry inventory in the back. It would be more about the experience, more about a meeting place. Smaller stores. Strategically placed. And not just ‘ol New York’s a great place and need to show up there because it’s good PR.’ Use data and information. Where are our customers? Where does it make sense? It might make sense for us to be in Boulder more than downtown New York. It might make sense for us to be in Chicago or Kingston Ontario.

PETITION: Well it also sound like there’s also an aspirational element here. Our readership may be in conference rooms 15-18 hours a day. Aside from saying its a better product, you're saying 'this is attached to me. If it's good enough for me it's definitely good enough for you.' 

Jamie: Yes. It sounds ego-maniacal and I’m always concerned about that. But as a consumer I want to identify with the people of a company. The soul of the company. Not a spokesperson because those can be hired. I will never abandon that personal and intimate connection to what we make, why we make it, and how we make it, and for whom. And I believe that matters.

PETITION: Why haven't you gone the blog/Wirecutter route to review gear and used your mountaineering expertise to drive affiliate revenue?

Jamie. It’s on the list for sure, but we’re a small team scaling up slowly. Between outside workouts and time with family we are slammed 7 days per week right now. 

PETITION: Considering your experience as the disrupted, what advice would you have for other entrepreneurs in the consumer products space?

Jamie. Be clear on your unique offering. If you’re not offering different value—you’re dead. 

PETITION: Why not crowdfund LOT gear leveraging your own personal story to get pre-orders and drive demand?

Jamie. That’s in the works for an upcoming piece of gear.

PETITION: We've seen a tremendous amount of distress in retail obviously. But even more specific than that is the sporting goods segment of retail. Sports Authority. Eastern Outfitters. Ski Chalet. Bob's Stores. Michigan Sporting Goods. Gander Mountain. There have been a number of these retailers who have gone bankrupt and or liquidated maybe some of them have managed to maintain a little bit of a footprint here and there or maybe they maintain some sort of e-commerce business post-bankruptcy but a number of them have just disappeared. What's your thought on that state of affairs?

Jamie: Well there is a there is a retail revolution afoot and with the revolution comes blood and pain and death and those are some of the victims. My brick and mortar store was one of them. And that's not just the outdoor industry, that's retail as a whole. There's a transformation afoot. But the adventurer in me which beats the same heart as the entrepreneur believe those who can endure this storm will come out stronger and smarter and better and ultimately the customer will benefit. It's long overdue; it needed to happen. It needs to change. There is the digitization of the industry afoot for certain and retail has been slow to catch up. But that time is here and there will be pain. And so be it. That's where the growth comes.

You know to be lazy is to say 'oh well you know Amazon is destroying retail.' There's a lot more going on. A lot of very interesting story lines. And lots of opportunity....

Automotive (Short the B2B Business Model)

More Signs of Upcoming Auto-Related Distress

Assuming Uber Technologies Inc. can survive its latest self-imposed issues, e.g., an unreported data breach, increased regulatory scrutiny, skittish investors in Softbank and Benchmark Capital, etc.,, it appears to be positioning itself and the automobile industry towards a brand new business model. This week Uber announced its (non-binding) agreement to purchase 24k sport utility vehicles from Volvo Cars to seed a fleet of autonomous cars. Deployment date: 2019. Yes, 2019. Anyway, in addition to the obvious and previously discussed implications for labor, this move might have bigger ramifications: a forced pivot of the automotive business model in the direction of the airline model.

What do we mean by that? Assuming a great many things (including Uber's ability to successfully deploy its sensors and software with Volvo's hardware, regulatory hurdles, etc.), this could be another blow to the model of individual car ownership, the B2C formula deployed by the OEMs for years. Hyperbole? Maybe, but if people stop buying cars (and borrow money to do so), auto companies will see significant revenue effects. And they'd have to sell more to fleet operators, i.e., Uber, Lyft, etc., much like Boeing ($BA) and Airbus ($AIR) sell to Delta ($DAL), United Airlines ($UA), etc. This could mean fewer cars on the road, all told. Which, as we've previously discussed here and here, could lead to increased pain in the auto supply chain. 

Elsewhere in auto, the Faraday Future dumpster fire is turning into a full-fledged conflagration and looks like a ripe candidate to be voluntaried into bankruptcy.

And, finally, we noted back in February that 3D-printing could have a big impact on a number of industries. Now, apparently, 3D printing is projected to have a spike in activity in 2018. Businesses sourcing it most? Manufacturing, telecom, defense, and, of course, auto. To point, Divergent 3D just raised $65mm Series B financing round to build its car frame business. Curious.

Is Digital Media in Trouble?

Don't Sleep on Digital Media "Distress"

Last week we announced that we'll be rolling out our Founding Member subscription program in early '18. The response was overwhelmingly positive with many of you reaching out and essentially saying "what took you so long." That warmed our heart: thank you! We look forward to educating and entertaining you well into the future. The timing fortuitously dovetails into a general narrative about the state of digital media today. 

For instance, is it fair to characterize Mashable as a distressed asset sale? Well, the company - once valued at $250mm - is reportedly being sold to Ziff Davis, the digital media arm of J2 Global Inc., for just $50mm. So, what happened? New capital for media companies has dried up (unless, apparently, you're Axios) amidst weakness in the ad-based business model. With Google ($GOOGL) and Facebook ($FB) dominating ads to the point where even Twitter ($TWTR) and Snapchat ($SNAP) are having trouble competing, digital media brands are feeling the heat. Bloomberg highlights that at least a half dozen online media companies - from Defy Media (Screen Junkies, Made Man, Smosh) to Uproxx Media (BroBible) - are also considering sales to bigger platforms. Indeed, in an apparent attempt to de-risk, Univision is ALREADY reportedly trying to offload a stake in the Gawker sites it recently bought out of bankruptcy.

Which is not to say that bigger platforms are killing it too: the Wall Street Journal reported earlier this week that both Buzzfeed and Vice will miss internal revenue targets this year. Oath, which is Yahoo and AOLbinned 560 people this week. Of course, those in the distressed space know that one's pain is another's gain. To point, Bloomberg quotes Bryan Goldberg, founder of Bustle, saying "Small and more challenged digital media companies have been hit hard. This is a time for companies with cash flow and capital to start acquiring the more challenged digital assets." That sounds like the mindset of a distressed investor: the buyside and sellside TMT (telecom/media/technology) bankers must be licking their chops. Back to restructuring, these sorts of mandates may be decent consolation prizes for those professionals not lucky enough to be involved with the imminent bankruptcies of (MUCH larger and obviously different) media companies like Cumulus Media ($CMLS) and iHeartMedia Inc. ($IHRT), both of which are coming close to bankruptcy (footnote: click the iHeartMedia link and tell us that that headline isn't dangerous in the age of 280-characters!). For instance, Mode Media is an example of a digital media property that failed last year despite at one time having a "unicorn" valuation (based on $250mm in funding), a near IPO, and tens of thousands of users. It sold for "an undisclosed sum" (read: for parts) in an assignment for the benefit of creditors. Scout Media Inc. filed for bankruptcy in December of last year and sold in bankruptcy to an affiliate of CBS Corporation for approximately $9.5mm. Not big deals, obviously, but there are assets to be gained there. And fees to be made. 

In response, (some) digital media brands are looking more and more to subscribers and less and less to advertisers in an effort to survive. Longreads' "Member Drive," for example, drummed up $140,760 which, crucially, it'll use to pay writers for quality long-form content. Ben Thompson has turned Stratechery into a money-making subscription-only service; he told readers that they're funding his curiosity and their education. Indeed, his piece this past week on Stitch Fix ($SFIX) may have, in fact, impacted sentiment on the company's S-1 and, in turn, the company's IPO price. These are only two of many examples but, suffice it to say, the "Subscription Economy" is on the rise

Which is all to say that our path is clear. And we look forward to having you along for the ride. Please tell your friends and colleagues to subscribe TODAY: existing subscribers will get a preferential rate.

The US Postal Service Could Use Bankruptcy

The Mail-Carrier is a Financial Hot Mess

We here at PETITION use an e-newsletter as our primary source of direct communication with our readers. Non-subscribers can see some, but not all, of the same content on our website on a delayed basis. And of course we tweet on occasion too (follow us here). Once upon a time, however, this kind of messaging depended upon physical marketing mail. 

Not so much anymore. The U.S. Postal Service recently reportedly a deluge of negative numbers. In the nine months ended 6/30, first-class mail volume fell 4.1% YOY and marking mail volume declined 1.8%. Per the Wall Street Journal"[T]he Postal Service's financial situation has continued to deteriorate. It has been hurt by the decline in first-class mail, its largest and most profitable business, as more communications shift online."  No. Sh*t. Sherlock. 

The situation is bad: the USPS has severely strained liquidity. The USPS reported a net loss of $2.1b for the fiscal third quarter, a nearly 25% loss YOY. It hasn't made payments to its retiree fund for five years (which basically means that retirees are financing operations) - skipping a $6.9b payment at the end of September. Retirees are owed $40b in total. Now the USPS seeks to increase the price of stamps and various shipping rates. But the Postal Regulatory Commission needs to approve such measures; it currently has a vacant Board of Governors that President Trumphasn't bothered to fill. Hard to think about the USPS during the middle of your latest golf round, we guess. #MAGA! 

Naturally, human capital costs are a big part of the problem. Decrease the high cost of employment - whether due to pensions, workers comp, wages, etc. - and this business may be more sustainable. This seems to be a pervasive theme for human capital businesses. This is why Uber, for instance, is so aggressively pursuing autonomous vehicles; it suffers from the same issue. 

And so what is the USPS looking into now to help promote economic efficiencies and curtail costs? Self-driving mail trucks, of course! A USPS-issued report notes that a semiautonomous prototype is in development now with a December delivery date (PETITION query: where the hell did the money come from?). As Wired reports, the idea is to have more efficient driving and fewer accidents, all the while allowing postal workers to perform other tasks in-truck rather than focusing on the driving 100% of the time. That way, no jobs are lost! Riiiiiiiiiiight. From Wired"The report's authors insist they're not looking to dump human workers, and that AVs can help by trimming other costs. The agency paid about $67 million in repair and tort costs associated with vehicle crashes last year. It also shelled out $570 million for diesel fuel. If the robots perform as promised, making driving much safer and more efficient, those costs could plummet. If the USPS sticks with this plan, the jobs of the nation's 310,000 mail carriers could change, for better or worse. Once the vehicles do all the driving, the humans will be left with the sorting and the intricacies of the delivery process. Unless, of course, a robot can figure out how to do those too. And whatever the report says about protecting jobs, it's clear that the best way to cut down on employee health care costs is to cut down on employees."  Our sentiments exactly. 

Someone needs to reorganize this dumpster fire. And fast. But can the USPS even file for bankruptcy? We'll leave others to the analysis: hereWeil Gotshal & Manges LLP's Charles Persons (written four years ago and we're STILL talking about this). If only we had a President who appreciated the benefits of bankruptcy AND had a same-party-Congress to do his bidding. Hmmm.

Amazon's Disruptive Force...

...Is Industry & Asset-Class Agnostic

Scott Galloway likes to say that Amazon simply needs to make a simple product announcement and the market capitalization of an entire sector - of dozens of companies - can take a collective multi-billion dollar hit. On a seemingly weekly basis, his point plays out. Upon the announcement of the Whole Foods transaction, all of the major grocers got trounced. Upon news of Amazon building out its delivery infrastructure, United Parcel Service Inc. ($UPS) and FedEx Corporation ($FDX) got hammered. Upon news that Amazon was getting into meal kits, Blue Apron's ($APRN) stock plummeted. This week it was the pharma companies that got battered on the news that Amazon has been approved for wholesale pharmacy licenses in at least 12 states. It was a bloodbath. CVS Health ($CVS) ⬇️ . Walgreens Boots Alliance ($NAS) ⬇️ . Cardinal Health ($CAH) ⬇️ . Amerisource Bergen ($ABC) ⬇️ . Boom. (PETITION NOTE: obviously impervious - for now - are the ad duopolists, Alphabet Inc. ($GOOGL) and Facebook Inc. ($FB), both of which, despite news that Amazon did $1.12b in ad revenue this quarter, had massive bumps on Friday).* Luckily there isn't an ETF tracking doorman and home security services because if there were, that, too, would be down this week

What Galloway has never noted - to our knowledge, anyway - is the effect that Amazon's announcements have on the leveraged loan and bond markets. Remember that Sycamore Partners' purchase of Staples from earlier this year? You know...that measly $6.9b leveraged buyout? Yeah, well, that buyout was financed on the back of $1b of 8.5% unsecured notes (issued at par) and a $2.9b term loan.Ah...leverage. Anyway, investors who expected that the value of that paper would remain at par for longer than, say, 2 months, received an unpleasant surprise this week when Amazon announced its "Business Prime Shipping" segment. According to LCD News, the term loan and the notes traded down "sharply" on the news - each dropping several points. Looks like the "Amazon Effect" is biting investors in a variety of asset classes.

One last point: this is awesome. Maybe the future of malls really is inversely correlated to the future of (livable) warehouses. 

*Nevermind that Amazon's operating income declined 40% due to a 35% rise in operating expenses. Why, you ask, are operating expenses up? How else could Amazon be poised to have half of e-commerce sales this year?
 

Recent Feedback - The (Hard) Business of Eating

"Excellent narrative on the restaurant industry in Sunday’s Petition. Btw, I really love the snarky tone of the writing – it’s awesome!" - Managing Director, Financial Advisor. 

PETITION Response: Thank you! We love receiving feedback like this; we noted that QSRs were generally doing fine while fast casual was looking a bit shaky and casual dining was looking like total dogsh*t. Insert Restaurant Brands International Inc. ($QSR), owner of Burger King (comps up 3.6%), Tim Hortons (up 0.3%), and Popeyes (down 1.8%). It reported an earnings beat on higher revenues (and then stock traded down). Meanwhile, Chipotle Inc.($CMG) - bloodbath. No queso for you. Meanwhile, if you feel like trusting Uber with even MORE of your data, maybe THIS new credit card (which promotes 4% off UberEATS) is for you. With news that Aldi's move into the US is compressing grocery prices even further, the casual dining space looks primed for a lot more hurt. 

10/31/17 Updated: Not to belabor the point, but this story by The New York Times helps drive home the issue currently in the restaurant space. There are currently 620,000 eating establishments in the United States. 620,000. That is bananas. 

Too many restaurants? Too many brands? You think? It's a shame that so many folks are sinking their livelihoods into these businesses. We expect the chart to the right to show continued downward trends given recent reports of the likes of McDonalds ($MCD) and Shake Shack ($SHAK) automating.

Uber's Carnage: the Rise of Distressed Taxis

New York City Taxi Medallions Selling at Significant Discounts

Uber's Carnage (Distressed Taxis). As taxi medallion owners continue to struggle, Evgeny Friedman's bankrupt taxi companies are establishing "market value" for the New York City taxi medallion - and it's at the low end of a recently established spectrum. The New York Times writes, "In August alone, 12 of the 21 medallion sales were part of foreclosures; the prices of all the sales ranged from $150,000 to $450,000 per medallion." Friedman's medallions sold last week to a hedge fund for $186k/each for a block of 46. As context, medallions were once worth as much as $1.3mm. Considering that there are approximately 13.8k taxis in New York City today, one observer noted that it would take Uber (or Lyft), approximately $2.6b to simply buy out the entirety of the City's fleet at that valuation - a cost of a small percentage of Uber's supposedly sizable market cap. So there you have it: "disruption," quantified.