PG&E has filed for bankruptcy amidst an outcry from key investors. Roughly one month ago, the investor-owned utility announced plans to file for Chapter 11, prompting investors to offer emergency funds in an effort to keep the company afloat—one investor group offered $4 billion to help avoid bankruptcy. Despite these pleas from shareholders, PG&E has nonetheless launched the bankruptcy proceedings—recently, it signed a commitment letter with several large banks, thereby obtaining $5.5 billion in DIP financing. Using this combination of revolving credit and term loans, PG&E will be able to continue its operations while it restructures.

At the same time, the PG&E bankruptcy has triggered fear among regional power producers. Energy companies (such as NextEra Energy, Inc.) generate power and sell it to PG&E. In an effort to reduce its financial obligations during the bankruptcy proceedings, PG&E may seek to void or invalidate its power purchase agreements. As such, NextEra and its subsidiaries have filed an action before the Federal Energy Regulatory Commission, seeking an injunction which would prevent PG&E from abrogating or amending the terms of its power purchase agreements.

Further still, while the bankruptcy and attendant legal disputes continue, ordinary consumers are worried that PG&E will raise rates as it tries to cover the cost of its contingent liabilities. Altogether, the utility company is embroiled in a legal mess, entangled in a web of various competing interests and financial obligations. The question presents itself: how did PG&E end up drowning in $30 billion of potential liability, swallowed in a morass of legal proceedings, and demonized by consumers who fear a rate increase? The answer lies in the doctrine of inverse condemnation.

The doctrine is typically invoked when the government takes or damages private property without paying the ‘just compensation’ required by eminent domain law. Essentially, where the government appropriates or damages private property for public use, the owner is entitled to just compensation. Where the government initiates a ‘taking’ of private property without compensating the owner, the doctrine of inverse condemnation provides an avenue for the property-owner to recover damages. Importantly, the doctrine can be invoked when the government has expropriated property, or when the government has damaged property so irreparably that it is no longer usable by the owner.

For example, in the midst of Hurricane Harvey, the Army Corps of Engineers released water from swollen reservoirs, causing nearby homes to flood. This was a necessary measure, helping to redirect the torrent and thereby averting far greater property damage in downstream communities. In short, they damaged private property, in order to serve the broader public good. Inverse condemnation provided a means for the flooded homeowners to seek redress; the Army Corps was forced to compensate the homeowners for the damage to their houses. How does inverse condemnation relate to PG&E’s bankruptcy?

Traditionally, inverse condemnation has been applied to government “takings.” It allowed private property-holders to extract compensation from public agencies. However, CA courts have ruled that investor-owned, publicly traded utilities are subject to the inverse condemnation doctrine as well. Thus, where investor-owned utilities (such as PG&E) take or damage private property, they can be forced to ‘justly compensate’ the property-holders. Importantly, damages arising from wildfires technically constitutes a ‘taking’—that is, if a utility is found to have proximately caused a wildfire that, in turn, causes damage to private property, then the utility can be held liable under the inverse condemnation doctrine. And, perhaps most importantly, liability does not require a showing of negligence—so long as the utility caused the damage or taking, it is liable.

This brings us to PG&E’s current troubles. In the past few years, California has been ravaged by wildfires, shattering the lives of thousands across the state as entire towns have been engulfed in flames. It is believed that PG&E’s operations caused many of these tragic fires. Altogether, the utility is facing up to $30 billion in liability. This contingent liability is what prompted PG&E to file for bankruptcy.

As the company spirals into legal and financial turmoil, the PG&E case raises important questions about the doctrine of inverse condemnation. Why should inverse condemnation apply to non-governmental agencies? Why should a doctrine intended for government takings be used to hold investor-owned, publicly traded utilities liable? And wouldn’t allowing PG&E to pass the cost of its liability on to ratepayers defeat the purpose of the doctrine? Supposedly, by imposing strict liability on utilities for property damage, we encourage these utilities to take more-than-reasonable, higher-than-ordinary care. But if utilities can simply shift liability costs along to consumers, then companies like PG&E have little incentive to invest in taking such extraordinary care. Altogether, the complex PG&E crisis may prompt state lawmakers to reconsider the value of an inverse condemnation doctrine with respect to publicly traded utilities.

PGE Bankruptcy Presents Questions on Inverse Condemnation

Last week, JPMorgan Chase became the first major United States bank to introduce its own digital token. The bank had already released a blockchain platform called Quorum that other institutions use to keep track of financial data. JPM Coin will operate differently than other popular cryptocurrencies like bitcoin and ethereum because it will be run by JPMorgan and backed by dollars in JPMorgan accounts. This contrasts with the wildly unregulated cryptocurrencies whose volatile values spike and fall depending on fluctuations in the market.

The reported advantage of the digital token is its speed. JPMorgan services major corporations and other banks who need to move large sums of money quickly and securely. Traditionally this would require a wire transfer that could take hours or even days, with transaction costs resulting from international transfers with changes in currency rates. In contrast, the digital token will be able to move instantly on the blockchain platform Quorum, and once transfers are completed the tokens can be converted back to dollars. JPMorgan moves more than $6 trillion per day, so any technology that can make that a more seamless process is obviously welcomed by the bank and its clients.

Unlike other cryptocurrencies, JPMorgan’s digital coins are not for public investment or individual use – they have been created strictly for institutional use. This has led some to question whether JPM Coin is a cryptocurrency at all.  Cryptocurrencies generally operate on public networks whereas JPM Coin will simply mimic real currency and operate on an internal payment system. In many ways, the process is no different than the typical online banking that JPMorgan already does – the only difference appears to be the speed at which large sums can be transferred as outlined above. Some critics say calling JPM Coin a “cryptocurrency” is simply a marketing ploy for the bank’s new platform that will attract business. It will be interesting to see if other traditional banks begin to test the waters with blockchain technology as well.

JPMorgan Chase Introduces Digital Coin

While many stores struggle to keep up sales against online retailers, especially Amazon, Walmart posted impressive sales numbers during the 2018 holiday season. Walmart saw an increase in both in-store sales as well as online sales, seeing a 4.2% rise in in-store sales compared to last holiday season. Even more impressive, digital sales increased by 43%, likely due to online pickup and delivery options as well as Walmart’s new grocery pickup feature. In 2019, Walmart’s total revenue rose by 2.8%. Walmart will continue to expand its pickup, delivery, and grocery options to stores across the United States throughout 2020. This will likely help the company continue its impressive growth.

It is worth noting that this was the first holiday season in recent years without Toys ‘R’ Us.  Walmart made a strategic decision to stock up on toys for holiday shoppers, which helped the company grow holiday sales.

Rather than focusing on opening new stores, Walmart will focus on expanding its online platform.  Walmart plans to open only ten new stores in 2019. The company is instead focused on expanding its delivery and pickup options at its current locations. While the company predicts growth in its online profile, Walmart says that online sales growth will likely slow to 35%.

To further boost its online profile, Walmart has made aggressive acquisitions of companies like Bonobos, Bare Necessities, and Modcloth. These acquisitions—specifically Bonobos and Modcloth—are are an effort to gain affluent and millennial customers that favor online shopping.  Walmart also acquired Jet.com, an online retailer, back in 2016 in an apparent effort to compete more directly with Amazon.

Though Walmart may claim a victorious holiday season, Amazon also claimed record-breaking numbers. The online retailer said it sold more items than ever before on Amazon.com over the holidays, and one billion items were shipped with Amazon Prime during the holiday season.

Walmart Crushed the Holidays

In an early celebration of President’s Day, President Trump gifted himself $5.7 billion to build the border wall. Trump declared a national emergency on Friday to divert tax dollars to the wall, seemingly determined to test the constitutional boundaries of the executive branch.

Sixteen states, led by California, have not been afraid to challenge Trump’s declaration. The coalition filed suit against President Trump and his administration in the Northern District of California on Monday. The states justify the suit as a way to protect their residents, as well as economic and environmental interests. Additionally, three Texas landowners filed suit against Trump to protect their property rights.

So, what does this all mean? The legal challenges are likely to slow down Trump’s efforts, but will they be able to stop him? The courts have previously addressed the limits of executive power. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court put forth the analytical framework necessary to an evaluation of executive power. Notably, executive power is at its weakest when it opposes an explicit act of Congress — such as an allocation of taxpayer dollars.

President Trump seems to be standing on shaky ground. Congress has the exclusive power to tax and spend, and it explicitly chose not to fund the border wall. Trump’s legal team, however, could point to the fact that Congress routinely allows for discretionary spending, usually to bridge the budgetary gaps of federal agencies.

The statutory route does not look much better for Trump. Neither the National Emergencies Act nor the Disaster Relief and Emergency Assistance Act is likely to justify the use of emergency power to build the wall. Overall, the courts have been cautious about granting too much power to the executive branch. Thus, it is unlikely that President Trump will prevail.

A President’s Day Gift

Since the British public voted to leave the European Union (EU), the United Kingdom (UK) has been in a prolonged state of political and economic uncertainty. As legislators continue to hold each other hostage as to what terms the UK will leave the EU, banks, manufacturers, and other firms are fleeing to jurisdictions with more stable legal relationships to neighboring markets. Just this past month, British vacuum manufacturer Dyson moved its headquarters to Singapore at the behest of Pro-Brexit founder James Dyson, and one of Britain’s richest men, Brexiteer Sir Jim Ratcliffe, moved to Monaco to avoid taxes.

Perhaps most devastatingly, Japanese carmaker Honda has decided to close its factory in Swindon by 2021. The move ensures a loss of approximately 3,500 jobs and a significant, potentially devastating blow to the economy of the region and the UK overall. While Honda denies that Brexit has nothing to do with the decision, many suspect that the prospect of higher tariffs and greater supply chain costs could be the reason why it has become no longer viable for Honda to maintain a manufacturing presence in the UK.

Since the UK joined the European Economic Community (EEC), the precursor to the EU, in 1973, many companies have used the UK as a launching pad for the larger European market. The EU guarantees the free movement of goods and materials across the region, as well as the free movement of labor. While the creation of the common market was a boon for firms, many voters heading into the Brexit vote felt that the common market was an excuse for governments to lower labor conditions and promote austerity in the name of competitiveness. Others felt that the EU common market with its free movement of people had invited an unacceptable level of immigration and settlement within the UK.

As many other countries, including the USA, consider withdrawing from trade agreements and common markets, these considerations must be weighed against the threat of capital flight, ala Honda in the UK. As recently described in Quinn Slobodian’s Globalists, a global history of the rise of our current worldwide trade regime, the threat of capital flight has long been used as a cudgel for loosening democratic control over how a firm operates in a particular country. Simply, a firm may threaten to move to another country in order to extract concessions from its host. In this case, it is unlikely Honda is seeking to extract concessions from the UK and is leaving simply due to regulatory uncertainty. Nevertheless, Honda’s decision to leave still serves as a warning to policymakers and electorates that they leave common markets at their own peril.

Honda Harbinger- Automaker Leaves UK in Wake of Brexit

T-Mobile is making hail-Mary efforts to get public and government approval of the company’s merger with Sprint. T-Mobile executives say the $26.8 billion deal will lead to $6 billion in cost reductions and an overall better product for customers. Two weeks ago, Chief Executive John Legere told the U.S. Federal Communications Commission that T-Mobile will ensure “the same or better rate plans” for services up to three years post-merger.

Legere’s pledge responds to fears that the merger will lead to higher prices for low-income customers who currently benefit from the prepaid plans offered by the two carriers. Sprint and T-Mobile have long battled over the lower income customer base, and combining the two prepaid services will likely result in higher prepaid fees.

Last April, CNNMoney discussed the probable implications of the T-Mobile-Sprint deal for wireless prices. Following the merger, there will only be three major wireless service providers in the United States — Verizon, AT&T, and T-Mobile. As former FCC commissioner Michael Copps said, less competition almost always means less focus on customer needs. Additionally, T-Mobile has boasted about the company’s ability to deliver 5G to customers post-merger. However, the company’s delivery of 5G may entail updating current operations and playing catch-up with AT&T and Verizon.

One thing is for certain: Switching from 4G to 5G will indeed improve efficiency and welcome T-Mobile — and its customer base — to the era of rapid fast speed and massive capacity on a single device. Many agree that more options, beyond AT&T and Verizon, would be refreshing. However, we are in the era of an unpredictable President Trump, who pivoted from his business-friendly stance and surprised many by suing to block the $85 billion deal between AT&T and Time Warner last year. A national security panel headed by the Treasury Department has already signed-off on T-Mobile’s ambitions to acquire Sprint, but the Justice Department and FCC remain undecided.

For a deal that will likely take three years to merge customers, a three year promise to keep prices the same or better does not seem to be a lofty pledge. But, it may be a convenient one. Here’s hoping the Justice Department doesn’t do the math.

T-Mobile and Sprint- Everybody Likes a Last-Minute Play

Amazon has cancelled all its prospective plans to establish a second headquarters in New York City. The internet behemoth cited push-back from local leaders upset by the nearly $3 billion dollars in incentives offered by state politicians as the rationale behind the cancellation of its plans.

Amazon’s sudden withdrawal from its plans to establish 25,000 new jobs in New York comes in response to a year-long highly publicized search for a secondary headquarters for the online retailer. The company has indicated that it will not continue to pursue a new location for secondary headquarters. Instead it will focus its attention on fostering growth in its existing and planned offices.

Major proponents of establishing the deal included both New York Governor Andrew Cuomo and New York City Mayor Bill de Blasio. Both men insisted that the $2.8 billion dollars in incentives offered to lure Amazon into establishing its secondary headquarters in New York would easily be repaid by tax revenues brought by the deal.

In a statement Thursday Cuomo blamed the failure of the deal on a “small group” of “politicians” who were focused on “their own narrow political interests” and held them “accountable” for losing out on a major “economic opportunity.” However, Mayor de Blasio was quicker to blame Amazon for its failure to “work with the community” to address concerns behind the project.

In an early press release Thursday morning, Mayor de Blasio stated that Amazon “had thrown away” an “opportunity to be a good neighbor and do business in the greatest city in the world.” In the same statement, de Blasio indicated that if Amazon couldn’t recognize the worth of being headquartered in New York, “it’s competitors” would.

Other New York representatives greeted Amazon’s pull-out more enthusiastically. During the formulation of the deal many local politicians expressed frustration at the seemingly closed nature of the negotiations with Amazon. New York City Council Speaker Corey Johnson shared in this sentiment. He stated that he hopes Amazon’s withdrawal from its plans will lead to other companies, that are contemplating a move to New York, being more open in their planning and engaging further with the community in the future.

The need for greater transparency and oversight in dealing with Amazon was echoed by Representative Alexandria Ocasio-Cortez, whose district’s include Long Island City, months before she had officially taken her seat in Congress.

While Amazon suggested that “nearly 70% of New Yorkers” supported its “plans and investments.” Other individuals like Nathan Lents, a Queens resident and professor at John jay College, felt the manner in which Amazon left the deal was emblematic of the one-sided natures of its investment.

In a tweet Lents said, “Don’t forget how this actually went down. The great [Sen.] Gianaris was simply insisting for transparency and oversight and that made Amazon balk. This shows their plan all along was to bully and weasel out of their end of an already one-sided deal.”

Amazon Cancels Plans for a Second Headquarters in New York City

Music streaming behemoth Spotify has acquired two leading podcast firms, Gimlet and Anchor, in an attempt to branch out for new growth opportunities. Though the Swedish company had over 96 million active subscribers at the close of 2018, operating a music streaming platform has long been a low-margin business with heavy market competition by mainstays such as Apple Music, Tidal, and Amazon Music. Similar to the recent revival of the record player by modern audiophiles, Spotify is betting on the reinvention of radio as a means to further personalize the ad experience. The exact numbers remain undisclosed, but sources estimate that the Gimlet deal was worth in excess of $230 million.

Spotify has dominated the music streaming platform ever since its inception, currently holding roughly 36% market share compared to the 19% of its leading competitor, Apple Music. While the numbers have remained relatively stagnant, head of Spotify Studios Courtney Holt found that there seemed to be an untapped synergy between podcasts and music—those who listened to podcasts consumed more of Spotify, including music. Therefore, increasing the company’s podcast catalog will allow for users to enjoy a more tailored and streamlined experience, matching their music tastes to podcasts that resonate with like-minded communities.

As young professionals flock into cities and their congested highways, this younger generation will undoubtedly demand more from their daily commutes than music alone. Podcasts offer a unique product to fill such a gap: long-form passive engagement for listening while tending to other tasks—driving, exercising, cooking—when there’s no time to waste. Listening and learning through podcasts give listeners and advertisers an opportunity to kill two birds with one stone.

With this in mind, these acquisitions are just the beginning, according to chief executive Daniel Ek. While Spotify posted its first ever quarterly profit, the company expects to slip back into the red as it doubles down on ventures outside of its core business. Further, the company has announced that it anticipates spending an additional $400-$500 million throughout the year to expand its podcast catalog. Investors seem unfazed, however. Even though the company is poised to be in the red for the foreseeable future, subscriber numbers are expected to continue rising. The company saw a jump in subscriber numbers at an annualized rate of 36%, and in an era where garnering the attention of every eye and every ear is becoming increasingly difficult, Spotify seems to be laying the groundwork for doing just that.

Even with its foray into podcasts, Spotify isn’t willing to rest on its laurels. The company has recently announced that it will begin offering news and political coverage to battle similar offerings from competitor Apple Music. Called Spotlight, the new initiative has signed on eight companies, including BuzzFeed and Refinery29, to create unique programming that caters to young listeners. Whether the initiative succeeds is yet to be seen, but one thing is certain: the spotlight’s on Spotify—let’s hope they deliver.

Spotify Acquires Gimlet and Anchor, Signaling Broader Ambitions

Johnson and Johnson and individual plaintiffs were described as “close” to reaching a deal to settle claims regarding defective implants, Bloomberg reported this week. The lawsuits relate to J&J’s Pinnacle metal-on-metal hip implants, which have faced accusations of causing several side effects, including bone erosion and tissue death. J&J has been subject to lawsuits around the country, including roughly 10,000 individual claims in Texas, of which 3,300 were announced as “close” this week to reaching a settlement. The announcement comes after J&J settled for $120 million on deceptive marketing claims.

J&J has been under significant scrutiny in the past few years, being described as a “litigation magnet.” For example, in 2013, J&J settled claims for its ASR line of hip replacements for $2.5 billion—a settlement that does not cover Pinnacle metal-on-metal hip replacements. It recently saw all of its patents invalidated in a patent infringement suit regarding Zytiga, a lucrative chemotherapy drug; the company is planning to appeal the decision. Most dramatically, last summer J&J was ordered to pay $4.7 billion in a talcum powder case claiming that it hid asbestos in its talc products, a claim J&J vehemently denies. A Reuters report claiming J&J had been aware of the asbestos for decades caused J&J’s stock to fall more than 10% in a single day.

Pinnacle hip implants are still being sold with different material combinations.

Johnson and Johnson Seeks Deal on Hip Implant Lawsuits

In the last few years, the tech world has been shaken by privacy breaches including Russia’s usage of Facebook to sway the 2016 presidential election, Wells Fargo’s major breach in customer accounts, and a recent case in which customer’s discovered a bug in Apple’s FaceTime app which allowed users to listen and view live video through recipients’ camera and microphone without them accepting the call. Further, in the last few months of 2018, Google was caught in the storm of criticism. As Google CEO was “grilled” before Congress about data privacy, he disclosed a security bug was found in their social network, Google Plus, and they faced intercompany turmoil over sexual harassment scandals.

Despite the plethora of negative news coverage, incessant scandals, and twitter outrage, many of these same companies are not taking a hit in their earnings. For example, in mid-January, Facebook beat their earnings and revenue projections, as their earnings per share went up 65% from the same period a year ago. Google’s parent company, Alphabet, released a report on February 4^th, which stated that despite the growing scrutiny over data privacy concerns, their revenue over the final three months of 2018 was up 22% compared with the same period last year. The growth stemmed from their advertising business which has continued to expand as a major revenue stream for Google.

The question which arises from these statistics is how consumers can expect a company like Facebook to curb data privacy breaches, when their revenue, shares, and subscribers seem to simultaneously rise. The first sentence in a recent New York Times article put it best, stating, “Facebook’s worst year ever was its best year ever when it came to its business.” One reason for this dichotomy may stem from a shift in the way major companies like Facebook and Google are both using and marketing their platforms. Facebook has shifted away from their main social networking purpose and has successfully placed their focus on creating “one overarching network” including Facebook Messenger, and acquired apps, such as WhatsApp and Instagram.

Google, on the other hand, has found a major increase in ad revenue, while they also have invested almost $1 billion more into its ad business compared to what was seen last year. As these major tech companies continue to prosper while enduring public relations disasters, it remains to be seen if our society’s desire for social networking, connection, and access will continue to outpace our desire for privacy and security. As the scandals continue to pour in at a high rate, we may not need to wait very long to find out.

Tech Companies Profiting Amid PR Scandals