The British chancellor has proposed a ring fence separating high-street retails banking from investment banking branches within institutions will need to be ‘electrified’ with severe sanctions. Osborne will publish the Banking Reform Bill giving regulators the power to split banks up if they do not comply fully with new rules designed to protect British taxpayers.
“My message to the banks is clear: if a bank flouts the rules, the regulator and the Treasury will have the power to break it up altogether – full separation, not just ring fence,” Osborne said in a speech in Bournemouth.
The British Bankers’ Association (BBA) said the new bill would bring “uncertainty for investors” and make it more difficult for banks to raise capital, leaving them with less available money to lend to the private sector. Anthony Browne, chief executive of the BBA has warned that moving away from the universal model of banking will compromise banks’ abilities to provide all the services British businesses will require.
For the time being regulators will only have the power to split up individual non-compliant banks, rather than a complete industry-wide separation. However, there have already been calls to give regulators sweeping powers over the ring fence.
The new bill comes in the wake of the Independent Commission on banking, whose chairman Sir John Vickers has already announced that he “would not resist” a complete break up of banks if the proposed ring fence fails to achieve its goals.
“When the RBS failed, my predecessor Alastair Darling felt he had no option but to bail the entire thing out. Not just RBS on the high street, but the trading positions in Asia, the mortgage books in sub-prime America, the property punts in Dubai,” said Osborne.
“My message to the banks is clear: if a bank flouts the rules, the regulator and the Treasury will have the power to break it up altogether- full separation, not just a ring fence.”
China has been planning a proposal to convert over $1tn of Chinese-owned land in the US into ‘development zones’ that could see the establishment of Chinese business and citizens in North America. The proposal would mean China would own American businesses, infrastructure and valuable land. In exchange for the investment the US government would guarantee China against any loss.
WND has reported that under the plan the Obama administration would back a financial guarantee as an incentive for China to “convert US debt into Chinese direct equity investment.” This entails China being granted ownership over a number of successful US corporations, profitable infrastructure projects and real estate. However, the main motivation behind the proposal is to ensure China takes up lending to the US on a nearly zero-interest basis, once more.
Yu Qiao, a professor of economics in the School of Public Policy and Management at Tsighua University in Beijing, told WND that a plan for the US to back foreign investment had been in the works since as early as 2009.
China currently owns over $1.17trn in US Treasury securities and is said to be concerned about spiralling US debt levels. Since the onset of the financial crisis China had already reduced its holding of short-term US Treasury bills from $573.7bn in mid-2008 to $5.96bn by March 2011.
“The basic idea is to turn Asian savings, China’s in particular, into real business interests rather than let them be used to support US over-consumption,” Yu Qiao wrote in WND. “While fixed-income securities are vulnerable to any fall in the value of the dollar, equity claims on sound corporations and infrastructure projects are at less risk from a currency default.
“But Asians do not want to bear the risk of this investment because of market turbulence and lack of knowledge of cultural, legal and regulatory issues in US businesses. However if a guarantee scheme were created, Asian savers could be willing to invest directly in capital-hungry US industries.”
In the final quarter of 2012, the most important for retailers, the online shopping giant’s revenue grew by 22 percent to $21.3bn, about $1bn short of Wall Street forecasts. Reported holiday sales in the US were disappointing across the board, despite growth of 14 percent, according to ComScore, a research group.
Amazon profits have diminished in recent years as the company has dedicated time and resources in longer-term growth, including the building of massive fulfilment centres, developing the Kindle Fire tablet business and developing its cloud services. Despite being lower than forecasts, analysts say that the end-of-year figures are promising, and that Amazon may be able to produce good returns after their investment.
“We are now seeing the transition we’ve been expecting,” said Jeff Bezos, Amazon’s CEO. “After five years ebooks is a multi-billion dollar category for us and growing fast- up approximately 70 percent last year. In contrast our physical book sales experienced the lowest December growth rate, up just five percent.”
The internet retailer’s operating income grew 56 percent to $405m in the fourth quarter, up from $260m in the same period in 2011. However, the profitability of its international business has fallen, with oversees operating margins falling to 0.8 percent.
The share drop came in the wake of Apple’s December results were announced. The company sold 47.8m iPhones in the three months to December, a year-on-year increase of 78 percent; revenues were up 18 percent to $54.4bn. However, the results fell significantly short of analysts’ expectations.
Investors have expressed disappointment, in spite of reported net profits of $13.1bn and earnings per share exceeding Wall Street expectations and yielding $13.81 per share. Observers have suggested that Apple is losing its appeal with young consumers or even its ‘cool’ factor.
“For Apple, of possibly more concern is the general perception that its overall brand is suffering,” says David Glance, director of the Centre for Software Practice at the University of Western Australia. “Samsung in particular has done a brilliant job of portraying Apple phones as the type of phone your parents would own. This has seemingly already turned the teen market against Apple, who no longer see the iPhone as being “cool”
Tim Cook, Apple’s chief executive has said Apple is in a prolific period of innovation. “We are very confident in our product pipeline.
“We obviously could have sold more than this because we couldn’t build enough iPad minis to come into demand balance.”
Analysts had expected revenues of $55bn, but supply constraints affected all of Apple’s flagship products during the festive season. Cook has said he expects revenues for the current quarter to go up 10 percent from this time last year, to between $41bn and $43bn, once again falling short of analysts’ forecasts.
In the wake of the announcement, shares in the computer giant took a 10 percent tumble in after-hours trading, wiping out around $50bn in market value. Shares peaked in September at $702, but reached lows of $461.31 Wednesday night.
In a long awaited speech, UK Prime Minister David Cameron has promised an in-out referendum on the country’s membership in the EU should his Conservative Party be returned to power following the next general election. Cameron said that the UK government will attempt to negotiate a new settlement with other European countries before putting the result to a vote by 2017.
In the written version of the speech, the Prime Minister explicitly expressed his preference to remain in the EU but insisted that the institution should reform to ensure competitiveness and flexibility, as well as secure popular support from the British people.
According to Cameron, the UK’s commitment to the European project had always been “more practical than emotional.”
The speech is widely seen as an attempt by the prime minister to navigate between the interests of his increasingly eurosceptic party on the one hand, and other European governments and business interests on the other. Many Conservative parliamentarians expressed their support for Cameron’s European vision following the speech. Opposition figures and other governments were less impressed however. Chuka Umunna, shadow business secretary warned the Cameron would create “five years of uncertainty” for British companies, while Laurent Fabius, French foreign minister promised to “roll out the red carpet” for businesses should the UK leave the EU.
The Moscow Stock Exchange has announced its IPO, but has so far not released any more concrete details. However, it has been confirmed that the banks handling the IPO will be JPMorgan Chase, Credit Suisse, Sberbank and VTBank.
Analysts have suggested it is too early in the IPO’s pre-marketing phase to pinpoint how much the offering might be worth, a source close to the deal told Fox Business it is expected to clock in somewhere between $4bn and $6bn. This estimate is likely based on the value of the merger of the MICEX and dollar-denominated RTS in 2011, which resulted in the creation of the Moscow Stock Exchange and was worth $4.5bn at the time.
“The exchange’s own listing is a key element of our strategy to promote the development of the local capital markets as well as to broaden the regional and international appeal of Moscow as a financial centre,” said Sergei Shvetsov, chairman of the exchange’s supervisory board. “As a public company, Moscow Exchange will be committed to demonstrating leadership in corporate governance practices and transparency.”
So far, Moscow Stock Exchange’s two biggest shareholders, the Bank of Russia and Sberbank, who hold 24.3 percent and 10.3 percent stakes respectively, have announced they will not be selling any of their shares in the upcoming IPO.
Though China’s GDP growth slowed to its lowest in 13 years, the country finished 2012 in a slightly stronger position reporting 7.9 percent growth in the last quarter, compared to 7.4 in the three months before. The overall growth rates for the year topped 7.8 percent, significantly higher than some estimates of 7.5 percent. The results are still the lowest since 1999.
The growth spurt in the fourth quarter, however, is definitely encouraging. “Overall the economy has been stabilising,” according to a statement released by the national statistics bureau. The growth has been mainly driven by renewed investments in infrastructure by the government, and the loosening of monetary policy, and mid-year interest rates cut. Exports, which had been uncharacteristically low throughout the year, also picked up towards the end of the final quarter. The figures also revealed a slight dip in investments in December, a worrying sign as the Chinese economy relies heavily on this income.
However, the new leaders are determined to invest in developing the domestic sector and boosting internal consumption in order to make the rebound more sustainable. “We should focus on changing the mode of economic development and improving the quality and efficiency of growth,” said the statistics bureau.
In the wake of the release of the figures, Asian stock markets responded positively, as did the Australian dollar.
The World Bank has stated that despite weak growth forecasts countries should not be tempted by the quick fix of artificially stimulating their economies this year, and should instead invest in developing the backbone drivers of growth. New World Bank President Jim Yong Kim said: “The economic recovery remains fragile and uncertain, clouding the prospect for rapid improvement and a return to more robust economic growth.” He was speaking in response to the declining growth rates of large emerging economies like Brazil, India and Russia and the Japanese government announced a Y10.3tn stimulus package to help reawaken its economy.
The World Bank maintains that even as the world emerges from the four years of economic crisis, countries will still struggle to grow at pre-2008 levels. In the biannual Global Economic Prospects report the organisation said that “the majority of developing countries are operating at or close to full capacity.” It forecast that global economic growth would rise modestly from 2.3 percent in 2012 to 2.4 percent this year.
The World Bank has also expressed some concern over the persistent pattern of growth in developing countries being offset by weak demand and growth from high income countries, a trend they say will endure until 2015. According to the report, emerging economies will grow 5.5 percent, while higher income countries will only expand 1.3 percent.
“Developing countries’ growth is generating through their own activities and refutes the view that it is just a reflection of a strong demand in high income countries,” Andrew Burns, lead author of the report said.
The analysis contained in the document is that the countries still face persistent risk of a eurozone collapse, and that the US might not find a solution to its budget issues in the coming months, as well as high fuel and food prices, but that these risks and the slower growth do not warrant more artificial stimulus packages. “Additional demand stimulus could be counterproductive- raising indebtedness and inflation without significant pay-off in terms of additional growth,” read the report.
The EU has released a new draft of regulations that would force countries to take a greater participation alongside the European Stability Mechanism (ESM) rescue fund, or protect the fund against any losses accrued from rescuing banks. The plan was circulated among eurozone finance ministers at the end of last year but has now been made public.
The plan has not been entirely well-received as critics worry that by encouraging a greater share of the financial burden of rescuing a failing bank, the EU will not achieve its goal of “breaking the vicious circle” between failed banks and struggling governments. Already countries like Ireland, Spain and Cyprus have seen their sovereign debt levels skyrocket by the billions of euros required to bail out their banks, and triggering government bailouts, for Dublin and Nicosia, and the brink of collapse, for Madrid.
The new draft goes against the previous plan, agreed to in June of last year, for direct recapitalisation for troubled banks by the ESM, and would shift the responsibility of bailout funds from national coffers to the ESM, which is funded by all 17 eurozone members. Observers had noted that this model would have broken one of the most vicious cycles of the current crisis by protecting governments from being forced to the brink of insolvency by bank rescues.
The new draft proposal, goes against all of those proposals, to force countries who can afford it to invest their own funds into struggling banks in order for them to be viable for ESM support. Even countries facing insolvency will be forced to “indemnify the ESM for any loss”, or offer guarantees that the fund will recover all of its money.
There has been no comment from eurozone officials on the new draft, but it has been confirmed that countries have been given until June to come up with a final decision. There is the possibility that the draft will still be altered before then.
“Discussions are ongoing, and we have a mandate from the European Council to finalise discussions for June,” one senior official involved in the discussions has told the FT.
Since January 23 2003, an exchange control regime authorised by the Venezualan Central Bank (BCV) has been in force in Venezuela, strongly restricting the sale and purchase of foreign currency.
This restricted currency market was initially develop
ed by Exchange Control Convention Number One, and was then reviewed by several other Exchange Control Conventions. Resolutions were issued by the BCV and administrative orders issued by the exchange control authorities (CADIVI).
The main bans and sanctions relating to the exchange control are stipulated in the Law on Exchange Control Violations. The sanctions consist of heavy fines that could amount to double the operation in foreign currency or its equivalent in bolivars. Other monetary sanctions are calculated on tax units: equivalent to 90 Venezuelan Bolivars (VEB) or approximately $20 at the official exchange rate. Some exchange violations are punished with imprisonment, although this sanction has not yet been widely implemented.
Besides the general restriction on the sale and purchase of foreign currency, the main constraints affecting investments in Venezuela are linked to the export of goods and services (foreign currency from exports shall be sold to the BCV at the official exchange rate), and the import and export of foreign currency (foreign currency exceeding $10,000, or its equivalent amount in other currencies, must be declared to the BCV).
Offers in foreign currency made between Venezuelan entities or individuals for the sale of goods and services are prohibited. The law does not define what an ‘offer’ is. In our opinion, offers should be understood as commercial agreements, proposals and invoices in foreign currency. This restriction, in our opinion, is only applicable within Venezuelan territory, and therefore does not encompass offers made to or coming from abroad. Regarding invoices in foreign currency, they are legal when issued to non-domiciled entities and include the equivalent sum in bolivars, at the official exchange rate.
As to currency being used for payment, we believe that despite the exchange control system in Venezuela substantially limiting the access, use and circulation of foreign currency, the bolivar should not be considered a forced tender in Venezuela. Obligations convened in local currency may therefore be paid in its equivalent in foreign currency, at the official exchange rate, and vice versa, except for a few exceptions expressly provided by special laws, such as real estate leasing and consumer protection.
Currency obligations for cash collection and payment are also affected. Cash collection for
services rendered in Venezuela may be in foreign currency if it is in a foreign bank account, but such currency must be sold to the BCV upon entering Venezuelan territory. In principle, foreign currency cannot be deposited in a local bank account.
The only exception so far is provided for foreign currency deriving from the settlement of securities through the System for Transactions with Foreign Currency Securities (SITME). In this case, the foreign currency may be deposited in a local bank account, without sale to the BCV, unless the foreign currency is withdrawn. However, the implementation of this exception is pending complementary regulations.
Currently, there are two official systems for the acquisition of foreign currency. The first is managed by the National Commission for Administration of Foreign Currency (CADIVI), and the second is SITME. Both are controlled by the BCV.
The unofficial market
The unofficial market, also know as the ‘parallel market’, arose as an unregulated alternative to meet foreign currency demands caused by limited access to the official systems described. Although the parallel market is generally considered illegal, there are certain mechanisms through which legality can be sustained, giving access to foreign currency without major risk of an exchange violation.
These alternatives allow currency conversion from bolivars to dollars and other currencies, or from the latter to bolivars. One example is the negotiation of commodities, an option now used by many companies. As a matter of fact, the operations in the parallel market are estimated to be peaking at $20bn to $30bn per year.
The implicit exchange rate in the parallel market follows free market principles, but is also influenced by speculative behaviours. It is significantly higher than the official exchange rate, especially when the government is not circulating currency in the market, for example by reducing the emission of debt bonds.
From a tax perspective, the main consequence of such operations is that foreign exchange losses are not deductible from income tax. However, there are arguments to sustain that such exchange losses may be charged to cost of goods in cases of imports of inventory. The loss for the exchange differential between CADIVI and SITME is widely considered tax deductible.
In order to honour payments in foreign currency, every entity in Venezuela must gain the previous approval of CADIVI and the BCV. This process is carried through financial institutions authorised by the BCV – mainly banks. The current exchange rate for CADIVI operations is VEB 4.30 per $1 – this is a fixed rate. The official exchange rate may be changed by the BCV, particularly when the government determines bolivar devaluation.
Only the following payments are entitled to CADIVI: dividends and capital repatriation, provided the foreign investment was registered before the Superintendence of Foreign Investment (SIEX); importation of certain goods and technology (some imports require a Certificate of No Production in Venezuela); royalties derived from licenses to use trademarks or patents also need to be registered before SIEX; and agreements pertaining to technical assistance or technological service fees also require previous registration before SIEX.
Approvals by CADIVI are very slow: for dividends and cash repatriation it may take several months, even years. Only certain imports – mostly food, medicines and some raw materials – are approved quickly. CADIVI operations represent approximately $40bn per year. Another huge devaluation of the official exchange rate is generally expected to be announced by early 2013.
SITME is a system through which the government negotiates public debt bonds in US dollars traded in bolivars. Any acquisition of securities in foreign currency, or to be settled in foreign currency, must be carried by the BCV through SITME. This process is also carried through institutions authorised by the BCV.
This system resulted from the closing of the swap market, which until 2010 was conducted by brokerages. Hand in hand with this measure, an amendment to the Law on Exchange Violations included the term ‘securities’ in the definition of foreign currency, extending the limitation of acquisition of foreign currency to the swap of securities. Before this, the swap of securities was a common way to acquire foreign currency. As a result, SITME has been used as a second-tier exchange control, after CADIVI.
SITME is only available for the following payments: imports that are not entitled to CADIVI; imports that being entitled to CADIVI are not approved within a 90-day period; and imports of raw material, capital goods and other goods and chattels.
Unlike CADIVI, SITME has a maximum limit of securities that could be acquired. In the case of legal entities, this limit is $350,000 per month, with a maximum daily amount of $50,000, or the equivalent amount in other currencies.
Also unlike CADIVI, the approval of requests before SITME is down to the discretion of the BCV. The applicant has no right to be granted the securities requested, even when in compliance with all requirements of law. The applicant only has the right to apply according to the terms and conditions required by law, and to obtain a response from the institutions authorised.
The SITME rate of exchange is variable, determined by fluctuations in the market. The BCV publishes a daily price band, in bolivars, for the purchase and sale of securities traded through the system. The exchange rate has been stable at approximately VEB 5.30 per US dollar. SITME operations are equivalent to approximately $100m per day.
In 2009, a group of parents filed a class action lawsuit with the potential to bring Big Food down to its knees. The parents had taken issue with an ad campaign that tried to pass off Nutella – the chocolate and nut paste – as a healthy breakfast staple, citing the wholesome ingredients used to make the ‘hazelnut spread’. They argued that while hazelnuts, skimmed milk and healthy cocoa were indeed used in the preparation of Nutella, the spread also contained as much as 21 grams of sugar and 11 grams of fat, 3.5g of which are saturated, in every two-tablespoon serving.
In the advert a mother feeds her children breakfast, suggesting Nutella is best served on ‘multi-grain toast, or even whole-wheat waffles’. Ferrero USA, the makers of Nutella, settled out of court for $3m, and the advert was ordered off the air. Though $3m might not seem a huge blow for Ferrero, a group whose global turnover in 2011 was €7.22bn, the lawsuit set a precedent.
Big Food has been in the sights of class action litigation lawyers for a long time. Americans have been trying, and often failing, to sue unhealthy food producers fairly regularly for the past decade.
Food for thought
At first, lawsuits were brought that tried to place responsibility for health issues at the doorstep of the food producers, but this did not work; judges ruled it the consumer’s responsibility for buying and eating these foods. So the litigators turned their attention to the issue of labelling. If the responsibility for eating unhealthily lies with the consumer, then they must be provided with fair and accurate information about the products they are buying. But for every ‘Nutella suit’ there was at least one unsuccessful one. For instance: in 2009, a California judge dismissed a false advertisement lawsuit against PepsiCo, the makers of Cap’n Crunch Berries, because “a reasonable consumer would not be deceived into believing that the product in question contained a fruit (‘crunchberries’) that does not exist.”
But now a group of accomplished class action litigation lawyers in America have joined forces to file 25 separate lawsuits against a clutch of some of the country’s biggest food manufacturers. And at the centre of these lawsuits is, once again, labelling and advertising. The companies being served this time are Big Food hotshots PepsiCo, ConAgra, Heinz and General Mills, among others. The suits have been been filed quietly over four months, and centre on the notion that food makers are misleading consumers and breaching federal regulations with their labelling.
But the new cases are being pushed aggressively through court in an unprecedented way; in California, the lawyers are asking a federal court to order the suspension of sales of ConAgra’s Pam cooking spray, Swiss Miss chocolate drinks and Hunt’s canned tomatoes for the duration of the trials. “It’s a crime – and that makes it a crime to sell it,” said Don Barrett, one of the leading plaintiffs’ lawyers in the case, referring to the alleged misleading labels. “That means these products should be taken off the shelves.”
One of the main issues in contention is how companies are labelling the ingredients in
their products. One of the lawsuits has been brought against yoghurt manufacturer Chobani, which allegedly lists one of its products as ‘evaporated cane juice’. According to the suit, the FDA has repeatedly warned companies about using euphemisms on ingredient lists; to them ‘evaporated cane juice’ is nothing more than sugar.
That charges also relates to Pam cooking spray, manufactured by ConAgra. One of the components, listed simply as ‘propellant’, was allegedly found by a plaintiff to be a combination of propane, butane and other gases. Butane is a popular lighter fuel; propane is used as a car fuel and in refrigeration. This information was found listed in the materials data safety sheet that the manufacturer must file separately with the FDA, according to the plaintiff, and completely inaccessible to the average consumer.
If the lawsuits are successful, it could open the gates for changes in federal legislation. Class action litigation has always been a way for people to challenge unfair treatment by companies or corporations, to complain about defective products or unfair treatment.
The 1954 decision that desegregated American schools and educational institutions was a class action suit – Brown v. Board of Education. In the 1980s, countless suits were filed against asbestos companies. Class action suits are often brought to protect people’s rights, but sometimes that comes in detriment to the wellbeing of businesses.
Class action settlements can be extremely expensive, even more so when cases go to trial and payments are ordered by court judges. Often, defendants are forced to make changes to their procedures or policies in order to avoid future lawsuits, and this can often compromise the bottom line. And while bigger companies or industries could probably cope with such changes, smaller ones might not be able to afford it. Further, although many class action lawsuits are aimed at only one company, others in the same line of business, or employing similar practices, often choose to adapt as well, in lieu of also facing potentially lethal litigation.
Don Barrett, a tort lawyer from Mississippi, is the most prominent in the group of attorneys behind the recent wave of class action litigation being filed against food companies. Among his many previous accolades, Barrett has one particularly poignant victory under his belt: he was one of the men behind the first major lawsuit won over the tobacco industry. Together with two other tort lawyers and one district attorney, Barrett concocted the lawsuit that eventually became the Tobacco Master Settlement Agreement (TMSA). It was the first of its kind to challenge Big Tobacco – Philip Morris, RJ Reynolds, Brown and Williamson and Lorillard – with the cost of healthcare the state was burdened with as its citizens developed conditions associated with smoking cigarettes. Mississippi was first to file suit, but eventually all 50 states of the Union, plus the Districts of Columbia, Puerto Rico and the American Virgin Islands, each represented by its respective attorney general, all brought similar cases. After a decade, Big Tobacco settled in 2008 for $206bn, payable over 25 years.
The lawsuit was groundbreaking for a number of reasons. It was the first significant victory against Big Tobacco in the US, and for that it paved the way for individual plaintiffs to pursue cases that might have been dismissed or lost previously. By finding Big Tobacco responsible for the cost of the medical care accrued by smokers, courts indirectly established a causality between smoking and disease, a relationship that had been dismissed by most judges and juries before, in favour of the argument that smokers were ‘personally responsible’ for their own choice to smoke.
But another key feature of the Big Tobacco mass settlement agreement, and one that is likely to be emulated somewhat in the Big Food class action suite of suits, is that the terms of the settlement were in no way restricted to the payment of damages, settlements and lawyer fees, but included a comprehensive set of restrictions on everything from advertising to education initiatives. The TMSA forced Big Tobacco to restrict its advertising – including sponsorship, lobbying, and litigation activities, with particular emphasis on actions targeting young people. The companies were also to disband a cluster of three ‘tobacco-related organisations’ and to restrict their participation in any trade organisations. The settlement also demanded the creation of the National Public Education Foundation − an organisation dedicated to eradicating underage smoking and
preventing smoking-related diseases.
The tobacco industry today is very different to what it was 10 years ago, at least in part thanks to the limitations imposed by the TMSA. It is difficult to foresee what kind of changes mass litigation will have on the food industry. It is already carefully regulated by the FDA.
Foods that claim to be ‘organic’ on any labelling must have been previously certified by the National Organic Program and must have been produced from at least 95 percent of ingredients “free from artificial colours, flavours, sweeteners, preservatives and ingredients that do not occur naturally in the food; meat and poultry must be minimally processed in a method that does not fundamentally alter the raw product”, according to the FDA, and all of this must have been approved on a case-by-case basis by the National Organic Program.
By finding Big Tobacco responsible for the cost of the medical care accrued by smokers, courts indirectly established a causality between smoking and disease
But there are no standards for foods labelled ‘healthy’ and, despite guidelines, the word ‘natural’ is still allowed. The FDA is also lax on the labelling of trace ingredients, citing only that “it depends on whether the trace ingredient is present in a significant amount and has a function in the finished food; if a substance is an incidental additive and has no function or technical effect in the finished product, then it need not be declared on the label.”
The group of lawyers involved in the new litigation claims to have been researching these labelling rules and regulations for two years before actually filing suit, which, if this is true, would mean that there could be trouble brewing in the horizon for the food manufacturers that have been served.
Cooking up a storm
Another key factor in the suits is the jurisdiction in which they were filed. The plaintiffs’ lawyers were careful to select states with robust consumer-protection legislation such as California and New Jersey. These choices will not only be fundamental in the outcome of the trial but will also determine the amount of damages defendants can be liable for.
For instance, New Jersey has a six-year statute of limitations on cases like these, which means that plaintiffs can ask to recover years of revenue from the sale of any products found to be mislabelled. Food companies have refuted any accusations, and have stood behind their practices. A Chobani representative said that the lawsuits are “frivolous” and “without merit”. “We have built our brand around being transparent and very connected to the marketplace,” said Nicki Briggs. But not all observers agree.
“It’s a real wake-up call for companies and in-house counsel because of the cost that can be associated with these cases long term,” says American attorney Kristen Polovoy in the Corporate Council journal. She cites the extremely high costs of defending a lawsuit like this, combined with attorney fees, damages, plus any potential costs that come with changing labels, advert campaigns and even production practices. “It can be staggering for a company.”
Povoloy believes that there are a number of products that have a particularly high risk of being served, notably ones with labels claiming health benefits, or that use words like ‘natural’ or ‘pure’. “Such wording puts itself on the radar screen as a class action target,” she said.
In increasingly health-conscious times, people are aware of labelling and concerned with what they are eating. Between 1990 and 2010, sales of ‘organic’ food have increased from $1bn per year to $26.7bn, according to the Organic Trade Association. The market for foods perceived as healthier is growing fast; the health foods market was worth $143bn in 2010 according to the Healthy Foods Report, an increase of 1.8 percent from the previous year, despite the difficult economic climate and high unemployment facing the US.
“People want to put good, healthy, nutritious food in their bodies,” said Keith M Fleischman, one of the plaintiffs’ lawyers involved in the suits. “They are very aware of what’s on labels.”
Some observers, noting the huge pay cheques being cashed by plaintiffs’ lawyers and the meagre compensation earned by each plaintiff – for the Nutella case, each household was allowed to claim the expenses of up to five jars of the spread, or the equivalent of $20 – are questioning the motives behind these new lawsuits. Should the cases be ruled in favour of the plaintiffs it will not only potentially cost billions of dollars in settlement and lawyers fees for the offending companies, it could also make the food industry reassess their marketing business model.
If the responsibility for eating unhealthily lies with the consumer, then they must be provided with fair and accurate information about the products they are buying
The repercussions could be favourable for consumers who will have access to clearer information about the products they are consuming. Barrett insists that the lawsuits are about doing right by the consumers and getting food companies to accept responsibility about their role in the nation’s noxious eating habits. But American tort lawyers are in the habit of charging around 25 percent of winnings and settlements, making the lawsuits against Big Food one potentially very fat cash cow.
But it could be years before any settlement is reached and even longer if the cases go to trial and through the long chains of appeal; the TMSA, for instance, lasted over 10 years. And though the plaintiffs’ lawyers might be competent and well-prepared, they are still tasked with convincing a judge and jury that the food manufacturers knowingly deceived consumers for their own gain; tort law dictates that one person’s (or corporation’s) behaviour has unfairly caused someone else to suffer loss or harm, and that might be the tricky one to prove.
The plaintiff’s lawyers are aware that food companies will defend themselves by pointing out that the lawsuits have no actual victims, and plaintiffs might have been consuming the allegedly mislabelled products for years without major repercussions. “Food companies will argue that these are harmless crimes – the tobacco companies said the same thing,” Barrett said. “But to diabetics and some other people, sugar is just as deadly as poison.”
Tort law is not exclusive to the US and neither are class action suits, but the billionaire settlements certainly are characteristic of that jurisdiction. The EU and the UK for instance, have far stricter and clearer food labelling policies, and a much more restrained relationship with class action lawsuits. But the outcome of the cases will undoubtedly change the way we think about and consume processed foods, and affect the industry the world over.
Ireland’s National Treasury Management Agency has held a successful five-year bond auction, attracting €7bn of orders and allowing the debt office to raise €2.5bn- a yield of about 3.35 percent. The auction was the latest in a series of steps towards rebuilding the country’s finances and regaining the trust of the markets.
The auction was the first mainstream offering since the country was bailed out in 2010, though money was raised last summer through a bond exchange. Though analysts agree that the offerings are good signs, the next real test will come in March when €3.5bn worth of bonds will reach maturity, the equivalent of this year’s targeted debt reduction. Ireland hopes to navigate through this by renegotiating some of its more expensive debt used to recapitalise its failing lenders and by triggering the European Stability Mechanism over its equity stakes, severing the toxic link with the government. These measures will alternately require approval by the European Central bank and an agreement with other eurozone members.
In a press conference Eamon Gilmore, deputy Prime Minister told reporters that Ireland is suffering the consequences of rescuing its banks, and by proxy other European banks that would have been left exposed in the event of a collapse. “We put our fingers in the dyke, and we’ve been left with our fingers in the dyke,” he said.
Bank of America CEO Brian Moynihan has announced that the company should overtake JPMorgan Chase in direct-to-consumer mortgage lending over the next six months, according to the Financial Times. Moynihan says he has instructed bankers to be “more aggressive” in pursuing and offering loans to companies.
In the first nine months of 2012, BofA originated $53.4bn of retail mortgages, making it the third biggest lender after Wells Fargo and JPMorgan.
BofA has endured a challenging few years due to compensation claims against mortgages gone bad, most of which had been underwritten by Countrywide, whom the bank acquired in 2008. In the same interview with the FT, Moynihan has indicated that the bank is ready to settle any outstanding claims. “Doesn’t mean we won’t fight if people aren’t being reasonable,” he said. “But it’s in our best interests to get all this stuff behind us.”
According to Insider Mortgage Finance, BofA lending had dropped 37 percent to $21.3bn in the third quarter of 2012, year on year. However the bank still finished the year as the best performer in the Dow Jones Industrial Average with a 109 percent increase in stock.
The bank has since become the first large Wall Street operation to surpass new international capital requirements, seven years ahead of the cut off date.
The original plan obliged all publicly traded companies to fill a quota of 40 percent of women by 2020 or risk incurring fines and sanctions, has now been scrapped. EU lawyers have ruled that mandatory gender quotas are not allowed under the region’s treaties.
The EU justice commissioner, Viviane Reding, announced the suspension of the proposal, after months of defending the scheme. There had been vociferous opposition from within the European Commission since the proposal was announced, which was facing a potentially divisive vote within the commission.
Nations opposing the notion argued that any quota system should be addressed domestically, by national policy-makers rather than across the bloc.
José Manual Barroso, president of the EC, has given Reding a further two weeks to redesign the proposal in a legally compliant way. It has been speculated that the quota system will be re-launched as a target for companies to meet voluntarily, rather than a legal requisite.
“We have been fighting now for 100 years,” said Reding. “One or two weeks now doesn’t make a difference.”
Somewhat counter intuitively, four of Europe’s most prominent female commissioners, from Britain, the Netherlands, Sweden and Denmark, all opposed the forced quota system.
The proposal will be brought back to the EC by the middle of November.
Not since the earthquake and tsunami in 2011 have Japanese exports declined so sharply as this past September, figures from the Ministry of Finance confirm. Overseas shipments from Japan have fallen 10.3 percent year-on-year.
The drop in exports is being attributed to the difficult diplomatic relations between China and Japan following a tense stand-off over the Senkaku/Diaoyu islands. The dispute was intensified by ongoing protests in China throughout the month over Japan’s purchase of the disputed islands from their private owner. Taiwan also lays claim to the little uninhabited islets.
According to the figures, exports of products that are clearly Japanese, like cars- down 14 percent from August- far outstripped that of not clearly Japanese products, like car parts- up seven percent. Japanese brands have seen their stocks plummet as a result, like cosmetics manufacturer Sheseido, down 11 percent and All-Nippon Airways, down 13 percent.
The weak demands for exports has exacerbated concerns over the resilience of the Japanese economy as a whole, as the slow in demand from key markets, like China and Europe, and a strong yen have been burdening the exports and manufacturing markets.