Vintage Filings Legal Blog

Here’s to a Happy and Prosperous 2009 from the entire team here at Vintage Filings!

If you read this blog regularly, you most likely are involved in some fashion or another with a publicly traded company.  Previously, the hot portion of Wall Street was the IPO market.  However that has cooled considerably in the past year and it appears that it will continue to do so for some time.

Mass High Tech, The Journal of New England Technology, reports in today’s edition that the region’s venture capitalists expect the market for initial public offerings of technology company stock to be frozen until at least 2011 because of the ongoing global economic crisis and instability in the stock market. IPOs represent one of the best opportunities for investors and founders to benefit from the growth of technology companies, and provide incentive for entrepreneurs to launch new companies.

Mass High Tech has also reported that companies that had filed plans with federal regulators for IPOs have begun to cancel those plans. Through in-depth interviews with more than a dozen key New England venture capitalists, Mass High Tech journalists reported that investors should expect almost no IPOs in 2009 and 2010. In addition, the VCs predicted that a second popular path for growing companies — acquisition by a larger company – will be dramatically limited by the low prices that potential partners are willing to pay in the current economy.

Venture capitalists who have invested with companies in technology areas such as computers, software, the Internet, alternative energy and biotech said that the lack of IPOs and acquisitions—combined with difficulty in raising new funds –means that they will have to carefully examine their investment portfolios, more carefully managing expenses at some companies and perhaps shutting down those that are less able to survive the tough economy.

With the economy in its current state, I assumed that eBay sales would continue to increase as consumers sought out the best deals.  And it appears that I may have been correct in that assumption.  BizAuctions, a company that provides commercial eBay liquidation services for excess inventories, announced today that its items listed for sale on eBay during the month of November 2008 increased by 14% over listings posted for October 2008. These items, such as big screen TVs, digital cameras, and other electronics, included excess inventory and returned goods which the Company acquired through liquidation projects for its clients.

CEO Delmar Janovec commented, “BizAuctions posted 3,586 item listings on eBay for the month of November, which represents an increase of 443 listings, or an approximate 14% increase over listings in the month of October 2008. This increase is indicative of management’s commitment to provide our customers with exemplary service, as shown by our customer satisfaction rating on eBay of 99.6% with over 30,000 feedbacks from our customers.”

Now that Chrysler and General Motors have been granted an immediate $13.4 billion loan from the government, additional steps must be taken to preserve taxpayers’ investment in the automotive industry, according to Edmunds.

First, the government must create a stimulus to motivate hesitant car-buyers to re-enter the marketplace.

“Our December sales forecast indicates a Seasonally Adjusted Annual Rate (SAAR) of 9.8 million vehicles sold, but no automaker can survive as a viable business in the United States if fewer than 11 million vehicles are sold annually industry-wide,” according to Edmunds.com Senior Analyst Jesse Toprak.

Second, credit must be further loosened so that car-shoppers have an easier time getting loans.

“All around the country, dealers are expressing concerns that their showrooms are largely empty, and that many of the customers they do have are unable to get financing, even when they have decent credit scores,” reported Edmunds’ AutoObserver.com Editor Michelle Krebs. “Taxpayer money bailed out the financial institutions, so there should be a way for the government to grease the skids as far as credit is concerned.”

Third, legislators should implement a coherent energy policy that helps to shift consumer demand consistently to more fuel-efficient vehicles so automakers can focus their product development efforts more narrowly and efficiently.

“There is a clear correlation between gas prices and interest in fuel efficiency,” stated Edmunds.com Senior Analyst David Tompkins, PhD. “Car-shoppers flock to compact cars and hybrids when gas prices are high, but now as the national average gas price is below $1.70 per gallon, trucks and SUVs are expected to outsell cars for the first time since February.”

Online retailers who open a physical store during the holiday shopping season could see more than a 15% decrease in online sales, according to research by professors at MIT Sloan School of Management. The opening of stores triggers the requirement to charge sales tax, which affects online sales because customers can look at competing retailers online and find alternative options at better prices, they explained.

The professors found in a paper titled, “How does an Obligation to Collect Sales Tax Affect Consumer and Firm Behavior?” that U.S. state sales tax laws have a significant impact on both customer and retailer behavior, providing a disincentive for retailers to establish a physical presence in high-tax states as well as a disincentive for customers to make online purchases when sales tax is charged.

Coauthor and MIT Sloan Marketing Professor Duncan Simester said that retail websites are required to charge state sales tax once they establish a physical presence in a state such as a retail store, warehouse or office. “On the Internet, we found that when sales tax was charged, demand dropped about 16%,” he said.

The authors found that a way to mitigate the decrease in online sales is to offer price discounts. “The deeper the discount, the less likely customers were to look at competing retailers and the smaller the impact of charging sales tax,” said Simester. “You may still have to pay 5% more because of sales tax, but the reality is that you are already getting a good deal so there is less incentive to search elsewhere.”

We usually think of smartphones at holiday time as bright shiny objects under the tree — our dream gift — but will they also prove to be a mobile operator’s worst nightmare? With each passing season, more and more smartphones are in the hands of increasingly unsophisticated subscribers. Operators look upon these subscribers to generate the highest revenues, and they may in fact be the most loyal as well (if all works correctly). But there is a dark side of the bargain: they cost more to support. Sometimes, much more.

A single mis-configured email setting may result in a 30-minute support call working the subscriber through arcane menus and settings, eliminating any profit he or she was expected to bring to the table. Compounding the problem, the operator must train skilled frontline care personnel at additional expense. This in the face of mandates for cost-cutting due to an uncertain economic future, and the need to maintain usability of phones in the hands of subscribers for longer periods of time due to slower replacement rates.

Mobile Device Management (MDM) technology provides the operator — for the first time — with a live, over-the-air management channel to the phone, offering a way out from this Dickinsonian nightmare. It re-invents the interaction between the subscriber and frontline care, reducing operational expenses and increasing customer satisfaction through first-time problem resolution.

I thought you would enjoy the following Holiday quip:

The Nightmare After Christmas

‘Twas the night before Christmas, when all thru the call center,

Not a dialpad was stirring, from a frustrated dissenter.

The customer care reps were home without care,

Knowing support calls could not reach them there.

Shorten your calls, and take care of your subs,

This is Mobile Device Management; they don’t sell it in pubs.

Fix Windows, fix Symbian, fix Android as well,

LiMO and others? Too many to tell!

On the heels of a rare shutdown of House servers caused by an unprecedented number of e-mails from constituents outraged by the size of the proposed Wall Street recovery plan, the Congressional Management Foundation (CMF) today released a new report recommending more effective ways for Members of Congress and the public to share opinions on public policy. The report, Communicating with Congress: Recommendations for Improving the Democratic Dialogue, builds on nearly 10 years of original research by CMF on the state of communications between citizens and elected officials.

“Both sides need to realize they have the same goal: effective communication between citizens and their representatives in Congress, ultimately resulting in good legislation,” said Beverly Bell, CMF’s Executive Director. “What we need is a public-private collaboration on how to accomplish that goal because any new system cannot be developed by one side alone.”

To help facilitate the collaboration, CMF previously surveyed more than 350 congressional staffers and nearly 10,000 adult Americans to identify their expectations, practices and perceptions of the other side. For example, CMF found that 44% of Americans had communicated with their Member of Congress in the past five years, and that they were far more likely to be politically active in other ways. This dramatic increase in citizen engagement means Members of Congress can expect to see more Americans seeking to make their voices heard in the democratic process.

Combining the data gathered from these surveys with additional research, CMF produced this latest report to help educate and promote changes in the attitudes and practices of both sides. Highlights include:

• Details on how citizens and elected officials use the Internet to communicate with each other;
• The challenges citizens, Members of Congress, and grassroots advocates face which threaten to shut down the effective exchange of ideas;
• An innovative new model for constituent communications; and
• Recommendations to each stakeholder group – citizens, grassroots advocates, Congress, and the technology vendors to each group – for improving their practices.

Print is dying. In late October The Christian Science Monitor announced that it would discontinue its print edition, making it the first national daily newspaper to abandon print. Around the same time, Condé Nast Publications announced that Men’s Vogue would be folded into Vogue and published only twice yearly. Newspaper circulation figures are down almost 5% from last year, with magazine ad pages down almost 10%. As New York Times media reporter David Carr wrote, print is “a legacy technology that attracts fewer consumers and advertisers every single day.”

While traditional print media continues to experience sharp declines, people will always crave content. Moreover, the website arms of many publications are generating greater traffic and ad revenue, offsetting diminished print returns and producing net increases in readership.

“Content is no longer simply produced and consumed,” says Philmore Anderson, founder and CEO of multimedia outfit Sahara Media, Inc. “The success of online media rests in its ability to easily share content and opinions with the world.”

Recognizing this trend, especially among younger demographics, Sahara is planning to relaunch Honey Magazine as an online magazine and launch a social network called HiveSpot.com.

The effects of an automaker bankruptcy would inflict much higher costs to United States taxpayers, up to four times the amount of the proposed federal bridge loans if at least two companies failed, according to a joint analysis released today by Anderson Economic Group (AEG) and BBK, an international business advisory firm with extensive experience in the automotive industry. The analysis is the first comprehensive study of the likely costs of a bankruptcy declared by the Detroit automakers contrasted with the taxpayer costs of the requested federal bridge loans. The results were released during a press conference at BBK headquarters in Southfield, Michigan, and show that the nation’s economy would be far better served by providing bridge loans to the automakers.

“We hope this research report provides policymakers and taxpayers with an objective, independent assessment of what an automaker bankruptcy would look like,” said Patrick L. Anderson, Principal and CEO, Anderson Economic Group. “The findings indicate a bridge-loan scenario would be the more financially sound choice of the scenarios currently under debate in Washington, with lower relative economic costs than not providing any type of financial support.”

The study estimated direct taxpayer costs of multiple scenarios for a bridge loan, and a bankruptcy, over a two-year period. It revealed that the losses of employment, income, and tax revenue in a bankruptcy scenario are unequivocally much higher than the losses from company restructuring with the help of federal bridge loans. Under a bankruptcy scenario, which contemplates two of the three Detroit-based automakers failing, there would be more than 1.8 million one-year jobs lost, and nearly $70 billion dollars less in federal and state tax revenue over a two year time period.

“The report shows the immediate impact of the collapse of even two automotive manufacturers that would only further exacerbate our current economic crisis and likely would precipitate a complete shutdown of nearly all auto production in the U.S. for some time,” according to Kriss Andrews, Managing Director and Automotive Practice Lead, BBK. “The other direct economic costs of a bankruptcy would be similarly distressing – from additional debtor-in-possession financing of an already bankrupt automaker by the Federal government, to the disruption of the credit and related markets.”

Bose announced that it has settled its litigation against Phitek Corporation at the U.S. International Trade Commission (ITC) and U.S. District Court of Massachusetts.  Bose’s complaint charged that Phitek manufactured headphones for Audio-Technica and Creative Labs that infringe Bose U.S. patents protecting the active noise-reducing headphone technology found in Bose QuietComfort headphones.

As part of the settlement, Phitek has agreed to make certain changes to its headphones to be clear of the Bose patents at issue.

Bose has made significant investments in the research, development, engineering and design of the proprietary technologies found in its headphones. These patented Bose technologies enable the unique performance found in the QuietComfort 2 and QuietComfort 3 Acoustic Noise Cancelling headphones. Today, Bose headphone products are sold in the United States and throughout the world.