By Kirk Maltais – Updated Oct. 17, 2019 1:09 am ET

Cattle prices in the U.S. have risen since September, as a protein shortage in Asia drives bets that livestock will be in increasingly high demand.

Live cattle futures on the CME are up 14% from the start of a rally on Sept. 10 to nearly $1.14 a pound.

Retail prices are also up. Prices for many cuts of beef were advertised higher this week than at this time last year, according to the U.S. Department of Agriculture. A common variety of ground beef sold for an average of $3.75 a pound this week, for instance, up nearly 20% from a year earlier.

The rally coincides with the continued spread of African swine fever in Asia. The virus—fatal for pigs but harmless to humans—was found in South Korea in September, after surfacing in North Korea in May. As of last week, 145,000 pigs have been culled in South Korea, the government reported.

The disease has devastated hog herds in China, the world’s largest pork market. Roughly 1.17 million hogs have been culled there since August 2018 in an effort to stop the disease, according to the Food and Agriculture Organization of the United Nations. This widespread slaughter has pushed the price for pork in China up 69%.

The U.S. beef industry is aiming to fill some of that protein deficit. Beef exports to South Korea are already 8% higher than last year, totaling 174,290 metric tons through August, according to the U.S. International Trade Commission. Exports to Japan were 3% lower in that time frame, but demand is expected to pick up as meat supplies tighten in the region. A U.S.-Japan trade deal reached in August also will likely boost demand. The agreement reduces or removes tariffs on some $7 billion in U.S. agricultural goods exported to Japan annually, including beef.

“The U.S. beef industry is extremely excited at the prospect of lower tariffs in Japan,” said Dan Halstrom, president and CEO of the U.S. Meat Export Federation.

Cattle prices sold off steeply in August after a fire decimated Tyson Foods Inc. ’s Holcomb, Kan., beef processing plant, depressing demand for cattle and pushing futures down to under $1 per pound. Now, traders and stockyard operators say the market is adjusting to demand pressures that outstrip that supply hiccup.

“We did oversell it, our markets in this day and age overreact,” said Justin Tupper, owner and manager of St. Onge Auction, which auctions off 125,000 cattle a year in St. Onge, S.D.

A spokeswoman for Tyson said Tuesday that the company anticipates a return to normal operations in early 2020. Before the Aug. 9 fire, the plant processed roughly 5% of all U.S. beef production.

The beef industry in the U.S. is hoping a U.S.-Japan trade deal reached in August will also help boost demand for exports.

July 2019 – Stephen Selbst

In TSA Stores, Inc. v. Sport Dimension, Inc., the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) recently held that a term lender with a junior lien on the debtor’s inventory prevailed over a consignor that had failed to perfect its security interest under the Uniform Commercial Code (the “UCC”).¹ The decision drives home a reminder that consignors who fail to perfect will not find courts sympathetic to protecting their interests. In TSA Stores, the Bankruptcy Court relied on a non-statutory rule for determining whether a consignor’s goods would be exempted from the filing requirements, but one which most consignors will be not be able to satisfy.

Under the UCC, a consignor is granted a purchase money security interest in consigned goods, but to perfect it must (1) send notice to other creditors with a lien on inventory at least ten days prior to the consignor’s first shipment, and (2) file a UCC financing statement. While those requirements are not onerous, the steady drumbeat of cases shows that consignors frequently fail to comply. When their consignees file for bankruptcy, the consignors’ claims have general unsecured status, which is disastrous. In many recent retail bankruptcy cases, holders of unsecured claims have received very small – or no – distributions on their claims.

Under the UCC, a consignment is any transaction where a seller delivers goods to a merchant for resale, but the statute excludes cases in which the merchant is generally known by its creditors to be substantially engaged in selling the goods of third parties. The case law also excludes cases where the non-consignor party had specific knowledge that the goods in dispute were consigned.

TSA Stores Background

TSA Stores arose from the chapter 11 proceedings of The Sports Authority (“TSA”), which filed in 2016. Although TSA had sales of approximately $2.6 billion in 2015, it could not reorganize and liquidated in 2016. Sport Dimension sold water sports related equipment to TSA under the name Body Glove. It began its relationship with TSA in the 1990s. Around 2011, Sport Dimension began selling on consignment to TSA under a program known as “pay on scan.” Under pay on scan, the consignor retained title to the consigned goods and was paid when the goods sold. Many of TSA’s vendors participated in its pay on scan program. When TSA filed for chapter 11, it held $84 million of consigned goods from 170 vendors, meaning that the average consignment was approximately $500,000. According to TSA Stores, some vendors had complied with the UCC perfection requirements while others, including Sport Dimension, had not.

TSA Stores Dispute

After TSA filed, it requested authority from the Bankruptcy Court to sell all its’ inventory, including the consigned goods. The consignors objected, arguing that they held title and that the goods could not be sold without their consent. Ultimately, the Bankruptcy Court allowed the consigned goods to be sold but required TSA to commence litigation to resolve the rights of each consignor.

Prior to bankruptcy, TSA had two tiers of secured financing, a first-lien facility where the lenders had a first lien on accounts receivable and inventory, and a second-lien facility where the lenders had a first lien on TSA’s real estate and a junior lien on the accounts receivable and inventory. The liquidation of TSA generated enough money to pay the first-lien lenders, but not enough to pay the second-lien lenders. When TSA commenced litigation against Sport Dimension, Wilmington Savings Fund Society (“WSFS”), the agent for the second-lien lenders, intervened to protect the second-lien lenders.

In the litigation, WSFS relied on the lien priority provisions of the UCC. It argued that it had perfected its security interest in TSA’s inventory and that its interest was superior to Sport Dimension’s because Wilmington Security had filed first. Sport Dimension argued that the UCC’s priority rules did not govern because its transactions with TSA were outside the UCC’s definition of a consignment. Specifically, it argued that TSA was substantially engaged in selling the goods of third parties, and that WSFS had knowledge that TSA was selling Sport Dimension goods. WSFS argued that the consigned inventory amounted to 14% of TSA’s goods, an amount insufficient for “substantial engagement”, and that it had no specific knowledge of Sport Dimension’s goods being sold on consignment.

In ruling for WSFS, the Bankruptcy Court held that the 14% of TSA inventory represented by consigned goods fell below the 20% threshold that prior cases had established for the “substantially engaged” test. Although the 20% test is not contained in the UCC, several courts have adopted that rule, and there are cases where courts have held that inventory levels below 20% did not meet the “substantially engaged” test. On the second issue, the Bankruptcy Court recognized that WSFS was aware that TSA was selling goods on consignment. But it found that Sport Dimension had failed to prove that WSFS had specific knowledge that its products were being sold on consignment, and it also ruled against Sport Dimension on the second exception to the UCC’s definition of a consignment.

TSA Stores relied on existing case law to back its “substantially engaged” determination, and it found that Sport Dimension had failed to prove WSFS had knowledge of its consignment. On that level the decision is straightforward, but it remains troubling. First, the 20% test is not found in the statute or in its official notes. A more sympathetic court could have found that a retailer that had $84 million of consigned goods– not a trivial amount — when it filed for bankruptcy was “substantially engaged” in selling consigned goods. Secondly, the record established that WSFS had knowledge that TSA was selling consigned goods. To require Sport Dimension to prove that WSFS had specific knowledge of its goods, when there were 170 vendors selling on a consignment basis is extremely difficult. A more sympathetic court could have found that based on WSFS’s knowledge of TSA’s widespread consignments, the court could impute knowledge of each vendor imputed to WSFS.

There are also strong policy arguments to support a ruling in favor of Sport Dimension. When the consignment rules were developed in the mid-20^th century, the theory behind requiring UCC filings was to prevent the existence of “secret liens” that would fool unsuspecting trade creditors into believing the merchant had title to the consigned goods, which was called “ostensible ownership.” Those arguments reflected the market of the times when few retailers operated multiple locations and generally did not obtain secured inventory financing.

Today’s retail marketplace is vastly different. Inventory-based secured financing is now the norm. In the 15 largest U.S. retail bankruptcy cases, the size of the debtors, measured by asset size, ranged from $1.7 billion to $14 billion.Those retailers operated hundreds of locations and each had secured inventory financings. Even if the ostensible ownership rationale had force initially, its basis disappeared long ago. Lenders who make loans to retailers today are not relying on visual assessments of inventory. They receive financial statements and detailed information regarding inventories from their borrowers. Lenders know consigned inventory cannot be carried as an asset on borrowers’ balance sheets because the borrowers don’t hold title to these assets. Accordingly, lenders do not rely on consigned inventory in making loans. Moreover, because these lenders have blanket liens on their borrower’s assets, they comply with the UCC’s filing procedures, which provides actual notice to other creditors that the borrower’s inventory is subject to a lien. Given their detailed knowledge of their borrowers, the ostensible ownership theory does not support protecting these lenders from a consignor’s “secret liens.” The ostensible ownership theory also fails to make a persuasive case for why a junior secured creditor like WSFS should benefit from the avoidance of a consignor’s unperfected security interest. It didn’t lend against the consigned inventory, and it knew of TSA’s reliance on consignment sales. That WSFS didn’t know the names of the specific consignors is a happenstance, but one that resulted in it receiving a windfall that it never bargained for.

TSA Stores joins a line of recent cases where consignors who have failed to perfect their security interests have lost in their attempts to avoid the harshness of the UCC’s consignment provisions. While there are reasons to question both the Bankruptcy Court’s analysis and the underlying policies behind the filing requirements, consignors who fail to file UCC financing statements are likely to fail in their challenges. The lesson to consignors is clear: perfect your interest before starting to ship goods on consignment or suffer the consequences.

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For more information on this alert or other restructuring & bankruptcy matters please contact:

Stephen B. Selbst at +1 212 592 1405 or sselbst@herrick.com

© 2019 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.

1.TSA Stores, Inc. v. Sport Dimension, Inc., case 16-50368 (MFW) (April 12, 2019).

09.17.2019

UPDATES

In an August 2019 case argued by Perkins Coie attorneys, the U.S. Bankruptcy Court for the District of Delaware ruled that the automatic stay under section 362(a) of the Bankruptcy Code bars the Centers for Medicare & Medicaid Services (CMS) from withholding Medicare payments to a healthcare provider in bankruptcy notwithstanding a pre-petition suspension due to credible allegations of fraud.

Medicare Suspensions Drive True Health into Bankruptcy

True Health Diagnostics, LLC is a diagnostic laboratory company that provides advanced blood testing for early detection and treatment of chronic disease, such as cardiovascular disease, diabetes and cancer. True Health participates in the federal Medicare program administered by CMS and receives approximately 30% of its total revenue from Medicare.

In May 2017, True Health received a notice from CMS that it was suspending all Medicare payments to True Health based on credible allegations of fraud. True Health disputed those allegations, and CMS later reduced its suspension to 35% of Medicare payments. More than two years later, in June 2019, CMS imposed a second 100% suspension of all Medicare payments to True Health, creating an immediate financial crisis for the company.

In response to the second suspension, True Health filed a complaint and emergency motion for a temporary restraining order in the U.S. District Court for the Eastern District of Texas claiming that CMS had violated True Health’s constitutional due process rights by imposing duplicative suspensions of Medicare payments without making a determination of any overpayment that True Health could challenge through the administrative procedures provided under the Medicare Act. The district court granted True Health a temporary restraining order to prevent CMS from further suspending Medicare payments. In response, CMS issued a final overpayment determination, claiming overpayments of more than $21 million. As a result of this overpayment determination, the Texas court dismissed the case for lack of subject matter jurisdiction, holding that True Health must first exhaust its administrative remedies under the Medicare Act.

On July 30, 2019, True Health filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the District of Delaware. On the same day, the company filed an adversary complaint and motion for preliminary injunction to enforce the automatic stay under Section 362(a) of the Bankruptcy Code and prohibit CMS from suspending or withholding Medicare payments to True Health in bankruptcy. True Health relied upon a decision from the U.S. Court of Appeals for the Third Circuit, University Medical Center v. Sullivan, 973 F.2d 1065 (3d Cir. 1992), which held that the Bankruptcy Code provides an independent basis for bankruptcy courts to exercise jurisdiction to enforce the automatic stay and prevent CMS from suspending Medicare payments after a bankruptcy petition is filed even when the provider has not exhausted its administrative remedies under the Medicare Act.

After expedited briefing and argument, the Delaware bankruptcy court granted True Health’s motion and entered an order enjoining CMS from suspending or withholding their Medicare payments on or after the bankruptcy petition date. The order also required CMS to deliver to True Health over $2 million of previously withheld Medicare payments within five business days. The court found that it had jurisdiction under the Bankruptcy Code to decide True Health’s motion and that CMS’ suspension of Medicare payments did not fit within the police and regulatory power exception to the automatic stay because the suspension was not designed to protect the public health, safety or welfare, but instead intended to protect CMS’ pecuniary interest in its pre-bankruptcy overpayment determination at the expense of other creditors in the bankruptcy case.

Implications for Medicare Providers

CMS has broad authority to unilaterally suspend Medicare payments based on allegations of overpayment and fraud. Ordinarily, the only remedy available to a provider is through the administrative process under the Medicare Act, which is time consuming and may be significantly delayed, especially where CMS neglects to issue a final determination of overpayment. For most healthcare providers that participate in Medicare, such a suspension can be a death knell for the company.

The Delaware bankruptcy court’s decision, relying on Third Circuit precedent, establishes strong protections for healthcare providers in bankruptcy that may otherwise have no choice but to shut down in response to an ongoing Medicare suspension. The popularity of Delaware as a venue for corporate reorganizations gives the Delaware decision national significance, providing a much-needed lifeline to healthcare providers that face financial difficulty following a Medicare suspension.

Perkins Coie LLP

Perkins Coie LLP attorneys Eric E. Walker, Brian A. Audette and David J. Gold represent True Health in the bankruptcy litigation and have experience in the highly regulated healthcare industry and in health care insolvencies.

© 2019 Perkins Coie LLP