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The run-up to the Nov. 6 presidential election has raised a lot of hue and cry. Policies and actions by both candidates have allegedly led to bankruptcies, which in turn spawned effects such as job losses and wasted taxpayer dollars. Names such as Solyndra LLC lead the headlines. With debate season finally upon us, though, it's worth examining some of the more subtle issues cited by debtors.Up this issue is President Obama, who over nearly four years has signed certain legislation and promoted certain policies that have had some unintended consequences. (An accompanying look at Bain Capital LLC co-founder and former Massachusetts governor Mitt Romney will come next time.)
Take, for example, the Budget Control Act of 2011. The law, signed by Obama on Aug. 2, 2011, after a bitter debate on the federal debt ceiling, allowed the government to avoid defaulting on its sovereign debt by increasing the debt ceiling by $400 billion.
The law also requires Congress to implement $1.2 trillion in budget cuts; otherwise, mandatory cuts would be divided between defense and other projects. Congress has yet to make the necessary cuts, leading to potential congressional sequestration, which Southern Air Holdings Inc. cited as one reason for its Chapter 11 bankruptcy on Sept. 28. The provider of cargo transportation services, though, already is dealing with another government action, the reduction of U.S. military troops in Afghanistan.
Southern Air is a participant in the U.S. Department of Defense's Civil Reserve Air Fleet program, under which air carriers pledge aircraft to the DOD for times of national emergency in exchange for government contracts during peacetime. Southern Air generated 43.5% of its revenue in the year ended July 31 from government contracts. Revenue from the first half of 2012 has been 34% less than Southern Air had anticipated, largely because of the troop reduction.
Obama announced a gradual withdrawal of troops from Afghanistan in June 2011. Under the plan, troops would be gone from Afghanistan by the end of 2014.
Global Aviation Holdings Inc., the largest provider of transportation services to the U.S. military, and Ryan International Airlines Inc., another military transportation company, also have cited the withdrawal as one of the causes of their bankruptcy petitions.
Of course, air carriers are not the only companies affected by government policies or regulations. Several debtors have faulted government regulations or disputes with certain government agencies under the Obama administration.
ATP Oil & Gas Corp., for example, blamed its bankruptcy on the government moratoria barring drilling in the Gulf of Mexico after the BP plc oil spill on April 20, 2010. At the time, ATP was in the middle of drilling six wells and had funds available to begin more drilling, but the government declined to issue any new deepwater drilling permits until Feb. 28, 2011. ATP had to pay up to maintain its wells and equipment but couldn't make any money because of the government's drilling ban.
In addition, Patriot Coal Corp., a leading producer of coal in the U.S., blamed its July 9 bankruptcy on regulations from the U.S. Environmental Protection Agency. The EPA recently finalized two rules to constrain sulfur dioxide, nitrogen oxide, mercury and other air emissions from power plants. The rules threaten to close all coal-fueled electricity generation units not equipped with pollution controls, compounding a drop in demand that has hit Patriot.
In other cases, government agencies have been directly faulted for their role in prompting bankruptcies.
Telecommunications company Open Range Communications Inc. filed for Chapter 11 on Oct. 6, 2011, after the U.S. Department of Agriculture's Rural Utilities Services division and the Federal Communications Commission allegedly refused to disburse promised funds.
According to Open Range Chapter 7 trustee Charles M. Forman, the USDA caused the company to incur substantial expenses on the grounds that it would be repaid from a $267.3 million loan promised by the USDA on Jan. 9, 2009. The loan was to expire in 2014 and fund construction of wireless broadband networks in 546 rural communities.
Under the agreement, Open Range had all expenses approved by the USDA, which consented to $100 million in expenditures. The agency, however, then only funded $78.4 million to the company. Forman has said $20 million in trade claims could have been resolved had the USDA upheld its part of the deal. Forman also said the USDA's actions led to Open Range's insolvency and ultimate liquidation.
He seeks more than $20 million in damages in a lawsuit unsealed on Aug. 16. The federal agencies have sought to dismiss certain claims. A pretrial conference is set for Nov. 8.
K-V Pharmaceutical Co., on the other hand, blamed its Aug. 4 bankruptcy on its "impaired relationships" with the Food and Drug Administration and other regulatory agencies. The pharmaceutical company has alleged the FDA did not stop a compounded injection treatment that competes with its Makena, which reduces the risk of premature births in women who have had such births previously. The FDA approved Makena as the only drug on the market for its purpose on Feb. 4, 2011. K-V never reaped the benefits of exclusivity, however, because the FDA never stopped the more traditional -- and cheaper -- form of treatment through the compounded injection. K-V alleged in court papers that the FDA was motivated by political pressure over Makena's high list price.
Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia on Sept. 6 dismissed K-V's July 5 suit against the FDA, finding the case "is fundamentally an effort to get the court to direct and oversee the FDA's enforcement activities, and that it cannot do."
Most sources contacted for this article declined comment or did not return calls.
Dennis J. Connolly of Alston & Bird LLP, who usually represents debtors or creditors in bankruptcy, says, though, that government oversight and regulations can increase costs to companies and lower companies' overall enterprise value in the eyes of investors. When companies are subject to government oversight, they may be less attractive to investors, which could lead to liquidity problems.
The Atlanta partner notes, however, that when companies blame their filings on the government, the regulations are usually just "the straw that breaks the camel's back."
"There are usually other problems," he says.

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