Monthly Archives: August 2021

Sidney Powell and the limits on a litigator’s ‘license to lie’ – Reuters

Posted: August 14, 2021 at 12:35 am

Attorney Sidney Powell speaks at a press conference on election results in Alpharetta, Georgia, U.S., December 2, 2020. REUTERS/Elijah Nouvelage

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(Reuters) - Litigators can talk an awful lot of smack in court appearances and filings without having to worry about defamation. But when they step outside of the courtroom, its a different story: Litigation is not a license to lie.

Im borrowing that thoroughly delicious phrase from a brief by voting equipment maker U.S. Dominion Inc, opposing a motion by former Donald Trump campaign lawyer Sidney Powell to dismiss Dominions $1.3 billion defamation suit. As Ill explain, Powells lawyers argued, among other things, that she could not be liable for her accusations of vote manipulation because she made those statements in the context of Trump campaign litigation (or prospective litigation) to overturn 2020 election results.

On Wednesday, U.S. District Judge Carl Nichols of Washington, D.C., rejected that argument (and Powells other defenses) in a decision allowing Dominion to move ahead with its case against Powell and other defendants.

An attorney's out-of-court statements to the public can be actionable, even if those statements concern contemplated or ongoing litigation, Nichols wrote. Powell cannot shield herself from liability for her widely disseminated out-of-court statements by casting them as protected statements about in-court litigation.

Nichols opinion summarized a veritable parade of television interviews and press conferences in which Powell slung vote manipulation accusations at Dominion. In the judge's view, Powell clearly crossed the contextual line between protected litigation-related statements and unshielded commentary that's outside the bounds of litigation.

But his decision made me curious about where, exactly, that line is drawn. Powells brief, after all, cited U.S. Supreme Court precedent holding that you don't have to be in court to be engaged in litigation-related activity. The court's 1963 ruling in NAACP v. Button arose from Virginias allegation that the NAACP was illegally soliciting clients when it distributed desegregation petitions, among other activities. The Supreme Court ruled that the First Amendment protected the NAACPs lawyers and organizers when they advised prospective litigants about their rights.

Powell's lawyers contended that she, like the NAACP, was engaged in litigation and prospective litigation of momentous significance and immense public interest. According to them, her TV appearances and press conferences were intended to publicize the evidence and legal theories she was espousing (or planned to espouse) in the Trump campaign's litigation challenges to election results. So under the Supreme Courts reasoning in Button, Powells lawyers insisted, she was engaged in litigation-related activities protected by lawyers' First Amendment privilege in court proceedings.

It would make no sense, and serve no public purpose, to give immunity for statements made during the course of litigation which are themselves public but burden lawyers with the threat of billion-dollar defamation verdicts when the same allegations are made at press conferences and news releases announcing and discussing the case, wrote Powell lawyers Lawrence Joseph and Howard Kleinhendler.

Dominions counsel at Clare Locke and Susman Godfrey tore into that argument in their opposition brief. Powell, they said, was asking the court to manufacture a propaganda exception for wild accusation, defying precedent that has permitted defamation suits against lawyers for statements made outside of court proceedings.

The most compelling citation in Dominions brief, by my reading, is Seidl v. Greentree Mortgage, a 1998 Colorado federal case. (Powell argued that Colorado law applies in Dominions suit.) The underlying facts are incredibly complex, but all you need to know is that the mortgage company countersued a plaintiff's lawyer for defamation after she issued an online press release announcing her clients lawsuit against Greentree. The lawyer contended that she was immune, pointing to language in the Restatement (Second) of Torts that says lawyers have an absolute privilege to publish defamatory statements before or during litigation as long as the statements have some relation to the proceeding.

The Greentree court disagreed. Press releases and statements to reporters, the judge said, arent entitled to absolute privilege because press conferences arent judicial proceedings. The ruling explained that the key issue in determining whether the litigation privilege applies is the lawyer's audience: Were the allegedly defamatory statements addressed to people with a recognized interest in the case or to outsiders? Journalists and members of the public have no interest except as observers, the court said. Lawyers can therefore face defamation claims based on press releases. The decision quoted 1962 precedent: An attorney who wishes to litigate his case in the press will do so at his own risk.

Its probably telling that Powells lawyers, who did not respond to my email query, didnt offer a single example in their reply brief of a case in which a court ruled that a lawyers comments at a press conference or in a press release were protected under the litigation privilege. Powells brief did not attempt to argue that members of the press or public had a sufficiently specific interest in the Trump campaigns litigation to extend Powells privilege to out-of-court statements.

In Wednesday's opinion, Nichols noted a 2006 case from the District of Columbia U.S. Circuit Court of Appeals that highlights the critical question of the audience for allegedly defamatory statements. The case, Messina v. Krakower, stemmed from a dispute between two business partners. A lawyer representing one of them sent a letter to the other, outlining his clients grievances and warning that there would be litigation if the other partner didnt agree to negotiate a split.

The letters recipient argued that the litigation privilege didnt apply because the lawyer sent a draft of the letter to a third person, whom he had proposed as a mediator. The D.C. Circuit acknowledged that lawyers can lose litigation privilege immunity from defamation claims when they publish statements to outsiders but said the proposed mediator had an interest in the threatened litigation so the privilege remained intact.

Sidney Powell, on the other hand, told everyone listening to her press conferences and television interviews that Dominion manipulated the results of the 2020 election. And now shell have to prove that those statements were not defamatory.

Read more:

Trump allies including Giuliani lose bid to dismiss Dominion vote machine lawsuits

Ex-Trump lawyer Powell asks judge to toss voting machine company's $1.3 billion lawsuit

Voting machine company sues pro-Trump lawyer Sidney Powell over 'wild accusations'

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

Our Standards: The Thomson Reuters Trust Principles.

Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence, and freedom from bias.

Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the Worlds Most Valuable Coin. Reach her at alison.frankel@thomsonreuters.com

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Eighth Circuit Upholds Part Of Iowa "Ag Gag" Law – Litigation, Mediation & Arbitration – United States – Mondaq News Alerts

Posted: at 12:35 am

11 August 2021

Duane Morris LLP

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Today, the U.S. Court of Appeals for the Eighth Circuit upheld,in part, the constitutionality of an Iowa law that makes it acriminal offense to obtain access to an agricultural facility byfalse pretenses. Animal Legal Def. Fund v. Reynolds, No.19-1364 (8th Cir. Aug. 10, 2021). The court reversed in part adistrict court ruling that the law violated the FirstAmendment.

In light of animal activist infiltration of farms and otheragricultural operations, the Iowa legislature passed a law in 2012that made it a crime (a misdemeanor) to commit "agriculturalproduction facility fraud." That crime could be committed intwo ways: (1) by obtaining access to an agricultural productionfacility by false pretenses (the Access Provision); or (2) bymaking a false statement as part of an employment application to anagricultural production facility if the person knows the statementis false and makes it with an intent to commit an act notauthorized by the owner (the Employment Provision). Iowa Code 717A.3A(1)(a)-(b).

This measure was characterized as an "ag gag" law byits detractors on the ground that it allegedly penalizes freespeech on animal abuse issues. But it was seen by its supporters asan appropriate response to the animal rights activist tactic ofeither trespassing on farmland or obtaining employment at a farmwith false statements and then secretly videotaping or otherwiseexposing what the advocates claim is inhumane treatment of farmanimals.

Plaintiffs, which included the animal rights groups Animal LegalDefense Fund (ALDF) and People for the Ethical Treatment of Animals(PETA), sued claiming that the law violated their First Amendmentrights. The district court agreed and enjoined enforcement of thelaw. A three-judge paned of the Eighth Circuit reversed as to theAccess Provision but affirmed as to the Employment Provision.

The Access Provision did not violate the First Amendment becauseit proscribes using false statements to obtain access to privateproperty. The court examined the leading Supreme Court case onwhether the First Amendment protects false statements theso-called "stolen valor" case of United States v.Alvarez, 567 U.S. 709 (2012) but found the pluralityopinion in that case to be inconclusive. Nonetheless, the EighthCircuit concluded that, in light of Alvarez,"intentionally false speech undertaken to accomplish a legallycognizable harm may be proscribed without violating the FirstAmendment." Slip op. at 7. In this regard, the court ofappeals specifically disagreed with the district court'sreasoning that trespassing on a farmer's land was not a legallycognizable harm because the farmer would only be able to recovernominal damages:

Even without physical damageto property arising from a trespass, these damages may compensate aproperty owner for a diminution of privacy and a violation of theright to exclude legally cognizable harms. . . . "Theright to exclude is one of the most treasured rights of propertyownership." . . . We therefore conclude that the AccessProvision's prohibition on assuming false pretenses to obtainaccess to an agricultural production facility is consistent withthe First Amendment.

Id. (citation omitted).

However, the court found the Employment Provision to beunconstitutional. The court noted that, while a narrowly tailoredstatute that prohibits making false statements to get a jobprobably would pass constitutional muster, the Employment Provisionwas broader because it penalized the making of the false statementwhether or not it influenced the offer of employment. Id.at 8. The Employment Provision therefore "proscribes speechthat is protected by the First Amendment and does not satisfystrict scrutiny." Id. at 9.

Two judges wrote opinions separate from the majority authored byJudge Colloton. Judge Grasz joined in the majority opinion but didso "hesitantly as to the Access Provision. The court'sopinion today represents the first time any circuit court hasupheld such a provision." Id. at 11. Judge Gruenderconcurred in part and dissented in part. He concluded that neitherthe Access Provision nor the Employment Provision violates theFirst Amendment:

In sum, the Alvarezplurality's reasoning implies that both the AccessProvision and the Employment Provision areconstitutional. Consequently, although ourjurisprudence leaves open two ways of resolving theMarks question in this case, both ways converge on thesame result: we must uphold both provisions.

Id. at 21.

This case is a significant victory for animal businesses thathave been subjected to property invasions by animal rightsactivists. At least in Iowa, lying to get access to a farmer'sproperty in order to expose purported animal abuse is a crime.Moreover, even though the Employment Provision was invalidated, theEighth Circuit indicated that the state legislature could fix thatproblem by narrowing the law to "proscribe only falsestatements that are material to a hiring decision."Id. at 9. Whether there are further steps in thislitigation at the Eighth Circuit or Supreme Court levels, thedecision in this case will reverberate throughout the animal rightscommunity.

Disclaimer: This Alert has beenprepared and published for informational purposes only and is notoffered, nor should be construed, as legal advice. For moreinformation, please see the firm's full disclaimer.

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Extract | How Mayor Rudy Giuliani went from ‘patting on the back’ to trying to pull the plug on Sensation show – Art Newspaper

Posted: at 12:35 am

One of the most high-profile art censorship sagas of recent times is explored in a new book by Arnold Lehman, titled Sensation: The Madonna, the Mayor, the Media, and the First Amendment. The former Brooklyn Museum director dives into the furore around the 1999 exhibition Sensation: Young British Artists from the Saatchi Collection, which took place at the New York museum while he was at the helm. The show had first opened at the Royal Academy of Arts in London in 1997 where it had also drawn protests and made headlines.

In New York, Chris Ofilis painting The Holy Virgin Mary (1996)depicting a black Madonna amidst porn magazine cut-outs and elephant dungwas at the centre of the storm. In response to the painting, which he called anti-Catholic, New Yorks then-mayor Rudy Giuliani sought to cut the museum's funding and evict it from its city-owned building. It has taken Lehman two decades to fully absorb and reflect on events, and this book is his very personal account of what happened, says the publisher in a statement. In the extract below, Lehman describes presenting the controversial works in Sensation to Giuliani and his cohorts at New York City Hall.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment by Arnold Lehman

Perhaps most surprising to me at the time, and certainly in retrospect, was the Bastille Day meeting, as I called it, with the mayor, in City Hall on July 14, 1999, a meeting that both our board chair, Bob Rubin, and I had requested on a number of occasions but with no response until we received a call a week before. With mayor Giuliani were DCA [Department of Cultural Affairs] commissioner Schuyler Chapin, deputy mayors Joseph Lhota and Randy Levine, and budget director Robert Harding. The mayors office had earlier that week indicated that we would have 15 minutes to present our capital funding request of $20m for Brooklyn Museums new front entrance. While the city had been providing operating funds for many decades to cultural organisations that were part of the CIGsthe Cultural Institutions Group, 33 organisations operating in city-owned buildings or on city-owned land, based on a formulaic annual allocationcapital funding was a hit-or-miss process most often dependent on political advocacy from the borough president, city council, mayor or some combination of those.

After a pleasant welcome, and before getting to talk about the museums pressing need for its proposed capital project, the mayor, Bob and I talked about Brooklyn, where both the mayor and I were born, and exchanged friendly jibes about his Yankees versus the Mets. I then used the first part of our slide presentation to show the major need for the new entrance as well as the highly engaging designs by our team of renowned Japanese architect Arata Isozaki and greatly respected New York architect James Polshek.

[]

I concluded my presentation with slides from Sensation, starting with Damien Hirsts The Physical Impossibility of Death in the Mind of Someone Livinga ferocious shark encased in hundreds of gallons of formaldehyde. This immediately got the attention of everyone in the room and gave me the opportunity to talk about the exhibition generally, the necessary ticketed admission fees and, most importantly, its provocative nature. I showed one image after another of what we had understood to be the most controversial works in the exhibition as reported from the Royal Academy and the media. I prefaced this part of my presentation by saying that the RAs distinguished Exhibitions Secretary for two decades, Norman Rosenthal, had personally selected the works for the Sensation exhibition from the premier contemporary art collection in Great Britain, that of Charles Saatchi.

Installation shot of Sensation: Young British Artists from the Saatchi Collection at the Brooklyn Museum showing works by Damien Hirst, Marcus Harvey and Sarah Lucas Image: Brooklyn Museum, 1999

Again thinking that I would prepare Giuliani for what might happen, I went on to say that in the months before the exhibition opened to the public in London, there were already attacks in the British press and by Royal Academicians on the controversial nature of the works to be shown and thattrying to make the connection as clear as possible to the mayorRosenthal had been quoted in the UK Times in February 1997 [saying] that such works were as shocking, difficult, and thought-provoking as Goyas Disasters of War and Picassos Guernica had been in their day and that art is good when it perplexes us. As I was quoting Rosenthal, I immediately thought that I might have overestimated the art-historical knowledge of the mayor and his lieutenants!

[]

As the meeting was ending, Mayor Giuliani shook hands with Bob Rubin, patted me on the back, and told Deputy Mayor Randy Levine to give them what they wanttheyre good guys. With that said, I was already banking that $20 million in city capital funding for the museums new entrance!

That was the last time I spoke with Rudy Giuliani.

[.]

However, on Wednesday morning, September 22, I answered a call from Schuyler to my office. After a few moments of nervous but cordial chitchat, he abruptly announced that he was delivering a message from Mayor Giuliani that unless the museum immediately cancelled the Sensation exhibition, the city would terminate all funding for the BMA. I was incredulous that he had agreed to deliver this preposterous message and remained silent on the phone. Schuyler asked nervously, Arnold? Arnold, are you there? I held my temper and spoke coolly, with great deliberation: Im here, Schuyler. But where are you in this ultimatum? Where are you in all of this? What about freedom of expression?

Installation image of Sensation at the Brooklyn Museum showing Chris Ofili's The Holy Virgin Mary (1996) Image: Brooklyn Museum, 1999

Im just the messenger. Im just the messenger, Schuyler responded even more nervously. With my voice raised but still under control (which, thinking about it later, amazed me), I responded, But youre the damn commissioner of cultural affairs for the city of New York! You have to take a stand! He hung up the phone. An hour later, he called again to tell me that the mayors position had not changed. I asked if he had spoken to Giuliani, but he didnt answer. I asked if he was going to do something about this destructiveness on the part of the mayor?

Like what? he asked.

Like quit, I replied.

Schuyler said something I couldnt make out, seeming almost to whimper in response to my now nearly shouted suggestion. This time, I hung up. Within minutes, Giuliani appeared for a City Hall press briefing, seemingly timed directly to Schuylers second warning. The New York Times reported that one of the mayors aides had prompted a CBS reporter at the briefing, Mary Gay Taylor, to ask a question about recent press coverage of Sensation. Giuliani jumped in with a clearly rehearsed answer denouncing the museum: You dont have a right to government subsidy for desecrating somebody elses religion and, therefore we will do everything that we can to remove funding for the Brooklyn Museum until the director comes to his senses and realises that if you are a government-subsidised enterprise, then you cant do things that desecrate the most personal and deeply held views of people in society. Needless to say, Giulianis message until the director comes to his senses rang louder in my ears than had I been standing in the belfry of Londons Big Ben.

Sensation: The Madonna, the Mayor, the Media, and the First Amendment, Arnold Lehman, Merrell Publishers, 248pp, 25 (hb)

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Extract | How Mayor Rudy Giuliani went from 'patting on the back' to trying to pull the plug on Sensation show - Art Newspaper

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2021 has been a record year for the golf business – Yahoo Finance

Posted: August 11, 2021 at 12:46 pm

This article first appeared in the Morning Brief. Get the Morning Brief sent directly to your inbox every Monday to Friday by 6:30 a.m. ET. Subscribe

Wednesday, August 11, 2021

In August 2020, we wrote in The Morning Brief that the golf business was booming during the pandemic.

In August 2021, the industry only looks stronger.

Within the last week, we've seen golf's two biggest publicly-traded companies Titleist parent company Acushnet (GOLF) and Callaway Golf (ELY) report quarterly results. And these reports indicated that just about every benefit that accrued to the industry during the pandemic has only improved this year.

Golf requires two things that some consumers found abundant during the pandemic disposable income and idle time. The sport's earned reputation is shaped by there being only a select group of people with ample access to both. But during the pandemic, millions of consumers suddenly found themselves thrown into both categories.

The latest data from the National Golf Foundation shows that rounds played through June are up 23% year-to-date, and running 19% above the 2017-2019 average.

Rounds at public courses are also outpacing growth in rounds at private clubs, with public rounds played up 26% this year against a 13% increase in private loops. Data that confirms what your humble public-playing author finds out each weekend: you can't get a tee time anywhere these days.

"According to Golf Datatech, rounds played in June remained at an all-time high, and retail demand remains elevated," Callaway Golf CEO Chip Brewer said on the company's earnings conference call.

"More anecdotally," Brewer added, "private club memberships are also experiencing exceptional demand, with [waitlists] developing at many clubs across the U.S. and the U.K. With more options for activities opened this spring and summer compared to last year, we were cautious that there could have been a potential slowdown in golf participation and/or demand. However, thus far, we're pleased to report that we're not seeing this from our seat in the market." (Emphasis ours.)

Story continues

Ahead of second quarter earnings season, we argued in The Morning Brief that comparisons to 2019 would be key for businesses across the economy, with investors trying to make sense of which trends that took off during the pandemic would stick and which would fade away.

And Brewer's framing also shows how even those in the golf business were skeptical that 2020's rush into the sport would be sustained.

"So what we saw in the second half of 2020, rounds were up 25% versus the prior year," Acushnet CEO David Maher said on the company's earnings call.

"I think [2019] is a good baseline, right? We made the comment that rounds in the first half were up 20% over 2019. And just looking forward, I would think we'd see rounds of play up in the second half of this year in the 15% to 20% range versus 2019," he added.

As for how this boom has translated to the income statement for both companies, Callaway reported golf equipment revenues that rose 91% in the second quarter, while Acushnet said golf club sales rose 111% and golf ball revenues were up 98.1%. Adjusted EBITDA also rose sharply for both rising $94.7 million at Acushnet in the second quarter and by $135 million at Callaway.

Another development in the golf industry to watch will be Taylormade's potential move to public markets, following the company's recent sale to South Korea-based Centroid Investment Partners for just under $1.9 billion.

And as the world reopens and a new generation of golfers acquaints themselves with the sport's challenges and frustrations, the future for the game still looks bright.

And one key theme to watch is that "new participants are increasingly younger," Maher noted. "They're hooked on the game. They want to get better. We've talked about increased lessons throughout the industry in all markets, and that continues. And as a result, the game has become less intimidating and more welcoming."

By Myles Udland, reporter and anchor for Yahoo Finance Live. Follow him at @MylesUdland

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Truck driver shortage is about as bad as Ive ever seen: US Xpress CEO

SBA ramps up PPP loan forgiveness as big banks like JPMorgan, PNC go their own way

Cuomo is lucky hes not a CEO

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Truck driver shortage is about as bad as Ive ever seen: US Xpress CEO – Yahoo Finance

Posted: at 12:46 pm

The need for workers is weighing on the trucking industry, where freight operators are struggling to raise wages fast enough to find drivers.

Eric Fuller, the CEO of U.S. Xpress (USX), said that his company has doled out 30% to 35% in total pay increases over the last 12 months but suggested more may be needed.

The driver situation is about as bad as Ive ever seen in my career, Fuller told Yahoo Finance on Monday.

Data from the Bureau of Labor Statistics showed that in the depths of the COVID-19 pandemic, the truck transportation industry lost 6% of its pre-pandemic labor force of 1.52 million workers. As of July, the industry had recovered about 63,000 of those lost jobs but still remains about 33,000 jobs short of employment levels in February 2020.

Data from the U.S. Bureau of Labor Statistics shows that employment levels in the truck transportation industry remains short of pre-pandemic levels. Source: U.S. Bureau of Labor Statistics, Federal Reserve Bank of St. Louis

Fuller said the expiration of unemployment benefits in some states have brought back some workers, but still worries that it may only get harder to recover the remaining shortfall.

Drivers have shown a stronger preference for jobs that allow them to spend more time with their families, meaning that jobs in manufacturing or construction may poach talent from U.S. Xpress and other trucking companies.

Maybe it will change things permanently, Fuller said, adding that the pool of prospective drivers may have morphed structurally.

Fuller said another 20% to 30% in wage increases may be needed to keep prospective drivers from taking other jobs, but said his company cant afford to make further pay raises in that range at the moment.

Still, U.S. Xpress ramped up spending on efforts to find prospective drivers, noting in its most recent earnings call that it had increased recruiting costs by about $3.5 million.

The increased expenses associated with higher wages and recruitment costs is bleeding down to companies and consumers who pay for shipping.

U.S. Xpress said spot rates, which are real-time quotes for the fee to move a shipment, remain high and look unlikely to abate anytime soon.

Story continues

Data from DAT Solutions showed flatbed rates rising 42% year-over-year, a trend that U.S. Xpress doesnt expect to last forever.

Without a doubt, a drop in the spot market is going to come. What remains to be seen is whether itll happen in the winter, spring, or summer of 2022, the company noted in its third-quarter industry forecast.

Still, Fuller said spot rates over the last seven to eight months have been priced at premiums as high as hes ever seen.

Rates and prices are definitely being passed along to the shipper, Fuller told Yahoo Finance.

Brian Cheung is a reporter covering the Fed, economics, and banking for Yahoo Finance. You can follow him on Twitter @bcheungz.

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The Dip in These 2 Stocks Is a Buying Opportunity, Say Analysts – Yahoo Finance

Posted: at 12:46 pm

Successful market investing is all about finding opportunities, and buying into the right stocks at low prices. The only real trick to navigating the market is recognizing those opportunities, since low prices is a relative concept, not an absolute. A low price for a famously expensive stock like Amazon will still be in the thousands, while a low price for an obscure penny stock may be less than one dollar.

A look at stock charts will help to find companies whose shares are trading at a discount. Its a recognized strategy, and every investor knows about buying the dip and using a current low in a stocks trading price as a point of entry.

With this in mind, we scoured the TipRanks database and picked out 2 names which have been pinpointed by those in the know as representing a buying opportunity. Both are trading at relative low prices, and that comes with substantial upside potential. Let's take a closer look.

Opportunity Financial (OPFI)

Lets start in the fintech sector, where Opportunity Financial, or OppFi, provides a credit access platform for consumer use. Customers can download the app to their smartphone, and access credit through a completely digital process, with fast applications, fair and transparent decisions, and quality customer service. Among the services offered are loans and payroll-linked credit.

OppFi bases its business model on the large population estimated at 60 million of consumers who have difficulty accessing traditional sources of credit. These are people with regular work, but minimal savings and occasional financial emergencies that tap what resources they do have. OppFis target customer has an annual income less than $50K.

The need for credit in OppFis target population is apparent from the companys growth numbers. OppFi reported an 84% year-over-year growth in net originations during Q2, and a 28% yoy gain in revenue. It was a solid performance for a company that only went public this past July.

Story continues

That move to the public markets was accomplished via a SPAC merger. OppFi entered into a business combination with FG New America Acquisition, a special purpose acquisition company, and the OPFI ticker started trading on July 21. Since then, however, the shares have dropped by 22%.

That drop opens up the opportunity for investors, according to D.A. Davidson analyst Christopher Brendler.

With the stock reaching a new low [concurrent with] encouraging 2Q results, we see a compelling buying opportunity as the stock is now ridiculously cheap. We project OppFi to grow revenue 112% and EPS 98% (2020A-2022E) yet the stock now trades under 10x 2022E EPS, Brendler opined.

In line with this view, Brendler rates OPFI shares a Buy, along with a $14 price target. Investors could be sitting on gains of ~72%, should Brendlers forecast play out over the coming months. (To watch Brendlers track record, click here)

This newly public stock has attracted some positive attention from Wall Street, with 3 Buy recommendations giving it a unanimous Strong Buy consensus rating. The shares are trading for $8.10, and their $13.83 average price target implies ~70% upside potential for the coming year. (See OPFI stock analysis on TipRanks)

Scorpio Tanker (STNG)

Now lets shift gears, and enter the world of international shipping. Scorpio Tanker is a shipping company in the oil and petrochemical business, operating a fleet of ocean-going tanker vessels in the Handymax, MR, and LR1 and LR2 size ranges. The MR and LR ships are commonly used general purpose oil tankers, and will carry both crude oil and refined products. They are capable of operating in most ports around the world but Scorpio also operates a large number of smaller Handymax vessels, giving it access to small ports as well.

The economic reopening, and the resumption of much trade, was positive for Scorpio, as investors turned bullish on shipping generally with the resumption of the global carrying trade. The company saw its share price rise steadily through the first half of this year, peaking in late June. Since then, the stock has pulled back by 38%.

That pullback has come as Scorpio reported a difficult second quarter. The company saw a net EPS loss of 97 cents, compared to the per-share profit of $2.40 reported in the year-ago quarter. Revenue came in at $139.4 million, down from $346.2 million in 2Q20. The losses, and the fall in revenue, reflect a lag inherent in shipping and supply chains; that is, orders placed dont get sent out immediately. It is one reason why, even though economies are reopening, the shipping industry is facing headwinds.

H.C. Wainwright analyst Magnus Fyhr remains unfazed, and notes that the tanker company is in a sound position to take advantage of an improving shipping environment later this year.

"...we believe a global economic recovery and rising vaccination rates should increase mobility levels and support stronger global oil demand in 2H21. In fact, following two months of decline, oil demand surged by an estimated 3.2 mb/d to 96.8 mb/d in June, with 2H21 on course to rise 4.6 mb/d versus 1H21 levels, to 98.7 mb/d," Fyhr noted.

The analyst continued, "With product tanker fundamentals starting to improve, we believe asset values should continue to strengthen and that an improving liquidity position should address any balance-sheet concerns. As a result, we continue to like STNG as a product tanker pure play and believe the recent pullback has created an attractive buying opportunity."

Based on the above, Fyhr rates STNG shares a Buy, and his $28 price target implies an upside of ~89% this year. (To watch Fyhrs track record, click here)

As for the rest of the Street, STNG has been assigned 5 Buys, 1 Hold and 2 Sells. This translates to a Moderate Buy consensus rating. The average price target lands at $21.88, and represents upside potential of ~47%. (See STNG stock analysis on TipRanks)

To find good ideas for stocks trading at attractive valuations, visit TipRanks Best Stocks to Buy, a newly launched tool that unites all of TipRanks equity insights.

Disclaimer: The opinions expressed in this article are solely those of the featured analysts. The content is intended to be used for informational purposes only. It is very important to do your own analysis before making any investment.

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The Dip in These 2 Stocks Is a Buying Opportunity, Say Analysts - Yahoo Finance

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‘Inflation is here to stay’: financial adviser – Yahoo Finance

Posted: at 12:46 pm

The upward movement we're seeing in prices is not transitory and big tech will suffer from it, says one financial adviser.

"Wages are going up and typically what happens is they just dont go down over time. So they dont temporarily go up and go back down," Chris Payne of Payne Capital Management told Yahoo Finance Live.

"Even if youre going out to the grocery store, things are just more expensive. So not only do I think inflation is not transitory, I think its here to stay. And I really think it will impact different markets," he added.

Technology is the sector which could be impacted the most, he said.

"I think big tech is going to face the biggest headwind when it comes to inflation," said Payne.

"What we call long duration assets like pipelines, commodities what we call more value based I think those things are going to benefit from inflation," he added.

Payne's comments are in stark contrast with Fed Reserve Chairman Jerome Powell's repeated comments that inflation is transitory.

Economists like Stephanie Roth from JPMorgan agree with the Fed.

"Inflation screams transitory when you look at the data," Roth told Yahoo Finance Live.

"You're starting to see signs that inflation is cooling. The data isn't particularly scary to us," she added.

"Certainly wage pressures have been high recently but we think that thats driven by a couple of factors," she added. "Unemployment benefits which are quite generous and are starting to roll off."

"Concerns around COVID thats certainly transitory," she said. "And then the child care issue also. As school starts to reopen we should see the wage pressures start to subside."

The core personal consumption expenditures price index (Core PCE, which excludes food and energy) increased 3.5% year over year in June. That's the highest reading since 1991.

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Ines is a markets reporter covering stocks from the floor of the New York Stock Exchange. Follow her on Twitter at @ines_ferre

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Inflation will pound this dollar store, and maybe its stock: Deutsche Bank – Yahoo Finance

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Stubbornly hot inflation will be unkind to the bottom line of Dollar Tree, warns Deutsche Bank.

Deutsche Bank analyst Krisztina Katai downgraded her rating on the dollar store to Hold from Buy on Monday, and slashed the price target to $102 from $129.

"We now see more balanced risk/reward, especially with renewed concerns around building inflationary pressures. We remain long-term believers in Dollar Tree's story including the ongoing turnaround at Family Dollar, however, we are incrementally concerned around accelerating cost pressures from both freight and wages, particularly in light of the Dollar Tree banner's fixed $1 price point which limits its ability to absorb higher costs through price increases, putting margins at risk," said Katai in a research note to clients.

Shares of Dollar Tree fell 2% to $97 in pre-market trading Monday. The stock has fallen 8% in the past six months as investors fret about the chain's profit margins amidst considerable inflation in labor and the supply chain. The business is essentially hamstrung in how it could respond to inflationary pressures given its model of selling products mostly at $1 and price sensitive shoppers.

Indications of stress on the model appeared on May 27, points out Katai. That's when Dollar Tree issued 2021 earnings guidance that was 8% shy of the mid-point of analyst estimates.

"Like most retailers, we are currently faced with higher freight costs, both international and domestic worker shortages, and uncertainty related to inflation," cautioned Dollar Tree CEO Mike Witynski on a call with analysts.

Katai now doesn't believe earnings estimates for Dollar Tree on the Street have bottomed. Further markdowns could impact the stock negatively.

"With the sequential worsening in ocean freight rates since the 1Q release we are no longer confident that negative earnings revisions are behind us," said Katai.

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Everywhere one looks inflation appears to be running hot right now as the U.S. economy powers back from the COVID-19 pandemic triggering shortages in everything from workers to raw materials.

The June Consumer Price Index (CPI) increased at its fastest pace in 13 years.

July's CPI will be released later this week. CPI excluding food and energy is expected to have risen by 4.3% in July over last year, pulling back just slightly from June's 4.5%. Core consumer prices are also estimated to have advanced for the fourteenth consecutive month, or by 0.5% after June's 0.9% monthly gain.

Brian Sozzi is an editor-at-large and anchor at Yahoo Finance. Follow Sozzi on Twitter @BrianSozzi and on LinkedIn.

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Won’t get a COVID-19 vaccine? Some bosses may charge you $20 to $50 more for health insurance on every paycheck – Yahoo! Voices

Posted: at 12:46 pm

Tyson Foods, United Airlines, CNN, the U.S. military.

A wide variety of employers, including those four, impose COVID-19 vaccine mandates on their workers, and experts said theyll have a lot more company soon after the Food and Drug Administration gives the shots its full approval.

Some employers arent ready to impose mandates but may penalize workers for not getting vaccinated, possibly by requiring them to pay an insurance surcharge costing several hundred dollars a year.

I think theyve decided that in order to get that needle to move, they need to do something more, said Wade Symons, leader of the regulatory resources group at Mercer, an employee benefits consultancy.

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Other employers just ask nicely or stick with incentives, hoping not to scare workers off amid what HR leaders call The Great Resignation a pent-up flood of people quitting after holding onto their jobs during the pandemic.

The hodgepodge of vaccination strategies coincides with the surge of the delta variant, which is more contagious than earlier versions of the coronavirus and threatens to derail efforts to return to the office.

Here are some of the issues with vaccine mandates, which experts agree are legal as long as workers are provided accommodations for legitimate medical or religious objections:

If you work in a field that requires you to interact with the public, you are among those most likely to be required to be vaccinated, said Michael C. Schmidt, vice chair of law firm Cozen O'Connors labor and employment department.

This is particularly true of health care providers such as hospitals, many of which have historically required flu vaccinations.

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It may be true of other industries with workers in harms way such as meatpacking plants. Those facilities faced criticism over COVID-19 outbreaks in the early months of the pandemic because the employees typically work side by side. Tysons Food, which sells meat, ordered vaccinations for its workers.

In the travel sector, United Airlines is among the first major companies to issue a vaccine mandate to its employees. Flight attendants and gate agents are among workers who work directly with the public, putting themselves and travelers at risk.

What youre seeing is employers realizing that that resistance is softer than it might have been a few months ago as the delta variant gets more extreme, said Denise Rousseau, professor of organizational behavior and public policy at Carnegie Mellon University's Heinz College.

Yet many companies whose employees interact with the public don't require vaccination. Major retailers such as Walmart and Target havent issued mandates for store workers. Walmart requires vaccinations for employees at its headquarters in Arkansas and for some workers who travel regularly.

"We have an important role to play and believe the requirement for vaccinations for our leaders is key to driving toward an end to this pandemic," Walmart CEO Doug McMillon said in a memo to employees.

Yes. This could include a surcharge on your health insurance.

Mercers Symons said clients have asked him about how to charge unvaccinated employees more for their insurance to cover the costs of massive hospital bills.

Its something weve just started getting questions about in the last couple of weeks, Symons said. The number of questions has been surprising in the volume. This is something theyre more willing to take on. Its less than a mandate.

Symons estimated that some workers could face an additional $20 to $50 per paycheck, though he said he would expect it to be on the lower end of that scale.

That would translate into several hundred dollars annually in extra costs.

Unvaccinated folks have the potential to cost employers more from a health care cost perspective, so theyre feeling theyre justified in that additional surcharge, he said.

It would be akin to how some employers tack on a surcharge for workers who smoke cigarettes, Symons said, though he acknowledged that surcharges for the unvaccinated would probably be more controversial.

Insurance surcharges could turn out to be more effective than mandates, Carnegie Mellons Rousseau said.

People are loss-sensitive, she said. Losses are more painful than gains are good. If the incentives are experienced as a loss, theyll act to correct that loss.

Its highly likely. For now, COVID-19 vaccines remain authorized under emergency use regulations.

If the FDA grants full approval, it may lead to a flood of employers mandating shots since the agency's signoff would remove one of the arguments against requirements, experts speculated.

Emergency use status isnt enough to block mandates. A federal judge in Houston ruled against hospital employees who argued that they should not be subject to a mandate because the vaccine had been only authorized for emergency deployment.

The judge pretty handily rejected that claim, said Schmidt, the employment lawyer.

Tyson Foods team members receive COVID-19 vaccines Feb. 2 from health officials in Wilkesboro, N.C. Tyson Foods requires all of its U.S. employees to get vaccinated against COVID-19.

Some employers have been reluctant to order vaccines until the shots have the same authorization as, say, over-the-counter medicine.

Theres no question there were some employers that recognized the uneasiness of the (emergency) status and were waiting and might still be waiting for approval, Schmidt said.

Possibly. In some cases, unions support mandates, including the AFL-CIO, which represents 56 unions accounting for more than 12 million workers.

Others, such as unions representing teachers, sheriffs deputies and state workers, have spoken up against mandates.

We have a right to bargain over a new work rule," said Debbie White, president of Health Professionals and Allied Employees, New Jerseys largest health care union.

Most union contracts will prevent employers from imposing mandates without negotiating, Schmidt said.

Definitely. Employers recognize that resistance is particularly strong in some quarters. Nearly 3 in 10 American adults havent gotten at least one dose of vaccine.

Because vaccinations have become a political issue for a portion of Americans who refuse them, employers could face mass resignations if they require shots. (Other employees are hesitant because of safety concerns and other fears.)

Thats particularly concerning for bosses since many are struggling with The Great Resignation a widespread departure of workers who held onto their positions during the pandemic but are ready to leave for something else now that the economy is picking up.

Given how many employers are grappling with worker shortages, they may want to avoid upsetting their staff.

Workers could be bluffing when they threaten to quit, but employers might still fold their cards.

What people say and what people do theres always a disparity, said Theresa McEndree, global head of marketing for Blackhawk Network, which consults with employers about worker incentives.

Employers may have to accept the inevitability that some people are as good as gone.

Ive heard employers saying that if this is a reason why someone is unwilling to come to work, then maybe we just have to live with them working somewhere else, Symons said, because some employers feel like they just need to get back to functioning as close to the way they did before.

This is also possible. Research shows that many vaccinated Americans are concerned about working alongside unvaccinated colleagues.

More than 62% of American workers want at least 8 in 10 of their co-workers to be vaccinated before theyll feel comfortable returning to the office, according to Blackhawk Network research.

In many cases, the answer is probably yes. For companies that dont want to force their workers to get vaccinated, incentives may do the trick.

History and data have shown that its more positive to reward good behavior than impose a punishment, McEndree said.

Of unvaccinated workers, 51% say a financial incentive from their employer would motivate them to start and complete the vaccine process, she said, summarizing Blackhawks research.

In this case, she said, money works.

Contributing: Lindy Washburn of NorthJersey.com

You can follow USA TODAY reporter Nathan Bomey on Twitter @NathanBomey and subscribe to our free Daily Money newsletter here for personal finance tips and business news every Monday through Friday morning.

This article originally appeared on USA TODAY: Health insurance charge for not getting COVID vaccine? It could happen

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Won't get a COVID-19 vaccine? Some bosses may charge you $20 to $50 more for health insurance on every paycheck - Yahoo! Voices

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NYC’s vaccine mandate will test the authority of a 1905 Supreme Court case – Yahoo Finance

Posted: at 12:46 pm

Major employers and universities across the U.S. have comfortably relied on legal precedent that supports mandating a COVID-19 vaccine for workers and students. However, when New York City becomes the first government in the country to ban unvaccinated people from indoor restaurants, gyms, and entertainment venues, it opens up a new legal debate.

On Tuesday, New York City Mayor Bill de Blasio announced the plan, which will go into effect on Aug. 16. Legal experts told Yahoo Finance that the rule will test the authority of a 1905 Supreme Court case that gave states a broad yet still limited right to uphold compulsory vaccination laws.

We should all keep in mind that the courts jurisprudence is still unsettled, Jim Oleske, professor at Lewis & Clark Law School, told Yahoo Finance. I think that no matter what [New York Citys] final rule looks like...it's going to get challenged.

While the New York City rule is scheduled to go into effect on Aug. 16, enforcement will begin Sept. 13 and will be up to the city's health department rather than the city's police force.

When announcing the rule, de Blasio said, This is going to be a requirement. The only way to patronize these establishments indoors, will be, if you're vaccinated at least one dose. The same for folks in terms of work they'll need at least one dose.

Mayor Bill de Blasio says NYC will mandate the COVID-19 vaccine to enter restaurants and fitness centers. (Photo by SBN/STAR MAX/IPx)

Legal scholars and practitioners say that while there's a strong foundation for states and local governments to adopt and enforce their own vaccination policies, the foundation isnt unshakable.

The coming challenges are expected to raise some of the arguments already brought against COVID-19 mandates in lawsuits across the country, and ultimately force courts to grapple with the 1905 Supreme Court decision, Jacobson v. Massachusetts. In Jacobson, the court said that states, under their police power, could require the smallpox vaccine.

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Jacobson is an old case, and how much force it will have, I think it depends, Oleske said.

Most ripe for debate, Oleske said, is whether state and local governments need to provide exceptions to mandatory vaccination policies either to protect the constitutional right to the free exercise of religion, or to protect the constitutional right under the Due Process clause to remain free from bodily interference.

University of California Hastings College of Law professor Dorit Rubinstein Reiss said another unsettled question is whether such government mandates are legal while inoculations remain under Emergency Use Authorization. Dr. Anthony Fauci told USA Today's editorial board on Friday that there will be a "flood" of vaccine mandates at schools and businesses after the vaccines receive full FDA approval.

She also expects debate over the Americans with Disabilities Act (ADA) and whether it overrides a vaccine policy like New York City's, given that for places open to the public, like restaurants, fitness venues and entertainment spaces, it generally requires accommodations for people with disabilities.

"Those who cannot be vaccinated should not be punished for it," Reiss said. "I would be surprised if [New York City's] law did not include an exception."

While the CDC does not cite specific disabilities known to preclude people from getting a vaccine, the agency notes that some people may be allergic to ingredients in the COVID-19 vaccines. The agency also acknowledges it has limited or no vaccine safety data on individuals with certain underlying medical conditions, citing people with weakened immune systems, and more specifically, autoimmune conditions. Ultimately, the CDC says it recommends COVID-19 vaccination for "most people" with underlying medical conditions, especially those whose condition puts them at higher risk of severe infection.

Although the ADA does not name all impairments that qualify as disabilities, it does recognize HIV, specifically. The agency defines a person with a disability as "a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment."

Several COVID-19 era cases have begun to establish rules amid the pandemic's uncharted legal waters.

In April, the Supreme Court rejected Californias restriction on private gatherings because it didnt exempt religious gatherings. The case exemplifies how much deference the court has been willing to give to those who challenge the validity of a state law aimed at protecting public health, based on religious grounds. In its decision, the court pointed out that the case marked the fifth time it had rejected the Ninth Circuits analysis of Californias COVID restrictions on religious exercise.

A federal district court decision in Texas that dealt with a private employer mandate, rather than one issued by the government, could also have bearing on how courts handle complaints that vaccines have yet to receive full FDA approval. The Texas court dismissed claims of hospital employees who argued that because of the attenuated approval of vaccines, their employers' mandate forced them to either lose their jobs or unwillingly participate in a medical experiment. The case is unique in that it upheld an employer's rule despite no accommodation for workers who raised objections based on disability.

In another decision, handed down in August, the U.S. Court of Appeals for the Seventh Circuit upheld Indiana Universitys right to require student vaccinations for those on campus, reasoning that students could choose to remain unvaccinated and not attend, or another school.

Bill Gordon, a lawyer for King & Spalding who advises companies and individuals on state and local government rules, speculates that New York City may not be legally required to offer exceptions, specifically if its vaccination mandate is limited to restaurants, gyms, and entertainment venues.

Like the Indiana case (which said students could choose not to attend the University), the argument will be that it's not necessary to go to a restaurant, and it's not necessary to go to a movie theater, he explained. That being said, it's possible that they will have had some limited exceptions.

Gordon added that if the legality of New York City's mandate were to be challenged in federal court, the analysis would probably look slightly different than the one in Jacobson.

Courts would likely use the rational basis test, Gordon said, referring to a minimum standard that requires governments to show that a law or ordinance is "rationally related" to a legitimate government interest. In 1905, the court required the ordinance to be "reasonable."

Rubinstein Reiss said at a minimum, under either standard, when a government seeks to make vaccination mandatory, she expects a medical exception to be a legal must.

"In terms of medical exemptions, Jacobson implied or strongly suggested that you may be required to give a medical exemption," Reiss said, emphasizing that the case left the door open for debate because it didn't deal directly with the question.

Beyond that, Oleske and Reiss say state and local vaccine mandates are likely going to need to include exceptions for those who decline vaccination on religious grounds.

If it does not include religious exemptions, there will almost certainly be constitutional claims brought under the Free Exercise Clause, Oleske said.

On more shaky ground, he said, will be any challenges claiming a general right to bodily integrity under the constitutions Due Process clause, which has been invoked in abortion and right to die cases.

"On that front, it's going to be very hard because the precedent from the Supreme Court has decided that issue, albeit in 1905," Oleske said.

Another issue that could open the door to legal challenges is how New York City goes about enforcing and penalizing its ban. City officials have yet to explain how they intend to enforce the rule or punish those who violate it. However, already settled in Jacobson was the state's right to impose a fine. The plaintiff who declined vaccination was fined $5, today's equivalent of approximately $150.

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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