Business
EV maker Fisker to be liquidated under plan that will keep owners on the road
Troubled electric vehicle maker Fisker Inc. has reached a settlement with creditors that will allow it to liquidate its assets while working with owners to keep their pricey SUVs on the road.
The company filed for Chapter 11 bankruptcy protection in June after failing to reach a strategic agreement with another automaker that could provide it with more capital and domestic manufacturing capacity.
The global agreement reached Friday in U.S. Bankruptcy Court in Delaware allows Fisker management to remain in charge for some time as the operation winds down.
That was important to Fisker, the National Highway Traffic Safety Administration and car owners, who filed objections to converting the bankruptcy to Chapter 7, noting the startup’s only vehicle — a premium SUV called the Ocean — has several open recalls for faulty door handles, loss of power and other problems.
“The owners strongly believe that Fisker owes them a responsibility to ensure that their vehicles are safe and operable, and that the best way for Fisker to fulfill that promise is through a Chapter 11 process,” said attorney Daniel Shamah, who represents the Fisker Owners Assn. “We can be sure that employees and the advisors who are helping the company do this remain on board.”
The liquidation plan, which details how proceeds from asset sales will be distributed among various creditors, is subject to a vote by all unsecured creditors.
The plan also calls for the owners association to have a voice in the sale of Fisker’s intellectual property, which includes the designs and computer code that were necessary to build and operate the vehicles. The owners need long-term access to Fisker’s “cloud software,” which is crucial for sending over-the-air updates to the vehicle software that controls the Ocean.
Other issues, including access to parts and long-term service, are still being negotiated outside the bankruptcy process, Shamah said.
However, with secured and unsecured claims against the company likely to top $1 billion, shareholders who invested in Fisker are unlikely to get their money back.
“It’s a virtual certainty that there will be no money for equity. There’s no way you’re going to have enough to pay claims in full in this liquidation,” said David Golubchik, a veteran bankruptcy attorney at Levene, Neale, Bender, Yoo & Golubchik in Los Angeles.
Founded in 2016 by auto designer Henrik Fisker, the company went public in 2020 via a SPAC, or special purpose acquisition company, backed by private equity firm Apollo Global Management. The company raised $1 billion in equity capital and borrowed even more, but ran out of money and only sold about 7,000 of its vehicles.
The Ocean was envisioned as a competitor to Tesla’s Model Y, but Fisker had trouble making and delivering the snazzy SUV through a direct sales model borrowed from Tesla. The SUV also was plagued by software glitches, though its ride and build were praised.
Fisker made more than 11,000 Oceans before it stopped production, according to a court filing. The bankruptcy court already has approved the sale of the company’s remaining inventory of 3,321 Oceans, which were acquired for $46.25 million by American Lease, a Bronx, N.Y., business that leases Uber and Lyft cars.
Fisker, which was based in Manhattan Beach before shutting down its headquarters and moving to Orange County, has few other hard assets.
Henrik Fisker, the chairman and chief executive, built the company to be asset light, with vehicles assembled at an Austrian factory owned by a subsidiary of Magna International, a Canadian manufacturer of automobile components.
Fisker’s most valuable asset might be its intellectual property, but it’s unclear what bids it may attract.
The settlement came after discussions among Fisker and its secured and unsecured creditors following a dispute over whether to convert the case to a Chapter 7 liquidation run by a trustee.
The conversion was sought by the company’s largest secured creditor: CVI Investments and its investment manager, Heights Capital Management Inc., both affiliates of Susquehanna International Group, a large Pennsylvania trading firm founded by billionaire Jeff Yass.
CVI argued the administrative costs of operating under Chapter 11 were draining and that were was little likelihood the company would remain in business.
However, its status as a legitimate secured creditor was questioned by the Committee of Unsecured Creditors, including U.S. Bank, which has filed a $681-million claim related to Fisker notes it holds.
Last year, Fisker sold convertible notes to CVI, receiving gross proceeds of $450 million, according to a court filing by the unsecured creditors. Fisker filed its third-quarter earnings report late, technically defaulting on the notes and converting them into secured debt.
The committee alleged that CVI profited an estimated $57 million from the sales of its converted shares, diluting the stock and driving its price under 10 cents a share this year.
Shareholders have called for the Securities and Exchange Commission to look into CVI’s and Height’s roles in the bankruptcy, including potential short selling that may have driven Fisker’s shares to pennies. Attorneys for CVI and Heights did not return messages seeking comment.
Fisker has received a subpoena from the SEC, The Times reported last week. It is unclear what information the agency is seeking.
The company is facing multiple shareholder lawsuits that focus on Fisker’s late third-quarter filing and the role it played in the collapse of the stock price. In 2021, the company’s market cap approached $8 billion before shares traded at pennies prior to the bankruptcy filing.
The lawsuits included allegations that Fisker, his wife Geeta Gupta-Fisker (the company’s co-founder, chief financial officer and chief operating officer) violated their fiduciary duties and securities laws. The company declined to comment.
Fisker’s stake in the company is now virtually worthless, but he sold about $20 million worth of shares in 2021 well before the stock declined. Fisker and his wife also received bonuses in December of a little more than $1 million each, which were disclosed last week in a bankruptcy court filing by Fisker. The company declined to comment on the reason for the bonuses.
Evan Scott, 39, who owns a Fisker Ocean and figures he lost about $50,000 on the company’s stock, said he was shocked to learn about the bonuses.
“As a shareholder and a car owner who had supported Henrik and his wife, I am seeing red,” Scott said. “They knew the company was in dire straits. They were just expediting bankruptcy by doing that.”
Business
The justices are expected to rule quickly in the case.
When the Supreme Court hears arguments on Friday over whether protecting national security requires TikTok to be sold or closed, the justices will be working in the shadow of three First Amendment precedents, all influenced by the climate of their times and by how much the justices trusted the government.
During the Cold War and in the Vietnam era, the court refused to credit the government’s assertions that national security required limiting what newspapers could publish and what Americans could read. More recently, though, the court deferred to Congress’s judgment that combating terrorism justified making some kinds of speech a crime.
The court will most likely act quickly, as TikTok faces a Jan. 19 deadline under a law enacted in April by bipartisan majorities. The law’s sponsors said the app’s parent company, ByteDance, is controlled by China and could use it to harvest Americans’ private data and to spread covert disinformation.
The court’s decision will determine the fate of a powerful and pervasive cultural phenomenon that uses a sophisticated algorithm to feed a personalized array of short videos to its 170 million users in the United States. For many of them, and particularly younger ones, TikTok has become a leading source of information and entertainment.
As in earlier cases pitting national security against free speech, the core question for the justices is whether the government’s judgments about the threat TikTok is said to pose are sufficient to overcome the nation’s commitment to free speech.
Senator Mitch McConnell, Republican of Kentucky, told the justices that he “is second to none in his appreciation and protection of the First Amendment’s right to free speech.” But he urged them to uphold the law.
“The right to free speech enshrined in the First Amendment does not apply to a corporate agent of the Chinese Communist Party,” Mr. McConnell wrote.
Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said that stance reflected a fundamental misunderstanding.
“It is not the government’s role to tell us which ideas are worth listening to,” he said. “It’s not the government’s role to cleanse the marketplace of ideas or information that the government disagrees with.”
The Supreme Court’s last major decision in a clash between national security and free speech was in 2010, in Holder v. Humanitarian Law Project. It concerned a law that made it a crime to provide even benign assistance in the form of speech to groups said to engage in terrorism.
One plaintiff, for instance, said he wanted to help the Kurdistan Workers’ Party find peaceful ways to protect the rights of Kurds in Turkey and to bring their claims to the attention of international bodies.
When the case was argued, Elena Kagan, then the U.S. solicitor general, said courts should defer to the government’s assessments of national security threats.
“The ability of Congress and of the executive branch to regulate the relationships between Americans and foreign governments or foreign organizations has long been acknowledged by this court,” she said. (She joined the court six months later.)
The court ruled for the government by a 6-to-3 vote, accepting its expertise even after ruling that the law was subject to strict scrutiny, the most demanding form of judicial review.
“The government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link all the pieces in the puzzle before we grant weight to its empirical conclusions,” Chief Justice John G. Roberts Jr. wrote for the majority.
In its Supreme Court briefs defending the law banning TikTok, the Biden administration repeatedly cited the 2010 decision.
“Congress and the executive branch determined that ByteDance’s ownership and control of TikTok pose an unacceptable threat to national security because that relationship could permit a foreign adversary government to collect intelligence on and manipulate the content received by TikTok’s American users,” Elizabeth B. Prelogar, the U.S. solicitor general, wrote, “even if those harms had not yet materialized.”
Many federal laws, she added, limit foreign ownership of companies in sensitive fields, including broadcasting, banking, nuclear facilities, undersea cables, air carriers, dams and reservoirs.
While the court led by Chief Justice Roberts was willing to defer to the government, earlier courts were more skeptical. In 1965, during the Cold War, the court struck down a law requiring people who wanted to receive foreign mail that the government said was “communist political propaganda” to say so in writing.
That decision, Lamont v. Postmaster General, had several distinctive features. It was unanimous. It was the first time the court had ever held a federal law unconstitutional under the First Amendment’s free expression clauses.
It was the first Supreme Court opinion to feature the phrase “the marketplace of ideas.” And it was the first Supreme Court decision to recognize a constitutional right to receive information.
That last idea figures in the TikTok case. “When controversies have arisen,” a brief for users of the app said, “the court has protected Americans’ right to hear foreign-influenced ideas, allowing Congress at most to require labeling of the ideas’ origin.”
Indeed, a supporting brief from the Knight First Amendment Institute said, the law banning TikTok is far more aggressive than the one limiting access to communist propaganda. “While the law in Lamont burdened Americans’ access to specific speech from abroad,” the brief said, “the act prohibits it entirely.”
Zephyr Teachout, a law professor at Fordham, said that was the wrong analysis. “Imposing foreign ownership restrictions on communications platforms is several steps removed from free speech concerns,” she wrote in a brief supporting the government, “because the regulations are wholly concerned with the firms’ ownership, not the firms’ conduct, technology or content.”
Six years after the case on mailed propaganda, the Supreme Court again rejected the invocation of national security to justify limiting speech, ruling that the Nixon administration could not stop The New York Times and The Washington Post from publishing the Pentagon Papers, a secret history of the Vietnam War. The court did so in the face of government warnings that publishing would imperil intelligence agents and peace talks.
“The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” Justice Hugo Black wrote in a concurring opinion.
The American Civil Liberties Union told the justices that the law banning TikTok “is even more sweeping” than the prior restraint sought by the government in the Pentagon Papers case.
“The government has not merely forbidden particular communications or speakers on TikTok based on their content; it has banned an entire platform,” the brief said. “It is as though, in Pentagon Papers, the lower court had shut down The New York Times entirely.”
Mr. Jaffer of the Knight Institute said the key precedents point in differing directions.
“People say, well, the court routinely defers to the government in national security cases, and there is obviously some truth to that,” he said. “But in the sphere of First Amendment rights, the record is a lot more complicated.”
Business
How the devastating Los Angeles fires could deepen California's home insurance crisis
When raging wildfires tore through Pacific Palisades and other local communities this week, they not only left a path of destruction reminiscent of a World War II bombing campaign, but threatened to deepen a crisis that has already left hundreds of thousands of Californians struggling to find and keep affordable homeowners insurance.
The multiple fires from Los Angeles to the San Gabriel Valley that have burned thousands of structures since Tuesday — leading to losses that by one early estimate are well into the tens of billions of dollars — hit Southern California as insurers have been dropping customers statewide citing the increasing number and severity of wildfire-related losses.
The Palisades fire alone, which consumed more than 5,000 homes and structures, is being called the most destructive fire ever to hit the city, while the fires across the county are likely to be one of the most expensive natural disasters in U.S. history.
“It’s just an unmitigated disaster,” said Amy Bach, executive director of United Policyholders, a consumer advocacy group. “Wildfires in January? This just proves insurers’ point that the risk is so significantly increased due to climate change.”
State Farm, the state’s largest home insurer, announced in March it would not renew 72,000 property insurance policies, while Chubb and its subsidiaries stopped writing new high-value homes with higher wildfire risk — just to name two insurers that pulled back from the California market.
It’s not clear how many homeowners in Pacific Palisades and elsewhere might not have had coverage, but at least some homeowners reported that insurers had not renewed their policies before the disaster struck. Actor James Woods, who lost his home in the Palisades fire, tweeted Tuesday that “one of the major insurances companies canceled all the policies in our neighborhood about four months ago.”
State Farm last year told the Department of Insurance it would not renew 1,626 policies in Pacific Palisades when they expired, starting last July.
A spokesperson for State Farm declined to comment on the decision but said: “Our number one priority right now is the safety of our customers, agents and employees impacted by the fires and assisting our customers in the midst of this tragedy.”
The situation has left many homeowners in neighborhoods at high wildfire risk with little choice but to seek relief from the California FAIR Plan, an insurer of last resort that sells policies with lesser coverage. The policies cover losses up to $3 million to a dwelling and its contents caused by certain hazards, such as fire, but do not include personal liability and other protection that are typically offered by private insurers.
The FAIR Plan has seen its policies grow from a little over 200,000 in September 2020 to more than 450,000 as of last September. That has roughly tripled its loss exposure to $458 billion over the same period. Pacific Palisades has one of the state’s highest concentrations of FAIR Plan policy holders, with the insurer estimating its exposure in the neighborhood at $5.89 billion.
JP Morgan analysts estimate that total L.A. County losses could be close to $50 billion, while the losses insurers will have to pay could top $20 billion. Another estimate puts the losses even higher.
Such losses could cause insurers to exit the market completely, which Tokio Marine America Insurance Co. and Trans Pacific Insurance Co. said in April they would do in not renewing 12,556 homeowners.
The losses also could prompt insurers to further raise premiums, even though some insurers already have been granted big rate hikes, such as a 34% increase Allstate received last year.
Denise Rappmund, senior analyst at Moody’s Ratings, said, “These events will continue to have widespread, negative impacts for the state’s broader insurance market — increased recovery costs will likely drive up premiums and may reduce property insurance availability.”
Should insurers further withdraw from the market, that would put additional pressure on the FAIR Plan, which is is backed by the state’s licensed insurers, such as State Farm, who have to pay claims if they exceed the FAIR Plans reserves, reinsurance and catastrophe bonding. The insurers also can assess their own policyholders surcharges in the billions of dollars to bail out the plan under regulations put in place last year by Insurance Commissioner Ricardo Lara as part of his Sustainable Insurance Strategy to help the crippled market.
It’s unclear whether the plan will be able to absorb the losses like it did after the 2018 Camp fire that destroyed the town of Paradise in North California. That conflagration was the single costliest natural disaster in the world that year with $12.5 billion in covered losses and $16.5 billion in total losses, according to the reinsurance firm, Munich RE.
“This further complicates an already complicated and hardened market,” Lara said of the fires, in an interview with The Times.
Nonetheless, Lara’s reforms seek to ensure the FAIR Plan remains solvent and to make it more attractive for insurers to write policies in fire risky neighborhoods now being absorbed by the program. He said the regulations should encourage insurers to write more homeowners policies, and if not, they can be adjusted. “I feel very confident,” he said.
For the first time, California insurers can use so-called “catastrophe models” in setting their rates. Instead of largely relying on past claims data, the computer programs attempt to better refine an insurer’s risk by taking into account a multitude of variables that affect a property’s likelihood to suffer a loss.
The other major policy change allows insurers to charge California homeowners for the cost of reinsurance they buy from other insurers to limit their losses during huge catastrophes, such as wildfires and floods. This cost shift to policyholders is common elsewhere but a big change for California, where it will raise premiums.
In return for those concessions, insurers will have to write insurance in high-risk wildfire neighborhoods equivalent to 85% of their market share, meaning an insurer with a 10% statewide market share would have to cover 8.5% of the homes in such neighborhoods — a target they have at least two years to reach. Lara’s plan has been blasted by the Los Angeles group, Consumer Watchdog, which says the regulations lack teeth in actually requiring insurers to meet the coverage goals.
“The Sustainable Insurance Strategy is not a magic wand. It’s a set of incentives,” Bach said. “At the end of the day, insurers are always still going to analyze, ‘Are we going to make money here or not?’”
How much this week’s fires will disrupt the already troubled insurance market depends, of course, on how big a disaster they are — but all indications are that insurers will have to absorb billions of dollars of claims given the number of homes destroyed, especially in the wealthy enclave of Pacific Palisades, where the average home is valued at about $3.5 million by Zillow.
Insurance industry experts say a clearer picture on the estimated losses will only come after adjusters have time to review submitted claims.
“I think it’s going to be 45 days before we know what the true damage is,” said Max Gilman, president of California personal lines at the brokerage HUB International.
Whatever the final cost, Gilman noted that the fires came after a couple of relatively light fire seasons — though in November the Mountain fire in Ventura County scorched more than some 20,640 acres and destroyed more than 130 homes amid parched conditions. That made it at the time the third most destructive fire in Southern California in a decade.
“I think what’s currently transpiring is going to be of grave concern for the future,” he said. “I feel like we we took three steps forward to take five steps back.”
Denne Ritter, a vice president with the American Property Casualty Insurance Assn. trade group, said it is too early to assess the impact of the fires on Lara’s reforms, especially given how they are just being put in place. Only one catastrophe model has been submitted for review to regulators, while the reinsurance regulation released last month still awaits final approval by the Office of Administrative Law.
“What the insurance industry wants is a healthy market in California where we can compete for business, as we have historically. And the number one priority right now is helping our customers get the resources they need to rebuild their lives and restore their property,” she said.
However, she noted that Mercury Insurance — which recently announced it started writing insurance again in Paradise — and Farmers Insurance, which said last month it is increasing the number of new home policies it will write, have “certainly made moves indicating a more bullish approach on the market.”
Allstate also has said it will resume writing new policies once Lara’s reforms are in place and it can get rates that fully cover its costs.
But all those pronouncements came before this week’s catastrophic fires.
Business
Wildfires Will Deepen Housing Shortage in Los Angeles
Each of the homes burned in the Los Angeles fires is its own individual calamity.
Collectively, the losses — whether in the hundreds or, as is far more likely, in the thousands — will weigh on the city’s already urgent housing shortage.
Fires are still raging, and with 180,000 people under evacuation orders as of Thursday morning, the degree of displacement in the city and its surrounding areas will take time to assess. For the time being, evacuees are holing up in public shelters in Los Angeles County, with friends or family members or in hotels.
But in the coming weeks and months, people whose homes are gone will have to find more stable accommodations while they rebuild. That will not be easy in a metro area that, as of 2022, already had a shortage of about 337,000 homes, according to data from Zillow. The number of homes on the market in Los Angeles was 26 percent below prepandemic norms as of December, according to Zillow.
“One of the biggest challenges ahead will be getting people who lost their homes into permanent, long-term housing,” Victor M. Gordo, the mayor of Pasadena, said on Wednesday. Pasadena, which is battling the Eaton fire, has already lost hundreds of homes.
The area’s tight rental market is likely to become further strained as many of the thousands of displaced residents turn to rental units, while figuring out their next move. The median rent for a one-bedroom apartment in Los Angeles, as of Jan. 7, was more than $2,000, according to Zillow.
“You’re going to have a positive shock in demand, and a negative shock in supply, so this automatically means prices go up in the rental markets,” said Carles Vergara-Alert, a professor of finance at IESE Business School in Barcelona, who has studied the effects of wildfires on housing markets.
Any uptick in rental costs would affect tenants across the region, beyond those displaced by the fires, Dr. Vergara-Alert said.
Jonathan Zasloff, who lost his home in Pacific Palisades this week, teaches land use and urban policy at the University of California, Los Angeles law school, and is acutely aware of how his search for interim housing could affect the broader market.
Dr. Zasloff is staying with his brother for the time being, while a friend is putting up his wife and daughter. They evacuated their house, which they had lived in for almost 15 years, around noon on Tuesday, before the official evacuation order was issued for the area. That evening, Dr. Zasloff realized the severity of the crisis when he was watching television and saw a reporter standing on his fire-ravaged block.
His insurance agent told him it could take two to three years to rebuild his house. His family might try to find a rental in West Los Angeles near UCLA in the meantime, he said.
There aren’t many rentals in that part of the city, Dr. Zasloff said, so students and other renters could be displaced as he, and people like him who lost their homes, move in.
“It’s very possible that this event is going to cause a big increase in homelessness, even though the people who got pushed out of their homes are people of means,” he said.
California has been in the grip of an affordable housing crisis for a decade. Both state and local lawmakers have passed a raft of new laws that aim to make housing cheaper and more plentiful by making it easier to build. In Los Angeles, for instance, Mayor Karen Bass signed an executive order that streamlines permitting for projects in which 100 percent of the units are affordable. In response to state housing reforms, there has been a boom of backyard homes — called accessory dwelling units, or A.D.U.s — that homeowners often rent out for extra income and that have added to the housing stock.
Still, both the city and state remain well behind their housing production goals, and affordability has only continued to erode. The number of apartment units approved by the city of Los Angeles, for example, dipped to a 10-year low in 2024, according to data from the Los Angeles Department of Building and Safety compiled by Crosstown LA, a news site. That downturn in building permitting has raised concern about roadblocks to new housing unit creation.
“This is a place that had massive affordability challenges last week, and after this week it’s going to be that much more challenging,” said Dave Rand, a land-use lawyer at Rand Paster & Nelson in Los Angeles, who also serves on the board of directors of a statewide affordable housing organization.
After the fires are extinguished and the recovery begins, Mr. Rand said, there is hope that the common cause of rebuilding can be a catalyst for tackling affordability challenges by continuing to make it easier to build housing, particularly affordable rental housing, at a faster pace.
“This is such a devastating event that hopefully it rocks the system to the point where we can get real reform,” he said.
The Los Angeles City Council has aimed to build nearly half a million new units by 2029. But many people trying to rebuild all at once after the fires could lead to higher costs, and slow down the overall production of housing, said Jason Ward, a co-director of the center on housing and homelessness at the RAND Corporation.
A longstanding construction labor shortage in Los Angeles does not help. Andy Howard, a general contractor who has worked across the city for three decades, including in the areas affected by the fires, said many of the subcontractors he work with in the past have left California since the pandemic. And there are not enough young people entering the industry.
The fires are “going to make it worse,” Mr. Howard said. “It’s going to drive the cost up, for sure.”
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