“This Is Nuts!” – Is BofA Right About A Market Drop To 3800?

“This Is Nuts!” – Is BofA Right About A Market Drop To 3800?

Authored by Lance Roberts via RealInvestmentAdvice.com,

Recently, Bank of America’s Savita Subramanian discussed why the market could drop to 3800. She discussed her thesis in her latest strategy note titled “Five Reasons To Curb Your Enthusiasm.”

This analysis is interesting, particularly when analysts are rushing to upgrade both economic and earnings estimates.

More importantly, investors are incredibly long-biased in portfolios, with equity allocations reaching some of the highest levels in history.

What Subramanian questions, and something we have asked previously, is all the “good news” already “priced in?”

“Amid increasingly euphoric sentiment, lofty valuations, and peak stimulus, we continue to believe the market has overly priced in the good news. We remain bullish the economy but not the S&P 500. Our technical model, 12-month Price Momentum, has recently turned bearish amid extreme returns over the past year.”

With investors “all in,” we suspect a correction is more likely than not.

Technical Deviations

While BofA only expects a 10% correction, as shown, there is a risk of a deeper reversion.

A correction back to 3800 would only revert prices to mid-2020. As shown, over the last 5-years, corrections have ranged from roughly -10% to -33%. Notably, these corrections usually have reverted the index either to the 200-dma or beyond.

Given the magnitude of the market’s current deviation from the 200-dma, a correction will likely surpass 3800. A retest of the 200-dma seems most probable.

Furthermore, the entire market (small, mid, and large-capitalization companies) have all risen sharply in the liquidity-fueled advance from the March 2020 lows. Such provides plenty of fuel for a more significant correction if selling begins in earnest.

Retracements Suggests The Same

The 200-dma remains the lower boundary for corrections over the past 5-years. That level helps define the parameters of a retracement. As shown below, using the October lows as a starting point for the current rally, a 38.2% retracement aligns mostly with BofA’s prediction. 

However, a 50% retracement seems more logical as it aligns with the previous bottoms in both February and March. But a 61.8% retracement also aligns with the 200-dma. As such, we can determine that a correction could range from:

  • 38.2% = 8.3% Decline

  • 50.0% = 10.89% Decline

  • 61.8% = 13.46% Decline

While the mainstream media loathes the discussion of a correction, corrections of this magnitude are a healthy process of reverting market excesses. Furthermore, corrections of this magnitude are well within the confines of drawdowns seen over the last 5-years of the market’s advance.

Fundamentals Require A Lot More

As discussed in “Earnings Optimism Explodes,” the market has run well ahead of fundamentals.

“Here is the problem for investors currently. Given analysts’ assumptions are always high, and markets are trading at more extreme valuations, such leaves little room for disappointment. As shown, using analyst’s price target assumptions of 4700 for 2020 and current earnings expectations, the S&P is trading 2.6x earnings growth.”

As BofA noted, their “fair value” model also suggests that prices are near a peak with a downside target of 3635. (Based on BofA’s 2022 cyclically-adjusted earnings forecast of $173 and its equity risk premium (ERP) forecast of 425bp by year-end (vs. 398bp today.)

Longer-term valuation metrics are all entirely distorted and suggests markets a likely close to a long-term peak than not. As Michael Lebowitz noted recently, the four major valuation indicators are simultaneously at levels offering near-zero returns over the next decade.

This Is Nuts

On many levels, the current exuberance is “nutty.” Our “Fear/Greed Allocation” gauge, which measures investor’s equity exposure, shows the same. With the index pushing 100, a historical rarity, such precedes market corrections.

There are few points in history where the market was this significantly deviated, extended, overbought, and overly bullish. Without exception, the market corrected. Sometimes it was just a 10-20% decline. However, sometimes it is a lot more.

While prices can certainly seem to defy the law of gravity in the short-term, the subsequent reversion from extremes has repeatedly led to catastrophic losses for investors who disregard the risk.

There are substantial reasons to be pessimistic about the markets longer-term. Economic growth, excessive monetary interventions, earnings, valuations, etc., all suggest that future returns will be substantially lower than those seen over the last decade. Bullish exuberance has erased the memories of the previous two major bear markets and replaced it with “hope” that somehow, “this time will be different.”

Maybe it will be.

Probably, it won’t be.

Starting To Take Profits

The problem for the majority of investors is the inability to predict whether the subsequent correction will be just a “correction” within an ongoing bull market advance or something materially worse. Unfortunately, by the time most investors figure it out – it is generally far too late to do anything meaningful about it. 

Yesterday, we started selling and taking profits, which provides us three benefits for the future.

  1. Less equity risk, and higher cash levels, reduce portfolio volatility and allows us to navigate a correction while protecting investment capital.

  2. It gives us capital to reinvest back into positions we currently own at better prices; or,

  3. Buy new positions which have corrected in price.

While it is entirely true that “you can not time the market,” you can do some analysis and make deliberate changes to avoid problems.

As discussed previously, “risk happens fast.”

It is essential not to react emotionally to a sell-off. Instead, fall back on your investment discipline and strategy. Importantly, keep your portfolio management process as simplistic as possible.

  1. Trim Winning Positions back to their original portfolio weightings. (ie. Take profits)
  2. Sell Those Positions That Aren’t Working. If they don’t rally with the market during this recent rally,  they will decline more when the market sells off again.
  3. Move Trailing Stop Losses Up to new levels.
  4. Review Your Portfolio Allocation Relative To Your Risk Tolerance. If you have an aggressive allocation to equities at this point of the market cycle, you may want to try and recall how you felt during 2008. Raise cash levels and increase fixed income accordingly to reduce relative market exposure.

This is just how we are approaching it.

Tyler Durden
Tue, 04/20/2021 – 14:44

via ZeroHedge News https://ift.tt/3sAS8Gr Tyler Durden

149 Illegal Aliens Crammed Inside Trailer Found In Texas 

149 Illegal Aliens Crammed Inside Trailer Found In Texas 

As the border crisis spirals out of control, US Border Patrol agents on Friday found a shocking amount of undocumented people stuffed inside a commercial trailer north of Laredo, Texas.

The incident occurred on April 16, when a large commercial trailer arrived at the Interstate Highway 35 checkpoint. During a routine non-intrusive scan of the trailer, agents “observed multiple anomalies inside the trailer,” according to US Customs and Border Protection (CBP) press release

Agents opened the sealed trailer, where they found a whopping 149 undocumented individuals locked inside. Many individuals were from Mexico, Guatemala, Honduras, Venezuela, El Salvador, Peru, and Ecuador, trying to escape socio-economic collapse and or drug cartels, for a new life in the US. All of the individuals were not wearing personal protective equipment. 

“Human smugglers continue to have no regard for the safety and health of the people they exploit for profit,” CBP said. 

Over the weekend, the Biden administration finally admitted a border crisis along the Mexico–US border. The administration spent months downplaying the chaos. 

In March alone, 172,000 migrants were arrested after illegally entering the US – a 15-year record that has overwhelmed border agents. 

Imagine all the other commercial trailers crammed with undocumented people entering the southern border that border agents cannot catch. 

Tyler Durden
Tue, 04/20/2021 – 14:30

via ZeroHedge News https://ift.tt/3gxV6Jk Tyler Durden

As India Reports Record Deaths, PM Modi Warns New COVID Lockdowns Should Be “Last Resort”

As India Reports Record Deaths, PM Modi Warns New COVID Lockdowns Should Be “Last Resort”

Once heralded by public health experts for its stringent COVID lockdowns, which helped tamp down one of the most virulent national outbreaks of SARS-CoV-2, India today is suffering from one of the worst outbreaks in the world. After average daily cases surged to their highest levels in months, India on Tuesday reported its largest daily death toll yet.

Despite their unpopularity, parts of India are now under yet another lockdown as leaders try to combat the fast-spreading infection. India’s health ministry said 1,761 people had died in the past day, bringing India’s death toll to 180,530, still well below the 567,538 deaths reported in the US. On Tuesday, the health ministry reported 259,170 new infections, topping 200K for a sixth day, and getting closer to the peak of nearly 300K seen in the United States in January. Total coronavirus cases in India are now at 15.32 million, second only to the United States, with epidemiologists saying far more infectious new variants were one of the main factors behind the latest surge in cases.

Many experts suspect India’s actual deaths are far more than the official count, in part because crematoriums in various parts of the country have been running so long that some of the metal parts essential to their function have started to melt.

In Lucknow, capital of the populous northern state of Uttar Pradesh, data from the largest COVID-only crematorium, Baikunthdham, shows 2x the number of bodies arriving on six different days in April than government data on Covid deaths for the entire city.

In another crematorium in UP, the number of cremations have jumped by 5x in recent weeks during India’s second COVID-19 wave. With hospitals full, and oxygen and medicines in short supply, several major cities are reporting far larger numbers of cremations and burials than official COVID-19 death data can explain, according to crematorium and cemetery workers, media and a review of government data, which suggests that COVID deaths are being undercounted.

“We are working around the clock at 100% capacity to cremate bodies on time,” Kamlesh Sailor, the president of the trust that runs the Gujarat crematorium in the diamond-polishing city of Surat, told Reuters.

This isn’t the first time that Indian crematoriums have been the focus of media coverage this month.

Government officials say the discrepancy in death tallies could be chalked up to other issues, such as over-caution in reporting COVID deaths (in the UK, the opposite phenomenon appears to be the case).

Bhramar Mukherjee, a professor of biostatistics and epidemiology at the University of Michigan, said many parts of India were in “data denial.”

“Everything is so muddy,” she said. “It feels like nobody understands the situation very clearly, and that’s very irksome.”

As new lockdowns begin in the hard-hit western state of Maharashtra, people in Delhi and towns of the populous northern state of Uttar Pradesh put out desperate calls for help on Twitter, asking for assistance getting their families into hospitals. Others reported dire shortages of oxygen and the anti-viral drug Remdesivir.

In a statement delivered late Tuesday, Prime Minister Narendra Modi urged states to only treat lockdowns as a “last resort” and instead focus on creating micro containment zones to tamp down the soaring cases caused by India’s “second wave” of the virus.

Manish Tewari, an opposition lawmaker, said on Twitter that a “monumental tragedy of epic proportions is unfolding across India. No hospital beds, no oxygen, no vaccination.”

Source: Bloomberg

The trend in India was cited by a Bloomberg Opinion columnist Tuesday who warned that COVID-19 “is going to kill more people in 2021 than it did last year” and cited India is a primary example of this trend.

As caseloads push medical facilities toward capacity, the health system itself is starting to crack. Vaccine stocks, hospital beds and even oxygen supplies are running short, leading to bitter arguments between the states and the federal government. In some places, the dead are being transported by truck because cities have run out of hearses. Elsewhere, crematoria have started to break down because of the sheer number of bodies being burned. The government Monday promised to open up vaccines to all people over the age of 18.

If things don’t change soon, the country will be facing 3,000 deaths a day — twice its current level, and 10 times what was being seen through most of this year — Bhramar Mukherjee, a biostatistician at the University of Michigan, wrote last week.

Stung by criticism that the government had failed its people, Modi earlier ordered that vaccinations be made available to all Indians over the age of 18 by May 1. But even as the country has clamped down on the export of vaccines to create more supplies for its own citizens, the trend of rising cases amid higher vaccination numbers is unmistakable – and it’s starting to worry some experts, especially after the discovery of the country’s first “double mutant” COVID strain.

Tyler Durden
Tue, 04/20/2021 – 14:18

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Blue States Reopen Their Economies but Double Down on Mask Mandates


reason-mask

A growing number of Democratic governors have set end dates for their states’ coronavirus business restrictions. At the same time, they’re promising to keep mask mandates on the books for the foreseeable future.

On Monday, Connecticut Gov. Nathan Lamont (D) said that come May, bars that don’t serve food will be allowed to reopen for outdoor service, an 8-person per table limit on diners will be lifted, and the state’s 11 p.m. curfew will be extended to midnight.

Provided that cases stay low and vaccinations continue apace, the governor added, all remaining business restrictions will be lifted by May 19.

That’s good news for the state’s hospitality industry, which cheered the announcement. But it doesn’t represent a full return to the pre-pandemic normal. Lamont made clear that the state’s mask mandate would be extended beyond May 19.

“I think we’re going to mandate that you continue to wear the mask in school… probably we’re going to require indoor masking a little longer, until you’re vaccinated,” the governor said, according to the Hartford Courant. The state’s existing mask mandate, the Courant reported, is supposed to expire on May 20, along with Lamont’s emergency pandemic powers.

It’s a similar story in California.

Earlier this month, Gov. Gavin Newsom (D) announced that so long as COVID-19 hospitalizations remain low and stable, and vaccine supply is sufficient to meet demand, the governor’s tiered scheme of business restrictions would be revoked, and the whole state would be allowed to reopen.

Newsom, too, made a point of pairing his reopening announcement with a plea to continue mask wearing for the time being.

“We will need to remain vigilant, and continue the practices that got us here—wearing masks and getting vaccinated—but the light at the end of this tunnel has never been brighter,” he said in a press release.

The Los Angeles Times reported that Newsom’s announcement did not affect the state’s mask mandate. The California Department of Public Health has since said that no changes will be made to the state’s mask mandate until at least June 15.

In Oregon, where business restrictions are still very much in place, state regulators are actually moving to keep an existing, soon-to-expire mask mandate on the books with no expiration date in sight.

Come May 4, a temporary masking requirement issued by the Oregon Occupational Safety and Health Administration (Oregon OSHA) will expire. That rule requires employers to ensure all individuals in the workplace—including employees, customers, clients, and vendors—wear face coverings.

In February, the agency started soliciting comments on a proposed rule that would extend a number of workplace safety regulations, including the mask mandate.

Oregon OSHA Administrator Michael Wood told the Associated Press this week that while the mask mandate will be repealed eventually, “it might not need to go away at exactly the same time the [governor’s] State of Emergency is lifted.”

The proposal to make this mask mandate open-ended has sparked a major backlash, reported the Associated Press, with many people expressing concern that the rule comes with no set expiration date or specific conditions for when it would be repealed.

Bureaucrats in Michigan, as Reason reported last week, have likewise moved to make a number of emergency pandemic regulations open-ended, including the state’s mask mandate.

Last Friday, Colorado Gov. Jared Polis (D) ended the state’s “dial” system of business restrictions, turning the power of pandemic regulation over to local governments. A comprehensive state mask mandate—requiring everyone to wear face coverings when in indoor public spaces—has also been retracted.

However, the governor has kept in place a statewide requirement that people wear masks when in schools, childcare facilities, hospitals, government buildings, and personal service businesses like nail salons.

If these states are any guide, mask mandates will likely be the last pandemic policy to go in many Blue states. This perhaps shouldn’t be surprising.

Whereas business owners have every interest in pushing for the repeal of costly restrictions on their operations, individual citizens are going to be less organized and less invested in ditching the requirement that they cover their faces in public.

But the sticking power of a mask mandate does not make the policy necessary or wise. The case for face coverings in public evaporates as the population becomes vaccinated.

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Peter Schiff: Has Ben Bernanke Ever Told The Truth?

Peter Schiff: Has Ben Bernanke Ever Told The Truth?

Via SchiffGold.com,

Ben Bernanke served as the chairman of the Federal Reserve from 2006 to 2014. He famously told Congress the Fed was absolutely not monetizing the debt in 2008. He said the difference between debt monetization and the Fed’s policy was that the central bank was not providing a permanent source of financing. He said the Treasurys would only remain on the Fed’s balance sheet temporarily. He was obviously wildly mistaken or outright lying.

In this clip from his podcast, Peter Schiff wonders out loud if Bernanke has ever told the truth.

Bernanke recently did an interview and the interviewer played clips of some of the things Bernanke said back in the run-up to the 2008 financial crisis, specifically about the problems in the subprime mortgage market being transitory and of no real threat to the broader economy.

Bernanke admitted that he wasn’t speaking truthfully at the time, claiming he couldn’t speak honestly because he was part of “the administration” and he had to toe the company line. As Peter put it, this was basically an admission that he lied when he told the nation there was nothing to worry about and that subprime was contained.

He did that because he believed he was a member of the Bush administration. So much for the idea that the Fed is independent when you have a former Fed chairman admitting that he lied in order to push a narrative that the Bush administration wanted the country to believe – that everything was great and there was nothing to worry about.

Of course, that raises a question: was Bernanke really lying then? Or is he lying now?

Is he just trying to save face because he doesn’t want to look like a complete fool, and say, ‘Well, yeah, I guess I was wrong.’? He’s now saying he wasn’t wrong. ‘I just wasn’t being honest.’”

Peter said he thinks it would be worse if Bernanke was lying back then rather than just incompetent.

Interestingly, nobody was outraged at Bernanke’s confession. Nobody seemed particularly concerned that a former Fed chair just admitted he lied to protect a political narrative.

More disturbingly, Peter said he suspects the same thing is happening today.

Either the Fed knows that we have a huge inflation problem on its hands and is lying about it, or it’s completely clueless and doesn’t realize it.”

The Federal Reserve is hanging its hat on the fact that it printed a bunch of money over the last 10 or 20 years and price inflation never reared its ugly head. Therefore, we can do this forever.

You can’t assume just because the inflationary policies of the past didn’t result in bigger spikes in consumer prices that we can turn up the heat, and we can have even more inflationary policies in the present, and that these policies won’t have any effect on consumer prices either. That is a completely ridiculous and asinine assumption to make. And I think ultimately this is going to go down as the Fed’s biggest blunder — much more so than the mistake in its bad read on subprime problems being contained. The idea that inflation was transitory is going to be an even bigger mistake and an even bigger policy failure, because by the time the Fed is forced to admit that they were wrong and inflation wasn’t transitory, they will have waited too long to do anything about it.”

Tyler Durden
Tue, 04/20/2021 – 14:05

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Blue States Reopen Their Economies but Double Down on Mask Mandates


reason-mask

A growing number of Democratic governors have set end dates for their states’ coronavirus business restrictions. At the same time, they’re promising to keep mask mandates on the books for the foreseeable future.

On Monday, Connecticut Gov. Nathan Lamont (D) said that come May, bars that don’t serve food will be allowed to reopen for outdoor service, an 8-person per table limit on diners will be lifted, and the state’s 11 p.m. curfew will be extended to midnight.

Provided that cases stay low and vaccinations continue apace, the governor added, all remaining business restrictions will be lifted by May 19.

That’s good news for the state’s hospitality industry, which cheered the announcement. But it doesn’t represent a full return to the pre-pandemic normal. Lamont made clear that the state’s mask mandate would be extended beyond May 19.

“I think we’re going to mandate that you continue to wear the mask in school… probably we’re going to require indoor masking a little longer, until you’re vaccinated,” the governor said, according to the Hartford Courant. The state’s existing mask mandate, the Courant reported, is supposed to expire on May 20, along with Lamont’s emergency pandemic powers.

It’s a similar story in California.

Earlier this month, Gov. Gavin Newsom (D) announced that so long as COVID-19 hospitalizations remain low and stable, and vaccine supply is sufficient to meet demand, the governor’s tiered scheme of business restrictions would be revoked, and the whole state would be allowed to reopen.

Newsom, too, made a point of pairing his reopening announcement with a plea to continue mask wearing for the time being.

“We will need to remain vigilant, and continue the practices that got us here—wearing masks and getting vaccinated—but the light at the end of this tunnel has never been brighter,” he said in a press release.

The Los Angeles Times reported that Newsom’s announcement did not affect the state’s mask mandate. The California Department of Public Health has since said that no changes will be made to the state’s mask mandate until at least June 15.

In Oregon, where business restrictions are still very much in place, state regulators are actually moving to keep an existing, soon-to-expire mask mandate on the books with no expiration date in sight.

Come May 4, a temporary masking requirement issued by the Oregon Occupational Safety and Health Administration (Oregon OSHA) will expire. That rule requires employers to ensure all individuals in the workplace—including employees, customers, clients, and vendors—wear face coverings.

In February, the agency started soliciting comments on a proposed rule that would extend a number of workplace safety regulations, including the mask mandate.

Oregon OSHA Administrator Michael Wood told the Associated Press this week that while the mask mandate will be repealed eventually, “it might not need to go away at exactly the same time the [governor’s] State of Emergency is lifted.”

The proposal to make this mask mandate open-ended has sparked a major backlash, reported the Associated Press, with many people expressing concern that the rule comes with no set expiration date or specific conditions for when it would be repealed.

Bureaucrats in Michigan, as Reason reported last week, have likewise moved to make a number of emergency pandemic regulations open-ended, including the state’s mask mandate.

Last Friday, Colorado Gov. Jared Polis (D) ended the state’s “dial” system of business restrictions, turning the power of pandemic regulation over to local governments. A comprehensive state mask mandate—requiring everyone to wear face coverings when in indoor public spaces—has also been retracted.

However, the governor has kept in place a statewide requirement that people wear masks when in schools, childcare facilities, hospitals, government buildings, and personal service businesses like nail salons.

If these states are any guide, mask mandates will likely be the last pandemic policy to go in many Blue states. This perhaps shouldn’t be surprising.

Whereas business owners have every interest in pushing for the repeal of costly restrictions on their operations, individual citizens are going to be less organized and less invested in ditching the requirement that they cover their faces in public.

But the sticking power of a mask mandate does not make the policy necessary or wise. The case for face coverings in public evaporates as the population becomes vaccinated.

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Biden ‘Praying For The Right Verdict’ In Chauvin Trial As Major Cities Brace For Violence

Biden ‘Praying For The Right Verdict’ In Chauvin Trial As Major Cities Brace For Violence

In a rare statement by a President during jury deliberation in a major trial, Joe Biden says he believes that the evidence in the Derek Chauvin trial is “overwhelming,” and wants us to know that he’s communicated with God in his hope for the ‘right’ verdict in the case of the former Minneapolis police officer accused of murdering George Floyd last summer during an arrest.

I’m praying the verdict is the right verdict,” Biden told reporters in the Oval Office – hours after speaking with members of the Floyd family, adding: “I think it’s overwhelming in my view.” Biden said he wouldn’t have commented if the jury had not been sequestered.

Biden’s comments come as major cities across the country brace for violent protests – which we suspect are likely regardless of outcome.

In Minneapolis – which would be the epicenter for major protests – some 3,000 National Guard troops have been deployed throughout the downtown area, two of whom were injured early Sunday when someone shot at their Humvee hours after Rep. Maxine Waters told people to “get more confrontational in order to “send a message” to white supremacists.

In Los Angeles, Beverly Hills has stepped up patrols after BLM protesters marched through the wealthy enclave last year.

In Philadelphia, shop owners have boarded up windows.

What’s more, six states and Washington D.C. have requested help from the National Guard to protect their Democratic-run cities, after they were forced to sleep on the floor of a parking garage during inauguration security detail in January.

“The number one focus for us is deescalation. We don’t want to use force if we don’t have to,” said Minneapolis Police Chief Medaria Arradondo.

In short;

Tyler Durden
Tue, 04/20/2021 – 13:50

via ZeroHedge News https://ift.tt/3dxDgEr Tyler Durden

Discord Ends Talks With Microsoft, Will Focus On IPO

Discord Ends Talks With Microsoft, Will Focus On IPO

One month after we learned that Microsoft was in advanced talk to acquire chat startup Discord for $10 billion, the chat startup has halted talks to sell itself to potential suitors including Microsoft, the WSJ reported citing people familiar with the matter, as it resumes interest in a potential initial public offering down the line.

Discord fielded interest from at least three companies about a deal.

Microsoft’s reported consideration represented a 40% premium to Discord’s latest capital raising round in December when its valuation was said to reach $7 billion. Overall, the company has raised roughly $480 million, according to Crunchbase data. Investors include Greenoaks Capital, Greylock Partners and Index Ventures.

The Journal reports that Discord – which operates a free online platform for chatting by text, audio and video, and is especially beloved by gamers – fielded interest from at least three companies about a deal. In the end, Discord opted to stay independent at this time as it is doing well on its own.

In a move that could facilitate an IPO, Discord last month hired its first finance chief, Tomasz Marcinkowski, a former Pinterest Inc. executive. While Discord isn’t a videogame company, many of its users rely on it to communicate with each other while playing games, and several businesses with ties to the videogame industry have gone public in the past year, including developers Roblox Corp. and Playtika Holding Corp. , game-hardware maker Corsair Gaming Inc. and game-creation tool provider Unity Software Inc.

Roblox did a direct listing last month, shelving original plans to go the traditional IPO route, after the videogame company decided it was too difficult to determine the right price for its shares.

Microsoft, whose market cap is nearly $2 trillion, has been looking for acquisitions that would help it reach more consumers. Last summer, it explored a bid to purchase parts of the video-sharing app TikTok amid a high-profile geopolitical standoff prompted by the Trump administration.

A deal for Discord would have helped Microsoft expand its presence in social media beyond LinkedIn and what it has developed through its Xbox videogame business. Discord users say the platform offers more attractive features such as higher-quality audio than competing chat services, including even that of Xbox and Skype, which Microsoft also owns.

In addition to the unsuccessful TikTok talks last year, Microsoft gave up on Mixer, its videogame live-streaming service that struggled to compete with the likes of Amazon.com Inc.’s Twitch, Alphabet Inc.’s YouTube and Facebook Gaming.

Tyler Durden
Tue, 04/20/2021 – 13:48

via ZeroHedge News https://ift.tt/3sAIYdc Tyler Durden

‘You’re Not The Boss Of Me’: Xi Urges Resistance To US ‘Setting The Rules For The World’

‘You’re Not The Boss Of Me’: Xi Urges Resistance To US ‘Setting The Rules For The World’

Chinese President Xi Jinping on Tuesday issued some aggressive remarks clearly aimed at Washington, but without naming the United States directly, in his keynote address at the Boao Forum on Asia. His emphasis was to warn against the “unilateralism of a few countries” who are prone to “bossing others around” – which can be resisted via greater global economic integration and avoiding the temptation of decoupling. 

He spelled out that that countries that “boss others around or meddle in others’ internal affairs would not get any support,” and that efforts to “erect walls” or “decouple” stand against market principles. This veiled swipe against the US included the words: “openness and integration is an unstoppable trend, any effort to build barriers and decouple works against economic and market principles, and would only harm others without benefiting oneself.”

While there’s plenty of regional and border countries, not to mention African populations, that would strongly disagree, XI asserted that “China will never seek hegemony, expansion, or a sphere of influence no matter how strong it may grow,” according to a state media transcript. 

via Bloomberg

The remarks came soon on the heels of the White House receiving Japanese Prime Minister Yoshihide Suga on Friday, where China topped the agenda in Biden’s first face-to-face meeting with a foreign leader since taking office. Their joint statement focused on China’s actions that “are inconsistent with the international rules-based order” and impact “peace and prosperity” in the region, while highlighting human rights abuses and anti-democratic policies in Hong Kong, Xinjiang region, and Taiwan. 

The hugely controversial US-Japan statement loomed large in the backdrop to Xi’s words:

“The world wants justice, not hegemony,” Xi said in remarks broadcast to the forum.

“A big country should look like a big country by showing that it is shouldering more responsibility,” he said.

While Xi did not identify any country in his remarks, Chinese officials have in recent times referred to U.S. “hegemony” in public criticisms of Washington’s global projection of power in trade and geopolitics.

By contrast, “true multilateralism” will serve to make the world “more fair and equitable,” he said.

Bloomberg broadly observed of the speech that it was “dominated by sweeping globalist comments as Xi lauded a system with the WTO and United Nations at its center. He warned we shouldn’t let one country set the rules for all and big countries need to behave appropriately. While he has made similar points before, it’s noteworthy that he hammered the message home. Markets were little changed, with stocks erasing initial losses.”

China’s president also offered that the global pandemic should negate this vision of unilateralism, saying it’s become clear the world must reject the “cold-war and zero-sum mentality” and oppose a new “cold war” which hinders common cooperation and progress against the most pressing matters. 

And this raises what is perhaps the only ‘bright spot’ in current relations given the new ‘common interest’ on climate change. US climate envoy John Kerry last week met with his Chinese counterpart in Shanghai for what is the first high-level trip to China by a top Biden administration official. 

Tyler Durden
Tue, 04/20/2021 – 13:30

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“Retroactive” Liability after Barr v. AAPC

One of the most theoretically important and underappreciated Supreme Court decisions of 2020 was Barr v. AAPC, though it has been discussed repeatedly on this blog. In Barr, a fractured group of Supreme Court Justices concluded that it was unconstitutional for Congress to ban most “robocalls” while privileging those robocalls that try to collect government debt; and that in light of this, the statute should be read to ban all robocalls.

The opinion expressing both of those views was a plurality opinion by Justice Kavanaugh that was not supported by five votes. In addition to questions of free speech and severability, the plurality addressed in a footnote the question of liability for those who had made robocalls to collect government debt in the past:

As the Government acknowledges, although our decision means the end of the government-debt exception, no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate. See Reply Brief 24. On the other side of the ledger, our decision today does not negate the liability of parties who made robocalls covered by the robocall restriction.

At the time, I wrote: “This conclusion is perfectly logical, but its legal basis is a bit mysterious to me.” The plurality had purported to agree, in its severability analysis, that courts do not actually have the power to invalidate statutes in the sense of repealing them or changing the law—rather, the “term ‘invalidate’ is a common judicial shorthand” employed when the Court “recognizes that the Constitution is a ‘superior’, paramount law,’ and that ‘a legislative act contrary to the constitution is not law’ at all.” It would seem to follow that whatever the law is after the Supreme Court’s decision in Barr was also the law before the Supreme Court’s decision in Barr.

I will add that I was especially puzzled by the plurality’s expectation that this immunity from enforcement of the robocall prohibition would continue into the future until “the entry of final judgment by the District court on remand” or some other unknown date for unknown reasons.

In any case, in light of all this I was especially interested and please to see a new and excellent opinion on these issues. The opinion is by Judge Stephanos Bibas, who sat by designation on a district court, in a case called Franklin v. Navient. From the beginning:

“[J]udicial decisionmaking” after the fact “necessarily involves some peril to individual expectations.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312 (1994). Navient may have to learn that the hard way. It robocalled Ricky Franklin for years to collect on his government-backed student loans. Although many types of robocalls are illegal, a federal law said that Navient’s were exempt. Yet after Navient made the calls, the Supreme Court struck down the government-debt exception. And now Franklin is suing. Navient responds that it should not be liable for calls that were legal at the time.

But the calls were not legal at the time. When a court finds a law unconstitutional, it finds that the law was void since the day it was passed. So the robocalling ban never had a valid exception for government debt. Navient cannot rely on one. And while it reasonably thought it was covered by the exception, that is no defense to paying compensation.

Yet Franklin wants more than compensation; he wants punitive damages. And due process bans punishing parties without fair notice. By (mistakenly) saying that Navient’s calls were allowed, Congress deprived it of fair notice. So if Franklin wins at trial, he may recover damages—but only to compensate him for the injuries he can prove.

And the middle:

Courts cannot change the law; they can only declare what the law has always been. When the Supreme Court severed the government-debt exception from the Act, it ruled that the law never had the exception—despite the law’s text.

So Navient cannot get summary judgment based on the exception’s coverage.
Still, Navient seeks summary judgment for a different reason: even though the exception was void, it was on the books. So the company lacked fair notice that its speech was illegal. Enforcing the Act, it argues, would violate due process and the First Amendment.

Navient is mistaken. In civil cases, courts may apply surprising rulings to past acts. There is no exception for free speech (at least not yet).

So Navient may have to compensate Franklin for its calls, whether before or after 2015.

A. The government-debt exception never took effect

A severance ruling, like any other ruling, says only what the law is and has always been. Thus, the Supreme Court’s decision severing the government-debt exception applies retroactively. That exception was never the law.

1. Judicial decisions apply retroactively.

The Supreme Court has the power to declare law, not make it. The Constitution vests “[a]ll legislative Powers” in Congress. U.S. Const. art. I, § 1. Courts are limited to judging “Cases” and “Controversies.” Art. III, § 2. As Blackstone explained, they are “not delegated to pronounce a new law, but to maintain and expound the old one.” 1 William Blackstone, Commentaries *69. Their only power is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added). So federal courts cannot ” ‘change[ ]’ the law”; they can only, in deciding cases, say what a law “has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n.12.

Because Supreme Court decisions clarify what the law “ha[s] always meant,” their rulings apply to all open cases, even those whose facts predate the ruling. Id.; Harper v. Va. Dep’t of Tax’n, 509 U.S. 86, 97 (1993). Otherwise, they would be “not … adjudication but in effect … legislation.” Griffith v. Kentucky, 479 U.S. 314, 323 (1987) (quoting Mackey v. United States, 401 U.S. 667, 679 (1971) (Harlan, J., concurring in the judgment)). In short, judicial decisions apply retroactively. Harper, 509 U.S. at 94, 97.

2. Severance rulings apply retroactively.

That rule is equally true of severance decisions. Severance is just ordinary statutory interpretation. See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 330 (2006). When a court finds a law unconstitutional, it finds that it is “void, and is as no law” from the day it is passed. Ex parte Siebold, 100 U.S. 371, 376 (1879). It never took effect as written. Often, the court must then decide what did take effect. Maybe no law did. But maybe Congress passed the law with a fallback rule. That is a question of statutory interpretation. The severance analysis answers it, telling us what the law has meant from the start.

3. AAPC’s rule applies retroactively.

When Congress amended the Act in 2015, it wanted to allow robocalls to collect government debt but ban other robocalls. In AAPC, the Court held that this combination of aims violates the First Amendment. If it violated the First Amendment in 2020, then it has violated the First Amendment since 2015. So Congress’s ideal version of the Act was void from the start. It never became law.

Instead, some fallback rule kicked in right away. To cure the content discrimination, either the exception was void (so the Act covered all robocalls) or the exception became the rule (so it covered none). The Act has a severability clause. Thus, the AAPC plurality reasoned, Congress had picked the first rule. 140 S. Ct. at 2352.
AAPC addressed only what the Act means going forward. But if the exception was void the day it was passed, and Congress’s fallback rule was to nix it, then it never took effect. As Justice Kavanaugh put it, the exception was ” ‘not law’ at all.” 140 S. Ct. at 2351 n.8 (quoting Marbury, 5 U.S. at 177). If Navient relied on the government-debt exception, it made a mistake. Because the Constitution trumps the Act, the Act never had a valid exception. This Court erred in granting partial summary judgment.

Judge Bibas then went on to explain why the Due Process Clause didn’t forbid liability, and also why the Court’s decisions about retroactive criminal liability had not yet been extended to civil cases. And as to the AAPC plurality opinion:

C. To follow the AAPC plurality, I would need to overhaul the law

The AAPC plurality thought that government-debt collectors would avoid all liability. But I do not see how. In a footnote, Justice Kavanaugh wrote that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before … th[at] case.” AAPC, 140 S. Ct. at 2355 n.12 (emphasis added). To follow the second half of this dictum, I would need to either treat AAPC like legislation or extend Bouie to free-speech cases. Either would be a stretch. Plus, “a holding that shields only government-debt collection callers from past liability … would wind up endorsing the very same kind of content discrimination [that AAPC] s[ought] to eliminate.” Id. at 2366 (Gorsuch, J.). The Supreme Court could reasonably extend Bouie to shield speakers, but I will not.

Finally, Judge Bibas then went on to make an interesting distinction, concluding that punitive damages would be unavailable, because retroactive punishment—as distinct from retroactive liability—raised a different set of issues.

Now Judge Bibas’s opinion is limited to applying current Supreme Court precedent (not including the plurality opinion, which Judge Bibas rightly seems to assume is not binding). But this analysis is sufficiently thoughtful and persuasive that I wouldn’t be surprised to see it having some influence even when the Justices next have to return to considering these issues.

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