At least tell him that he is a sacrificial lamb

Department of Justice LRegular readers of this blog are familiar with the technique that federal prosecutors used in the post-Enron era to score easy convictions against businesspeople.

Threaten to go Arthur Andersen on a company, offer to let the company off the hook under a deferred prosecution agreement in return for offering up an executive or two as sacrificial lambs to be prosecuted, and then bludgeon the individualís career, life and family into bits under the sledgehammer of the DOJís prosecutorial power.

Jamie Olis was arguably the first of those sacrificial lambs, and there were plenty in connection with the Enron-related prosecutions. Heck, the DOJ is even getting ready to tee up a re-trial of one such case this September.

But check out this example of DOJ brazenness that Ellen Podgor passes along. The DOJ enters into a deferred prosecution agreement with American Express and, as a part of the deal, has AE enter into a side-letter agreement that, absent the DOJís prior consent, prohibited AE executive Sergio Masvidal from obtaining employment with an AE unit or any company that bought the AE unit.

Given the DOJís heavy-handed approach in such matters, that part of the deferred prosecution agreement is not all that unusual. But one aspect of this particular deal was.

The DOJ didnít bother to disclose the side-letter to either Masvidal or the District Court that approved the deferred prosecution agreement.

Masvidal eventually found out about it when he was denied employment by the company that bought the AE unit. So, he sued the DOJ, which eventually led to the DOJís issuance of the letter below, which admits that the DOJ did not disclose the side-letter to the District Court on purpose and that the DOJís investigation ìdid not reveal any evidence that Mr. Masvidal had committed any criminal offenses or violated any banking regulations.î

Now, do you still have any doubts that the same bunch was capable of this and this?

 

 

DOJ’s Clearing Letter in Sergio Masvidal Case

"People are actually now sicker as they die"

End of Life careAs noted in earlier posts here and here — as well as in connection with the final years of Dr. Michael DeBakey — one of the thorniest issues facing reformers of the U.S. health care and health care finance systems is the extraordinary allocation of health care resources to end-of-life care.

This recent Marilynn Marchione/AP article frames the issues well:

Americans increasingly are treated to death, spending more time in hospitals in their final days, trying last-ditch treatments that often buy only weeks of time, and racking up bills that have made medical care a leading cause of bankruptcies.

More than 80 percent of people who die in the United States have a long, progressive illness such as cancer, heart failure or Alzheimer’s disease.

More than 80 percent of such patients say they want to avoid hospitalization and intensive care when they are dying, according to the Dartmouth Atlas Project, which tracks health care trends.

Yet the numbers show that’s not what is happening:

— The average time spent in hospice and palliative care, which stresses comfort and quality of life once an illness is incurable, is falling because people are starting it too late. In 2008, one-third of people who received hospice care had it for a week or less, says the National Hospice and Palliative Care Organization.

— Hospitalizations during the last six months of life are rising: from 1,302 per 1,000 Medicare recipients in 1996 to 1,441 in 2005, Dartmouth reports. Treating chronic illness in the last two years of life gobbles up nearly one-third of all Medicare dollars.

–People are actually now sicker as they die, and some find that treatments become a greater burden than the illness was, said Dr. Ira Byock, director of palliative care at Dartmouth-Hitchcock Medical Center. “Families may push for treatment, but there are worse things than having someone you love die,” he said.

But if your family is facing the prospect of caring for elderly parents in their waning years, don’t miss this extraordinary Katy Butler/NY Times Magazine article on the negative impact that an effective pacemaker had on the quality of her father’s life in the final years of his life:

Until 2001, my two brothers and I — all living in California — assumed that our parents would enjoy long, robust old ages capped by some brief, undefined final illness. Thanks to their own healthful habits and a panoply of medical advances — vaccines, antibiotics, airport defibrillators, 911 networks and the like — they weren’t likely to die prematurely of the pneumonias, influenzas and heart attacks that decimated previous generations. They walked every day. My mother practiced yoga. My father was writing a history of his birthplace, a small South African town.

In short, they were seemingly among the lucky ones for whom the American medical system, despite its fragmentation, inequity and waste, works quite well. Medicare and supplemental insurance paid for their specialists and their trusted Middletown internist, the lean, bespectacled Robert Fales, who, like them, was skeptical of medical overdoing. “I bonded with your parents, and you don’t bond with everybody,” he once told me. “It’s easier to understand someone if they just tell it like it is from their heart and their soul.”

They were also stoics and religious agnostics. They signed living wills and durable power-of-attorney documents for health care. My mother, who watched friends die slowly of cancer, had an underlined copy of the Hemlock Society’s “Final Exit” in her bookcase. Even so, I watched them lose control of their lives to a set of perverse financial incentives — for cardiologists, hospitals and especially the manufacturers of advanced medical devices — skewed to promote maximum treatment. At a point hard to precisely define, they stopped being beneficiaries of the war on sudden death and became its victims.

My family and I have experienced both a sudden death of a still-vibrant parent and a slow one under the painful grip of dementia. There is no question that my mother, a former nurse, did not want to die in the manner that she did. But she did not have that choice.

And that lack of choice is at the root of this vexing problem facing us all.

Yankee Doodle and Bob Hope

Around the 4th of July, most everyone has seen James Cagneyís magnificent dancing performance in television re-runs of Yankee Doodle Dandy (1942). But Bob Hope could cut a mean lick on the dance floor, too, as reflected in this dance routine from The Seven Little Foys, in which Cagney reprises his Yankee Doodle role of George M. Cohan. Enjoy!

Is this the worst Stros team ever?

carlos-leeAt the midway point of the 2010 season, this Stros club is making a strong case for that dubious distinction.

The Stros ballclub has had its share of bad teams over the years (1962-2010), but six teams stand out. The first four teams in the club’s history –1962 (64-96), 1963 (66-96), 1964 (66-96) and 1965 (65-97) — the 1991 team (65-97) and this season’s club (32-49 through Friday night’s game). No Stros team has lost more than 97 games in a season.

We knew before the season that this was going to be a bad season. But a review of the club’s statistics relative to an average National League team reveals just how bad it has been and how bad it will probably be by the end of the season.

As regular readers of this blog know, I like to use the RCAA (“runs created against average”) and RSAA (“runs saved against average”) statistics, developed by Lee Sinins for his Sabermetric Baseball Encyclopedia, to provide a simple but revealing benchmark of how an MLB club or player is performing relative to other teams or players in its league.

RCAA reflects how many more (or fewer) runs that a team (or player) generates relative to a league-average team (or player). An exactly league-average team’s (or player’s) RCAA is zero.

Similarly, RSAA measures how many more (or fewer) runs that a pitching staff (or an individual pitcher) saves relative to a league-average pitching staff (or pitcher). As with RCAA, an exactly league-average pitcher’s (or team’s) RSAA is zero.

Moreover, RCAA and RSAA are particularly useful because they provide a useful benchmark comparison across eras because it shows how much better (or worse) a team’s hitters and pitchers stacked up against an average team of hitters or pitcher staff during a season. That’s really the best way to compare teams from different eras because comparing other hitting and pitching statistics — such as on-base average, slugging percentage, OPS, earned run average, wins and hitting statistics against — is often skewed between teams of hitter-friendly eras (i.e., up until this season, the past 20 seasons or so) versus pitchers of pitcher-friendly eras (i.e., such as the late 1960’s and early 70’s).

Comparing aggregate RCAA/RSAA scores of the six really bad Stros teams, the 2010 edition is already third worst in Stros history:

1. 1963 (-107/-68) = -175

2. 1964 (-138/ -4) =  -142

3. 2010 (-94/-46) = -140

4. 1962 (-101/-24) = -125

5. 1991 ( -39/ -74) = -113

6. 1965 (    3/-109) = -106

Through 81 games, the Stros hitters have created a mind-numbing 94 fewer runs than an average NL club of hitters would have created using the same number of outs. That’s by far the worst in Major League Baseball (the Orioles are the next worst at -77) and — with still 50% of the season to go — already the fourth worst performance in Stros franchise history:

1    1964     -138  
2    1963     -107  
3    1962     -101  
4    2010       -94  
5    1989       -64  
6    1982       -63  
7    1968       -51  
8    1990       -49  
9    2006       -47  
10  2008      -46

Not one Stros regular player has a positive RCAA, which means that the Stros are comprised entirely of hitters who are generating fewer runs at various levels than what an average National League hitter would create. LF Carlos Lee (-13), SS Tommy Manzella (-16) (before going on the DL) and 3B Pedro Feliz (before he was benched) were among the worst performing regular players in the National League this season. In 81 games this season, the Stros have created an astounding 2 fewer runs on average per game than MLB’s best-hitting club, the Yankees (71 RCAA).

Meanwhile, after muddling around league for the first quarter of the season, the Stros pitching staff has deteriorated to -46 during the second quarter of the season to the point that the staff is now 25th among the 30 MLB pitching staffs this season and is already the 15th worst RSAA in Stros history with half a season to go:

1    1967     -130  
2    1965     -109  
3    1975     -100  
4    1976       -89  
5    2007       -79  
6    2009       -77  
7    1996       -76  
8    1992       -75  
9    1991       -74  
10  1970       -71  
11  2000       -69  
12  1963       -68  
13  1995       -52  
14   1973      -51  
15   2010      -46  
16   1968      -43  
T17 1978      -42  
T17 1966      -42  
19   
1988      -36  
20    1985      -35  

Only Roy Oswalt (8), Brett Myers (5), Matt Lindstrom (4) and Brandon Lyon (2) have positive RSAA’s among regular Stros hurlers. Wandy Rodriguez (-13) and Bud Norris (-15) are among the worst performing starters in the National League

Inasmuch as the Stros are actively peddling assets such as Oswalt, Myers and 1B Lance Berkman (they would love to trade Lee, but no one in their right mind would take on his contract), there is a real chance that the club’s RCAA and RSAA numbers could deteriorate even more during the second half of the season. If that occurs, breaking the club record of 97 losses in a season is a definite possibility.

By the way, one of the most distressing aspects of the Stros’ demise has been the decline in hitting performance. Check out the Stros RCAA hitting performance for the club’s final decade in the Astrodome, which was not a hitter-friendly ballpark:

1    1998      154  
2    1995      129  
3    1994      107  
4    1997      101  
5    1996        52  
6    1999        43  
7    1993        41  
8    1992        25  
9    1991       -39  
10  1990       -49

Now, compare that to the club’s RCAA hitting performance during its first decade in Minute Maid Park, which is perceived as a hitter-friendly ballpark, but is really a neutral ballpark — it favors neither hitters nor pitchers:

1    2000       88  
2    2001       64  
3    2004       50  
4    2002       13  
5    2003       10  
6    2007        -7  
7    2005      -26  
8    2009      -34  
9    2008      -46
  
10  2006      -47

And this season’s club is already at a –94 RCAA. Talk about a downward spiral! But that’s what you get for a decade of lackluster drafts.

The Stros are playing out the string this season, but the remainder of the season doesn’t have to be a waste of time. For example, view giving at bats to players such as Feliz and Geoff Blum as an utter waste of time. Instead, give young players in the system an opportunity to show what they can do at the MLB level. If the right deal comes along, then peddle the club’s valuable assets for some solid hitting prospects. The lower levels of the farm system are starting to show some signs of life, so there is already hope even during what just might be the worst season in the history of the Houston Astros.

Rational Optimism

The%20Rational%20Optimist.jpgMatt Ridley supplies a dose of good end-of-the-week vibes with this article based on his new book, The Rational Optimist (Harper 2010):

When I set out to write a book about the material progress of the human race, now published at The Rational Optimist, I was only dimly aware of how much better my life is now than it would have been if I had been born 50 years before. I knew that I have novel technologies at my disposal from synthetic fleeces and discount airlines to Facebook and satellite navigation. I knew that I could rely on advances in vaccines, transplants and sleeping pills. I knew that I could experience cleaner air and cleaner water at least in my own country. I knew that for Chinese and Japanese people life had grown much more wealthy. But I did not know the numbers.

Do you know the numbers? In 2005, compared with 1955, the average human being on Planet Earth earned nearly three times as much money (corrected for inflation), ate one-third more calories of food, buried one-third as many of her children and could expect to live one-third longer. All this during a half-century when the world population has more than doubled, so that far from being rationed by population pressure, the goods and services available to the people of the world have expanded. It is, by any standard, an astonishing human achievement.

We invent new technologies that decrease the amount of time that it takes to supply each otherís needs. The great theme of human history is that we increasingly work for each other. We exchange our own specialised and highly efficient fragments of production for everybody elseís. The ëdivision of labourí Adam Smith called it, and it is still spreading. When a self-sufficient peasant moves to town and gets a job, supplying his own needs by buying them from others with the wages from his job, he can raise his standard of living and those he supplies with what he produces. [.  .  .]

So ask yourself this: with so much improvement behind us, why are we to expect only deterioration before us? I am quoting from an essay by Thomas Macaulay written in 1830, when pessimists were already promising doom:

ìThey were wrong then, and I think they are wrong now.î

A fork in the road for Dell?

michael-dell Remember back when Micheal Dell and Austin-based Dell, Inc. were among the early beneficiaries of what Larry Ribstein brilliantly coined as the Apple Rule of the criminalization-of-business lottery?

Well, as Dellís stock closed down yet again yesterday at $12.06 a share ñ far from the lofty $40 a share price of five years ago ñ this 24/7 Wall Street post makes clear that Dell was quite fortunate to have the benefit of the Apple Rule:

Some of the troubling behavior at Dell, which added up is an extraordinary amount for any large company, occurred when Michael Dell was CEO. All of it happened when he was the firmís chairman. Dell can argue that his is a huge company. He cannot know what all 94,000 of his workers are doing at any one time. That is almost certainly true. But a companyís values are established at the top and that behavior is s a by-product of corporate culture.

I submit that there is no rational basis for criminalizing Jeff Skillingís conduct as chief executive officer of Enron and not doing the same in regard to Michael Dellís. Or Tim Geithnerís for that matter.

Michael Dell is not a criminal. But neither is Jeff Skilling and he remains locked up in a Colorado prison.

Financial Ed 101

abacus Itís good to see that James Surowiecki has come around to my way of thinking that better investor education is far more likely to hedge the risk of future financial scandals than throwing a few business executives in prison:

The governmentís new consumer-protection agency has the authority to ìreview and streamlineî financial literacy programs, but thatís not enough. We really need something more like a financial equivalent of driversí ed. Thereís evidence that just improving basic calculation skills and inculcating a few key concepts could make a significant difference. One study of the few states that have mandated financial education in schools found that it had a surprisingly large impact on savings rates.   .   .   .The point isnít to turn the average American into Warren Buffett but to help people avoid disasters and day-to-day choices that eat away at their bank accounts. The difference between knowing a little about your finances and knowing nothing can amount to hundreds of thousands of dollars over a lifetime. And, as the past ten years have shown us, the cost to society can be far greater than that.

Surowiecki is spot-on with his observation (as is this TGR post on Surowiecki’s article), but the promoters of the Greed Narrative continue to protest — what about the innocent victims who lost their nest eggs as a result of the collapse of a company such as Enron?

Well, one of the main reasons that those victims’ nest eggs ever had value in the first place was because innovative executives such as Jeff Skilling and Ken Lay transformed Enron into the world’s leading energy risk management company through the creative use of futures and options contracts to hedge price risk for natural gas producers and industrial consumers.

Although itís fine to feel sorry for someone who loses money on an investment, the Greed Narrative ignores the fact that most of those "victims" who lost their nest eggs were imprudent in their investment strategy. Taking Enron as an example, those investors should have diversified their Enron holdings or bought a put on their Enron shares that would have allowed them to enjoy the rise in Enron’s stock price while being protected by a floor in that share price if it fell below a certain value. Those are the type of precautions that a prudent ñ and well-educated ñ investor would take in regard investing in a trust-based business.

Incongruously, while virtually all of those Enron "victims" hedged the risk of their investment in their homes by purchasing homeowner’s insurance, few of them hedged the risk of their investment in Enron stock. Most of them simply did not understand how Enron’s risk management services created their nest egg in the first place. Thus, when those nest eggs evaporated during the bank run on Enron, those investors didn’t even try to understand what truly had occurred. They simply embraced the easy-to-understand Greed Narrative.

The Greed Narrative’s devastating impact is that it obscures the true nature of investment risk and fuels the myth that investment loss results primarily from someone else’s misconduct. As Larry Ribstein has been asking for years, do we really want to be sending a message to investors that risk is bad when it often leads to valuable innovation and wealth creation?

Do we really want to allow prosecutors and regulators to paint such beneficial transactions as frauds and then manipulate the public’s ignorance to demonize innovative risk-takers?

At a time when America desperately needs innovators and entrepreneurs to create jobs and wealth, better education for investors makes much more sense than the paths we have been taking.

To File or Not to File, That is BP’s Question

bp_logo1 Ever since the Deepwater Horizon oil well blowout in late April, friends in my line of work and I have been debating whether British Petroleum is going to file a chapter 11 case to reorganize while dealing with the huge and still-to-be determined liabilities arising from the catastrophe.

As the spill spiraled out of control, my sense was that the question about a BP bankruptcy filing was not whether the company would file, but rather ìwhenî and ìwhere.î Just dealing with the tens of thousands of claims that will be asserted against BP in hundreds of courts across the U.S. cries out for centralized bankruptcy processing from a logistical standpoint, if nothing else.

But from a purely financial standpoint, the question of whether BP will need to file is a closer call. As Joe Schaefer outlines here, BP is a hugely profitable, hard-asset based company that is ñ at least on paper — capable of weathering this financial firestorm outside of bankruptcy protection, particularly if the relief well is successful and restores investor confidence in BPís capacity to deal with the liabilities. 

On the other hand, as Craig Pirrong reminds us (related NY Times article here), BPís financial situation is perilous and could deteriorate with Enronesque speed if the markets lose trust in BPís capacity to perform on its contractual obligations. Those CDS spreads are indeed ominous.

Stay tuned.