Category Archives: Business – General

Skilling II at SCOTUS?

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The Fifth Circuit Court of Appeals has not exactly distinguished itself in regard to its handling of the various appeals that emanated from the various Enron-related criminal prosecutions.

In particular, the Fifth Circuit recently denied former Enron CEO Jeff Skilling’s motion for a new trial even though Skilling’s theory of the case for a new trial was upheld by Fifth Circuit panels in two other Enron-related appeals.

So, per the motion below, Skilling is once again preparing to petition the U.S. Supreme Court to reverse the Fifth Circuit yet again and order the Fifth Circuit to issue a mandate to the U.S. District Court to give Skilling a new trial.

Frankly, as implicitly reflected by the prosecution’s agreement to a stay of the Fifth Circuit’s current mandate pending Skilling’s appeal to the U.S. Supreme Court, Skilling has a good case for a new trial. Stay tuned.

Jeff Skilling’s Motion to Stay Fifth Circuit Mandate Pending Appeal to U.S. Supreme Court

Technological overload in the cockpit

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airfrance447This Chris Sorensen/Macleans.CA article provides an excellent overview of an issue that is of interest to all air travelers – that is, the increasing number of loss-of-control airline accidents over the past five years:

Statistically speaking, modern avionics have made flying safer than ever. But the crash of [Turkish] Flight 1951 is just one of several recent, high-profile reminders that minor problems can quickly snowball into horrific disasters when pilots don’t understand the increasingly complex systems in the cockpit, or don’t use them properly. The point was hammered home later that year when Air France Flight 447 stalled at nearly 38,000 feet and ended up crashing into the Atlantic, killing all 228 on board.  .  .  [. . .]

Why is it happening? Some argue that the sheer complexity of modern flight systems, though designed to improve safety and reliability, can overwhelm even the most experienced pilots when something actually goes wrong. Others say an increasing reliance on automated flight may be dulling pilots’ sense of flying a plane, leaving them ill-equipped to take over in an emergency. Still others question whether pilot-training programs have lagged behind the industry’s rapid technological advances.

It’s a vexing problem for airlines, and a worrisome one for their customers. Unlike mechanical failures that can be traced to flawed design or poor maintenance, there is no easy fix when experienced and highly trained pilots make seemingly inexplicable decisions that end with a US$250-million airplane literally falling out of the sky. “The best you can do is teach pilots to understand automation and not to fight it,” [flight simulation expert Sunjoo] Advani says, noting that the focus in recent years has, perhaps myopically, been on simplifying and speeding up training regimes, secure in the knowledge that planes have never been smarter or safer. “We’ve worked ourselves into a little bit of a corner here. Now we have to work ourselves back out.”

Read the entire article. And then have a stiff drink before you get on your next commercial flight.

“A cunning tax on everyone else”

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government_bailout1-260x223If you don’t read anything else this Labor Day weekend, check out this Nassim Taleb/Mark Spitznagel op-ed on the impact of dubious government bailout of Wall Street and big banks over the past several years:

For the American economy – and for many other developed economies – the elephant in the room is the amount of money paid to bankers over the last five years. In the United States, the sum stands at an astounding $2.2 trillion. Extrapolating over the coming decade, the numbers would approach $5 trillion, .  .  . That $5 trillion dollars is not money invested in building roads, schools and other long-term projects, but is directly transferred from the American economy to the personal accounts of bank executives and employees.

Such transfers represent as cunning a tax on everyone else as one can imagine. It feels quite iniquitous that bankers, having helped cause today’s financial and economic troubles, are the only class that is not suffering from them – and in many cases are actually benefiting.

As I’ve been saying for years, it’s not rocket science.

The flawed theory of bailout

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bailout3-300x290A couple of items from over the weekend are well worth reading for those who are interested in financial health of the U.S.

First, the Wall Street Journal’s Holman Jenkins, Jr. notes that Bank of America’s declining value reflects that the federal government’s bailout of Wall Street during the financial crisis of 2008 has been of dubious merit:

Let’s revisit the theory of the bailout. The government holds a safety net under the financial system, preventing a worse panic, with consumers and business cutting back spending more radically, with more people losing jobs, with more houses going into foreclosure.

It made sense on paper and underlies claims today that the government has been a net profiter from its bailout activities.

But it becomes apparent that the 2008 crisis isn’t over. And our bailout strategy?

In one presumed lesson of the Great Depression, a splurge of deficit-financed spending is supposed to support the economy while consumers and businesses get over their shellshock. But as George Soros noted to Der Spiegel, the U.S. government in the 1930s wasn’t saddled with huge debt. Unless today’s deficit spending is visibly directed at projects with a positive return, he says, it just frightens the public that the government itself is going bankrupt.

Meanwhile, this Bradley Keoun and Phil Kuntz/Bloomberg article reports that the Federal Reserve loaned an astonishing $1.2 trillion to Wall Street during the 2008 crisis. Interestingly, that amount is roughly equal to the amount that U.S. homeowners currently own on 6.5 million delinquent and foreclosed mortgages.

The foregoing does not surprise regular readers of this blog. Efficient operation of markets depend in large part on the allocation of losses based on who took the risk of loss. Remove the consequences of that risk and the result is that the politically well-connected profit, not necessarily those who carefully assessed and hedged risk.

Remember, it’s not rocket science.

So, why shouldn’t the rich pay more taxes?

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warren_buffet_0Warren Buffett’s NY Times op-ed of last week generated a substantial dose of self-righteous indignation.

I mean, really. If someone as wealthy as Warren Buffett thinks that the mega-rich people should pay more taxes, then why shouldn’t they?

Although the issue seems so simple, as with many things in life, it’s not.

Apart from the fact that Buffett is not averse to taking positions that protect himself at the expense of others, the taxes that the mega-rich pay are already highly disproportionate. 

And as Jeff Miron notes, assessing even an additional 10% surcharge on taxpayers earning over $1 million would not generate enough to make a meaningful difference in reducing the budget deficit. Miron zeroes in on Buffett’s error in reasoning in the following passage:

Buffett errs, most fundamentally, by focusing on outcomes rather than policies. The right question is which policies promote differences in incomes that reflect hard work, energy, innovation and creativity, rather than reward the unethical, the politically connected and the tax-savvy.

In economics, as in sports, we should adopt good rules and insist that everyone play by them. Then we should stand back and applaud the winners.

Indeed, check out what David Logan discovered when he crunched the numbers:

So taking half of the yearly income from every person making between one and ten million dollars would only decrease the nation’s debt by 1%. Even taking every last penny from every individual making more than $10 million per year would only reduce the nation’s deficit by 12 percent and the debt by 2 percent. There’s simply not enough wealth in the community of the rich to erase this country’s problems by waving some magic tax wand.

Finally, to put everything in perspective, think about what would need to be done to erase the federal deficit this year: After everyone making more than $200,000/year has paid taxes, the IRS would need to take every single penny of disposable income they have left. Such an act would raise approximately $1.53 trillion. It may be economically ruinous, but at least this proposal would actually solve the problem.

And as Charles Koch and Harvey Golub note, it’s not as if government has distinguished itself in the way in which it has used tax revenues.

Meanwhile, Peter Gordon insightfully points out why indulging in class warfare against the wealthy is dangerous.

Timothy Snyder’s Bloodlands (Basic, 2010) reminds us of the horrors of what occurs when the dynamics of racial and class warfare collide.

Are those who fan such flames confident that similar outrages could not happen here and now?

Or do they even care? 

So, what’s the plan?

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The continuing quest to criminalize business judgment

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handcuffs-fraud-300x200Yes, our Congress is back at it:

Since the Supreme Court limited the definition of ‚Äúhonest services‚Äù fraud in last year’s landmark Skilling v. U.S., the Obama Administration has been looking for a way to restore essentially unlimited prosecutorial discretion to bring white-collar cases.

Last fall Assistant Attorney General Lanny Breuer told a Senate committee that Congress should act to ‚Äúremedy‚Äù the Court’s decision. Three bills moving through the House and Senate would try to do so, expanding the reach of prosecutors to go after unpopular politicians or businesses whom they can’t pin with a real crime.

In Skilling, the Supreme Court ruled that the honest services statute was ‚Äúunconstitutionally vague‚Äù and restricted its application to clear cases of bribery or kickbacks. The new legal template of Senate bills sponsored by Judiciary Chairman Patrick Leahy, the liberal Democrat, and Illinois Republican Mark Kirk would end run that change, transforming many state or local ethics violations into federal felonies any time there is an allegation of undisclosed ‚Äúself-dealing.‚Äù .  .  .

Where to begin?

For starters, as Bill Anderson points out, why on earth do our political leaders think we need even more people in prison?

Moreover, as Larry Ribstein has been saying for years, granting the government this type of unfettered power to criminalize merely questionable business transactions has proven to lead to even worse prosecutorial abuse that is rarely sanctioned.

How is justice served by turning such prosecutions into a lottery? Is public confidence in the federal criminal justice system really promoted by unfavorable comparisons to Russia’s?

And let’s not forget the incalculable human toll of such prosecutions.

The truth is that this type of amorphous criminalization of business judgment is fundamentally bad regulatory policy. Such prosecutions obscure the true nature of business risk and fuel the myth that investment loss results primarily from criminal misconduct. Besides, allowing wide discretion to prosecute business judgment deters businesspeople from taking the business risks that lead to valuable innovation, wealth creation and – most importantly these days – desperately needed jobs for communities.

So, in the face of such compelling reasons to forego such criminalization, why do our political leaders and prosecutors insist on more?

Ayn Rand’s observation about socialists who use state power to further their supposedly altruistic goals seems particularly apt:

“[T]he truth about their souls is worse than the obscene excuse you have allowed them, the excuse that the end justifies the means and that the horrors they practice are means to nobler ends.”

“The truth is that those horrors are their ends.”

It’s mostly about trust

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standard-poorsIn early 2005, back when Eliot Spitzer was taking his first pot-shots at American International Group, Inc., I wrote this blog post explaining how even mighty AIG could suffer a fate similar to that of Enron Corporation.

Inasmuch as AIG had a net worth of about $80 billion at the time coming off a previous year of $11 billion in net income on almost $100 billion in revenues, no one (including me) thought there was much of a chance that what I was suggesting could happen to AIG would actually happen to the firm.

Less than four years later, AIG would have suffered the same fate as Enron but for a massive federal government bailout.

The lesson here is that if creditors trust the federal government, then the government’s credit standing will remain high regardless of what the New York analysts say. In reality, the market rates the government’s credit continuously each moment of every day. Just look at fluctuations in interest rates on government debt.

So remember, regardless of what the Washington pols suggest, this is not rocket science.

Quite simply, it’s mostly about trust.

The Second Circuit corrects an injustice

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GenReOver the years, I’ve written quite a bit (for example, here, here, here and here) on the questionable nature of the prosecutions and convictions of the Gen Re and AIG executives who were involved in the finite risk transaction that prompted Eliot Spitzer to demonize Hank Greenberg. As if Spitzer needed any prompting to grab some cheap headlines.

By now, the story regarding this transaction is well-known among those in the legal and business communities who have followed it. AIG booked the finite risk transaction as insurance, which increased its premium revenue by $500 million and added another $500 million to its property-casualty claims reserves. Generally accepted accounting principles at the time required insurance and reinsurance transactions to transfer significant risk from one party to another if either party accounted for the transaction as insurance. Absent risk transfer, such transactions had to be booked as financing, which defeats the purpose of the transaction. In the General Re-AIG deal, $600 million of potential losses were transferred from General Re to AIG in return for the $500 million premium paid by General Re.

The deal did not affect AIG’s net income and was the type of transaction that AIG — and many other companies in the insurance industry – had done for years without any adverse market reaction, much less a criminal investigation. Moreover, the transaction in question was disclosed to and approved by AIG and General Re’s independent auditors.

That made no difference to avaricious prosecutors, who proceeded to pursue a dubious prosecution because any executive even vaguely associated with AIG after the Wall Street meltdown of 2008 were easy marks. They were right – the four Gen Re executives and the AIG executive were all convicted of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission

Thankfully, some appellate court panels (unlike some others) are still willing to correct such injustices. In the decision below, the Second Circuit Court of Appeals reversed the convictions of the Gen Re and AIG executives and remanded the case for a new trial. The essence of the decision is that the prosecution used spurious stock price data to inflame the jury against the defendants and persuaded the trial court to use an incorrect jury instruction on a key intent issue in the case.

However, as this appropriately scalding Wall Street Journal editorial points out, this case is really about abuse of prosecutorial discretion: “The collapse of this case renders even more appalling the way that prosecutors used it to force both companies to fire their CEOs–Joseph Brandon at Gen Re and Hank Greenberg at AIG. In the latter case, the resulting loss of shareholder wealth–and creation of taxpayer risk–has been staggering” and in this “latest embarrassing episode, the abuses include prejudicial evidence, botched jury instructions and ‘compelling inconsistencies’ suggesting that the government’s star witness ‘may well have testified falsely.'”

And although the Second Circuit came to the right result relying on a version of the facts most favorable to the prosecution, it’s important to note that most of the decision overrules the defendants’ other grounds for reversal where the prosecutors at trial may well have suborned perjury from the key prosecution witness.

It’s never easy being an appellant, even after a trial that is chock full of prosecutorial misconduct.

That’s why there shouldn’t be criminal trials in this type of case in the first place. Let the civil justice system sort out responsibility for any provable damages caused by wrongdoing among all of the parties involved.

That’s a far more just — not to mention humane — approach than throwing a few sacrificial lambs in prison over conduct of dubious criminality.

Update: Larry Ribstein, who has also been following this case from the beginning, notes an ironic — and extraordinarily damaging — aspect of this sordid prosecution.

US v. Ferguson, Et Al 2nd Cir Decision