Category Archives: Business – General

The Wall Street Journal’s Inadequate Apology

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It’s as if the nation’s leading business newspaper doesn’t want to face the ugly reality of what it helped create.

This Wall Street Journal editorial applauds the U.S. Supreme Court’s opinion reversing Jeff Skilling’s conviction on honest services wire fraud charges. But when it comes to the WSJ’s role in fanning the flames of public disdain toward business executives that helped to allow this injustice to occur, the WSJ apologizes only to Conrad Black:

The Black and Skilling cases are precisely the kind involving high-profile, unsympathetic defendants in which willful prosecutors like Mr. Fitzgerald are inclined to abuse the honest services law. They know the media won’t write about the legal complexities, and they know juries are often inclined to find a rich CEO guilty of something. We regret that in the case of Mr. Black, that failure of media oversight included us.

But what about an apology to Mr. Skilling? Take it from me WSJ, that lack of media oversight also included you in regard to the Skilling and other Enron-related criminal cases.

Indeed, four years ago the WSJ editorial board was patting the Enron Task Force on the back despite the fact that it was clear at the time that the Task Force had improperly applied the honest services wire fraud statute and engaged in massive prosecutorial misconduct in regard to the Skilling prosecution and numerous other Enron-related criminal prosecutions.

The WSJ’s failure to admit its egregious failures in its coverage of Enron reminds me of a point that John Carney raised several years ago in regard to Eliot Spitzer’s odious tenure as New York Attorney General:

Why didn’t [the mainstream media covering Spitzer’s investigation of Grasso] reveal the slimy tactics of the Spitzer squad?

We suspect part of the problem was the fear of being “cut off” of access. Reporters compete for scoops, and often those scoops depend on sources who will leak information to them. In the NYSE case, reporters assigned to the story were largely at the mercy of the investigators, who could cut-off uncooperative reporters, leaving them without copy to bring to their editors while their competitors filed stories with the newest dirt. They probably felt – not unrealistically – that their very jobs were on the line.

This reveals an unfortunate state of affairs. Playing bugle boy while government officials call the tunes from behind a veil of anonymity is not investigative journalism – it’s hardly journalism at all. It’s closer to propaganda. It would have been far better had the journalists turned their backs on the Spitzer squad, or even revealed these tactics to the public. Sure they may have lost some “good” stories but they could have painted a truer picture of what was going on. But that’s probably too much to hope for.

The same type of mainstream media dissonance went on in regard to the Enron-related prosecutions.

In point of fact, this Ayn Rand Institute press release that was issued in 2006 just a couple of months after the WSJ patted the Enron Task Force on the back is remarkably prescient in regard to the mainstream media’s abysmal coverage of Enron in general and Skilling’s trial, in particular:

The Media’s Mistreatment of Jeff Skilling.

Upon hearing the news that former Enron CEO Jeffrey Skilling was sentenced to 24 years, most Americans, trusting the newspaper articles and books they have read on Enron, think that justice has been served.

But, said Alex Epstein, a junior fellow at the Ayn Rand Institute, “Jeff Skilling has not gotten justice, and the media bear a major portion of the blame.”Few Americans know that during Skilling’s trial, the prosecution came nowhere near proving its central allegation that Jeff Skilling engineered a conspiracy to defraud investors. Few know that Skilling, upon leaving Enron five months before its collapse, destroyed no documents, nor did anything else resembling a criminal cover-up. Few know that the prosecution, unable to prove a conspiracy, spent huge swaths of the trial taking pot-shots at Skilling with issues not even mentioned in the indictment, such as the failure of Skilling, a multi-millionaire many times over, to disclose a failed $50,000 investment to Enron’s board.”

“The media’s mis-portrayal of the case against Skilling long predates the trial. Ever since the fall of Enron, most of the media have treated as fact every conceivable smear against Skilling made by ax-grinding prosecutors or ex-Enron employees, while treating as absurd Skilling’s claim that he neither engineered a conspiracy nor lied to investors.”

“There can be no doubt that the media’s treatment of Skilling contributed to his conviction for a phantom conspiracy–and to the outrageous 24-year sentence that he has now received. And the mistreatment of Skilling is part of a broader trend: the trend of treating businessmen as guilty until proven innocent. Our journalists and intellectuals, accepting the idea that the pursuit of profit is morally tainted, assume that whenever anything goes wrong in business, it is the result of crooked behavior by greedy, rich CEOs–and slant their coverage accordingly. This practice is putting numerous innocent men in jail, and instilling terror throughout corporate America.”

“During Skilling’s appeal, let us call for the media to start treating Skilling–and all businessmen–fairly.”

The WSJ was right to apologize to Lord Black. But it also owes one to Jeff Skilling, as well as to its readers.

What motivates us

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Dan Pink presents thoughts on how to motivate people (H/T Political Calculations).

On Leadership

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drking2 If you read just one article this week, make it this one (H/T Mike at Crime & Federalism)  ñ William Deresiewiczís lecture to the plebe class at the United States Military Academy at West Point last year. A snippet:

Thatís really the great mystery about bureaucracies. Why is it so often that the best people are stuck in the middle and the people who are running thingsóthe leadersóare the mediocrities?

Because excellence isnít usually what gets you up the greasy pole. What gets you up is a talent for maneuvering. Kissing up to the people above you, kicking down to the people below you. Pleasing your teachers, pleasing your superiors, picking a powerful mentor and riding his coattails until itís time to stab him in the back. Jumping through hoops. Getting along by going along. Being whatever other people want you to be, so that it finally comes to seem that, like the manager of the Central Station, you have nothing inside you at all. Not taking stupid risks like trying to change how things are done or question why theyíre done. Just keeping the routine going.

I tell you this to forewarn you, because I promise you that you will meet these people and you will find yourself in environments where what is rewarded above all is conformity. I tell you so you can decide to be a different kind of leader. And I tell you for one other reason.

As I thought about these things and put all these pieces togetheróthe kind of students I had, the kind of leadership they were being trained for, the kind of leaders I saw in my own institutionóI realized that this is a national problem. We have a crisis of leadership in this country, in every institution. Not just in government. Look at what happened to American corporations in recent decades, as all the old dinosaurs like General Motors or TWA or U.S. Steel fell apart. Look at what happened to Wall Street in just the last couple of years. [.  .   .]

We have a crisis of leadership in America because our overwhelming power and wealth, earned under earlier generations of leaders, made us complacent, and for too long we have been training leaders who only know how to keep the routine going. Who can answer questions, but donít know how to ask them. Who can fulfill goals, but donít know how to set them. Who think about how to get things done, but not whether theyíre worth doing in the first place. What we have now are the greatest technocrats the world has ever seen, people who have been trained to be incredibly good at one specific thing, but who have no interest in anything beyond their area of expertise. What we donít have are leaders.

What we donít have, in other words, are thinkers. People who can think for themselves. People who can formulate a new direction: for the country, for a corporation or a college, for the Armyóa new way of doing things, a new way of looking at things. People, in other words, with vision.

Stuff happens

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groupthink (1) In this NY Times op-ed, Richard Thaler picks up on a theme that Ken Rogoff and James Hamilton raised last week ñ the similarity between the miscalculation of risks relating to the Gulf of Mexico oil spill and the Wall Street financial crisis:

AS the oil spill in the Gulf of Mexico follows on the heels of the financial crisis, we can discern a toxic recipe for catastrophe. The ingredients include risks that are erroneously thought to be vanishingly small, complex technology that isnít fully grasped by either top management or regulators, and tricky relationships among companies that are not sure how much they can count on their partners.

For the financial crisis, it has become clear that many chief executives and corporate directors were not aware of the risks taken by their trading desks and partners. Recent accusations against Goldman Sachs suggest the potential for conflicts of interest among banks, investors, hedge funds and rating agencies. And it is clear that regulators like the Securities and Exchange Commission, an agency staffed primarily with lawyers, are not well positioned to monitor the arcane trading strategies that helped produce the crisis.

The story of the oil crisis is still being written, but it seems clear that BP underestimated the risk of an accident. Tony Hayward, its C.E.O., called this kind of event a ìone-in-a-million chance.î And while there is no way to know for sure, of course, whether BP was just extraordinarily unlucky, there is much evidence that people in general are not good at estimating the true chances of rare events, especially when human error may be involved. [.  .  .]

How can government reduce the frequency and the severity of future catastrophes? Companies that have the potential to create significant harm must be required to pay for the costs they inflict, either before or after the fact. Economists agree on this general approach. The problem is in putting such a policy into effect.

Suppose we try to tax companies in advance for activities that have the potential to harm society. First, we have to have some basis for estimating the costs they may inflict. But before the recent disasters, companies in both the financial and oil drilling sectors would have claimed that the events we are now trying to clean up were, well, one-in-a-million risks, suggesting a very low tax.

Alternatively, an offending party could be made to pay after the fact, by holding it responsible for the costs it imposes. BP has volunteered that it will pay for all damages it considers ìlegitimate,î but we can expect a fight over how to define that word.

.   .    .  Suppose a company worth only $1 billion was responsible for this accident. It would go bankrupt and we would be unable to collect. And if we arenít careful, we will encourage companies that have enough money for collection to leave the drilling to those that donít. [.  .  .]

We are left in a difficult place. Neither the private nor the public sector seems up to handling these kinds of problems. And we canít simply wait for the next disaster, because, as people might say if they had to use G-rated language, stuff happens.

Professor Hamilton zeros in on the group dynamic that leads to the underestimation of risk:

I think part of the answer, for both toxic assets and toxic oil, has to do with a kind of groupthink that can take over among the smart folks who are supposed to be evaluating these risks.

It’s so hard to be the one raising the possibility that real estate prices could decline nationally by 25% when it’s never happened before and all the guys who say it won’t are making money hand over fist.

And this interacts with the forces mentioned above. When the probability of spectacular failure appears remote, and moreover it hasn’t happened yet, it’s hard to set up incentives, whether you’re talking about a corporation or a regulatory body, in which the person who makes sure that the risks stay contained is the person who gets rewarded. When everyone around you starts thinking that nothing can go wrong, it’s hard for you not to do the same. It can become awfully lonely in those environments to try to be the voice of prudence.

Finally, Cato’s Gerald O’Driscoll, Jr. notes the futility of reacting to the oil spill by implementing even more regulation:

What is the missed lesson from all this? When President George W. Bush had his Katrina moment, the federal government’s bumbling response was blamed on him, on the Republicans, and on conservatives. Now it is President Obama’s turn. His administration’s faltering response to the disaster in the Gulf is attributed to his personal failings, staff ineptitude, communication failures, etc. And, of course, the two administrations have shared responsibility for the poor handling of the financial crisis.

A big-government conservative administration failed in crisis, as has a big-government liberal administration. The regulatory state did not prevent excessive risk taking whether in financial services, nor perhaps in offshore oil drilling. Government response to crises once they occur is slow and inept. All this is not because either Republicans or Democrats are in power, but because big government doesn’t work. It can’t deliver on its promises. Big government overpromises and underdelivers. In reaching to do more, big government accomplishes less. That is not an ideological statement, but an empirical observation.

In the case of financial services, virtually all the proposed regulatory reform offers more of the same. Additional regulations will be added to existing ones without addressing why existing ones failed to prevent the crisis. The same process will likely happen with respect to offshore drilling.

The oil spill has triggered an important debate about the value of off-shore drilling, and that debate might conclude that off-shore drilling generates more harm than benefit.

But despite the nightly photos and videos of the oil spill on television, itís important to remember that drilling produces benefits in addition to its costs. Deep-sea drilling has been ongoing for decades with relatively few incidents that even come close to the current spill.

So, while this spill may reveal that deep-sea drilling is too risky, itís also quite possible that this incident was simply the result of poor decision-making combined with bad luck, and that there is a nominal chance that it will reoccur.

And it is very difficult to regulate bad decision-making and bad luck.

Stu
ff happens, indeed.

Lessons on governmental decision-making

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astrodome5 This blog started in February 2004 and the first post about what to do with the Astrodome was in September 2004.

Over the intervening six years, there have been a couple of dozen posts about the various boondoggles that have been proposed for the Dome. To date, no one has put up a penny to redevelop the Dome.

Despite this dismal track record, Harris County officials are still dithering over what to do with the Dome.

At least the current proposals are similar to the one that I made a couple of years ago. That is really the only one that makes much sense for the facility. Typical to Harris Countyís handling of this situation, there is no mention in the Chronicle article that Harris County officials have had any discussions with Texas Medical Center officials about development and financing of such a venture. Thus, at this point, it would appear that the only financing for such a project would be on the County’s dole.

And in an amazing display of blindness, County officials are planning not to convert the land that the Dome sits on into badly needed additional parking for the Reliant Park area if the decision is made to raze the facility. Why not generate some revenue from the land to help pay off the $35 million in bond debt that still exists on the Dome?

Oh well. There are many lessons to be drawn from this experience, but two in particular:

1. If you canít figure out what to do with something in six years, then itís probably time to get rid of it; and

2. Donít ever rely on governmental officials to make sound decisions.

Are you an Asker or a Guesser?

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arguing According to Andrea Donderi, as described here by The Guardianís Oliver Burkeman, it depends on the culture in which you were raised:

We are raised, the theory runs, in one of two cultures.

In Ask culture, people grow up believing they can ask for anything ñ a favour, a pay riseñ fully realising the answer may be no.

In Guess culture, by contrast, you avoid "putting a request into words unless you’re pretty sure the answer will be yesÖ A key skill is putting out delicate feelers. If you do this with enough subtlety, you won’t have to make the request directly; you’ll get an offer. Even then, the offer may be genuine or pro forma; it takes yet more skill and delicacy to discern whether you should accept."

Neither’s "wrong", but when an Asker meets a Guesser, unpleasantness results. An Asker won’t think it’s rude to request two weeks in your spare room, but a Guess culture person will hear it as presumptuous and resent the agony involved in saying no.  .   .   .

This is a spectrum, not a dichotomy, and it explains cross-cultural awkwardnesses, too. Brits and Americans get discombobulated doing business in Japan, because it’s a Guess culture, yet experience Russians as rude, because they’re diehard Askers.

Applying this to legal education, my sense is that law schools try to develop Askers into trial lawyers, while the die-hard Guessers among law students probably gravitate toward non-litigation areas. Off hand, I cannot recall in my experience a particularly effective litigator who was anything other than an Asker. On the other hand, I know a number of good deal lawyers who are Guessers. What do you think?

The futility of regulating failure

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failure-300x300 David Warren makes a remarkably lucid point about the dubious notion that governmental action is the proper remedy to any wrong:

Politicians try to pass laws against it; to create rules and regulations so complex and cumbersome that (as we saw in the BP disaster) an easily-corrupted "judgement call" bureaucracy must grant exemptions from them, in order for anything to function at all. When disaster strikes, they add more rules and regulations.

But more profoundly, the rules and regulations — once they pass a point of irreducible complexity — create a mindset in which those who should be thinking about safety are instead focused on rules and regulations. To those who see danger, the glib answer comes, citing all the safety standards that have been diligently observed.

From what we already know, this appears to be exactly what happened aboard Deepwater Horizon, and will not be rectified by the U.S. government’s latest, very political decision, to use means both fair and foul to prosecute British Petroleum, and punish the rest of the oil industry for its mistakes.

Let me mention in passing that President Barack Obama was in no way responsible for the catastrophe, and that there is nothing he can do about it. He is being held to blame for "inaction," as wrongly as his predecessor was held to blame over Hurricane Katrina, by media and public unable to cope with the proposition that, "Stuff happens."

In a sense, Obama is hoist on his own petard. The man who blames Bush for everything now finds there are some things presidents cannot do. More deeply, the opposition party that persuades the public government can solve all their problems, discovers once in power there are problems their government cannot solve.

Alas, it will take more time than they have to learn the next lesson: that governments which try to solve the insoluble, more or less invariably, make each problem worse.

I like to dwell on the wisdom of our ancestors. It took us millennia to emerge from the primitive notion that a malignant agency must lie behind every unfortunate experience. Indeed, the Catholic Church spent centuries fighting folk pagan beliefs in things like evil fairies, and the whole notion the Devil can compel any person to act against his will — only to watch an explosion of witch-hunting and related popular hysterias at the time of the Reformation.

In so many ways, the trend of post-Christian society today is back to pagan superstitions: to the belief that malice lies behind every misfortune, and to the related idea that various, essentially pagan charms can be used to ward off that to which all flesh is heir. The belief that, for instance, laws can be passed, that change the entire order of nature, is among the most irrational of these.

Sheer human stupidity is the cause of any number of human catastrophes — including the stupidity of superstition itself. We need to re-embrace this concept; to hug the native incompetence within ourselves, and begin forgiving it in others.

Amen.

Is the wild ride of Landry’s investors finally over?

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Landrys Rst Owning an interest in Houston-based Landryís Restaurants, Inc. over the past several years has not been for the faint-hearted.

But maybe ñ just maybe ñ the patience of long-term holders of Landryís stock is finally going to be rewarded.

This story began back in July of 2007 when Landryís announced that it was delinquent in its regulatory filings with the SEC and that it was in need of refinancing over $400 million in debt in a rapidly deteriorating debt market. Shortly thereafter, the company sued some of its bondholders for declaring the company in technical default under their bonds, but the company quickly settled that litigation on not particularly good terms.

A few months later, Landry’s announced in January 2008 that its CEO and major shareholder (39%), Tilman Fertitta, had made an offer to take the company private by buying the other 61% of the company’s stock for $23.50 share, which worked to be a $1.3 billion deal, including debt.

Given the circumstances, that offer sounded pretty good, particularly given that the proposed purchase price was a 40% premium over the $16.67 share price at the time of the offer.

Unfortunately, a flurry of shareholder lawsuits followed Fertitta’s bid. By early March, 2008, it was apparent that Fertitta’s bid was so speculative that he hadn’t even lined up financing for it.

So, in April of 2008, Fertitta lowered his offer to $21 per share because of "tighter credit markets", and Landry’s board announced in June of that year that it had accepted that price.

But by the fall of 2008, the financial crisis on Wall Street had roiled credit markets even further and Hurricane Ike caused considerable damage to several Landry’s properties.

So, in October of 2008, Fertitta lowered his offer to $13.50 per share.

Then, in mid January of 2009, Landry’s announced that it was terminating the proposed deal with Fertitta. The reason was a bit convoluted, but the gist of it was that Landry’s contended that the SEC was requiring the company to issue a proxy statement disclosing information about a confidential commitment letter from the lead lenders on the buyout deal.

Amidst all this, Landry’s stock was tanking, closing at under $5 per share.

Meanwhile, while the take-private bids languished and the company’s stock plummeted to historic lows, Fertitta continued to buy more Landry’s stock so that he now controls somewhere in the neighborhood of 55% of the company’s shares.

Yes, that’s right. Despite Fertittaís series of unsuccessful take-private offers over the previous couple of years, Landry’s board failed to obtain a standstill agreement from Fertitta that would have prevented him from taking a majority equity position while Landry’s stock price was tanking.

So, given all that, could Fertitta and the Landry’s directors screw things up any worse?

How about proposing yet another deal in which Fertitta would buyout Landry’s other shareholders in return for giving them an equity stake in a publicly-owned spin-off (Saltgrass Steakhouse) in a brutally competitive niche of the restaurant market?

After shareholders and the markets widely panned that spinoff proposal, Landry’s board tentatively approved an offer from Fertitta to buy the balance of Landry’s shares for $14.75 per share. Compared to the spinoff proposal, Fertitta’s cash offer looked relatively good.

There was just one small problem with Fertitta’s proposal. Under Delaware corporate law, Fertitta had to agree that his proposal was subject to a requirement that a majority of the Landry’s shares that Fertitta did not control have to approve the deal.

Enter William Ackman and his Pershing Square Capital Management hedge fund. Pershing Square bought up a bunch of Landry’s shares and announced that it opposed Fertitta’s buyout offer.

So, assuming your head isnít still spinning from all that, whatís the latest with Landryís?

Yesterday, the Landryís board accepted a $24-a-share takeover offer by Fertitta ($.50 more than his January 2008 offer back when he owned only 39% of the company), which makes for about $1.4 billion deal.

In addition, Landryís has the right to shop Fertittaís offer for 45-days in an effort to obtain a higher offer and doesnít have to pay Fertitta a break-up fee if such a higher offer is obtained. Of course, no one other than Fertitta has shown any interest in acquiring Landryís, but thatís a nice touch, anyway.

The deal has a couple of contingencies, including court approval of a partial settlement of Delaware class action litigation against Fertitta and certain company directors.

Likewise, the deal must be approved by a majority of shareholders not affiliated with Fertitta, namely Ackman and Pershing Capital. But given the pricing of the deal ñ and the profit that Pershing Capital looks to make on its investment ñ such approval would appear to have been lined up already. So, Landryís investors may finally receive a decent payoff for their wild ride over the past three years.

As the past three years have shown, Landryís investors shouldnít count their chickens before this deal hatches. But if it does, you can count on one thing about Landryís.

The days of Landryís as a publicly-owned company are over. For good.

Update: Steve Davidoff doesn’t think that Pershing Capital will necessarily play ball with Fertitta’s bid. With the paucity of bidders for Landry’s, it seems unlikely to me that Pershing Capital would take the risk of opposing the deal. But you never know in the wild world of Landry’s.

Is freedom possible without wealth?

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From the fine HBO John Adams mini-series, Thomas Jefferson and Alexander Hamilton debate the relative importance of the creation of wealth to American society. Amazingly, the debate lives on today.

The Beneficial Nature of Derivatives

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I don’t watch much television news. But when I catch a glimpse these days, it always seems as if some politician is loudly declaring the need for more governmental financial regulation.

Mostly, the politicos contend that financial derivatives are dangerous instruments that are contrary to sound public policy. We have to protect those poor souls who bet against John Paulson, don’t you see?

But the proponents of this view simply do not want to understand the nature of derivatives, just as most of the same ones didn’t want to understand the valuable nature of the risk management of natural gas prices that Ken Lay and Jeff Skilling contributed to markets 20 years ago.

Derivatives are simply a way for an investor to warn by trading – that is, by putting his money where his mouth is – that he has information about an upcoming shift in the markets. That facilitates a transparent and well-informed marketplace.

However, heavily regulating traders from taking advantage of that valuable source of information only makes it more difficult for valuable information about market shifts to reach the marketplace. How is that good for investors seeking as transparent and well-informed marketplace as possible?

An underappreciated cause of the Wall Street crisis was the underlying information failure. As opposed to restricting trading, we ought to be finding ways to bring more information to the market faster so that prices can be adjusted promptly.

Rather than demonizing folks who bet their money in bringing information to the marketplace, we ought to be encouraging them.

I won’t hold my breath waiting for that to happen.