While you’re at it, Judge Rakoff

jedrakoff The legal and business communities are still buzzing over U.S. District Judge Jed Rakoff’s scathing refusal earlier in the week to approve the proposed $33 million "settlement" (i.e., sweep under the rug) between the SEC and Bank of America over that the Bank’s failure (at least transparently) to disclose to its shareholders the billions in bonuses that the Bank agreed that an insolvent Merrill Lynch was allowed to pay to its employees.

The 12-page decision is certainly worth a read. Judge Rakoff tears into into the SEC for contradicting its own guidelines in penalizing BofA shareholders rather than the executives and lawyers who supposedly approved the lack of disclosure. The settlement "does not comport with the most elementary notions of justice and morality, in that it proposes that the shareholders who were the victims of the Bank’s alleged misconduct now pay the penalty for that misconduct." The Judge didn’t buy the SEC’s contention that this punishment will result in better management, characterizing it as "absurd." Sort of like the notion that the SEC can really police this type of thing in the first place.

Judge Rakoff goes on in his opinion to raise at least another half-dozen or so good questions about the proposed settlement. But there’s a couple more that I wish he’d asked.

A few years ago, former Enron chairman Ken Lay was prosecuted to death for promoting Enron to its shareholders even though he had a reasonable basis for believing that what he was saying about his company was true.

In contrast, the BofA executives and lawyers could not even offer the defense in a criminal fraud trial that the bad things they intentionally failed to tell BofA shareholders about the Merrill Lynch deal were immaterial.

So, isn’t it about time that somebody in the federal government acknowledge that it was a mistake to prosecute Ken Lay to death? And isn’t it about time that the government do something about this barbaric injustice?

The Landry’s debacle

Landry's logo_ There are bad stock plays and there are horrible stock plays. And then there is Houston-based Landry’s Restaurants, Inc.

This story began back in July of 2007 when the company 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 spate 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 announced that it had accepted that price in June.

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 here is the gist of it.

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. However, Landry’s was negotiating with those same lenders to refinance the bond indebtedness that the company promised to refinance in connection with October, 2007 litigation settlement with its bondholders noted above. Inasmuch as the lenders’ commitment for financing Fertitta’s buyout required that the terms of the commitment remain confidential, the company elected to terminate the buyout rather than risk that the lenders would declare a default for breach of confidentiality and back out of the financing commitment as well as the negotiations on refinancing the bond indebtedness.

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 a series of unsuccessful take-private offers over a year and a half, 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 of that, how 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?

Prediction: This is not going to turn out well.

County Fair, L.A. style

Yet another example of how commercials (see earlier examples here) are providing some of the most creative product on television(H/T Glenn Reynolds ):

Amazingly bad decision-making

ashby-highrise-renderingOne fringe benefit of economic downturns is that local public officials generally defer their financial decisions, which tend to be uniformly bad even during good economic times.

Except apparently in Houston.

Over the past few days, Houstonians have been bombarded with a flurry of bad decisions by their public officials, who seem undeterred by the growing consensus that the nation is going through the worst economic recession since the Great Depression of the 1930’s.

First, as Kevin Whited notes, the City of Houston publicly announced this past Friday that it had removed the final local regulatory roadblocks to the construction of the long-delayed Ashby high-rise condominium project in a tony residential subdivision near the Texas Medical Center. In so doing, the City forgot to tell the news to the most interested people, namely the owners of the property where the project is to be built.

At any rate, the City’s announcement ended an egregious example of local governmental interference with productive development of private property. Of course, in the present climate for financing high-rise condos, the chances of the owners being able to revive the project any time soon are about as good as the Stros’ chances of leaping into World Series contention.

Thus, rather than having dozens of wealthy condo owners paying substantial amounts of property taxes and for other City services, the City continues to enjoy the “benefit” of a run-down apartment complex on the property where the Ashby high-rise was to be built.

So, not only did the City fail to take advantage of the opportunity to increase its tax base through re-development of the Ashby high-rise site, it benefited the owners of the site by deterring them from taking the financial risk that would have generated that financial boon to the City.

Now, that type of government mismanagement really takes some effort.

Meanwhile, as if trying to one-up the City’s bungling of the Ashby high-rise deal, local governmental officials were reported on Monday to be on the “home stretch” of putting together a financing package for construction of a new downtown soccer stadium, a new jail facility and the redevelopment of the Astrodome.

I mean, really. Where to start?

As noted many times, the City has already paid millions at a top-of-the-market price for the site of the proposed soccer stadium while at least maintaining that it’s up to the owners of the Dynamo soccer club to put together the private financing for the construction of the stadium itself.

Now, the City is going to finance the construction of the soccer stadium itself through selling TIRZ bonds? When did the prior approach change? Did I miss something?

Similarly, there’s not much left to say about the City and the County governments’ reprehensible handing of the Harris County and City jails, both of which have both been condemned by the Department of Justice because of their horrific condition and mismanagement (the latest on the City jail conditions is here).

It’s clear that the true problem of the existing jails is a combination of underfunding and needless overcrowding from sloppy processing of prisoners who do not need to be incarcerated pending their trial. So, what do local governmental officials do? Wait until the conditions become so barbaric that all they can do is throw tens of millions of dollars (perhaps illegally?) at constructing yet another jail facility in an attempt to placate federal officials.

But both the proposed soccer stadium and jail facility pale in comparison to the potential boondoggle that is the Astrodome redevelopment project.

After years of assuring local citizens that they would not be called upon to pick up the financing of redeveloping the Dome, local governmental officials are now proposing that the citizens do just that.

And as if to make that change of policy even more galling, the governmental officials who leaked the information on the financing plans to the Chronicle did not even bother to spell out what the Dome is to be turned into as a result of the redevelopment.

So much for transparency, eh?

In the meantime, as City and County officials dither over the details of these proposed boondoggles, City officials continue to ignore this ticking financial time bomb (see also here) while wasting billions on yet another boondoggle, the spending on which swamps even the quarter of a billion proposed for the current round of boondoggles.

Frankly, it’s difficult to imagine how even the traditionally resilient Houston economy is going to withstand the dead weight of such pervasive financial mismanagement.

Enron, the play

zero It was probably inevitable, although I would have guessed an opening Off Broadway rather than in London. But the play is actually getting decent reviews. And it almost has to be better than this trash.

Where are Zero Mostel and Gene Wilder when you really need them?

The increasing cost of public equity

frank quattrone google Frank Quattrone, the former CSFB investment banker who has an interesting perspective, notes a dynamic of the now almost decade-long criminalization of business that I have been warning business owners and lawyers about for quite some time now — the increasing cost of public equity:

[W]hy did [public offerings] disappear in the first place?

One reason is the heightened bar for small companies to go public, Mr. Quattrone said. Throughout his career, he said, some of the greatest companies he was associated with had $30 million to $50 million in revenue when they went public. Today, he said, bankers require companies to have $100 million or even $200 million in revenue.

Part of the underappreciated societal impact of prosecutors such as those on the Enron Task Force implementing the criminalization of business lottery is that the days of small companies tapping public equity for relatively cheap venture capital are gone. Moreover, the supply of executives who are willing to work for public companies is smaller because many of the best and the brightest simply do not consider the risk of operating in the public domain worth the draconian downside. The result is that investment alternatives for investors in public markets are declining.

Not exactly a policy to encourage economic revival, now is it?

Update: Along the same lines, Larry Ribstein reviews the destruction of public equity wealth in regard to AIG that resulted in no small part from Eliot Spitzer’s machinations. It’s a risk that I first noted in regard to AIG way back in early 2005. When will we learn?

Is there a problem with the Airbus 330?

Airbus When I travel to Europe, I normally fly on Air France, which is one of my favorite airlines. Professional, orderly, reasonably comfortable and clean. It’s amazing how few airlines combine those characteristics these days. 

Air France’s fleet includes a large number of Airbus 330 aircraft, which is the aircraft that crashed into the Atlantic Ocean last month on Air France’s Flight 447 from Rio de Janeiro to Paris. So, given my preference for Air France, I’ve been following the development of information on that crash with particular interest.

James Fallows, who is a long-time aviator, follows most aircraft crashes closely, and he has provided much-needed information and insight in his posts on Flight 447 here, here, here and here. Initial speculation on the cause of the crash revolved around multiple system failures occurring during an unusually violent storm.

But now, questions are beginning to emerge as to whether there is a fundamental problem with the design of the Airbus 330. This lengthy David Rose/Mail Online article surveys the evidence that suggests a problem. Here is a list of the recent troubled flights of the Airbus 330 model:

August 2008 – Air Caraibes Atlantique – Paris to Martinique: Plane flying through turbulence experiences failure of autopilot, ADIRU and computerized instruments. Pilots successfully fight to restore control.

September 2008 – Air Caraibes Atlantique – Paris to Martinique: Second Air Caraibes flight to Martinique has identical experience. Plane is same model, different aircraft.

October 7, 2008 – Qantas Flight 72 – Singapore to Perth: Makes emergency landing after twice plunging uncontrollably in flight following failure of ADIRU, autopilot and instruments. 64 injured, 14 seriously.

December 28, 2008 – Qantas Flight 71 – Perth to Singapore: Forced to return to base after failure of autopilot and ADIRU.  Different aircraft, same model as in previous incident.

May 21, 2009 – TAM Flight 8901 – Miami to Sao Paulo: Experiences failure of autopilot, ADIRU and instruments. Crew regain control after five minutes. No injuries. US investigation under way.

June 1, 2009 – Air France Flight 447 – Rio to Paris: Crashes during Atlantic storm, killing 228. Automatic radio messages indicate that in minutes before crash, crew lost autopilot, ADIRU and computerized instruments.

June 23, 2009 – Northwest Airlines – Hong Kong to Tokyo: Flight loses autopilot, ADIRU and instruments before landing safely.  US investigation under way.

Rose goes on to report:

Interviews with pilots, lawyers and crash investigators suggest there may be an underlying problem with A330s. It’s impossible to conclude what this is, but there are two prime suspects – either flaws in the software, or with the wiring found inside huge numbers of modern aircraft.

‘It looks to me like there’s only one reason why AF447 crashed and QF72 survived,’ says Charles-Henri Tardivat, a former crash investigator who’s now part of a team from the London law firm Stewarts Law, which represents the victims’ families. ‘On QF72, the same things started happening that preceded the Air France crash. They were able to recover control because they were flying in daylight and perfect weather. They could see what was happening, even without their instruments. But AF447 was caught in a violent storm at night. The A330 is a very well-built aircraft, but there obviously is a problem somewhere. With so many of them out there, we need to find it.’

"Somebody gave him the steal sign"

If you haven’t already seen it, then don’t miss Jon Stewart’s classic destruction of the fawning treatment that former Phillies and Mets outfielder Lenny Dykstra received from several financial media outlets over the past several years in regard to his supposedly magical investment strategies. Ryan Chittum summarizes the media outlets’ attraction in Dykstra’s case to glitz over substance. Another reminder that the "too good to be true" rule is an important one to embrace when evaluating investment alternatives.

The Money Pit

Money%20Pit.jpg Casey Mulligan’s clever post below reminded me of the classic Onion News segment that follows:

In 2008, we were told that each American taxpayer had to spend thousands on bank bailouts in order to avoid utter disaster. We were not supposed to object, because a few thousand is a cheap price to pay for disaster avoidance.

In early 2009, we were told that each American taxpayer had to spend thousands on fiscal stimulus in order to avoid utter disaster. We were not supposed to object, because a few thousand is a cheap price to pay for disaster avoidance.

Now we are told that each American taxpayer has to spend thousands (? amount to be unveiled later) on government health care in order to avoid utter disaster. We were not supposed to object, because a few thousand is a cheap price to pay for disaster avoidance.

We are lucky to have the White House to save us from so many disasters!


In The Know: Should The Government Stop Dumping Money Into A Giant Hole?