Making Bad Policy

It sure is getting hard to keep up with all the rules involved in determining whether an important person gets prosecuted for an alleged business crime.

First, there was the Apple Rule, which was quickly followed by the Dell Rule.

Next, there was the Buffett Rule.

And then we had the GM Rule.

Now, Larry Ribstein reports that we have the Geithner Rule.

None of which is likely to help Wachovia’s Bob Steel, who the SEC apparently believes violated the obligation to throw in the towel.

Does anyone really believe that all these rules and the criminalization-of-business lottery constitutes a coherent policy for regulating questionable business deals?

Can Mayor White pull off another "win-win" deal?

Bill White Although the developers of the proposed Ashby high-rise condominium project didn’t know it at the time, Houston Mayor Bill White did the developers a huge favor by putting up roadblocks to that project.

Can you imagine trying to peddle those condos in the current real estate market? Mayor White’s blocking of the condos ended being a classic "win-win" deal.

Accordingly, I wonder if Mayor White might be inclined to do the same thing in regard to Houston’s proposed soccer stadium?

Things aren’t looking too rosy for MLS soccer these days:

Major League Soccer is not quite ready to carry its own night on TV.

After two years of anemic ratings that started low and finished lower, ESPN executives decided to cancel the league’s regular Thursday night telecast on ESPN2 this season.  .  .  .

“We didn’t see the kind of ratings climb we’d like to, so we’re trying something different,” said Scott Guglielmino, ESPN vice president of programming.

The decision to cancel the regular Thursday night game marks a stunning turnaround for a league that two years ago believed it was creating destination programming that would increase interest in MLS. But even the 2007 arrival of David Beckham couldn’t boost MLS ratings.

MLS games averaged a 0.2 rating and 289,000 viewers on ESPN2 in 2007. Those numbers dropped to 0.2/253,000 viewers the following year. Its highest rating during that period was Beckham’s second regular-season game in August 2007 that earned a 0.6/658,000 households.

Canceling “MLS Primetime Thursday” is a tacit admission that MLS is not strong enough to anchor a regular prime-time slot on its own. ESPN is entering the third year of an eight-year rights deal that pays MLS $8 million annually.

So, MLS franchises are being downgraded by the most important sports programming network in the nation, which can’t be good for the value of those teams. The attendance at MLS games is poor, at least outside Houston and a couple of other cities. And the perception in sophisticated soccer circles is that the MLS is decidedly minor-league.

Meanwhile, Mayor White has already had Houstonians invest $20 million or so in buying downtown property at a premium price for the proposed soccer stadium, despite the fact that the city already owned nearby property that would have been perfectly fine for such a stadium. Moreover, the city will be on the hook for tens of millions of dollars more in infrastructure improvements if the Dynamo owners somehow cobble together their private financing for the stadium.

Now, it’s looking as if the Dynamo may not even have a viable league to play in by the time the proposed soccer stadium is completed in a couple of years.

Pull the plug on the soccer stadium, Mayor. It will be another "win-win" deal.

Reality Bites

CramerTNThis earlier post made the following point about folks who lost their entire nest egg by investing it with Bernard Madoff:

Although nothing is wrong with compassion for folks who lose money in an investment fraud, it’s important to remember that those investors who lost their nest egg in the Madoff implosion were imprudent in their investment strategy. They should have diversified their Madoff holdings or done some real due diligence into his operation if they were going to bet the farm on it. Even though every one of Madoff investors carry insurance on their homes and cars, one can only speculate why they didn’t attempt to understand the risk of their investment in Madoff’s company better than most did. Most likely, many of the investors simply did not care to truly understand how Madoff claimed to create wealth for them in the first place.  .  .  .

It’s easy to throw Madoff in prison for the rest of his life, simply attribute the investment loss to him and pledge to do a better job of policing the crooks next time. It’s a lot harder to understand how Madoff’s investors could have hedged their risk of Madoff’s fraud. As this WSJ editorial concludes, "expecting the SEC to prevent a determined and crafty con man from separating investors from their money is no more sensible than putting your life savings with a Bernard Madoff."

Professor Antony Davies of Duquesne University in Pittsburgh makes an analogous point in this W$J letter-to-the-editor (H/T Don Boudreaux) about folks who are calling for increased regulation because of losses incurred in their 401(k) retirement accounts:

In the article "Big Slide in 401(k)s Spurs Calls for Change" (page one, Jan. 8), 35-year-old project manager Kristine Gardner says in response to the 44% drop in her 401(k) last year: "There’s just no guarantee that when you’re ready to retire you’re going to have the money."

Newsflash: Higher returns are the compensation for incurring risk, and lower returns are the price of safety. Ms. Gardner’s 401(k) would have been completely safe had she shifted her investment allocations into money markets. As money markets yield a paltry 1%, Ms. Gardner’s real complaint isn’t that 401(k)s are unsafe, but rather that financial markets require her to incur risk in exchange for being compensated for incurring risk.

Retirement consultant Robyn Credico claims that "This is the biggest test that the 401(k) plan has seen . . . and it has failed." Au contraire, 401(k) plans have worked exactly as designed. It is the workers (and their retirement consultants) who have failed.

There is only one reason why the average person close to retirement should have lost 50% of his 401(k): incompetence. Most workers at that age should have long since shifted the bulk of their 401(k)s into bonds and money markets. The 401(k) is a powerful investment tool but can be dangerous when abused.

If you aren’t willing to put forth the effort to learn the principles of investing, that’s your choice. But don’t hobble the rest of us by asking for government regulation of a tool that works perfectly well just so that you can be spared the effort of figuring out how to use it.

As with the security theater in our nation’s airports, increased regulatory control over retirement investment is a fake safety net. It will not protect retirement savings (check out the solvency of the Social Security system if you don’t believe that), and the "protection" of increased regulation will lead many investors to believe that they still do not need to understand the best ways to create wealth and hedge risk in their retirement accounts.

Indulging ignorance is generally not a good reason for increasing governmental power.

An entertaining upcoming week in Houston

ribstein No one in Houston this week can complain about lack of opportunity for intellectual stimulation.

First, well-known legal blogger and Clear Thinkers favorite Larry Ribstein will be lecturing on Thursday afternoon from noon to 2 p.m. at the University of Houston Law Center as the first speaker of the semester in UH Law Professor Lonny Hoffman‘s “Colloquium” course that brings noted legal scholars from around the country to UH each year to give presentations on the scholar’s work in progress.

Great teachers are a popular topic on this blog (see here and here), so I’m particularly pleased that Professor Ribstein is taking the time out of his busy schedule to visit Houston. As regular HCT readers know, Professor Ribstein is one of the premier business law scholars in the country.

The holder of the Mildred Van Voorhis Jones Chair at the University of Illinois College of Law, Professor Ribstein’s widely-read Ideoblog has been at the forefront of the blawgosphere’s enormous impact on legal analysis and education, literally pushing legal scholarship from what had been mostly closed conversations between fellow academics into a hugely valuable resource that is now readily available to anyone over the Web. Already the leading expert in the U.S. in the area of unincorporated business associations, Professor Ribstein is also one of the blawgosphere’s most insightful thinkers on corporate governance issues and the effects of regulation on markets and business. His blog has contributed as much to the understanding and appreciation of business law issues over the past five years as any resource of which I am aware.

Professor Ribstein’s talk on Thursday will be on this paper that he co-authored with George Mason University law professor Bruce Kobiyashi that examines the empirical factors that influence limited liability companies’ choice of where to organize. Seating for the talk is limited, so contact Professor Hoffman at Lhoffman@central.uh.edu or 713.743.5206 as soon as possible to reserve a seat. The lecture will be held in the Heritage Room of the UH Law Center.

Meanwhile, on Wednesday from 11:30-1:30 p.m., popular author and journalist Malcolm Gladwell will be giving a talk on his new book, Outliers, at the Hilton-Americas Houston hotel (Chron article here). Tickets are $75 and include a copy of the book and the luncheon, which is co-sponsored by Inprint, the Greater Houston Partnership and Brazos Bookstore. Contact Jill Reese at 713.844.3682 or jreese@houston.org to make reservations, the deadline for which is noon on Tuesday.

Finally, author and former Houstonian Larry McMurtry — the pre-eminent Texas writer of the past 30 years — will be giving the lecture on Wednesday evening from 7-8:00 p.m. in Rice University’s Distinguished Lecture series. The lecture will be held in the Grand Hall of Rice’s Ley Student Center and is open to the public.

Fertitta calls off bid to take Landry’s private, but takes it private, anyway

Landry's logo Suffice it to say that it’s been an interesting past year and a half for Houston-based Landry’s Restaurants Inc., which owns restaurants such as Landry’s, Rainforest Cafe, Charley’s Crab, The Chart House, and Saltgrass Steak House, as well as the Golden Nugget Hotel & Casino in Las Vegas and Laughlin, Nev.

The saga started in late 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.

That offer seemed all well and 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, the following month, 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, 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, Fertitta lowered his offer to $13.50 per share.

Then, on Monday of this week, the company announced that it was terminating the proposed deal with Fertitta. The company 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. The company is negotiating with those same lenders to refinance the bond indebtedness that the company promised to refinance in connection with October, 2007 litigation settlement 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 deal rather than risk that the lenders would declare a default for breach of confidentiality and back out of the financing commitment for the buyout, as well as the negotiations on the refinancing of the bond indebtedness.

Oh yeah, amidst all this, Landry’s stock closed at $6.54 per share today.

Meanwhile, what has Fertitta been doing while his take-private bids have languished and the company’s stock has plummeted to historic lows?

He has been buying more Landry’s stock. So much so that he now controls 56.7% of the company’s shares.

That’s right. Landry’s board failed to obtain a standstill agreement from Fertitta while his buyout offers were pending over the past year.

As Steve Davidoff notes, this is "truly worthy of Deal From Hell status." Loren Steffy has the same take.

While Landry’s directors are checking on the amount of the company’s D&O policy, I wonder whether Landry’s lenders will follow through on the refinancing negotiations for the bond indebtedness in light of the market’s hammering of Landry’s share price?

If that refinancing doesn’t happen, then those bondholders who Landry’s sued back in August of 2007 will likely not be easy for the company to deal with.

In that case, maybe Fertitta’s additional purchases of Landry’s stock won’t look so smart after all.

Stay tuned.

Another Angry Mob

mob_ The Fifth Circuit’s decision yesterday reminded us of the angry mob that lynched Jeff Skilling.

Now, as this timely Roger Parloff/Fortune article notes, an even larger mob is gathering to lynch the businesspeople who were attempting to save their companies in the wake of last year’s financial meltdown on Wall Street:

The level of fury surrounding these inquiries is of a different order from what we saw with, say, the backdating scandals or the Enron and WorldCom failures. Today’s credit collapse has already vaporized about $9 trillion in investment capital, while ripping another trillion in assorted bailout money from the pockets of enraged taxpayers – also sometimes known as "jurors."

Based on the Fifth Circuit’s Skilling decision, those targeted businesspeople would be wise not to rely on the courts for protection from the mob.

Those pesky unexpected consequences

AA017907 On the heels of this post from a couple of days ago that addressed Tyler Cowen’s recent NY Times op-ed that speculated that expectations generated from the 1998 government bailout of Long Term Capital Management hedge fund were not such a good thing, this W$J article on the Lehman Brothers bankruptcy case bemoans the enormous cost attributable to lack of reorganization planning in connection with the Lehman Brothers case:

As much as $75 billion of Lehman Brothers Holdings Inc. value was destroyed by the unplanned and chaotic form of the firm’s bankruptcy filing in September, according to an internal analysis by the company’s restructuring advisers.

A less-hurried Chapter 11 bankruptcy filing likely would have preserved tens of billions of dollars of value, according to a three-month study by the advisory firm, Alvarez & Marsal. An orderly filing would have enabled Lehman to sell some assets outside of federal bankruptcy-court protection, and would have given it time to try to unwind its derivatives portfolio in a way that might have preserved value, the study says. [.  .  .]

"While I have no position on whether or not the federal government should have provided further assistance to Lehman, once the decision was made not to provide further assistance, an orderly wind-down plan should have been pursued. It was an unconscionable waste of value," said Bryan Marsal, co-chief executive of the advisory firm who now serves as Lehman’s chief restructuring officer.

Mr. Marsal estimates that the total value destruction at Lehman will reach between $50 billion and $75 billion, once losses from derivatives trades and asset impairment are combined.

Losses are a natural part of the risk allocation that occurs in big reorganization cases. But anyone who has been involved in such cases knows that it takes at least a couple of months to prepare a big reorganization case properly.

Friends who are closely involved in the Lehman Brothers case have confided to me that Lehman CEO Richard Fuld never in his wildest imagination thought, after the precedent of Bear Stearns, that the Fed and the U.S. Treasury would fail to bail out Lehman Brothers. When that proved wrong, Lehman Brothers had to file its chapter 11 case on a relatively unplanned, emergency basis. That miscalculation cost creditors even more than they would have lost had Lehman’s management taken the normal step of planning the case when they saw the writing on the wall. I’ve got my doubts that the additional losses are $50-75 billion as suggested by the consultant’s report (could the Lehman-related parties be using that report as a liability shield?), but there is little question that an emergency bankruptcy filing generally costs creditors more than a properly planned one.

As John Carney notes, maybe the conventional wisdom is wrong that the Fed made matters worse by failing to bailout Lehman Brothers.

It’s hard enough to evaluate the risk of insolvency in regard to a trust-based business under normal circumstances. It becomes a real crapshoot when there exists an expectation that the federal government will provide stop-gap financing for a big trust-based company’s losses. And crapshoots generate some pretty bad risk-taking.

It really isn’t rocket science.

Lessons of LTCM

Marginal Revolution’s Tyler Cowen makes a similar point in this NY Times op-ed about the 1998 federal bailout of the Long-Term Capital Management hedge fund that this earlier post made about Enron and the current Treasury bailout:

At the time, it may have seemed that regulators did the right thing [in bailing out LTM]. The bailout did not require upfront money from the government, and the world avoided an even bigger financial crisis.

Today, however, that ad hoc intervention by the government no longer looks so wise.

With the Long-Term Capital bailout as a precedent, creditors came to believe that their loans to unsound financial institutions would be made good by the Fed — as long as the collapse of those institutions would threaten the global credit system. Bolstered by this sense of security, bad loans mushroomed. [ .  .  .]

The major creditors of the fund included Bear Stearns, Merrill Lynch and Lehman Brothers, all of which went on to lend and invest recklessly and, to one degree or another, pay the consequences. But 1998 should have been the time to send a credible warning that bad loans to over-leveraged institutions would mean losses, and that neither the Fed nor the Treasury would make these losses good.

Absent allocation of risk consequences to the parties who entered into transactions with financially-troubled companies, markets have a difficult time accurately pricing risk in regard to future investment and transactions. Such indecision plays a big part in delaying recovery in financial markets.

Similarly, without cleaning up the balance sheets of troubled companies (and putting the hopelessly insolvent ones out of their misery), extending additional credit to financially-strapped companies only makes them an even poorer risk for investment. That doesn’t facilitate recovery in the financial markets, either.

Amidst many blunders, the Bush Administration’s failure to tap corporate reorganization experts in connection with its policy-making regarding the financial crisis was one of the worst. Hopefully, Obama’s advisors note the mistake and correct it in the next Administration.

Update: Barry Ritholtz agrees with Tyler and me.

Playing fair

Ted Stevens So, now Alaska Senator Ted Stevens is finding out that some federal prosecutors do not play fair (H/T Doug Berman). Of course, we’ve known that for quite some time down here in Houston.

Oh well, at least the mainstream media has strong incentives to expose such abuses in the case of a major political figure.

But do the same media incentives exist in the prosecution of a wealthy and unpopular businessperson?

What if the reporter most responsible for such a prosecution is, might we say, not particularly motivated to expose prosecutorial abuses? Or what if the reporter for the nation’s most prominent business newspaper is so conflicted that he ignores the abuses even when they are playing out in front of him?

And the foregoing doesn’t even consider what we should think when one of those reporters in another case actively attempts to help investors score on their positions at the expense of a company and its chief executives.

It’s hard enough to maintain innocence against the overwhelming resources of the federal government when the prosecution plays fair. It’s next to impossible to do so when it doesn’t. What chance is there if the people responsible for exposing prosecutorial abuse have incentives that override that responsibility?

Ask Jeff Skilling.

Enduring Gladwell?

Charlie Rose interviews Malcolm Gladwell in the video below in regard to his new book Outliers, but it does not appear that the Financial Times’ Clive Cook will be watching:

Since the first chapter of “Tipping Point” I have been enduring Gladwell out of an increasingly weary sense of professional obligation. This is what they pay me to do, I tell myself. The man has a nose for interesting tales, I grant you, but his unfailing combination of intellectual parasitism, credulity, false modesty, and self-importance repels me. In “Tipping Point”, “Blink” and those of his New Yorker pieces I have read, the formula is always the same: find a scholarly opinion; sanctify said opinion with Gladwellian approval (transforming it from a disputed theory to something “we now know”); season with Madison Avenue terms of art; then deluge with anecdotes of questionable, if any, relevance. And let there be colour. Always, the colour. Please tell me about that man’s wry smile, interesting foreign accent, and cluttered desk (often, as studies show, the sign of a creative mind). I need to know all that.