Amidst the current turmoil in the financial markets, the recent conviction on criminal fraud charges of a former Refco Inc executive barely registered on the radar screen. The details from the meltdowns from years past are just old news now.
However, the criminal conviction and plea deals arising from the Refco affair still leave a troubling question unanswered — why did Refco’s owners take it public in the first place?
The merger agreement between Delta Air Lines and Northwest Airlines (they were meant for each other) announced yesterday not only would create the world’s largest carrier if approved, but it has renewed talk (see this W$J article, too) in Houston over the fate of one of the city’s largest employers, Continental Airlines.
Continental’s future has been the subject of conjecture over the years. This post from a couple of months ago summed up the current situation in anticipation of the Delta-Northwest merger. Unfortunately, Continental’s most likely merger candidates — United Airlines and American Airlines — are not particularly attractive partners at this point. As airline consultant Adam Pilarski noted in this Scott McCartney/W$J column, "There’s no history of anything good that happens in [airline] mergers. Two drunks holding each other up is not a good idea." The W$J’s Holman Jenkins speculates as to why this is the case in the chronically-profitless airline industry, which Richard Anderson and Doug Steenland, CEOs of Delta and Northwest, argue the contrary position.
The proposed Delta-Northwest merger would create a behemoth company with more than $35 billion in annual revenues, a mainline fleet of almost 800 planes and a combined workforce of 75,000 people. Interestingly, the most successful US airline is the polar opposite of that structure.
Check out this recent Second Circuit decision (H/T to Robert Loblaw) as an example of how the appellate courts are applying the U.S. Supreme Court’s controversial 2006 decision in Kelo v. New London. Kelo allows the state to seize private property to facilitate private re-development as a legitimate form of "public use" under the U.S. Constitution.
Kelo has been widely criticized for creating perverse incentives for politically well-connected real estate developers to exercise their political clout where negotiation with private property owners didn’t generate the developers’ desired result. The Second Circuit case involves the huge redevelopment plan in downtown Brooklyn that will primarily benefit Bruce Ratner, a wealthy New York real estate developer. In addition to the ubiquitous office buildings and high-rise condos involved in such deals, the redevelopment will include a new arena for the New Jersey (soon to be Brooklyn) Nets NBA basketball club. Although most of the property to be contributed to the development is public land, the redevelopment plan also requires the state to seize several tracts of private property through exercise of its eminent domain power.
The private property owners sued and argued that the state’s claim of public benefit is a facade, as the Second Circuit puts it, "to benefit Bruce Ratner, the man whose company first proposed it and who serves as the Project’s primary developer. Ratner is also the principal owner of the New Jersey Nets. In short, the plaintiffs argue that all of the ‘public uses’ the defendants have advanced for the Project are pretexts for a private taking that violates the Fifth Amendment."
The Second Circuit upheld U.S. District Court dismissal of the property owners’ claims, explaining that the massive private benefits to Ratner do not trump the state’s judgment that the project will also benefit the public. Moreover, even though the costs to the property owners may far outweigh the public benefits, the Second Circuit concludes that type of cost/benefit analysis is irrelevant under Kelo:
At the end of the day, we are left with the distinct impression that the lawsuit is animated by concerns about the wisdom of the Atlantic Yards Project and its effect on the community. While we can well understand why the affected property owners would take this opportunity to air their complaints, such matters of policy are the province of the elected branches, not this Court.
Given such dubious "public" ventures as this, the implications of the foregoing interpretation of Kelo are downright frightening.
This blog is mostly about business and law, so Carl Icahn’s activities have been a frequent topic. Likewise, this blog also centers on Houston, where the Pennzoil v. Texaco case from the mid-1980’s is a part of the city’s storied legal lore. Consequently, the video below of Icahn doing his equivalent of a standup comedy routine describing how he settled the Pennzoil-Texaco case with famed Houston plaintiff’s lawyer Joe Jamail is an absolute classic for this blog. A very big hat tip to John Carney at Dealbreaker for the link to the Icahn video.
Michael Lewis — author of Moneyball and The Blind Side: Evolution of a Game (previous post here) provides this particularly lucid Bloomberg.com op-ed regarding the implications of the Bear Stearns affair to investors generally:
All of this raises an obvious question: If the market got the value of Bear Stearns so wrong, how can it possibly believe it knows even the approximate value of any Wall Street firm? And if it doesn’t, how can any responsible investor buy shares in a big Wall Street firm?
At what point does the purchase of such shares cease to be intelligent investing, and become the crudest sort of gambling? [. . .]
To both their investors and their bosses, Wall Street firms have become shockingly opaque. But the problem isn’t new. It dates back at least to the early 1980s when one firm, Salomon Brothers, suddenly began to make more money than all the other firms combined. (Go look at the numbers: They’re incredible.)
The profits came from financial innovation — mainly in mortgage securities and interest-rate arbitrage. But its CEO, John Gutfreund, had only a vague idea what the bright young things dreaming up clever new securities were doing. Some of it was very smart, some of it was not so smart, but all of it was beyond his capacity to understand.
Ever since then, when extremely smart people have found extremely complicated ways to make huge sums of money, the typical Wall Street boss has seldom bothered to fully understand the matter, to challenge and question and argue.
This isn’t because Wall Street CEOs are lazy, or stupid. It’s because they are trapped. The Wall Street CEO can’t interfere with the new new thing on Wall Street because the new new thing is the profit center, and the people who create it are mobile.
Anything he does to slow them down increases the risk that his most lucrative employees will quit and join another big firm, or start their own hedge fund. He isn’t a boss in the conventional sense. He’s a hostage of his cleverest employees.
As noted in this earlier post, nothing is wrong with having compassion for Bear Stearns employees who lost much of their net worth as a result of the firm’s demise. But the reality is that the ones who suffered large losses in their nest egg when Bear Stearns failed were imprudent in their investment strategy. They should have diversified their holdings or bought a put on their shares that would have allowed them to enjoy the rise in the company’s stock price while being protected by a floor in that share price if things did not go as planned. Even though most of those Bear Stearns investors carry insurance on their homes and cars, relatively few of them elected to hedge the risk of their more speculative Bear Stearns investment. Most likely, many of these investors simply did not understand how Bear Stearns created their wealth in the first place. Absent a better understanding of investment risk and how to hedge it, such investment losses will continue in the future, regardless of whatever ill-advised regulations are devised in an attempt to prevent them.
Over the weekend, we learned that the Fed had bailed out New York-based investment bank Bear Stearns during this unsettled time in the financial markets.
Almost seven years ago, a much larger company that shared many characteristics with Bear Stearns — Houston-based Enron — did not even generate serious consideration for a Fed bailout before it went under in the turbulent post-9/11 financial markets.
In between those two events, one of the world’s wealthiest insurers and another company that is similar in many respects to Bear Stearns and Enron — American Insurance Group — barely escaped a similar fate by cutting a deal with the now-disgraced former Governor and Attorney General of New York to cut loose the executive primarily responsible for creating AIG’s vast wealth.
The fact of the matter is that Enron was — and Bear Stearns and AIG are — trust-based businesses that fundamentally depend on the trust of the markets to sustain their value.
Once that trust is lost, such companies lose value quickly and dramatically, a case in point being that JP Morgan Chase’s proposed $236 million purchase price for Bear Stearns comes just hours after Bear’s market cap was $3.5 billion this past Friday and $20 billion as of January, 2007.
Although unfortunate for the owners of such companies, such a dramatic loss of wealth does not necessarily mean that any criminal conduct caused or was even involved in the loss. Rather, such loss is simply one of the risks of investing in a company based on a trust-based business model.
The sooner we all recognize and understand this risk — and avoid the mainstream media’s promotion of myths about them — the quicker we can put a stop to injustices such as this while advancing the discussion of how best to hedge the risk of such potential losses.
The mainstream media and the blogosphere have been buzzing over the past 24 hours regarding the fall from grace of New York’s governor and former Lord of Regulation, Eliot Spitzer.
As noted in this previous post, there is an under-appreciated human element in such dubious criminal problems as Spitzer fell into.
So, I have a great deal of compassion for the members of Spitzer’s family, although Spitzer’s many victims would certainly attest that he showed none for them. Larry Ribstein has related and typically insightful thoughts regarding why the revelers in Spitzer’s fate should be concerned about the way in which he was brought down.
But I hope that the most important lesson that Spitzer’s political career teaches us is not lost amidst the glare of a tawdry sex scandal.
As with Rudy Giuliani before him, Spitzer rose to political power through the misuse of the state’s overwhelming prosecutorial power to regulate business interests. In so doing, Spitzer manipulated an all-too-accommodating mainstream media, which never misses an opportunity to take down an easy target such as a wealthy businessperson. Spitzer is now learning that the same media dynamic applies to powerful politicians, as well.
However, as noted earlier here, where was the mainstream media’s scrutiny when Spitzer was destroying wealth, jobs and careers while threatening to go Arthur Andersen on American Insurance Group and other companies?
Where was the healthy skepticism of the unrestrained use of the state’s prosecutorial power to regulate business where business had no available regulatory procedure with which to contest Spitzer’s actions?
As Dealbreaker’s John Carney noted at the time of that earlier post:
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.
And, as noted here, the same prosecution manipulation of the mainstream media contributed to the utter lack of balance in the media’s reporting on the Enron criminal prosecutions.
Alas, change does not come easily to the mainstream media.
Late last week, this post reported on developments that could well expose an egregious abuse of prosecutorial power in connection with the prosecution for former Enron CEO, Jeff Skilling. Why has no mainstream media outlet intervened in that case and demanded that the information about potentially serious governmental misconduct be made public?
The Spitzer lesson is not easily embraced.
Update: Following on the theme of this post, the W$J’s Kimberly Strassel reviews the mainstream media’s complicity in portraying Spitzer as something that he is not, and Charlie Gasporino — who wrote the book about Spitzer that foreshadowed these issues — comments along the same lines here.
Did I read right what Steve Scheinthal, general counsel of Houston-based Landry’s Restaurants, Inc., said in this Chronicle article?:
Landry’s is . . . facing a handful of shareholder suits seeking class-action status in the wake of CEO Tilman Fertitta’s bid to take the company private.
Fertitta made an offer on Jan. 27 to buy out the company at $23.50 for each unowned share. The $1.3 billion deal, including debt, is being reviewed by a special committee of the Landry’s board. [. . .]
Scheinthal dismissed the shareholder suits as standard in a going-private transaction.
"Absent Mr. Fertitta’s offer, the likelihood is that the company’s stock would be trading well below the current market price," he said.
Landry’s stock closed Friday at $17.73 a share, down 38 cents.
Fertitta’s offer for Landry’s was made without a financing commitment in a tough credit market. Yet, the company’s general counsel is claiming publicly that such a speculative offer is all that is propping up the company’s stock price?
I wonder what the boys over at Long or Short Capital will think about that?
Check out the renovated digs for the University of Texas baseball team at UFCU Disch-Falk Field in Austin.
Even the most defensible big-time intercollegiate sport is now funneling compensation to its players through “resort privileges.” The renovated locker room at Disch-Falk looks better than most university faculty lounges that I’ve seen.
The numbers of Americans playing tennis regularly has dwindled dramatically over the past two decades. Now, golf is showing signs of suffering a similar fate:
Over the past decade, the leisure activity most closely associated with corporate success in America has been in a kind of recession.
The total number of people who play has declined or remained flat each year since 2000, dropping to about 26 million from 30 million, according to the National Golf Foundation and the Sporting Goods Manufacturers Association.
More troubling to golf boosters, the number of people who play 25 times a year or more fell to 4.6 million in 2005 from 6.9 million in 2000, a loss of about a third.
The industry now counts its core players as those who golf eight or more times a year. That number, too, has fallen, but more slowly: to 15 million in 2006 from 17.7 million in 2000, according to the National Golf Foundation. [. . .]
Between 1990 and 2003, developers built more than 3,000 new golf courses in the United States, bringing the total to about 16,000. Several hundred have closed in the last few years, most of them in Arizona, Florida, Michigan and South Carolina, according to the foundation.
Over the past 20 years or so, many residential real estate developers have used golf courses as magnets to attract home buyers to their developments. The developer is willing to operate the golf club at a loss while developing the subdivision because the increased profit from lot sales easily compensates for the golf club operating loss. The problem develops when the developer finishes selling lots and is ready to turnover the club either to a professional golf club management company or the residents themselves. Without a legacy of profitable operations absent the developer’s subsidy, the golf clubs often struggle financially. It’s not an easy syndrome to break.