This post from a couple of weeks ago noted this WSJ profile on Texas Pacific Group, the Fort Worth-based investment fund founded by former bankruptcy lawyer David Bonderman and business whiz Jim Coulter in 1993.
Well, it appears that TPG may be getting more than it bargained for in its proposed $2.35 billion cash and debt acquisition of Portland General Electric, which is Enron’s Pacific Northwest utility, a deal that is still awaiting regulatory approval.
In the meantime, this Williamette Week Online article reports that TGP’s proposed acquisition of Portland General is running into rough waters. Earlier this week, TPG released hundreds of pages of internal documents in response to the Williamette Week article as it tries to allay widespread skepticism among Oregonians about its intentions for the utility.
The documents lay out different scenarios that TPG is considering for for making the utility more profitable, including cuts in a customer-service department. TPG contends that the analysis was preliminary and is not going to be used as the basis of actual changes in utility operations. Despite the assurances, several Oregon officials are opposing TGP’s acquisition of Portland General as the Oregon Public Utility Commission has begun final deliberations over regulatory approval.
TGP has proposed to put day-to-day control of the utility in the hands of a new Oregon company that would have a board comprised mainly of Oregonians. Nevertheless, TPG — the 80% owner of the Oregon company — would retain the right to overrule the Oregon company’s board regarding key decisions. After Enron, Oregonians apparently do not trust anyone from Texas.
The main complaint of Oregonians that oppose the deal is that TPG’s turnaround strategies could degrade utility service in Portland and surrounding communities. Oregon and Washington consumers already have been hammered by sharply higher electric rates as a result of rising natural-gas prices and continued fallout from the California energy crisis of 2000-2001.
Meanwhile, the economic bargaining continues. TPG has offered rate reductions totaling $43 million spread out over five years beginning in 2007 if the deal is approved. However, Commission staff and consumer advocates contend that the rate reductions are inadequate and are pushing for further concessions. To date, TPG is holding firm.
Monthly Archives: January 2005
The honest idiot defense
In this article, NY Times business columnist Floyd Norris notes the common defense that the various indicted CEO’s of the business world are using these days to defend themselves against criminal charges — i.e., that the executive was “honestly ignorant” of the wrongdoing that was occurring at his company and that any false statements that he made were the unintentional result of his subordinates misleading him.
Or, as it is sometimes referred to in hard-knuckled legal circles, the “honest idiot defense.”
The honest idiot defense does not attempt to deny that misconduct occurred. Rather, the defense focuses on avoiding liability by contending that the defendant’s good faith ignorance prevents the government from establishing the requisite mens rea (intent) to convict the defendant of a crime. As you might expect, honest ignorance is not the easiest thing to get a jury to believe in defending a high-powered business executive.
Nevertheless, as this Wall Street Journal ($) article reports, the honest idiot defense is going to be front and center in the upcoming criminal trial of former Worldcom CEO, Bernard Ebbers. The Ebbers criminal case has many fascinating aspects, not the least of which is the yin-yang relationship between Mr. Ebbers and the government’s chief accuser against him, former WorldCom CFO Scott Sullivan. But the most interesting aspect of the case surely will be the way in which Mr. Ebbers “good ol’ boy” persona plays with the jury in the presentation of the honest idiot defense. And make no mistake about it, Mr. Ebbers will portray himself as the good-hearted dunce (he used his background as a gym teacher and motivator to apply high school basketball coaching techniques to management issues at WorldCom) in comparison to the sophisticated and well-educated Mr. Sullivan.
Another interesting aspect of the Ebbers criminal trial is that the government does not have the typical paper trail of fraud that it has used in most recent business fraud cases, notably the Arthur Andersen prosecution. Turns out that “country boy” Mr. Ebbers did not like computers and so he eschewed using e-mail to communicate with others at WorldCom. Moreover, iansmuch as Mr. Ebbers did not enjoy either reviewing or preparing written materials, he communicated orally with subordinates almost entirely. He did not even use voice-mail. Consequently, without the usual paper trail, the case may well come down to a swearing match between Messrs. Ebbers and Sullivan, which will also be impacted on how well Mr. Ebbers can present himself to the jury as a lovable dunce who the WorldCom sharpies manipulated.
Finally, it will be interesting to see if the Ebbers defense team raises the fact that Mr. Ebbers did not voluntarily sell much, if any, of his WorldCom stock after the bubble burst in the telecommunications industry in 1999. Ebbers’ defense lawyers may reason with the jury that, if Mr. Ebbers really masterminded an elaborate fraud at WorldCom, then why did he not sell his WorldCom stock before the stock price collapsed? Rather than getting out rich (by way of comparison, Mr. Sullivan dumped almost $30 million of WorldCom stock in 2000), Mr. Ebbers went from being a billionaire to being so deeply in debt that personal bankruptcy appears inevitable. When the price of WorldCom stock began to plummet, margin calls forced Mr. Ebbers to sell one big slug of stock, but then he persuaded WorldCom’s compliant board to stave off further margin calls by having WorldCom guarantee his loans that were secured with WorldCom stock. The financial result of those transactions is that the now insolvent Mr. Ebbers owes WorldCom more than $300 million, but savvy defense attorneys may be able to present the scenario to the jury as further evidence that Mr. Ebbers really thought that WorldCom would rebound and simply did not understand the dire financial condition.
Despite the obvious differences between the two men, that’s why former Enron chairman and CEO Kenneth Lay and his attorneys will be watching the Ebbers criminal trial very closely.
Warren Buffett, meet Eliot Spitzer
General Re Corp., the wholly-owned insurance subsidiary of Warren Buffett‘s Berkshire Hathaway Inc., has been receiving some interesting mail lately.
Berkshire issued a press release on last week (see Form 8-K announcement here) disclosing that the insurer had received subpoenas from the SEC, New York AG (“Aspiring Governor”) Eliot Spitzer, and a grand jury in the Eastern District of Virginia.
Expect Mr. Buffett to push for a global settlement quickly. Descriptions of broad and uncontrollable criminal investigations are a bit difficult for Mr. Buffett to explain in his his annual letter to Berkshire shareholders.
Besides, Mr. Spitzer could use Mr. Buffett’s political support in his upcoming political campaigns. ;^)
Cuba’s big oil find
This NY Times article provides a decent overview of the recent news that two Canadian energy companies had discovered an oilfield in the Gulf of Mexico under Cuba’s control that has estimated reserves of 100 million barrels, albeit with the usual Times over-analysis regarding the business and political implications of the find.
Given that Cuba’s business infrastructure and capital resources are utterly incapable of developing such a field, Castro will have to import those resources. Given his typical business instincts, a meaningful development deal will likely not get done anytime soon. Unlike the Times, I view Cuba’s entry into exploration and production competition as a good thing. Unfortunately, Castro doesn’t know how to compete, so the impact will likely be minimal.
The way government addresses California’s chronic gasoline shortage
This previous post from last summer told the story about a bizarre Federal Trade Commission investigation that had been launched into the planned closing of an unprofitable Royal Dutch/Shell Group refinery in California.
Shell had been unable for years to find a sucker, er, I mean, a buyer for the Bakersfield facility. Shell had lost more than $50 million over the past three years on the refinery and was facing between $30 million and $50 million in turnaround and environmental costs on the old facility. However, given that the closure would crimp gasoline supplies further in California — where supplies are already tight and prices the highest in the nation — both the federal government and the California state government pressured Shell to find a buyer rather than close the facility. Not surprisingly, buyers were not exactly lining up to bid on an obsolescent refinery, so last month the federal government agreed to let Shell exceed pollution standards in operating the facility in return for Shell keeping it open for another three months to find a buyer.
Well, Shell announced yesterday that it had finally found a buyer for the facility — Flying J Inc., a closely held Utah-based oil company that specializes in distributing diesal fuel to truckers. The purchase price was not announced publicly, but is estimated to be around $130 million by sources close to the deal.
So, let’s take stock here. Shell lost $50-$75 million to sell an asset for $130 million — not bad, but not the type of risk that Shell normally indulges to make a return on its investments. Rather than adopting policies necessary to induce major companies such as Shell to invest the capital necessary to build new refineries that would address the tight supplies in the Western part of the United States, the federal government and State of California took legal actions and then even compromised their sacrosanct environmental standards to prod Shell to sell an obsolescent facility to a tire kicker. Flying J is a good little company who will continue to operate the refinery, but it does not have the capital necessary to turnaround the declining production at the facility or build new refineries that are really needed to increase gasoline supplies. In the meantime, average gasoline prices in California have risen almost 27 cents a gallon to $1.93 from last year when the feds and the State of California started strong-arming Shell over its plans to sell the refinery.
My sense is that the postscript on this story is that the federal government and State of California’s actions in this matter have, in the long run, made California’s chronic gasoline supply problems worse. So it usually goes with governmental intervention into problems that markets should be resolving.
A worthy cause
Dr. Charles Katz is a good friend and one of Houston’s finest otolaryngologists (i.e., ear, nose & throat doc).
Charles is also a marathoner and, over the past six years, he has raised over $40,000 in charitable donations for the Houston Food Bank in connection with running in the HP Houston Marathon. The Food Bank is the primary local charity that provides nutritious food to indigent families and individuals in the Houston metro area, and they perform this important charitable task effectively and efficiently.
Charles and 140 other Houston Food Bank sponsored runners are gearing up for this year’s marathon, which will take place this coming Sunday, January 16. Please consider making a donation to the Food Bank on this nifty donation page in Charles’ name or in the name of any of the other 140 Food Bank sponsored runners. It’s a worthy cause.
Markets working on the NYSE
Following last week’s news that the price of a New York Stock Exchange seat had fallen to $1 million (a 63% drop from the peak price in 1999), this NY Times article examines the market forces that have caused the lackluster interest in the Exchange’s seats. As usual, the marketplace is the main reason, as it reacts to the NYSE’s increasingly obsolescent business model that has traditionally eschewed automation:
On an average day, the New York Stock Exchange trades 1.5 billion shares worth about $50 billion. Unlike almost all its competitors, it has traders on the floor who execute customer orders as well as their own orders in an effort to get the best price. Now the exchange has to decide how to maintain that identity while allowing more trades to be executed electronically.
The NYSE’s new business model is called the “hybrid market” model:
The . . . exchange’s ability to employ the automated market, called the hybrid market (humans in an auction, and computers matching orders) will determine whether the Big Board will keep attracting orders. If it fails, market share could fall.
. . . [T]he hybrid market will serve the exchange’s customers while maintaining the strengths of an auction market – namely the ability to get better prices rather than just deliver what appears on a computer screen. “The reason people come here is we have the best price 90 percent of the time and we have the best liquidity,” [said John Thain, the CEO of the NYSE]. “The more liquidity you have the better able you are to offer the best price, the more you have the best price, the more often the order flow comes to you. You cannot have one without the other.”
Nevertheless, the competition still expects the NYSE to continue losing market share, even under its new business model:
According to critics, more automation means that the New York Stock Exchange may lose its information advantage – the knowledge of what trades large players, such as mutual funds, are planning. Losing that knowledge could mean fewer orders. “There is a spiraling effect. As you lose the information, one customer takes his order off the floor, that translates to less information and less of an advantage,” said Chris Concannon, executive vice president at the Nasdaq exchange. He said he believed that the S.E.C.’s new rules and a hybrid model would erode the Big Board’s market share. “No single large electronic pool of liquidity will have more than 50 percent” of Big Board stock trading, he said.
And the NYSE’s changing nature better happen fast:
Critics and supporters agree that the New York Stock Exchange is not blessed with time. “The New York Central Railroad saw itself as a national icon and it was obliterated,” said Thomas Caldwell, chairman of Caldwell Asset Management and a buyer of four Big Board seats in the last year. “It ceased to exist. So many did. New York has to have a newer vision of itself and confidence in that vision.”
Now, I ask you, isn’t this a more effective and efficient way to change the NYSE than the method examined in this post and this post?
Beltran is gone
Carlos Beltran elected to reject the Stros’ offer and sign elsewhere, probably with the Mets for $17 mil annually over seven years ($119 million).
As noted in this earlier post, this is really not a surprising result. Although it is a bit discouraging that the Stros put all their eggs in one basket in their pursuit of Beltran and came up with an empty basket, losing him is far from the disaster that many local media types will hype it to be.
As good as he is, Beltran is simply not worth $6 million more per season than J.D. Drew, another free agent outfielder on the market this off-season who signed with the Dodgers for $11 million per year over five years, even though Drew is more of an injury risk than Beltran. By focusing on Beltran and not considering other options, the Stros now find themselves in a position of having no centerfielder and really no good alternatives on the market. You will hear the mainstream media talk about Rice grad Jose Cruz, Jr. and the Mariners’ Randy Winn as centerfielders who could be acquired in a trade, but neither of them is a long term answer. Although both are only three years or so older than Beltran, neither of them was able to post a runs created against average (“RCAA,” explained here) statistic last season that was better than the 39 year old Bidg‘s.
You will also hear local media types talk about Jeremy Burnitz, but he is only marginally attractive. He is a 36 year old corner outfielder coming off a Coors Field-inflated season in which he generated an RCAA that was the same as Jeff Kent or Mike Lamb. Although that’s above-average, the Stros already have such a player in the younger Jason Lane, who can also play centerfield. Finally, speedy Stros farmhand Willy Tavares has not yet proven in the minors that he can generate a good enough on base percentage or hit with enough power to play effectively at the Major League level, so don’t expect him to be the answer.
An intriguing free agent possibility that remains on the market is Magglio Ordonez, a slugging 30 year old former White Sox corner outfielder who is a better hitter than Beltran. Unfortunately, the reason that Ordonez is still on the market is that he is an injury risk, as he is coming off knee surgery last season that led to the rare complication of bone marrow edema. A second surgery, performed in Austria, has reportedly cleared up the problem, but Ordonez was unable to return last season. So, he is a high injury risk and that has held down his value on the free agent market. The White Sox, Cubs and Orioles are reportedly the current bidders for his services. And oh, by the way, Ordonez is also represented by Beltran’s uber-agent, Scott Boras.
If the Stros could get reasonably comfortable with Ordonez’s rehabiliation from his surgery, then they could stick him in a corner outfield spot opposite of Berkman and place Lane in center as a adequate alternative until a purer centerfielder becomes available. Ordonez and Berkman whacking away at Minute Maid Park would not be a bad alternative to losing Beltran.
Finally, although I would not have objected to the Stros overpaying to keep Beltran, I think its fair to point out that it is rarely a good idea to overpay a player, even of Beltran’s stature. And make no mistake about it, Beltran will be overvalued when he finalizes his deal with the Mets or whoever. While this past season was the best of Beltran’s career and his batting line of .267(BA)/.367(OBA)/.548(SLG) was excellent, Beltran’s RCAA of 46 was considerably less than Berkman’s team-best 69 or J.D. Drew’s 66. Similarly, Beltran’s OPS (on base average + slugging percentage) of .915 tied him for 15th best in the National League, also well below Berkman’s sixth best of 1.016 and not even as good as the more pedestrian Burnitz’s OPS. Similarly, Beltran is one of the most gifted base stealers of all-time, but that’s generally an overvalued skill and not all that important for the Stros as they incorporate speedsters Adam Everett, Chris Burke, and Lane into the lineup. Beltran did walk 92 times last season, but 10 of those were intentional, so there is still a question about his strike zone patience.
Thus, Beltran will likely be a great player for which ever team signs him, but he’s still not Alex Rodriguez or Barry Bonds. The market has overvalued him and the Stros simply are not a rich enough team to overpay in the free agent market. With patience and wise use of their resources, the Stros can bounce back nicely from this disappointment. Signing Berkman and Roy Oswalt to long term deals, and persuading the Rocket to return, would be a nice start.
The Andrea Yates case
Dru Stevenson over at the South Texas Law Professor does a good job in this post of analyzing the current status of the Andrea Yates case. Professor Stevenson’s thoughts are insightful, particularly his point about the trend in big cases of prosecutors abandoning the principle of prosecutorial discretion in favor of career advancement.
Phillies spammer sentenced
I’m glad the feds got this guy. Think what might have happened when the Eagles get beat in the NFL playoffs?