Daily Archives: January 18, 2005

Enron bankruptcy CEO takes over at Krispy Kreme

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Krispy Kreme Doughnuts Inc. took a big step closer to chapter 11 today as it announced that its chairman and chief executive, Scott A. Livengood, retired and that turnaround expert and current Enron CEO, Stephen F. Cooper, was named CEO and a director.
Steven G. Panagos — who works with Mr. Cooper at his consulting firm, Kroll Zolfo Cooper LLC — was also named president and chief operating officer of Krispy Kreme.
Somewhat surprisingly, the news sent Krispy Kreme’s shares soaring in mid-morning trading today. Expect that speculation to reverse itself as the reality of the situation becomes clearer over the next several days.
Krispy Kreme has been hammered over the past year by a gradual slowdown in sales and multiple investigations of its accounting practices and franchisee acquisitions. Here are the prior posts on the trendy doughnut maker’s demise.
Mr. Cooper and his firm are well-known in bankruptcy and corporate reorganization circles, as evidenced by the firm’s involvement in the high profile Enron chapter 11 case. Mr. Cooper and his firm will likely recover more than $100 million once their work is completed in the Enron reorganization.

Harvard Prof not impressed with Enron directors’ settlement

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Lucian Bebchuk is a professor at Harvard Law School and a co-author of Pay Without Performance: The Unfulfilled Promise of Executive Compensation. In this NY Times op-ed, Professor Bebchuk takes dead aim at the recent Enron directors’ settlement and he does not like what he sees:

With Enron, the failure of the board had disastrous consequences, leading to the second largest bankruptcy in American history and shaking investor confidence. It is difficult to envision a stronger case for imposing a meaningful financial penalty on directors. Yet the settlement fails to do so.
The settlement hardly heralds a new era in which directors who fail to act in shareholders’ interests pay the price. If even Enron’s board members are treated this gently, then other corporate directors can rest easy.

Professor Bebchuk has a point, but it’s a bit simplistic. The main mitigating factor in the Enron directors’ settlement is Enron’s liberal D&O insurance policy, which is the primary source of funding for the settlement. In the absence of such a liberal policy, plaintiffs’ lawyers would hold out for larger contributions of personal assets from individual directors, such as occurred in the directors’ settlement in the Worldcom case, where the directors’ contributed 20% of their non-exempt net worth.
After Enron, Worldcom and other corporate scandals, liberal D&O policies are rare and more costly. Without that hedge to the risk of director liability, the risk to outside directors has racheted up considerably, as this recent WSJ ($) article reflects. So, it would appear that the market indications are quite contrary to Professor Bebchuk’s conclusion that outside directors can “rest easy” with regard to their risk of director liability.

US Airways = Eastern?

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This Washington Post article reports on the seemingly simple choice that US Airways machinists face this week — either they can approve the carrier’s latest contract proposal calling for pay, benefit and job cuts or they can turn down the contract and walkout, which might just send the struggling airline into liquidation. That part of the article is fascinating as the WaPo reporter attempts to present in a coherent manner the machinists’ position that they would prefer to lose their jobs than making the concessions necessary to help keep the airline afloat so that they can keep their jobs.
But what is even more interesting is the article’s comparison of the US Airways situation with that of Eastern Airlines, which former Continental Airlines CEO Frank Lorenzo attempted to steer through a chapter 11 case during the late 1980’s. Although Mr. Lorenzo successfully reorganized Continental under chapter 11, he failed in regard to Eastern, which ultimately liquidated amidst internecine labor disputes.
My sense is that putting US Airways out of its misery would be a positive step for the long term health of the U.S. airline industry. Nevertheless, it is utterly amazing to watch the rationalizations that workers will come up with in such reorganizations to explain why they should push the liquidation button at the expense of their own jobs. Why would not it be better than simply losing their jobs entirely for the recalcitrant workers to negotiate a small equity stake in the reorganized airline in return for giving up their jobs to hungrier workers who want them? Or stated more simply, why do the workers feel compelled not only to shoot themselves in the foot, but to shoot their entire foot off?

The developing infrastructure to service HSA’s

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Health Savings Accounts (“HSA’s”) are still a new concept in health care finance, but McKinsey & Company partners Paul Mango and Vivian Riefberg write in this Wall Street Journal ($) article that there are promising developments in the insurance infrastructure that suggest that HSA’s are going to have a larger effect on America’s broken down third party payor system of health care finance than many experts are currently predicting.
The authors point out that the quickly emerging financial industry surrounding HSA’s will eventually compete effectively with typical third party payor health insurance and that this competition will force traditional insurers to improve their performance or suffer. After describing four areas of the financial service industry that are developing in regard to HSA’s, the authors observe the following:

In each of these four businesses, incumbent health insurers’ positions are open to attack from new entrants. They will need to decide whether to try to build the new skills themselves, acquire them, or partner with others. The growth and popularity of the new HSAs is exceeding expectations, so resolving these questions quickly will be vital. Insurers, asset managers and banks have already announced several key acquisitions and alliances that will exclude others from locking up the best partnerships.
The smart money is already moving fast to stake out its place in the new marketplace. Hold on for what promises to be an interesting ride.

Could several large traditional health insurers that fail to adapt to the changing marketplace in health care finance turn into the health care insurance equivalent of legacy airlines? Stay tuned.