Friday, October 26, 2007
Former Tyco executives Dennis Kozlowski and Mark Swartz have appealed their convictions that they looted the company, arguing that they were entitled to the money under the company's executive compensation plan. Each man has already served two years of his sentence. WSJ, Tyco Ex-Officers Seek to Reverse Convictions.
Thursday, October 25, 2007
SIFMA has released a White Paper on Arbitration in the Securities Industry, which it subtitles "the success story of an investor protection-focused institution that has delivered timely, cost-effective and fair results for over 30 years." I'll report more on this later when I have a chance to read its 70 pages.
The actual loss reported by Merrill Lynch yesterday was $8.4 billion, up from the expected $5 billion figure of two weeks ago and up from the $7 billion figure that was floated early yesterday morning. Merrill Lynch gets the dubious distinction of the largest loss ever on Wall St., surpassing the $6 billion loss by hedge fund Amaranth in 2006. In a telephone call with analysts, CEO Stanley O'Neal concedes that "some mistakes were made." Everyone else is wondering how the firm's exposure to risky mortgages got so out of hand and whether O'Neal will hold onto the CEO spot. WSJ, Merrill Takes $8.4 Billion Credit Hit.
The growing size and influence of sovereign wealth funds has become a topic of concern. Currently these funds are operated by more than twenty countries, including China and Saudi Arabia, and are buying stakes in U.S. companies. Both the Group of Seven and the IMF recently asked whether there should be standards addressing risk management, transparency and accountability for the funds. Chair Cox last night in a speech said that the rise of the funds "challenges us to ask whether these many benefits of markets and private ownership will be threatened if government ownership in the economy...becomes more significant -- or whether, alternatively, the world will be better off." WSJ, Cox Cites Concern Over Sovereign Funds.
Wednesday, October 24, 2007
Will James Dolan give up on plans to take Cablevision private, now that, as expected, the public shareholders voted down the $10.6 billion offer ($36.26 per share)? Several large shareholders announced that they would vote against the plan. Stay tuned .... WSJ, Cablevision Shareholders Reject Dolans' Bid to Take Firm Private.
The word is that Merrill Lynch will soon announce that its third quarter losses are even greater than the previously announced $5 billion and will, in fact, exceed $7 billion. Merrill CEO Stanley O'Neal joins Citigroup CEO Charles Prince on the hot seat, as doubts continue about Merrill's ability to manage its risk. WSJ, Merrill Loss May Be Wider Than Projected;NYTimes, Merrill Lynch to Report $2.5 Billion in Added Loss.
Since Citigroup, Bank of America and JPMorgan Chase announced, with great fanfare, its "rescue plan" for SIVs (structured investment vehicles), they have not released much information about how the plan would work or where the rescue funds would come from. Indeed, some have said the plan is just window-dressing. Meanwhile, the SIVs need to find investors for about $100 billion in debt coming due soon. SIVs sell short-term debt and use the proceeds to buy longer-term, higher-yielding securities. They are a popular investment vehicle for money market funds and municipalities that viewed SIVs as loss-risk investments. In the wake of the credit crunch, however, SIVs have had difficulty selling the debt, and much of their approximately $350 billion in assets is backed by U.S. mortgages. WSJ, SIV Situation:Will RescuersArrive in Time?
Tuesday, October 23, 2007
In a recent speech, SEC Commmissioner Paul Atkins, reviews the history of the Wells Committee and says:
I welcome the idea of new advisory committees to review the functions of our divisions and offices. In light of the many issues raised in the three recent capital market competitiveness reports, the 2006 Chamber of Commerce report on the SEC enforcement program, and the Congressional and GAO reports, I think it is clear that this would be a good time for a new "Wells-like" advisory committee to review the policies and procedures of our enforcement program. The Commission and the staff should welcome, not fear, such a review.
Remarks at the Eighth Annual A. A. Sommer, Jr. Corporate, Securities and Financial Law Lecture, Fordham University Law School, New York, New York, October 9, 2007.
The SEC announced that on October 19, 2007, the United Stated District Court for the Northern District of Illinois, Eastern Division issued a Temporary Restraining Order and Asset Freeze against Robert A. Loffredi (Loffredi) and Raymond Financial Group, Inc. (Raymond Financial) temporarily enjoining Loffredi and Raymond Financial from securities law violations and freezing their assets. The SEC alleges that from at least August 2003 to the present, Loffredi, a registered representative and the President of Raymond Financial, raised at least $2.8 million from at least fourteen customers by falsely representing that he would invest their funds in securities, primarily in the form of purported certificates of deposit (CDs). Instead, Loffredi used the customers' funds to pay his personal and business expenses and to make payments to other customers who had invested in fictitious securities.
FINRA issued an Investor Alert today warning investors to be wary of energy-related stock "pump-and-dump" scams that entice investors to purchase stocks that promise exponential price growth.
The new Investor Alert, "Save Your Energy and Money—Don't Fall for Energy Stock Scams," explains these energy stock scams typically involve small unknown companies, using a combination of baseless price predictions, misrepresentations and hyperbole. The goal of these scams is to inflate the price of the stock through false and misleading statements that create unwarranted demand for the company's shares. The con artists behind the scam can then sell off their shares, leaving investors with worthless stock.
The Alert warns investors about fax, email and even cell phone text message scams that promise high returns in exchange for little risk. In a spam message, one outfit trumpets that a certain Texas energy firm has "teamed up with China's $23 billion oil monopoly," and promises that huge returns are in store for those with the wisdom and foresight to invest 'RIGHT NOW!'
Appraisal proceedings are rare -- the procedure is too cumbersome, and the cost/benefit analysis rarely points to filing the proceeding. Even rarer is a director of the acquired corporation filing an appraisal proceeding, but that is what Burton "Skip" Sack, a director and the largest individual shareholder of Applebee's International, says he plans to do if the other shareholders approve IHOP's acquisition at $25.50 per share. The Applebee's board split 9-5 over whether to approve the deal, and the proxy advisory firms are also split. WSJ, Applebee's Director Says IHOP Is Paying Too Little for Chain.
You will recall that former Qwest CEO Joseph Nacchio has filed an appeal in his criminal insider-trading conviction. Among the grounds cited, he points to the exclusion of certain evidence by the district court that, he says, shows that the government retaliated against the company by leaving its name off a list of subcontractors for a lucrative government project, after Qwest questioned the legality of an earlier government plan. While it's not clear to me what this has to do with the insider-trading charges, the allegations received a great deal of press. Prosecutors yesterday filed papers that, it says, show that Qwest in fact was part of a group that secured the government contract. WPost, Papers Contradict Nacchio's Defense.
The attorneys for the buying group led by J.C. Flowers and Sallie Mae held a conference call with Vice Chancellor Victor Strine over Sallie Mae's request for an expedited hearing, because it says that the restrictive covenants in the merger agreement interfere with its business operations and prevent it from shopping the company. The Chancellor repeatedly asked why the parties did not agree to terminate the agreement. Finally, the buyers agreed to waive the restrictive covenants so as to avoid the expedited hearing. A trial is likely for early next year, unless the parties arrive at a settlement. NYTimes, Provision Is Waived in Sallie Mae Merger Case, but Underlying Dispute Remains ; WSJ, Flowers Drops Sallie Proviso.
Monday, October 22, 2007
In a few years Class B shares in mutual funds may be extinct, thanks to regulatory pressure to thwart brokers' sales of B shares in lieu of more suitable A shares, as well as (perhaps) better investor education as to the differences. In recent years, investors have pulled out more money from B shares than they have invested; last year, net outflows were more than $57 billion, according to an industry source. Brokers frequently pushed more expensive B shares as an alternative for "no-load" funds because the sales charge was at the back end. In addition, B shares were frequently sold to customers whose dollar amounts made A shares a better deal. InvNews, Sales of B shares continue to wane.
Was Joe Torre right to feel insulted by the Yankees' offer of a one-year contract that cut his base salary (from $7.5 million to $5 million) and replaced it with performance-based bonuses -- $1 million for each level of postseason play reached in 2008? Not according to many CFOs, who view performance-based incentives as completely appropriate for senior management. CFO.com, Torre's Pay Offer Is a Hit with CFOs.
A Florida jury found that a Merrill Lynch broker took advantage of the late philanthropist George Rothman (who died in 2004 at the age of 86) and his wife and awarded $6 million in damages. The jury will decide whether to award punitive damages. The allegations are representative of the kind of "senior investor" case we can expect to see more of: the broker took advantage of the deteriorating mental condition of the couple and placed them in high-commission variable annuities, while assuring them they were in low-load funds. There is no explanation why this case was in court instead of in arbitration. A Merrill Lynch spokesperson called the verdict "astonishing," because the couple were wealthy sophisticated investors who lost no money on the investment. NYTimes, Jury Finds Merrill Lynch Bilked Couple.
Will Bill Lerach's guilty plea be grounds to terminate pending class actions brought by his former law firm, Coughlin Stoia? Coca-Cola seeks to deny class-action certification in an action alleging accounting fraud that was instituted in 2000 on that ground. A federal judge in another securities fraud class action has already rejected the argument, because Lerach had retired from the firm and the law firm itself is not under indictment -- as is the case with Milberg Weiss. WSJ, Coke Tries New Defense.
KKR and Goldman Sachs terminated its $8 billion takeover for Harman International Industries and avoided both litigation and a $225 million termination fee. The takeover, like so many others, fell victim to the credit crunch. Instead, KKR and Goldman will buy $400 million in convertible debt securities and appoint a representative to the Harman board. WSJ, Harman Takeover Canceled, Fight Avoided.
Bear Stearns and Citic Securities, a state-controlled investment bank in China, plan a joint venture in Asia that involves each company investing $1 billion in the other. NYTimes, Bear Stearns and Chinese Bank to Form Joint Venture ; WSJ, Bear Stearns, Citic Near a Deal.
Sunday, October 21, 2007
Beyond Liability: Rewarding Effective Gatekeepers, by LAWRENCE A. CUNNINGHAM, George Washington University Law School, was recently posted on SSRN. Here is the abstract:
This Article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in the past decade revealed limitations of the liability strategy and yet reforms continue to emphasize legal duties and liability for gatekeepers. This emphasis also has the negative side-effect of discouraging gatekeepers from willingness to perform desired functions - such as to detect for fraud. Using rewards can induce gatekeepers to perform desired functions and add positive incentives to encourage them to be more effective in vetting enterprises seeking access to capital.