The law firm of Hubris Hypocrisy & Greed

Milberg Weiss, the lawsuit factory that took corporations for $45 billion, is in the feds' cross hairs. Fortune's Peter Elkind reports on the saga.

By Peter Elkind, Fortune editor-at-large
October 31 2006: 11:21 AM EST

(Fortune Magazine) -- For decades, few things have inspired as much fear and loathing in the executive suites of corporate America as the law firm of Milberg Weiss and the two outsized personalities who ruled the place, Mel Weiss and Bill Lerach. Through creativity and ruthlessness, they transformed the humble securities class-action lawsuit into a deadly weapon.
Always, Milberg Weiss cast itself as the champion of the little guy. In media interviews Lerach has spoken evocatively about fighting for the honest, struggling blue-collar worker who, through no fault of his own, had lost his hard-earned savings to corporate perfidy. The firm boasts of having collected $45 billion for cheated investors since its founding in 1965.
But somewhere along the way, the work made its ruling partners a little like the CEOs they sued.

New Liability Concerns for Boards

Liability concerns have become a major issue for directors of U.S. company boards.
Board members today must meet higher standards of conduct under Delaware law. They also face the possibility that they may have to make personal payments to resolve investor lawsuits, as former WorldCom directors had to do. Meanwhile, shareholders have filed dozens of derivative lawsuits this year against directors over the alleged backdating of executive stock options. These issues were among those discussed by panelists at the National Association of Corporate Director'' annual conference in Washington on Oct. 16-17.

Hedge Fund Archeus Says It Will Close

Another highflying hedge fund has fallen to earth. A month after Amaranth Advisors was undone by disastrous energy trades, Archeus Capital is blaming its downfall on a more mundane problem: sloppy bookkeeping. Just a year ago, Archeus, founded and run by two former bond traders from Salomon Brothers, had assets of $3 billion. On Monday, claiming about $700 million in assets, Archeus told its investors it would close, The New York Times reported on Tuesday.
In its letter to investors, Gary K. Kilberg and Peter G. Hirsch, the fund’s founders, blamed the failure of its administrator to maintain accurate records for its closure. “This failure, and their subsequent inability to properly re-reconcile the fund’s records, led to a series of investor withdrawals from which we have not been able to recover,” the two men wrote in the letter.
Archeus’s financial performance probably did little to inspire investors’ confidence either. Through the first week of October, its main fund was down 1.9 percent for the year.

Cerberus's Snow Says `Lighter' Hand Is Best for Funds

Oct. 31 (Bloomberg) -- John Snow, the former U.S. Treasury secretary named chairman of Cerberus Capital Management LP this month, said investors, not policy makers, are the best regulators of hedge funds.
Snow, who left President George W. Bush's administration in June after 3 1/2 years, said he came to favor a ``lighter'' touch for hedge funds because the industry, which oversees $1.3 trillion in assets, was too big for the government to monitor effectively.
``The real policing of these pools of capital are the investors,'' Snow said yesterday in his first interview since joining New York-based Cerberus. Any government promise to increase scrutiny would create ``a real risk of moral hazard that implies, `Don't worry. Now the government is watching over you and there aren't any problems.'''

Sarbanes-Oxley Brings U.S. Firms IPO Earnings Abroad

Oct. 30 (Bloomberg) -- For all the hand-wringing over the Sarbanes-Oxley Act, the accounting and governance law driving companies away from U.S. stock exchanges, America's biggest securities firms are doing a record overseas business arranging initial public offerings.
The surge in IPOs from London to Hong Kong has enabled New York-based Goldman Sachs Group Inc., Morgan Stanley, Merrill Lynch & Co., JPMorgan Chase & Co. and Citigroup Inc. to collect $1.33 billion of fees from new share sales outside the U.S. so far in 2006, a third more than in any prior year, data compiled by Bloomberg show.

Apple gains extension to avoid Nasdaq delisting

By Troy Wolverton
Mercury News
Apple Computer has staved off having its stock delisted by the Nasdaq Stock Market -- for now.
In a regulatory filing today, the Cupertino company announced that the Nasdaq panel overseeing listing rules has granted it an extension to file its financial report for its quarter ending July 1. The company now has until Dec. 29 to make that filing. Nasdaq rules require listed companies to file quarterly reports by Securities and Exchange Commission deadlines or risk having their shares removed from the exchange's listings.
Apple delayed its filing and missed the SEC's deadline as a result of an internal investigation that found evidence that several of its stock-option grants had been backdated. The company has warned that adjusting the accounting for the past grants will likely result in restatement of its previously reported results.

Businesses Seek Protection on Legal Front

Frustrated with laws and regulations that have made companies and accounting firms more open to lawsuits from investors and the government, corporate America — with the encouragement of the Bush administration — is preparing to fight back.
Now that corruption cases like Enron and WorldCom are falling out of the news, two influential industry groups with close ties to administration officials are hoping to swing the regulatory pendulum in the opposite direction. The groups are drafting proposals to provide broad new protections to corporations and accounting firms from criminal cases brought by federal and state prosecutors as well as a stronger shield against civil lawsuits from investors.
Although the details are still being worked out, the groups’ proposals aim to limit the liability of accounting firms for the work they do on behalf of clients, to force prosecutors to target individual wrongdoers rather than entire companies, and to scale back shareholder lawsuits.
The groups hope to reduce what they see as some burdens imposed by the Sarbanes-Oxley Act, landmark post-Enron legislation adopted in 2002

PE firms to cash in on Hertz IPO

Less than a year after they bought Hertz Global Holdings Corp., its three private equity backers are poised to take it public at a valuation that would yield a 150% partially realized gain on their investment.
The car rental giant filed an amended prospectus Friday, setting a target price range of between $16 and $18 a share for the initial public offering. At the midpoint of that range, the IPO would raise about $1.72 billion, including the overallotment — far more than the $1 billion originally projected.
Of that, $426.8 million would be used to fund a dividend to its owners, Clayton Dubiler & Rice Inc., Carlyle Group and Merrill Lynch Global Private Equity. The balance, about $1.4 billion after fees and commissions, will be used to pay down debt incurred earlier in the year to fund a $1 billion dividend for the sponsors.

DOJ quietly tries out merger reforms

Without fanfare, the Department of Justice's antitrust division has implemented reforms aimed at cutting the cost that agency antitrust reviews impose on merging parties.
Although the cost of filing a merger notification is generally less than a quarter of a million dollars, responding to a second request for information — a process the antitrust agencies use to examine competitive problems in mergers between competitors and other strategic combinations — had soared to as high as $50 million on a single deal.
DOJ's attempt to streamline the second-request process follows a similar initiative at the Federal Trade Commission. Earlier this year, FTC Chairman Debbie Majoras announced a merger process reform at her agency, which promised to limit to 35 the number of employees who must respond to the agency's requests for data. There's once catch, however: The parties must agree to certain concessions, including a two-month period for pretrial discovery if the FTC decides to block a merger.

S.E.C. Facing Wide Review of Practices

The Securities and Exchange Commission, under scrutiny for its handling of an insider-trading case involving a prominent hedge fund, will be the subject of a broad review by the investigative arm of Congress, the Government Accountability Office.
Charles E. Grassley, the Iowa Republican who is chairman of the Senate Finance Committee, last month asked the office in a letter to conduct a review of the commission because he was growing concerned, he said, about whether it is “faithfully adhering to its mission.”
The S.E.C. is charged with protecting investors by policing the nation’s financial markets and prosecuting violations of securities law by individuals and companies.
Last week, the G.A.O. accepted Mr. Grassley’s request that it review two S.E.C. divisions: its enforcement unit, which brings civil securities suits, and the office of compliance, inspection and examination, which oversees money managers, brokerage firms, stock exchanges and other regulated entities.

Hedge-Fund Libertarian Finds New Target

With his recent lawsuit, hedge fund manager Phillip Goldstein freed thousands of funds from having to register with the government. Now, he has set his sights on another controversial rule: disclosure requirements imposed on big money managers.
In the document filed Tuesday, Mr. Goldman has asked the S.E.C. for an exemption from having to submit quarterly 13F forms. Money managers with more than $100 million in U.S.-listed equity assets are usually required to disclose their holdings though such filings.
In his filing, the passionate libertarian contends that the requirement violates the “takings clause” — the Constitution’s ban on taking property without just compensation — which is frequently used to argue against land seizures by eminent domain.
Mr. Goldstein suggests that required public disclosure of his holdings amounts to legalized piracy:
"The simple truth is that 13F filings allow anyone to analyze and use the strategies of instutitional investment managers without paying any compensation for the manager’s data. In essence, Section 13(f) legalizes the misappropriation of trade secrets by transforming trade-secret piracy into trade-secret entitlement."

First, Rename All the Lawyers

In a New York Times op-ed piece, John Fabian Witt, a professor of law and history at Columbia, asks:

"IF a rose would smell as sweet by any other name, will trial lawyers smell better with a new one? That’s the question posed by the impending self-reinvention of the Association of Trial Lawyers of America. After Election Day, the 65,000-member outfit whose lawyers brought us multibillion dollar settlements in cigarette cases, millions of asbestos injury claims and lawsuits over McDonald’s coffee will change its name to the American Association for Justice."

His conclusion:

"The problem for the lawyers is that the genius of the tort system — its capacity to marshal the entrepreneurial energies of the bar — is also its greatest public relations liability. Indeed, whether trial lawyers are part of a distinctively American regulatory solution or part of a distinctively American problem, the new name seems unlikely to change the way Americans view them."

Icahn Wins Chairman’s Seat at ImClone

Biotech drug maker ImClone Systems said Wednesday that it named financier Carl Icahn as its new chairman. The announcement was a formal acknowledgement that Mr. Icahn, who has been pressuring the company for months and making inroads on its board, will be calling the shots from here.

Paulson Wants to Ease Sarbanes-Oxley Burden

U.S. Treasury Secretary Henry M. Paulson Jr. said he is looking at ways to ease the demands of the Sarbanes-Oxley corporate governance law, class-action lawsuits and aggressive enforcement that are overwhelming some U.S. companies.
“All of this has created an atmosphere that has made it more burdensome for companies to operate,” even though the “net result” of stricter reporting standards for corporate executives has been positive, Paulson told Bloomberg News.

F.C.C. Tiebreaker’s Recusal Holds Up AT&T-BellSouth Deal

Approval from the Federal Communications Commission is all that stands in the way of AT&T’s purchase of BellSouth. But it is back to stalemate again at the F.C.C. because of the occasional bane of regulatory agencies: a recusal, The Los Angeles Times says.
The newest member of the F.C.C., Robert McDowell, holds the tie breaking vote, but has removed himself from voting on the deal because he used to lobby for an association of smaller phone companies that opposes the deal.
While Mr. McDowell’s recusal was expected, it has still roiled a process that AT&T and BellSouth had hoped would be wrapped up by now after the Justice Department gave the deal its blessing Oct. 11.

Venture Capital Investment Up in 3rd Quarter

Venture capital funding in the United States rose 5.4 percent in the first nine months of this year compared with 2005, led by investments in alternative energy and Internet technologies, a survey released Monday said.
Venture capitalists invested $6.36 billion into 611 deals through the end of September, according to the survey, a quarterly report by Dow Jones VentureOne and Ernst & Young.
The report from VentureOne and a separate report from PriceWaterhouseCoopers and the National Venture Capital Association noted that this year’s third quarter marks the third consecutive period of more than 600 financings that have totaled more than $6 billion

Buyout Firms Tout Healthy Competition — But Still Worry

Ever since letters from the Justice Department arrived at four large private equity firms asking questions about potentially anticompetitive behavior, the buyout business has been in a panic. Private equity executives may appear unruffled on the outside, but they are scrambling to hire lawyers as they assess what such an investigation might bring.
Of course there is no collusion, many of these executives say, contending that the top firms compete bitterly against one another. They concede that the government might find e-mail messages from some junior executives at rival firms joking about the possibility of collusion, but that it does not happen in practice.
They are probably right. Collusion doesn’t happen in private equity — at least not overtly, the latest DealBook column suggests. It’s much more subtle than that.

Sending the Board Back to School

Directors, feeling pressure to ask the right questions in order to avoid financial and ethical landmines, are signing up for specialized executive education courses in increasing numbers. And business schools are eager to have them.

S.E.C. Inquiry on Hedge Fund Draws Scrutiny

Two Senate committees -- Finance and Judiciary -- are investigating how diligently the Securities and Exchange Commission pursued its inquiry into insider trading by Pequot Capital Management, a prominent hedge fund, and whether senior S.E.C. officials gave special treatment to John J. Mack by not taking his testimony when an investigator wanted to, The New York Times reported.

Warning (Again) re: Buyout Funds

Less than three months after running an article titled “Buy It, Strip It, Then Flip It” — “investors beware,” it warned — BusinessWeek is back with another dire examination of the private-equity business, this time with a cover article called “Gluttons at the Gate.” (The title is a variation on the theme of buyout firms as “barbarians,” but we are not sure if “gluttons” is better or worse.)
Beneath all the newsstand-friendly alarmism, though, is a decent analysis of the current climate in the buyout business. Industry insiders might dispute the article’s conclusions, but it makes for interesting reading.
“These are crazy times in the private equity business,” writer Emily Thornton concludes. “It used to be that buyout firms would spend 5 to 10 years reorganizing, rationalizing, and polishing companies they owned before filing to take them public.” Nowadays, it is down to months — sometimes weeks.
She cites a few examples of what appear to be quick exits, though, as DealBook noted in August in response to BusinessWeek’s strip-and-flip article, the average buyout firm stays at least partially invested in its portfolio companies for years after an acquistion.
Still, Ms. Thornton is correct that there is a lot of money sloshing around the the private-equity business, as shown by the record-setting funds that have been raised or are in the works at firms such as Carlyle Group and Blackstone Group. That cannot help but speed up the business as firms seek quick returns for their investors in an increasingly crowded market.
Buyout firms “have always been aggressive,” Ms. Thornton writes:
But an ethos of instant gratification has started to spread through the business in ways that are only now coming into view. Firms are extracting record dividends within months of buying companies, often financed by loading them up with huge amounts of debt. Some are quietly going back to the till over and over to collect an array of dubious fees. Some are trying to flip their holdings back onto the public markets faster than they’ve ever dared before. A few are using financial engineering and bankruptcy proceedings to wrest control of companies. At the extremes, the quick-money mindset is manifesting itself in possibly illegal activity: Some private equity executives are being investigated for outright fraud.
All of this, she writes, shows that the business “has entered a historic period of excess.”
Stock values were way down after the “crash” of 2000-2002 while interest rates were also hitting new lows. The combination, Ms. Thornton writes, sent investors away from stocks and bonds, looking for new vehicles. They found one in private equity – where those low rates meant cheap leverage.
But then, as with earlier booms, too many players with too much money got into the game. She writes:
Today firms are brimming with cash, and they’re sinking more of it into bigger companies–in many cases even joining together in “club deals.” With more skin in the game, they’re extracting what they can, as quickly as they can, from companies to satisfy their investors. And since they’re buying bigger companies, the amounts are soaring. Some justify it with euphemisms such as “an early return of capital.” Critics liken it to strip mining and say dividends and other fees are becoming goals in themselves.
Private-equity firms in the past brought some benefit, Mr. Thornton writes. They often added value to the companies they bought by imposing discipline on their target companies. Now — not so much, she argues.
This year, buyout-backed initial public offerings are lagging their non-buyout peers by nearly 10 percentage points, thanks to all that “strip-mining,” as well as the massive debt being laid on many companies (which in part is to pay the fees), she writes. “With firms finding ever-more-novel ways to reclaim big chunks of their initial investments quickly, their incentive to produce lasting improvements may be diminishing. Too many appetizers spoil the meal.”
Ms. Thornton also wrote a short sidebar on the record-breaking paychecks being earned by partners in private-equity firms. The average in 2005 was $2 million. This year’s average is likely to top that amount by an appreciable margin, she reports.

Private Equity Firms Can’t Spend It Fast Enough

The supply of money for buyouts seems to have no limit these days, as Carlyle Group is said to be assembling a megafund and two other firms are reportedly fattening their already-huge investment pools.
Bloomberg News wrote that Washington-based Carlyle plans to raise as much as $15 billion for a U.S. private equity fund, which would put it on a par with rivals Blackstone Group and Texas Pacific Group. Citing a “a person with knowledge of the matter,” Bloomberg said Carlyle will start hitting up pension funds and endowments next year.

SEC's Cox sees more insider trading probes

October 18 2006: 6:39 PM EDT

WASHINGTON (Reuters) -- Investigations of insider trading in corporate takeovers involving hedge funds and private equity firms are on the increase at the Securities and Exchange Commission, the SEC's chairman said Wednesday.

"That is an increasing area of enforcement attention. We have a number of ongoing investigations. The pace of our investigative activity has been quickening on this for some months," said Chairman Christopher Cox.

In fiscal 2006, which ended last month, 20 percent of all SEC investigations opened during the year dealt with insider trading, up from 18 percent in fiscal 2005 and 17 percent in fiscal 2004, according to an SEC spokesman.

SEC limits liability threat

Tender offers, frequently a bypassed option for structuring mergers, could become a lot more popular after the Securities and Exchange Commission's decision Wednesday, Oct. 18, to limit legal liabilities that often accompany the offers.
As expected, all five commissioners voted to approve modifications to the SEC's Rule 14d-10, or "best-price" rule, which requires that every stockholder who tenders shares receive the same per-share price.
"I think we've achieved a level playing field now between statutory mergers and tender offers," SEC Chairman Christopher Cox said at an agency meeting.

IPOs flat, but a few stars shine

Led by the strong performance of several technology companies, the market for initial public offerings is showing signs of life. Despite the recent surge, however, on the year IPO activity remains flat as investors get more selective about which companies to back.

D&O Coverage Risks for “Innocent” Directors and Officers

A well underwritten D&O insurance policy should provide for full severability; i.e., permit coverage for innocent directors and officers in a situation where the carrier has valid grounds to rescind coverage for another individual insured. Typically, severability becomes an issue when the insurer attempts to rescind the policy and deny coverage as to all insureds based upon material misstatements or omissions in the application process. For example, in the recent In Re: HealthSouth Corp. Securities Litigation, several insurers attempted to rescind D&O coverage based on application misstatements after former HealthSouth officers entered guilty pleas and admitted that they engaged in a scheme to misrepresent the company’s finances. The court in that case relied heavily upon the language of the severability clause in HealthSouth’s D&O policy:

“With respect to the declaration of statements contained in such written application(s) for coverage, no statement in the application or knowledge possessed by any Insured Person shall be imputed to any other Insured Person for the purpose of determining if coverage is available.”

The Court in HealthSouth ruled that this full severability provision “preclude(s) rescission as to all insureds regardless of their involvement in the alleged fraud.”

However, in other recent cases some Courts have found that a D&O policy included only partial severability, resulting in misrepresentations or omissions by the officers signing the policy application being imputed to the innocent insureds and their coverage denied. Thus, in one case where the severability clause stated in pertinent part “that no knowledge possessed by any Director or Officer shall be imputed to any other Director or Officer except for material information known to the person or persons who signed the Application,” and the court found that the CFO knowingly submitted materials with the renewal application that included material misrepresentations, the insurer was entitled to rescind coverage for otherwise innocent officers and directors.

In another recent decision of the Ninth Circuit U.S. Court of Appeals, the Court upheld the carrier’s right to rescind coverage as to all insureds because of material misrepresentations made by the former CFO who signed the D&O application. In that case the severability clause had provided:

“In the event that the Application, including materials submitted herewith, contains misrepresentations…no coverage shall be afforded…for any Director or Officer who did not sign the Application but who knew on the inception date of this Policy the facts that were so misrepresented, and this Policy in its entirety shall be void and of no effect whatsoever if such misrepresentations were known to be untrue on the inception date of the Policy by one or more of the individuals who signed the Application.”

These cases illustrate that the mere inclusion of a severability clause in the D&O policy will not be determinative in the event the insurer attempts to deny coverage for innocent insureds where the application process was flawed by misrepresentations or omissions of material facts. It will be necessary in any such case to demonstrate that under the precise language and formulation of the severability clause in question, it was the clear and unambiguous agreement of the parties that there should be insurance coverage for the innocent officers and directors. Further, it may be necessary to convince a court that other relevant policy provisions, including language in the Application or any “warranty” or “representation” letter requested by the carrier, do not contradict the severability provision. In the event of such contradictory provisions, the court may conclude that the conflicting provisions create an ambiguity as to the proper construction of the policy, thereby requiring disregard of the policy language and inquiry into the intent of the contracting parties. Thus, what began as a difficult case may have become an impossible one.

The clear message here is that up-front attention to the language of the severability clause and any contradictory policy provisions can save much uncertainty and expense at a later time when the insurer is considering its coverage options.

Private Equity Has Few Friends Abroad, Report Finds

The United Nations has issued a controversial warning about the economic and social dangers facing countries where private equity funds take over a local company. It came after it found that a fifth of all major cross-border deals are now being masterminded by hedge funds and private equity groups.

In its annual report on global foreign direct investment, the United Nations Conference on Trade and Development found that while there have been signs of rising hostility to foreign investment particularly in regard to takeovers by private equity firms and hedge funds.

Hedge fund friend turns critic

The chairman of the Senate Finance Committee said Monday, Oct. 16, hedge funds should be required to make more information about their operations publicly available, particularly in light of high-profile collapses in the industry recently.

'Tens of millions of Americans may be unwittingly exposed to hedge fund investments through their participation in public and private pension plans, and yet would have no way of knowing it,' Sen. Charles Grassley, R-Iowa, wrote in a letter to Treasury Secretary Henry Paulson.

Private capital fundraising slows

After rising at a torrid pace in the first half of the year, fundraising by venture capital and private equity firms slammed on the brakes in the third quarter, according to a new survey released Monday, Oct. 16, by Thomson Financial and the National Venture Capital Association.

Chief Executive at Health Insurer Is Forced Out in Options Inquiry

Dr. William W. McGuire, a medical entrepreneur who built the UnitedHealth Group into a colossus in its field, was forced to resign from the company yesterday and to give up a portion of the $1.1 billion he holds in harshly criticized stock options.

As Lenders With Easy Access, Hedge Funds Draw Insider Scrutiny

Hedge funds have crashed the once-clubby world of corporate lending in a big way, and the increased presence of these lightly regulated funds is raising some concerns, especially as relates to the use of inside information. In at least one case, regulators are taking note. The Securities and Exchange Commission is looking into whether hedge funds who were lenders to Movie Gallery took their inside knowledge of the company's recent struggles and traded on it.

Where the Power Lies on Wall Street

Investment banking has become less about offering sage transactional advice than it is about lending a Wall Street firm’s imprimatur to a deal, Carl Icahn, the activist investor, said last night on a panel that included Jonathan Knee, a managing director at Evercore Partners and author of the recently published book “The Accidental Investment Banker.”

Moderated by Michael Wolff of Vanity Fair, the panel was titled “Where Does the Power Lie on Wall Street?” and some of the answers to that question were rather eye-opening. The overarching issue on the table was whether hedge funds and private equity firms have supplanted investment banks as financial power brokers. Notably, the panel’s early working title was “Is Wall Street Irrelevant?”

Executive Compensation and Government Regulation

The article by Joann S. Lublin and Scott Thurm in todays Wall Street Journal ("Behind Soaring Executive Pay, Decades of Failed Restraints") should be required reading in all American business schools and in all American law school courses on corporate law. It makes the point that with each new law attempting to control executive pay came "unexpected consequences," executive pay increased. Each law had exceptions for pay that the law makers felt was justified, and companies turned the exceptions into uniform practice, increasing pay.

Private Equity Funds Urged to Regulate Themselves

Private equity firms should start regulating themselves like public entities to brace for the inevitable bursting of the buyout bubble, a former chairman of the Securities and Exchange Commission, Arthur Levitt, told a private equity conference.

As recent high returns come down, fund managers will be under pressure to prop up returns, which could result in ethical lapses, Mr. Levitt said in a speech before the Association for Corporate Growth’s M&A East Conference in Philadelphia.

McAfee, CNET Executives Resign Over Backdating Findings

Reverberations from the growing stock-options backdating scandal have claimed top officers at two more companies. On Wednesday, software maker McAfee said that chairman and C.E.O. George Samenuk and president Kevin Weiss are leaving after the security software supplier found accounting discrepancies in its stock options grants.

Meanwhile, CNET Networks said that Shelby Bonnie has resigned as the company’s chairman and chief executive officer after a special committee laid part of the blame on him for the backdating of stock options from 1996 through 2003.

Justice Department Clears AT&T-BellSouth Deal

Antitrust regulators from the Justice Department gave their approval on Wednesday to the historic merger of AT&T and BellSouth, a $78.5 billion transaction that would partly rebuild the former telephone monopoly known as Ma Bell. Whether the Federal Communications Commission would follow suit remained unclear, however.

NFU: Coalition Calls for DoJ Investigation of Smithfield Acquisition

WASHINGTON (September 28, 2006) - A coalition of agriculture and consumer groups today reiterated the call on the Department of Justice (DoJ) to investigate the planned purchase of Premium Standard Farms by Smithfield Foods, Inc. The coalition contends the proposed acquisition, if approved, will escalate the excessive consolidation of livestock markets and could lead to the potential manipulation of consumer retail prices for pork and beef products.

Equity Deals Attract Eye of Justice

Kohlberg Kravis Roberts, the Carlyle Group, Clayton, Dubilier & Rice and Silver Lake Partners are among the firms that have received letters from the Justice Department as part of its preliminary inquiry into possible anticompetitive behavior in the private equity industry. The requests were broad and without mention of any specific transaction or auction, The New York Times reported. The Financial Times's Lex column says that the U.S. is right to look into the question of collusion in the buyout industry, and Breakingviews writes that such an inquiry was "probably inevitable."

Buyout Firms May Face Anticompetitive Investigation

The Justice Department has sent letters to some prominent private equity firms in what appears to be an inquiry into potentially anticompetitive activity, people who received the letters told DealBook. The requests for information suggest that the delicate dance among buyout firms, who compete in some deals and work side-by-side on others, is drawing some unwanted attention.

The question of whether there is collusion in the private equity world has long been a controversial matter, as DealBook wrote in an October 2005 column in The New York Times. In private, some buyout executives concede that firms’ cooperation, often in the form of “club deals,” can have the effect of lowering prices for the companies they are acquiring.

Whether this amounts to anticompetitive behavior, however, is another matter. Recent auctions have shown that rival buyout teams can fight hard for a takeover target. Consider the recent example of Freescale Semiconductor, in which a competing consortium swooped in with a last-minute offer, albeit an unsuccessful one.

Google Moves Closer to YouTube Deal

After marathon negotiations over the weekend, Google could announce a deal to buy YouTube.com, the popular video-sharing Web site, for about $1.6 billion as early as Monday afternoon, people involved in the talks said.

Barring a last-minute snag in the talks, the boards of both Google and YouTube were scheduled to hold separate board meetings on Monday to approve the deal, with an announcement possible after the close of regular trading. Discussions could still break down, however, or another party could present a more-attractive offer.

Pension Funds Raise the Stakes in Buyout Game

Little old ladies and leveraged buyouts rarely appear in the same sentence.

But some retirement funds are quietly beginning to plow billions of dollars of those ladies’ pensions directly into supersized takeover deals, joining with — and in some cases even sidestepping — private equity funds.

While pension funds have long doled out money to private equity firms to invest for them in deals, some funds are increasingly looking to play the role of Henry R. Kravis instead of the passive investor.

Dolan Family Offers $19 Billion in Bid to Take Cablevision Private

One of New York’s most powerful families, the Dolans, made a $19.2 billion leveraged bid yesterday to buy out the public shareholders of its cable television empire, Cablevision Systems, which also includes Madison Square Garden, Radio City Music Hall, the New York Knicks and the New York Rangers.

The offer comes a year and a half after the Dolan family, a sometimes fractious dynasty whose feuds have often spilled into public view and who have used their cable systems to fuel their political interests, proposed breaking the company in two. The family wanted to take over the lucrative cable systems but was forced to withdraw the plan when it met resistance from an independent committee of the company’s directors.

A Kink in Venture Capital’s Gold Chain

The high-risk, high-return venture capital business may have turned into all risk and no return.

That, in a nutshell, is the message that a prominent venture firm delivered yesterday to its investors when it told them that it could not continue to take their money — at least not for the time being.

“The traditional venture model seems to us to be broken,” Steve Dow, a general partner at Sevin Rosen Funds, said in an interview.

Explaining its decision, Sevin Rosen, which has offices in Dallas and Silicon Valley, said that too much money had flooded the venture business and too many companies were being given financing in every conceivable sector.

But excess of capital is only part of the problem, the firm said. In its letter, it bemoaned what it described as “a terribly weak exit environment,” a reference to the dearth of initial public offerings and to a market for acquisitions at valuations that it considers too low to deliver the kind of returns that venture investors expect.

Rumor: Google in Talks to Buy YouTube

The Web site Techcrunch was reporting Friday that Google, the Web search giant, is in discussions to acquire video sharing site YouTube. The potential price was said to be about $1.6 billion, although the site cautioned that the tip was still unconfirmed.

Millions of users flock to YouTube to view a motley mix of homemade videos as well as television and movie clips — many of them posted without a thought to who might own the copyright. The site is still fleshing out its business model, gathering sponsorships and advertisers while trying not to turn off its legions of viewers. Media companies are still unsure whether to view the site as a threat to their livelihood or a valuable partner.

Given its popularity, speculation has run rampant that someone would want to buy YouTube to tap into its growth and steady stream of eyeballs.

Mutual Fund Voting

October 5, 2006
Mutual Fund Voting
posted by Bill Sjostrom at 4:05 pm
The W$J ran a story earlier in the week on mutual fund voting (see here). The story reported on the somewhat old news that academic research has “found no evidence of fund companies tailoring their votes to specific business relationships,” contrary to earlier claims by shareholder activists. The article is nonetheless of interest because it describes the varying processes mutual fund companies use in deciding how to vote.

One thing I’ve found puzzling about mutual fund voting is that the SEC requires fund investment advisers to vote the shares in the portfolios they manage. The SEC asserts that “[t]he duty of care requires an adviser with proxy voting authority to monitor corporate events and to vote proxies.” This requirement has more or less spawned the proxy advisory industry and the attendant fees paid by mutual funds to ISS, Glass Lewis and the like for their voting advice. In my mind a specific fiduciary duty to vote is foolish. Certainly, the voting of proxies by mutual fund managers should be subject to the duty of care and loyalty. But a fund manager should be free to decide that it’s in the best interest of a fund for the manager to not to spend the time and money involved in voting. At least a fund manager should be able to disclaim the fiduciary duty to vote by saying as much in the fund prospectus. Personally, I would rather a fund not spend money on proxy advisers or voting thereby reducing fund expenses. I’m in complete agreement with the sentiment expressed in the article–if a fund manager does not agree with a company’s direction, they should either not invest or sell as opposed to attempting to change the direction of the company through voting. As for index funds that don’t have this luxury, I don’t care. I invest in these funds to get the market return. I don’t want to pay higher expenses in the event the index fund manager decides to engage in shareholder activism. Leave it to the hedge funds and keep my expense ratios low.

Google to Offer Annual Bonuses of Up to $3 Million

Oct. 5 (Bloomberg) -- Google Inc., the most-used Internet search engine, will give cash bonuses of up to $3 million to executives that are linked to annual sales and profit goals.

The bonuses will be available to all executives excluding Chief Executive Officer Eric Schmidt and Presidents Larry Page and Sergey Brin, Google said today in a filing with the U.S. Securities and Exchange Commission.

The cash bonuses come as Google's stock price stalls. Shares of the Mountain View, California-based company are little changed this year after more than doubling in 2005. The company said bonuses will be linked to the performance of each individual as well as the company's overall financial performance.

Rumble at MySpace

A battle is brewing over last year’s sale of MySpace, a deal that is widely seen as the marquee transaction of the Web’s second wave. The contenders may seem comically mismatched — MySpace’s founder is squaring off with media titan News Corporation — but the dispute has begun to attract a lot of attention.

It was already known that Brad Greenspan is suing the site’s former parent company, Intermix, and others over last year’s deal to sell itself for $580 million. Mr. Greenspan, who was at one time Intermix’s C.E.O., contends the sale negotiations were rigged to produce a low-ball price for MySpace, a popular Web site that allows users to create personal pages and link to others’ pages.

On Thursday, however, Mr. Greenspan stunned the Web community by releasing exceprts from internal e-mails and legal depositions that he says support his claim that the transaction was “one of the largest M&A scandals in history.”

Mr. Greenspan also calls for a federal investigation and an unwinding of the sale, alleging that Intermix hid key revenue data from shareholders in order to facilitate a deal with News Corporation.

Pequot Says S.E.C. Won’t Take Action

The staff of the Securities and Exchange Commission has notified Pequot Capital Management, a prominent hedge fund run by Arthur J. Samberg, that it will not recommend an enforcement action against the firm or its employees relating to an insider trading investigation, according to a letter sent yesterday by the fund to its clients.

Saying that Pequot was “gratified by the staff’s determination,” the letter noted that the S.E.C. had not yet closed the investigation. The commission, as is its custom, declined to comment on Pequot’s disclosure. The fund has maintained that its trading was proper at all times.

Weak Results Dim Hedge Funds’ Luster

With the fall from grace of hedge funds such as Archeus Capital, whose holdings have fallen to just $682 million from $3 billion in 2005, and the recent meltdown of Amaranth Advisors, it looks like the blush may be coming off the rose.

In another words, hedge funds, investments for institutions like pension funds and endowments and the wealthy, have hit a rough patch.

“In the hedge fund world, everybody is looking at their portfolio and asking themselves: ‘Do I have another Amaranth in my portfolio?’” Tim Cook, the president of Kailas Capital, an investor in hedge funds, told The New York Times.

Former H.P. Chairwoman to Face Charges

Patricia C. Dunn, the former chairwoman of Hewlett-Packard, and four other people will be named in indictments expected to be filed by California’s attorney general on Wednesday in the spying case at the company, lawyers involved in the case told The New York Times.

In addition to Ms. Dunn, Attorney General Bill Lockyer intends to indict Kevin T. Hunsaker, a former senior lawyer at H.P.; Ronald L. DeLia, a Boston-area private detective; Joseph DePante, owner of Action Research Group, a Melbourne, Fla., information broker; and Bryan Wagner, a Littleton, Colo., man who is said to have obtained private phone records while working for Mr. DePante.

All of those named face four charges: using of false or fraudulent pretenses to obtain confidential information from a public utility, unauthorized access to computer data, identity theft, and conspiracy to commit each of those crimes. All of the charges are felonies.

On Tap for Banks: $8.9 Billion in M&A Fees

The backlog of merger-and-acquisition deals has hit another record, according to analysts at Merrill Lynch. In a report published Wednesday, Merrill said that the backlog of investment-banking fees for deals that have been announced, but not completed, stood at $8.9 billion at the end of September, up 5 percent from August — also a record month for fee backlogs — and more than 50 percent above last September’s level.

While the backlog means that investment banks are cued up for big payouts once the deals go through, there may be a dark cloud on the horizon: The number of announced deals worldwide was down by 32 percent last month from September of 2005. If the decline continues, it suggests that the lucrative deal pipeline may start to empty out.

As Hedge Funds Retreat, So Do Energy Prices

Many hedge funds are fleeing the energy markets these days. Are they pushing oil prices down in the process? Put more bluntly: Can we thank Amaranth and its ilk for cheaper visits to the gas pump?

Quite possibly, says BusinessWeek. This question is the flipside of one that began four years ago, when energy prices started to rise, and some people started blaming hedge funds — investment firms that cater to wealthy and institutional investors — along with other big players like mutual funds and professional traders.

Kinder Morgan Deal Gives Fuel to M.B.O. Critics

Management-led buyouts have gotten some bad press lately, including a controversial article by Ben Stein in The New York Times stating that such transactions should be “illegal on their face.”

The general theme among critics is that when management is involved in taking a company private, they face two, often contradictory, mandates: getting the highest price for their shareholders, and getting the lowest price for themselves and their co-investors.

Against this backdrop comes the recent disclosure that Richard Kinder, the chief executive of Kinder Morgan, waited three months to tell his company’s board that he was considering leading a buyout of the energy company. The deal, valued at more than $27 billion including assumed debt, is among the largest leveraged buyouts ever.

Private-Equity Funds Raise More Than $300 Billion

Oct. 3 (Bloomberg) -- Private-equity funds have gathered $300 billion this year, led by 13 buyout funds that account for about a third of the total, according to a report by Private Equity Intelligence Ltd.

Fund raising through Oct. 3 surpassed the $283 billion for all of 2005, London-based Private Equity Intelligence said in a report. Private equity includes buyout, venture-capital, real- estate and distressed-debt funds.

For Venture-Backed Firms, I.P.O. Chill Deepens

Things are not getting easier for venture-backed companies aspiring to go public. Just eight of these kinds of companies staged initial public offerings in the third quarter, raising $934.2 million. It was the slowest quarter for such I.P.O.’s since 2003, according to the Exit Poll report by Thomson Financial and the National Venture Capital Association.

The numbers mark “a significant decrease” from the previous quarter, when 17 companies went public and raised more than $2 billion, according to the report. In last year’s third quarter, 19 companies went public, raising $1.5 billion.

$15 Billion Deal for Harrah’s May Put Other Casinos Into Play

Their pockets bulging with cash, private equity firms have found a new business where they can place their multibillion-dollar bets: gambling.

Harrah’s Entertainment, the largest casino operator in the world, said yesterday that Apollo Management and the Texas Pacific Group had offered to acquire it for $15.05 billion in cash, or $81 a share. The announcement ignited speculation that the United States gambling business, whose thicket of regulations has traditionally kept investment firms at bay, could attract more such proposals.

Big Board Delays Plan on Voting

The New York Stock Exchange has quietly pushed back a plan that would prevent brokers from voting their clients’ shares in board elections when the stockholders have given no voting instructions of their own.

The plan, which was announced with fanfare in June, was supposed to go into effect in time for next spring’s shareholder meeting season. It would have halted a practice that helps entrench board members, critics say, because brokerage firms always vote for directors proposed by company management.

Hedge Fund Group Adds Lobbyist as Regulation Issue Looms

Federal filings made public last week show that the Managed Funds Association has hired a big-time Washington lobbying firm, Williams & Jensen, to help it with “legislation involving the registration of hedge funds.”

Some lawmakers are seeking tighter regulations on hedge funds in the wake of the recent meltdowns at Amaranth and Pirate Capital. The lobbyist was hired before either of those events, filings show, but Congress could be moving closer to enacting laws requiring registration of hedge-fund managers. An appeals court earlier this year struck down a Securities and Exchange Commission rule requiring registration.

Who Killed Amaranth? Suspects Abound.

Brian Hunter, the young energy trader at Amaranth, has taken much of the blame for the hedge fund’s implosion after his bets on natural gas blew up in his and his firm’s face last month.

Mr. Hunter’s huge trades worked for a while, but they also turned Amaranth into a one-strategy fund. But former hedge fund manager and current “Mad Money” host Jim Cramer, writing in New York magazine, says Mr. Hunter is “the wrong guy” to point fingers at. “I blame bigger villains,” he writes in an excoriation not only of the Amaranth case, but of hedge-fund investing in general.