Friday, April 8, 2011

AL CAPONE IN ALCATRAZ!

DO CIVIL & CLASS ACTION LAWSUITS HURT YOUR SHAREHOLDERS? DO PATENT LITIGATIONS ERODE YOUR COMPANY’S REPUTATION? DO INVESTORS VIEW YOUR COURTROOM ENGAGEMENTS AS A SIGN TO DUMP YOUR STOCK? OR ARE LEGAL CASES SIMPLY MUCH ADO ABOUT NOTHING WITH NO EFFECT ON YOUR STOCK PRICES?

There is Butch Cassidy and there is Walmart. Much talked about and forced to run the gauntlet of protectors of the legal system, the similarities are strong. There is a difference though. As much as Cassidy enjoyed biking around on Wyoming’s mountainous curves with the Sundance Kid, keeping his shirt collar a good distance from the Sheriff’s grasp, Walmart is a behemoth that does not mind sauntering down the courtroom corridors. Its autobiography is strewn with litigations. But isn’t this bad logic, to be a target of and to be a propagator of various lawsuits?

Walmart is Relative Stockthe poster boy of the retail revolution, and the #1 2010 Fortune 500 giant. Against Walmart, the cases have covered various spaces – not paying suppliers on time, gender discrimination, failure to dole-out fringe benefits to parttimers, deliberate selling of low-quality items, unfair remuneration and promotion- related policies, paying low wages (a lawsuit filed in 2001 stated that the average wage for a Walmart sales attendant was $13,861 a year, while the federal poverty line for a family of three was $14,630), environment-related and other accusations by government agencies et al. Suing the Bentonville retailer has become a wholesale affair, with the average count of lawsuits filed against it, touching 5,000 per year (as per a Forbes report). But how much of a difference have the aspiring attorneys and plantiffs made to the reputation and earnings of Walmart?

Numbers are proof. Yes, since 2001, the company has paid more than $2.5 billion in lawsuit settlements. But the parallel tale is that during the same decade, while the company has opened 4,266 new outlets in 16 countries around the world, the company’s m-cap has increased by $6Mike Duke CEO Walmart7.54 billion. As far as revenues go, the figures have improved 155.67% (despite two downturns since FY2000) to touch $421.85 billion (FY2010). The forecasts are bright. The company is fast approaching the $500 billion sales-barrier, with estimates of $439.81 billion and $461.86 billion for FY2011 & FY2012 respectively (as per Thomson Financial). Truth is: the company has grown from strength to strength despite umpteen disputes. And it has not been a strategy of hiding in a blanket of silence. The company is combining the wave of allegations with a strong focus on marketing and advertising to maximise opportunities to turn ‘negative’ headlines into huge recall exercises. Imagine this – every single day of FY2010, on average, the company spent $65.75 million on advertising, marking an increase of 14% y-o-y. Little wonder that the retailer is up for a better 2011 & 2012, with buyers across America and the world indoctrinated to the Walmart culture.

As for those who believe that legal affairs raise questions about a firm character, here is a correction: they don’t. Had litigations mattered, the percentage of American households visiting Walmart would never been as high as 83% (in FY2010). Had litigations mattered, the company-in-question would have always seen its stock crash on news of civil or class action charges. Well, it does not occur in that manner.

On June 19, 2001, six Walmart employees from California, Illinois, Ohio, Texas & Florida filed a nationwide gender discrimination class action lawsuit against it. The charge brought together about 1.5 million former and present employees, and was meant to be the biggest class action suit against any company in American history, with damage claims running into billions of dollars. That day, the Walmart stock closed 0.69% higher. It gained a further 3.41% the next trading session. The case was last heard by the Supreme Court on March 29, 2011. And despite expectations of a multi-billion dollar setback to Walmart, the stock saw a rise of 0.13% the day before the hearing date. Though it is hard to also understand why the stock rose just 0.15% on April 1, 2011 (the day the Supreme Court ruled that the class action case against Wal-Mart must be reversed), we may safely assume that courtroom engagements (involving well known corporate brands) have little say in describing negative market sentiments for their stocks.

Here is what Larry McQuillan, Director, Pacific Resource Institute explains in a report titled, Wal-Mart Stands Up To Wave Of Lawsuits: “Fighting lawsuits makes the most long-term sense. Thetrial bar’s strategy against corporate America up to now has been to file a suit and bring the company to the table to get a settlement out of it. Wal-Mart has been a leader in not bowing to those pressures, unlike many companies that are afraid of bad publicity and want to settle. If you don’t defend yourself early on, and be persistent, you will be steamrolled.” Adds Prof. Kathryn Harrigan of Columbia Business School, “I would litigate everything. And if in the end the law made me do something, I’d fight to make sure my competitors had to do it as well. Shareholders shouldn’t be overly concerned about litigation exposure, because it’s a small price to pay.”

This one instance is not the only encouraging spotlight for shareholders in a seemingly apocalyptic wasteland. 596 pharmacists in Colorado won $45 million in damages against the discount retailer on May 9, 2003. When trading closed that day, the stock had appreciated by 1.43%. On Dec. 22, 2005, the Alameda County Superior Court in Oakland, California slapped a fine of $172 million against Walmart for violating a State law. The stock rose 0.23% that day. On Dec. 3, 2009, a Boston court stuck up a $40 million bill on Walmart’s front door. Stock price change: a positive 0.89%.

Jim Balsille & Tim CookThere are other Al Capones too. Courtroom battles in the world of technology are common. Apple Inc., knows that well. It has been involved in many patent infringement cases over the past decade – both as an accused and as the plaintiff. From paying up The Beatles $26.5 million and deciding to stay out of the music industry on December 8, 1991(till it launched the iTunes), to selling faulty MacBook LCD screens and iPads with battery that had overheating issues, it has taken it well. Rather, too well. And the investors are the happiest lot. From the time Steve Jobs returned to Apple in late 1996, the company’s Mcap has increased by 10,039.68% to touch $314.33 billion (as on April 5, 2011). And the rise has happened during a period when it has been busy being slammed with court papers by companies like Cisco (on Jan. 10, 2007, for infringing upon and copying and using Cisco’s registered iPhone trademark, a day after Jobs revealed Apple’s new bet, the iPhone; the Apple stock gained 4.07% that day), Nokia (for infringing on Nokia’s patents in virtually all of its mobile phones, portable music players and computers; two complaints, of which the last was on Mar. 29, 2011 – stock rise of 0.16%), Xerox (sued on April 10, 1990, for stealing Xerox’s GUI technology, which gave birth to Apple’s then-best-selling Macintosh PC – stock gain of 3.32%) et al. Apple has not been a silent observer either. Its cases against Nokia, HTC (on March 2, 2010, Apple sued HTC over 20 patent infringements with regards to its iPhone; HTC fired back by claiming that Apple had violated five patents), Microsoft (ruling given against Apple on September 1994, in a case where Apple tried to prevent Microsoft and HP from using GUI elements), and many more are proof that litigation is only a part of the larger brand-building process meant to be accepted with a spirit of more youthful optimism.

Not convinced yet? Here’s the big bite. On Oct. 1, 2010, the US Eastern District of Texas held up a $625.5 million damages claim against Apple (for violating digi-tech patents held by Mirror Worlds) - the 4th largest patent verdict passed in US history & the largest for 2010. It was meant to send the Apple stock plunging. Quite the contrary happened. When markets opened the next week, within two trading sessions, the stock gained 3.70% – an m-cap gain of $9.49 billion.

After a long-drawn battle of 4 years, BlackBerry-maker RIM was forced to pay-up $612.5 million on March 3, 2006, by a US court to NTP Inc. (one of the earliest patent-holders of wireless email). The sum was meant to settle a dispute over RIM’s email service made available for its 3 million users. The verdict then was supposed to not just bring RIM into the scanner of many watchdogs, it was also predicted to put an end to the entire Black Berry network in US and raise questions on its future. This is what appeared in an online Fortune article post the verdict, “The price of RIM’s shares was halted at $72.00 at 4:37 pm in anticipation of the announcement. RIM’s stock price soared after shares began trading after-hours, reaching as high as $86.30 in after-hours trade.” RIM’s mcap had risen by $2.65 billion (19.86%) to touch $15.97 billion when the day ended. If such huge courtroom verdicts were destined to reduce citadels to dust, RIM would have been much smaller than it is today. Perhaps gone. The reality is different. Its user base in 4 years has swollen by 1733% to 55 million and its m-cap has risen to at $28.79 billion.

Apple’s & RIM’s stock performancesThere seems to be a common belief that involvement in lawsuits will “always” lead to negative returns for shareholders and a poor financial reporting. Untrue. Prof. David Yermack of Stern School of Business (NYU) & Prof. S. Dahiya of Georgetown University, in their paper titled, Litigation Exposure, Capital Structure, and Shareholder Value, while analysing the case of value creation and destruction in the tobacco industry, concluded how companies have gained in the past by following a strategy of radical litigation. They took the case of Brooke Group CEO Bennett LeBow, who believed that civil suits had positive outcomes. The paper concludes, “Brooke Group had a tiny market share, low margins, high leverage, and highly concentrated management ownership. Beginning in 1996, the firm reached settlements in lawsuits brought by class action plaintiffs and US state governments. These events led to impressive returns for shareholders of Brooke Group.”

Even in the case of a shareholder litigation (which is considered the most vicious of all litigation types), as Prof. Georgi D. Kaltchev of International University College (Bulgaria) proves, the probability of shareholder wealth falling is low. In his November 2009 paper titled, Securities litigation and stock returns, Kaltchev proves how his hypothesis “that shareholder litigation announcements negatively affect stock returns, only finds partial support.” As per him, in more than 67% of the cases, wealth is not lost.

If the company involved in litigation adopts a heavy PR, advertising and marketing strategy (Promotion, Price & Place of 5Ps, like Walmart did by saving theaverage American household $2,500, as per Global Insight), allows innovation (Product of 5Ps, like Apple) to overshadow competition and targets the right segment (Positioning of 5Ps, like BlackBerry), litigation and court cases will only play in favour of the accused.

For companies that earn their bread and butter in the IT space, lack of innovation and absence of right positioning is poison. Why is it that Microsoft and Dell have lost tremendous value in the market, even when they have been quick to move to new emerging markets? Blame their stalled innovation engines, not litigation. About 10 years back (January 3, 2000), Microsoft was the most valuable company in the world with an m-cap of $466 billion. Then, besides 500-odd court cases, a series of innovation hiccups occurred. The Vista failed, the ‘Courier’ tablet idea planned for launch in early 2009 was dumped, its entry into the handset hardware market with the Kin was a disaster, the Zune music player was also an out-and-out failure, and its Windows software for smartphones is still scouting for a credible platform.

Of course, its SQL Server has made news, but then, what’s so innovative about a database server when everyone has already started talking about cloud computing? For Microsoft, the litigations (for lack of innovations to advertise about!) have played against investor sentiments. Litigations do prove how any company is still trying to test out something new.

That’s good. But when you keep the investors guessing forever, you’re in trouble. Like Microsoft, which has lost 53.52% of its value since 2000, Dell & Motorola are no different. From m-caps of $111 billion & $56 billion a decade back, the companies are today valued at $27.51 billion & $14.87 billion – reductions of 75.22% & 73.45% respectively.

Pharmaceutical companies over decades have been known to live through patent infringement lawsuits. The count of these increased from 81 in FY2005 to over 243 in FY2010. During the same period, generic players (which were taken to court by Big Pharmas), have won 70% of the cases – which directly translates to $60 million in revenues during the first six months for the generic players. This gain, after spending $5 million on an average on each challenge, sounds quite a deal. As new drug development pipelines are drying up, with no new blockbuster in sight till at least 2015, the next three-four years will witness many more litigations, where it could mean an increasing count of generics suing generics! In short – the lawsuits will get to you sooner than you thought. Gear up.

There is a joke which does the rounds in America. After the Feds, it’s Walmart which gets the maximum summons. It’s true. Consider this; how many will be surprised if you told them that companies in the technology & telecom industry are the ones sued the most (with drug makers at #2)? My guess is – none. And my advise is, ride on the opportunities. This time, they come in the name of litigations. If the courtroom-savvy-employee- whipping Walmart can, if the patentinfringing- Xerox GUI-stealing Apple can, so can any other company. Advertise, innovate, grow, and don’t you worry about litigations. They never could catch even Al Capone on that.

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Friday, March 11, 2011

THE PAYCHECK SCANDAL

IT’S AN OFT-ASKED QUESTION. GUESS WHAT, I DECIDED TO ANSWER IT AGAIN. HOW MUCH SHOULD CEOS BE PAID? DO THE HIGHEST-EARNING CEOS DELIVER THE HIGHEST RETURNS TO SHAREHOLDERS? HERE’S A DUMMY’S GUIDE TO WHETHER THE BOARD SHOULD PROMISE FAT PAYCHECKS TO THE TOP MAN OR NOT.

Petty scandals are found aplenty in rich nations. It is no different in business; the synonymity is ironically nostalgic. The correlation is much the same with big scandals too. And much like activists raise their voices against one such prevalent scandal in politics – the fat perks doled out to politicians – there is a group that feels no different about CEOs of multi-billion corporations. They are right. Despite criticism about lack of corporate governance for years, by large, CEOs are swept into offices with a seven to eight figure sign-up membership. Only problem is – before their disappointing terms are over, the boardrooms are filled with the noise of who “could” be presiding over the next company dinner. The failed CEO departs, having stripped shareholders to the bone, and having collected millions (or billions) in fat paychecks & belly-bloating perks!

Jeff Immelt and Steve BallmerThere are many names which surface in this debate of a mismatch between executive compensation and performance in the modern world. The fourth largest US corporation (in terms of revenues for 2009), General Electric, is one. When Jeffrey Immelt took over as CEO on September 7, 2001, everyone was hopeful. He was handpicked by Jack Welch, to lead GE into becoming the new global powerhouse conglomerte of the new millennium. GE was then valued at $415 billion, and was comfortably ahead of the #2 Microsoft (which stood at $335 billion). The company’s stock was trading at $42 a share on the NYSE. Under Immelt, the company has lost half its value (m-cap of $216.4 billion - a fall of 47.9%), and its share trades at just 48.5% of the level at which it did a day before he assumed office. The mistakes he made could be described as “basic” as far as Welch was concerned. Welch had made it clear that a GE CEO had only two tasks – allocate the right amount of capital in the right places, and choose the right people. Talk to GE trackers, and they point to two critical mistakes that Immelt has made all through his term. Those very two.

Most efficient CEOWhen Immelt took over, GE had $42 billion of capital invested in it. By 2009, this had increased to more than $163 billion. The problem was: GE Capital (GEC – which was Immelt’s top bet) had also borrowed hundreds of billions separately. What spoiled the party was that, with GE Capital under-performing, the return fell much below the cost. And the value destroyed is there for the world to see. Immelt had bet too big on making GE a “diversified financial entity”. After many wrong acquisitions and untimely investments on businesses of the future (like green energy), today, GE carries a debt load of half-a-trillion dollars – 232.9% more than its FY2010 topline. So how does GE reward Immelt? Actually, he has earned quite a gunny bagful.

In the past nine years, Immelt has taken home $179.68 million as compensation, making him one of the most overpaid bosses in corporate America. Translation: for every $1 he earned during his tenure, he destroyed GE’s m-cap by $1,105.29¢.

As per the 2010 Forbes’ Special Report on CEO Compensation (a study of the top 500 firms on the S&P, ranked according to CEOs’ efficiency towards returns to shareholders’ wealth), despite earning millions, Immelt was ranked ‘secondlast’ on the “Efficiency” parameter. Question is – did he deserve the pay he received? [Apparently, a combination of poor performance and high pay also makes you a favourite in the Obama camp. Despite better CEOs around, it was announced on January 21, 2011, that Immelt would head the economic advisory council, The President’s Council on Jobs and Competitiveness, a board earlier lead by former Fed Chairman Paul Volcker.]

Immelt is not the only one living his well-cushioned dreams in the boardroom of America Inc. at the cost of his investors’ dimes. My favourite punching bag is billionaire Steven Ballmer, CEO of Microsoft Corporation, who became the only non-owner employee (after Coca- Cola’s Roberto Goizueta) to become a billionaire based on stock options. He is currently ranked at #33 on the 2010 Forbes’ World’s Richest People list, with an estimated wealth of $13.1 billion. Ballmer, who has taken home more than $35 million in direct annual compensation since he took over in January 2000, has seen Microsoft’s m-cap reduce by 61.2% - from $556.8 billion to $216.1 billion, as of March 8, 2011. Similarly, Howard Schultz, CEO of Starbucks Corp., took home $127.99 million in the past 3 years, but during this period, the company lost 13.94% in m-cap. Michael Dell, who made $61 million during the past 5 years (besides the $4.03 billion in stock holdings), ensured that his shareholders got slimmer by 58.9% (Dell’s m-cap today stands at just $29.61 billion). Dell was once the world beater in selling PCs (it was #1 till early 2006). No more.

Stock Performance
There are some CEOs, like Aubrey McClendon of Chesapeake Energy, who despite not having given their shareholders poison to drink, have definitely served bitter syrups to gulp (by not giving them enough value appreciation). Iven G. Siedenberg, CEO of Verizon Communications, managed such a peanut trick – he made $112.8 million in six years and managed to increase the company’s mcap by just 0.089% ($0.9 billion, to touch $101.8 billion) during the period. Therefore, for every dollar that he earned, he increased Verizon’s market value by $7,979 – only a fraction of Verizon’s revenue per average employee figure of $0.55 million for FY2010!

The Michael Dell CEOclassic list of failed chief executives leading billion-dollar corporations, is long. John C. Martin of Gilead Sciences (made $60.4 million in 2009 & reduced his company’s m-cap by 25.5%), Sol J. Barer of Celgene (made $8.7 million; m-cap fall of 9.5% in 2009), William H. Swanson of Raytheon Company (earned $18.6 million; m-cap fall of 15.7%), and many more adorn the list.

So, from the enterprise point of view, arises a question – how should the boards of companies like Cisco (which has shed 81.9% in value since Mar 2000), Intel (lost 77.13% since Aug 2000), Nortel (lost 100% of value since Jul 2000, amounting to $283 billion, and was forced to close shop in Jan 2009), Lucent (lost 96.1% since Dec 1999, to fall to $11 billion, before it was acquired by Alcatel in 2006), AIG (lost 72.48% since Dec 2000), AOL (lost 99.07% since Dec 1999) et al, be paying their CEOs?

Actually, the question should be – how much should the CEOs pay back?!

If Steve Jobs CEOyou look at the Forbes Report on CEO Compensation, there are some striking observations. None of the top 100 earning CEOs (vide total compensation for the past five years) figure in the top 10 spots on the “Efficiency” scale. Compare this to the iconic Steve Jobs, who was ranked “last” in the list of individual earnings of CEOs for FY2009. That’s because he actually took home $0! To talk about the most productive CEOs, none of the top 10 “Efficient” CEOs even managed to break into the top 130 odd ranks of FY2009 top-earners!

So what does research have to say about the pay-performance mismatch? That answer is pretty straightforward. Most CEOs who earn big bucks don’t really return the favour in the form of value creation. In a report by Booz Allen Hamilton titled Reining in the Overpaid (and Underperforming) Chief Executive, Corporate Governance expert Nell Minnow, while talking about the downturn, suggests that the Board of Directors of Citigroup, Merrill Lynch, and other financial institutions had contributed to their own downfall and loss in value by creating compensation packages for their CEOs that did not punish them for failure. “These CEOs were guaranteed outsized exit and separation packages, regardless of how their firms performed. All the CEOs who failed got paid very well. Because the CEOs were pushing much of the risk to shareholders, this is what you get,” she says. In a paper titled, Rising CEO Pay: What Directors Should Do, Prof. Jay Lorsch of Harvard states, “Criticisms of CEO pay have two related themes: It is too high, and not related to company performance. Ask any thoughtful corporate board member what they are most concerned about these days, and it is not Sarbanes-Oxley. It is CEO pay. Directors worry because shareholders continue to express outrage.”

This is a clear warning to boards who have forgotten that compensation committees should focus more on what the shareholders will accept. In the NYSE Euronext CEO Report 2010, the issue of compensation has also been discussed at large. Here are some quick conclusions: “Insufficient transparency about risk taking and insufficient Board oversight are the top concerns of shareholders today, with executive compensation frequently mentioned by US CEOs - 63% of US CEOs & 41% of European CEOs feel that Executive compensation is one of the biggest concerns to their shareholders.” Another work by Profs.Michael Jensen of HBS & K. Murphy of The Univ. of Rochester, after an analysis covering the paychecks of 2,505 CEOs in 1,400 companies over a 15 year-period, proved that “the compensation of top executives is virtually independent of performance.” With respect to paying for performance, the authors argue, CEO compensation is getting much worse. This problem is more prevalent amongst larger firms, as an August 2010 paper by Carola Frydman of Sloan School (MIT) Dirk Jenter (Stanford), titled, CEO Compensation, states, “Although executive pay has increased across the board, the growth has been much steeper in larger firms.”

A study by The Corporate Library (a governance analysis firm headquartered in Portland, Maine), titled, Pay for Failure: The Compensation Committees Responsible, concludes that between 2001- 2006, 11 publicly-listed companies doled out $865 million to their CEOs, who in turn eroded a total of $640 billion in shareholder value. The accused were AT&T, BellSouth, HP, Home Depot, Lucent, Merck, Pfizer, Safeway, Time Warner, Verizon and Walmart. Each of the companies
paid its CEO more than $15 million in 2005 & 2006, delivered a negative return to stockholders during the period, and underperformed industry peers. The boards claim innocence, but their ignorance is unacceptable.

Confirms Stanford’s Dr. Robert Daines, in his report titled, The Good, The Bad and The Lucky: CEO Pay & Skill, “Cases of excessive CEO pay reflect a systematic social problem of ‘fatcat’ CEOs skimming money at shareholders’ expense and therefore a systematic breakdown of governance.” After conducting an empirical, decade-long analysis, Prof. Lucian Bebchuk of Harvard Law and Prof. Yaniv Grinsten of Cornell, in their paper titled, The Growth of Executive Pay, conclude that, “Had the relationship of compensation to firmsize, CEO performance and industry classification remained the same in 2003 as it was in 1993, mean compensation in 2003 would have been only about half of its actual size.”

In their the book titled, Pay without Performance: The Unfulfilled Promise of Executive Compensation, Prof. Bebchuk & Prof. Jesse Fried (Univ. of Calif. Berkeley), argue that “Executive compensation is set by CEOs themselves rather than boards on behalf of shareholders...” This is unacceptable to the ordinary shareholder.

What however comes as good news is that the SEC has proposed to make the situation more friendly for investors. In July 2010, it proposed the addition of Sec. 14A (which required “companies to conduct a separate shareholder advisory vote to approve the compensation of executives”) in the Securities Exchange Act of 1934. But will such a move help balance the paranormal equation? It is not to be forgotten that the SEC had taken a similar stance more than four years back (on Jan 17, 2006), to protect shareholders (which forced companies to report compensations of all top executives, including all stock options, retirement and severance plans and perks worth over $10,000.) Five years later, and we still see the scandalmania of excessive pay for performance in vogue! Perhaps, the anomaly is here to stay, and till it does, there will always be losers on the stock markets and winners across boardrooms.

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