Yesterday afternoon, the SEC and the Department of Justice charged hedge fund manager, YouTube star, and prolific Tweeter Anthony Davian with fraud. Like any good alleged Ponzi schemer, Davian applied the “one pot of money” philosophy to his funds’ assets, and used investor cash to buy himself an Audi Q7 Prestige, build a palace the likes of which Akron, Ohio had never seen, and collect rare pens. As is typical in these kinds of cases, the benefit of hindsight allows those who witnessed the crime unfold in real time (clients, employees, etc) say “Well, of course it was a scam,” even if it wasn’t readily apparent at the time. Although not for a lack of trying on Davian’s part! Behold, the amazing list of red flags he dangled in people’s faces (uncovered by reporter Roddy Boyd), all but begging them to pause and say “Hey wait second, would a hedge fund manager running a legitimate and successful shop…” Read more »
In Retrospect Maybe It Was Slightly Suspect That Supposedly Legit Hedge Fund Manager Had A Habit Of Tweeting “Ching!” When A Trade Made Money, Employed A Single Analyst Whose Finance Background Was Limited To Work As A Bank TellerBy Bess Levin
Remember when Facebook IPOed last May and it was a mess? Today the SEC released its amusing order fining Nasdaq $10 million for the mess and explaining what happened. Some computers were having a stressful day at work and so they decided to give up and hide out in the nap room, is the gist of it. I feel like I’d get along with those computers.
What started the mess is that Nasdaq opens the trading of a newly IPO’ed stock with an opening cross where it compiles quotes for a while and then crosses them in one big opening cross before continuous trading starts. And it uses the following process to do the opening cross:
Did you spot the problem?1 Nasdaq’s systems engineers did not, even after the IPO Cross Application had been running on an infinite loop for twenty minutes. The SEC caught it, though, reading their order, I was worried that they’d fallen prey to it as well: Read more »
I’m generally fond of companies that find creative ways to access the public equity markets while not giving away all the “rights” that traditionally go to “owners” of “companies.” I mean, you want money, you ask people for money, you give them the terms that you need to give them to get the money: what is so sacred about shareholder voting rights?
At the same time though I’m a little skeptical of some of the reasons that private companies give for not wanting to go public. These seem to me to be basically two:
- High-frequency-trading computers robots algorithms crash scary scary.
- “If we go public our shareholders will force us to focus on quarterly earnings rather than the long-term good of the company.”
The first one, as you might notice from its grammar, seems ill-defined, though the fact that like every high-profile IPO this year has suffered from a computer glitch makes me think that it’s on to something. Something vague though. The second one: I mean, just don’t do that. What’s gonna happen to you if you manage for the long-term good of the company? Your stock will go down this quarter? Who cares? I thought you were in this for the long haul?
But they’ve got a point. Today in “shareholders are assholes,” here’s a delightful recent paper by three business professors about how stronger shareholder rights make companies more likely to manage earnings.1 As they point out, you could have two models of how strong public-shareholder rights (i.e. things like robust shareholder voting rights, weak anti-takeover provisions, etc.) affect corporate behavior:
- Shareholders are good and will make companies do good things if they’re empowered,2 or
- Shareholders are self-interested jerks and will make companies do bad things if it makes them more money.
There’s no particular reason to believe the first one but, y’know, it’s a hypothesis; it is also wrong: Read more »
- Investment bankers wanted to win underwriting business.
- They realized that having their research analysts shout “BUY BUY BUY!” about every company they underwrote would help to win this business.
- So they went to their analysts and were all “do that.”
- The analysts, for cost-center and spinelessness reasons, did.
- But in classic passive-aggressive fashion they sent each other emails to the effect of “oh, man, my fingers were totally crossed when I issued that Buy recommendation, that company is dogshit.”1
- It was dogshit, and investors lost money buying those Buys.
This problem was solved via a Global Research Settlement among a bunch of banks, a bunch of state attorneys general, and the SEC. The settlement had various technical provisions around who could talk to whom about what when, but the gist of it was “yo, bankers, stop telling your analysts to talk up shitty stocks.”
You can understand why Morgan Stanley banker Michael Grimes2 would not think that he violated this settlement when he (1) learned that the Facebook underwriting syndicate’s research analysts (including Morgan Stanley’s) had estimates for Facebook’s 2Q2012 revenue were higher than what Facebook expected, (2) told Facebook something to the effect of “hey, it would look really bad if you did an IPO based on misleadingly high revenue estimates, you should guide the analysts lower,” and (3) sat with Facebook’s Treasurer in a hotel room while she did that.
It’s easy to make fun of the SEC for wanting to sue Netflix over a Facebook post. Netflix, Facebook, and the SEC are all a little funny, and bring them all together and you get a delightful orgy of hip-five-years-ago clumsiness. Also, like, olds, get over yourselves, everyone is on Facebook, why should I call Grandma on her birthday, or 8-K my operational stats? Social! 2.0!
And yet I’m a little sympathetic to the SEC here, mostly because I am old and afraid of Facebook. The agency notified Netflix yesterday that it’s planning to bring a civil action claiming that Netflix violated Reg FD by posting operational numbers – that Netflix viewing had exceeded 1 billion hours of Netflix June – on CEO Reed Hasting’s Facebook wall without press releasing or 8-King those numbers. Reg FD prohibits an issuer from “disclos[ing] any material nonpublic information regarding that issuer or its securities” to any investor or analyst without simultaneously disclosing that information through a “method (or combination of methods) of disclosure that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public.”
So if you’re Netflix you have two ways to win this: either the information was not material, or it was disclosed publicly in compliance with Reg FD. Perhaps strangely, Netflix is taking both angles. From its response yesterday: Read more »