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Posts Tagged ‘ethics’



Yo, AP! What, Exactly, Does Meg Whitman Regret?

Tuesday, May 4th, 2010

When we read the story by Juliet Williams of the Associated Press in which she wrote: “Former eBay CEO Meg Whitman said [last] Tuesday she regrets taking part in a now-banned stock sale practice at Goldman Sachs . . .” we searched for a quote to back up the statement that Whitman had expressed “regret.”

There wasn’t one. “The lesson learned about it is you have to be extra vigilant about seeing any actual or perceived conflict of interest,” Whitman said. “I missed the signposts here.”

Williams wrote: “Whitman, a billionaire, said she forfeited the profits from the stock sales as part of the settlement to end the distraction of the lawsuit. She said the practice was part of the ‘normal course of business’ at the time.”

“As I look back on it, would I do it again? No,” Whitman said. However, she was also quoted saying, “There was no link between accepting these IPO shares and funneling business to Goldman.”

We tried to speak to Williams about this to find out if she had a quote in her interview in which Whitman had expressed regret about the actions she had taken in regard to Goldman Sachs – not just the legal and political fallout. But we couldn’t get through to the reporter; we were cut off by John Raess, AP’s San Francisco Bureau Chief, who referred us to corporate AP in New York for a response. More on that later.

We were concerned that Williams had attributed “regret” to Whitman that the former eBay CEO herself did not feel. Let’s be clear, “regret,” according to Webster’s New World Dictionary, is “1. to feel sorry about or mourn for (a person or thing gone, lost, etc.) 2. to feel troubled or remorseful over (something that has happened, one’s own acts, etc.) – n. 1. a troubled feeling or remorse over something that has happened, esp. over something that one has done or left undone . . .”

Our suspicion was confirmed when, in Sunday’s debate, Carla Marinucci of the Chronicle asked Whitman, and John Myers of KQED re-asked, whether she had done anything wrong in the Goldman Sachs spinning incident. Whitman replied:

“I did not do anything wrong. It was a legal and standard practice. With 20-20 hindsight, would I do it again? No, because it was called into question.”

By now it was pretty clear that Whitman didn’t regret what she’d done – she regretted what happened afterward. So we asked her spokesman Tucker Bounds whether Meg regretted having been involved in spinning IPOs that were made available to her by Goldman Sachs.

“Yes. I think the Associated Press report was completely accurate,” said Bounds, who sat in on the interview. “She’s expressed a lot of regret about the issue.”

But wait, we asked. If she did nothing wrong, what does she regret?

“That there was a perceived conflict of interest when one did not exist,” Bounds replied. “Perception is reality and that’s where the regret comes from.”

In other words, Whitman is not sorry. She’s not remorseful about what she did. She sees nothing unethical. No conflict of interest. No illicit insider advantage. She doesn’t think she did anything wrong (even if it was condemned and outlawed later on).

And that’s why the AP story was so  misleading. By writing that Whitman had regrets, Williams suggested that the former eBay boss felt some remorse about what she had done when nothing could be further from the truth. The only thing Whitman regrets is that what she did was perceived to be unethical. As far as she’s concerned it was not only legal, it was just fine.

Which brings us back to our complaint to AP.

Having been told we could not talk to Juliet Williams and that we had to speak to New York, we did and, after a long conversation with Jack Stokes in Media Relations, we were encouraged to send an email outlining our complaint.

Here’s some of what we said:

It’s my belief that unless Juliet has a quote in which Whitman expresses regret, then this was an over-interpretation by the writer of an emotion which the writer has no basis to know. How do we know Whitman “regrets” what she did? We know she says she wouldn’t do the same again because it was perceived to be a conflict of interest. But we have no way of knowing — at least from the quotes Juliet shared — that Whitman has any regrets.

The evidence suggests that Whitman strongly believes — because this is what she says — that she, in fact, did nothing wrong. What is there to regret, except that the whole thing was perceived to be a conflict of interest and has since caused her some political inconvenience?

I am not interested in seeking unpublished material from Juliet. I’d prefer if she published the material she has that substantiates what she wrote and that her editors would demand it. In fact, good editing here ought to dig down to the issue of whether a reporter has overstepped her knowledge base and written something for which she actually has no substantiation. This is a common problem in political reporting where writers characterize the motives and emotions of politicians instead of simply reporting the effect of their statements or actions. How does Juliet know that Whitman regrets what she did? How does AP know this?

Before we sent that note to AP we had received an email from Raess that informed us: “After talking with Juliet and with Tom Verdin [AP’s California political editor] I think we’ll let the story speak for itself. I’m confident it’s an accurate reflection of the interview. I’d be happy to discuss this with you personally.”

And now that Bounds has said the story is “completely accurate,” we don’t expect AP will do anything to repair the misimpression its story created. They’ll figure it’s case closed and that they’ve been vindicated.

They haven’t, of course. They were just used by the Whitman campaign.

Team eMeg wants the news media to say Whitman has expressed regret while, at the same time, never actually forcing their candidate to express genuine regret – which she can’t because as far as she’s concerned, she did nothing wrong.

SCHWARZMUSCLE PULLS PLUG ON T-RIDGE: As Calbuzz suggested almost two weeks ago, the blowout in the Gulf of Mexico kills plans to revive drilling off the coast of Santa Barbara with the Tranquillon Ridge project.

Monday, Gov. Schwarzenegger announced: “That will not happen in California . . . I’m sure that they also were assured that it is safe to drill,” he said. “You turn on television and you see this enormous disaster, and you say to yourself, why would we want to take that risk?”

Which kills the Houston-based PXP Co. project at the State Lands Commission. It’s dead. Done. Kaput.

Leaders of Santa Barbara’s Environmental Defense Center, the enviro sponsors of the PXP deal – which they’ve argued would lead to an earlier end to existing drilling in the region – said they were “very surprised and disappointed” in Schwarzenegger’s move.

Which is understandable, since the governor was still publicly backing the proposal as late as last Friday, and yesterday’s out-of-left field announcement totally pulled the rug out from under EDC. Still they continued to insist the T-Ridge plan is the way to go:

Our plan, negotiated as part of a settlement agreement, would have provided the only legal and available means to put an end to existing oil drilling off our coast…

In terms of next steps, we have no choice but to wait and see what unfolds.  We challenge those who have opposed our plan to tell us how they intend to shut down these platforms and thus reduce the threat of oil spills off our coast.  Maintaining the status quo only perpetuates the existing risks.

As a political matter, the biggest winner in the  situation is Pedro Nava, the termed out Santa Barbara Assemblyman who’s running for AG, who has fiercely battled the proposal since it surfaced more than two years ago. Said Nava:

I am pleased that Governor Schwarzenegger now agrees with me, Florida’s Governor Charlie Christ and, 110 other environmental organizations that the PXP proposal to drill three miles off the California coast is a bad idea and not worth the risk. We welcome the Governor’s change of heart. .

Now it’s time for PXP to pack up their tent and abandon their plans to open up the California coast to new, dirty, and dangerous offshore oil drilling.

This just in: Sarah Palin says she hopes the ongoing disaster in the Gulf of Mexico won’t lead to distrust of oil companies. Spill, baby, spill.

Why ‘Spinning,’ Now Illegal, Was Always Unethical

Monday, April 5th, 2010

What Calbuzz does not know about corporate finance fills mountains of textbooks. But because we expect it won’t be long before we’re hearing a lot about charges of stock spinning against Meg Whitman, when she was CEO of eBay, we asked David Shapiro, a specialist on financial fraud at the John Jay College of Criminal Justice at the City University of New York, to spell it out for us. Here’s his offering:

By David Shapiro
Special to Calbuzz

In April 2005, Meg Whitman, CEO of eBay from 1998-2008, settled – without admitting wrongdoing – a case in which she and others had been charged with “spinning” initial public offerings (IPOs) that had been made available to her at a discount by Goldman Sachs in exchange — it was alleged — for Goldman getting eBay’s investment banking business.

Whitman and co-defendants Pierre Omidyar and Jeffrey Skoll agreed to disgorge their profits and pay $3 million (Whitman’s share was $1.78 million) into an eBay fund that was supplemented by a payment of $395,000 from Goldman Sachs. (Robert Kagle, another co-defendant and former member of eBay’s Audit Committee during the relevant period, did not contribute to the fund apparently because he did not earn any profits from spinning IPOs.)

“Spinning” is obtaining, from securities firms such as Goldman Sachs, shares of stock in start-up companies’ IPOs at a preferred price (that is, a discount) not available to ordinary retail investors. This enables investors like Whitman to make a short-term profit by selling the stock in the secondary market, days if not hours later, to retail investors at non-discounted prices.

The practice is now expressly illegal because it was deemed to be theft by favoritism.  The social harm that now is outlawed entails the wrongful delivery of the monetary value of the discounts to preferred investors selected by securities firms. The start-up company selling the IPO could have obtained a higher price by selling directly to ordinary investors if the securities firm had not sold them to selected investors at a discount.

Whitman has insisted that Goldman Sachs’s motivation in giving her opportunities to spin IPOs was due to her status as a pre-existing wealthy client of theirs, which she was, and not as disguised kickbacks or commercial bribery from Goldman Sachs to get eBay’s investment banking business, which they did in fact obtain.

The issue has been spun by Whitman apologists and others into: What were Goldman Sachs’ and Whitman’s respective motivations and intentions in giving and accepting the opportunities to spin?

Issues such as the appearance of impropriety, conflict of interest, breach of ethics, breach of duty of loyalty, etc. presumably take a backseat, while voters in California ponder:  What exactly were those motivations and intentions?

I seek to avoid this “he said, she said” cul-de-sac.

Conduct has two parts under our legal system:  The act and the accompanying state of mind of the actor.

Apparently, the best that Whitman can argue is that while she did perform the acts – receiving and then rapidly selling discounted shares unavailable to ordinary retail investors from a vendor (Goldman Sachs) competing for work from her principal (eBay) – she is not a criminal because Goldman Sachs had other reasons for favoring her: for example, she was rich.

No formal fact-finder such as a judge or jury has passed judgment on what happened, including Goldman Sachs’s alleged innocence in demonstrating favoritism to Whitman, who also served briefly on the Board of Directors of Goldman Sachs.  Therefore, she’s not a criminal under the law. But was she ethical?

The House Financial Services Committee released data to the public in early October 2002 regarding the spinning issues, naming beneficiaries of Goldman Sachs that included Whitman.  According to eBay’s Code of Business Conduct and Ethics adopted by eBay in 2002 under the section “Receipt of Favors and Gifts” Whitman’s conduct in the spinning adventures would have been expressly unethical had these principles and rules been effective while she spun, notwithstanding her pre-existing wealth or Goldman Sachs’s alleged innocent reasons for favoring her.

Essential issues, such as whether Whitman requires express and detailed guidance from others in order to behave ethically and whether she can admit to having acted unethically, are still unresolved.

The excuse that “it wasn’t expressly prohibited when I did it” might have proven useful in fending off regulatory agencies such as the Securities and Exchange Commission, but how persuasive is this excuse in the context of determining what is ethical?

Couldn’t Whitman have determined, on her own, the implications of receiving favors and gifts from vendors?  Is she to be held to the same standard as my 12-year-old daughter who ate all of the chocolate chip cookies because I didn’t say she couldn’t?

Whitman may be many things, but naïve is not likely one.  Unfortunately, receiving favors and perks on account of wealth and position is neither unusual nor novel, and determining precisely whether Goldman Sachs’s favors were attributable to her highly valued personal portfolio of investments or her position as eBay CEO is presently irrelevant.

The existence of express prohibitions in eBay’s Code of Business Conduct against receiving the kinds of favors and gifts that she had received from Goldman Sachs might have been a condition of settlement with regulatory authorities or perhaps indicative of the proverbial “closing the barn door after the horses have left.”  I don’t know.

Whitman has neither conceded that her spinning conduct was unethical nor conceded that there’s something broken in a social system that allows the wealthy to benefit at the expense of the ordinary. California voters will have to decide what that says about Meg Whitman’s ethics and her fitness to be governor.

Assistant Professor David Shapiro teaches courses in  Financial Accounting, Management Accounting,  Forensic Accounting, Forensic Financial Analysis, and Public Sector Accounting and Auditing. His research is focused on measuring and evaluating the relationship between law and financial fraud. He has worked extensively in the private sector, conducting numerous investigations of misappropriations, fraudulent financial reporting, and corruption in different types of organizations, including public filers and labor unions. He is a contributing author to the “CPA’s Handbook of Fraud” published by the American Institute of Certified Public Accountants.