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Jerry, eMeg and the Goldman Sachs Connection

Tuesday, April 20th, 2010

Moments after Jerry Brown finished a press conference at the California Democratic Convention, where he had just challenged his Republican rivals to join him in a set of pre-primary debates, Calbuzz accosted him as he strode down the hall to his next event, trying to squeeze in one extra question.

“How about Goldman Sachs?” we asked him. “How important to the campaign is Meg Whitman’s connection?”

Brown’s eyes flashed red, smoke blew from his nostrils and fire flew off his tongue, but before he could answer, campaign manager Steve Glazer rushed up to protest: “We’re not giving not any walking interviews!”

And just like that, the presumptive Democratic nominee for governor thought better of his impulse, smiled slightly and said, “If I answer that, you won’t write about the debates.”

Brown, with Glazer keeping tabs

The hallway scene at the J.W. Marriott Hotel on Saturday morning spoke volumes about two important elements of Brown’s campaign for governor:

On one level it was a tribute to the indefatigable efforts of Glazer to work the impossible: keeping the famously undisciplined Brown from flapping his gums and straying from his appointed message.

It was also testament to Brown’s obvious desire to open a line of full-throated populist attack on GOP front-runner Whitman — portraying her as a tribune of corporate excess and Wall Street greed and using her multiple links to Goldman Sachs as Exhibit A in making the case.

With the Securities and Exchange Commission formally charging the huge investment bank with fraud last Friday, Brown’s campaign has been handed a fresh opportunity, not only to disrupt the Whitman campaign narrative that her executive business experience splendidly qualifies her for governor, but also to perform political jujitsu on the exorbitant campaign spending eMeg is fronting with her personal fortune.

At a time when public resentment runs high against Wall Street banks, and the obscene taxpayer bailouts they’ve received, the SEC’s fraud case against Goldman Sachs is a clear and high-visibility symbol of the avarice and recklessness that fed the recession-triggering sub-prime mortgage/credit default swap/collateralized debt obligation scandal (for those still trying to cut through the complexities of this, Michael Lewis’s “The Big Short” is a must-read).

No less a source than the Wall Street Journal, which included a sidebar on the governor’s race (subscription required) in its page one, double-truck Monday coverage of the SEC-Goldman case, forecast “the furor…could become a sticky issue” in the California campaign.

“Over the course of this campaign, I think the voters are going to be fully aware of Meg Whitman’s financial dealings at Goldman Sachs and they’ll hold her accountable for them,” Brown spokseman Sterling Clifford, told the Journal.

The esteemed Christian Science Monitor also weighed in with a piece on how the Goldman Sachs case could “roil” the governor’s race.

“Whitman has to demonstrate how she was not one of the black hats at Goldman Sachs. In other words, she’ll have to explain herself – not an enviable position for a candidate,”  Steven Schier, a political scientist at Carleton College in Northfield, Minn., told the Monitor.

Calbuzz has previously published a leading expert’s analysis of eMeg’s involvement in the stock “spinning” scandal, perhaps the most problematic aspect of her Goldman Sachs connection, while Lance Williams and Carla Marinucci have reported on others, in a fully detailed primer on the issue  published jointly by California Watch and the Chronicle.

Candidate Meg Whitman touts her experience at eBay, the online auction hous

e that made her rich, but her career and personal fortune are entwined with another company: the Goldman Sachs investment bank, a major player in public finance in the state she wants to lead.

Whitman’s relationship with the giant Wall Street firm — as investor, corporate director and recipient of both insider stock deals and campaign donations — could pose conflicts of interest if the Republican front-runner is elected governor of California, critics say.

Some Whitman boosters, led by Republican blogger Bill Whalen, have been whistling past the graveyard, arguing that because Brown’s sister, former state Treasurer Kathleen Brown, is a former Goldman Sachs executive, Jerry Brown will be loathe to gamble on going after Her Megness on the issue.

Putting aside the total false equivalency of the comparison, Calbuzz will be more than happy to take that bet.

Meanwhile, Over in Clovis: KTVU-TV got  eMeg to respond to Brown’s call for three-way debates:  “I think it’s a political stunt to avoid giving specifics. You know,  I have a very specific policy agenda that has been outlined and Jerry has not given a single specific plan on virtually any of the crises that face California.”

Whitman, of course, is right that the debate gambit was a political stunt. But a clever one that gave  the aforementioned Glazer license to reply:

“Perhaps because she has failed to vote for most of her adult life, Ms. Whitman doesn’t understand the voters need for straight talk and honest discussion in an election. Calling an unscripted debate about the serious challenges facing California a ‘political stunt’ shows total disregard for the voters.”

Furthermore, Glazer said,  “From the fake town hall she filmed for her infomercial (coming soon to a station near you) to the 48-page photo album she calls a ‘plan’ and using a business group as a front for attack ads, Meg Whitman has run a campaign wholly based on stunts.”

Why Brown Won’t Unload on eMeg at Dem Convo

Friday, April 16th, 2010

You could argue that Jerry Brown, who is going to be his party’s nominee for governor, ought to accept the notion that Meg Whitman is going to be the Republican nominee and should begin campaigning against her at the California Democratic Party convention this weekend in LA.

The general election is already under way, says this argument, posited mostly by progressive Democrats, and Brown is just wasting time, letting Whitman get away with murder as she gains positive name ID using corporate CEO as a brand. Given the scandal in the banking industry, Wall Street’s misadventures and the collapse of the American economy, who would ever have thought that a candidate could gain traction as a corporate bigwig?

Whitman’s succeeded so far because no one is attacking her from the left (except Level the Playing Field and the California Accountability Project, neither of which has put their anti-Meg slams into serious TV). eMeg’s GOP opponent, Steve Poizner, attacks Whitman from the right – which actually helps her look somewhat moderate in the general election against Brown.

So with all the news organizations gathered in LA for the Democratic convention, why not use the opportunity to get some free media and launch an all-out attack against eMeg? Frame it around three bullet points:

1) She’s a corporate fat cat who’s out of touch with real people and in cahoots with the greedy, bloodsucking parasites on Wall Street who have wrecked our economy.

2) She’d undo California’s progressive laws seeking to reverse global warming and set polar bears out on ice floes.

3) She’d build more prisons at the expense of schools – how’s that supposed to help California grow jobs and become more competitive in the modern economy?

Yes, Brown could fall prey to the siren song of a full-time, 24-7, balls-to-the-wall general election starting right now. And be broke by Labor Day.

Further, you might ask, why would he want to poke a stick at Whitman right now? Let sleeping billionaires lie seems to make more sense. Why do anything to encourage Whitman to start spending any of her unlimited funds on Brown any earlier than it’s gonna happen anyway?

Which is why, when Brown speaks Saturday, he’s likely to rally the Democratic base and speak harshly in general about Republicans, but not too personally about Whitman. There will be some obvious references: you can’t do a populist jeremiad without bellowing about the bankers on Wall Street and their black-hearted corporate cronies. But don’t expect too much about Goldman Sachs, eBay stock spinning and investments in Skype.

As one strategist close to the Brown campaign told Calbuzz: “It would be a waste of opposition research to roll it out now.”

Sure, we’d love to see the fireworks. But then again, we don’t have to maintain the fire.

That’s the story of the Hurricane: Once again, Carly Fiorina is shocked – shocked! – to learn of alleged unsavory, perhaps illegal, conduct by employees under her watch as CEO of Hewlett-Packard. As all good Calbuzzers know, Hurricane Carly has already professed to know nothin’ about nothin’ to do with HP’s shipments to Iran of hundreds of millions of dollars of products, through a third party company, during her tenure.

Now comes the Wall Street Journal (subscription) to report that the SEC and the U.S. Justice Department have joined the governments of Russia and Germany in investigating allegations that HP went to the wallet for $11 million in bribes to win a lucrative contract with the Russian prosecutor general’s office, while Fiorina was in charge. So, for the second time, iCarly is rolling out her see-no-evil, hear-no-evil act:

“Carly has no knowledge of these alleged actions,” said her spokeswoman, Amy Thoma. “When she served as the CEO of HP if she had been aware of any illegal or inappropriate behavior by any employee she would have taken action immediately to terminate the parties involved.”

Which leaves four possibilities:

1) Double agents in the German and Russian governments, joined by moles in the SEC and DOJ, have all been duped by demon sheep in the Chuck DeVore for Senate campaign into leaking word of a baseless, phony investigation.

2) Fiorina, who never stops boasting of what a swell job she did as HP CEO, was simply ignorant of what was going on in her own company.

3) The whole messy business has slipped her mind.

4) She’s lying.

Calbuzz bets: 2) or 4).

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.