Archive for the ‘Corporate governance’ Category

Mark Ames: Failing Up With Citigroup’s Dick Parsons

Yves here. Even though I pointed to this article yesterday, it is such a prototypical story of a type of success peculiar to Corporate America that I thought it warranted being featured.

By Mark Ames, the author of Going Postal: Rage, Murder and Rebellion from Reagan’s Workplaces to Clinton’s Columbine. Cross posted from eXiled.

This article was first published in The Daily Banter

Last month, shareholders finally rebelled against Citigroup, the worst of the Too Big To Fail bailout disasters, by filing a lawsuit against outgoing chairman Dick Parsons and handful of executives for stuffing their pockets while running the bank into the ground.

Anyone familiar with Dick Parsons’ past could have told you his term as Citigroup’s chairman would end like this: Shareholder lawsuits, executive pay scandals, and corporate failure on a colossal scale. It’s the Dick Parsons Management Style. In each of the three companies Parsons was appointed to lead, they all failed spectacularly, and somehow Parsons and a handful of top executives always walked away from the yellow-tape crime scenes unscathed. Read the rest of this entry »

Sequoia Fund Manager Campaigns Against Goldman Board Member, Former Fannie CEO Jim Johnson

A telling taboo in elite circles is the issue of corruption. At INET last year, after a panel discussion on the financial crisis, Jamie Galbraith said he was astonished that there was not a single mention of fraud. His observation was met with a resounding silence.

Similarly, I had a colleague tell me today that I shouldn’t use the “c” word, meaning corruption, since it would alienate potential allies. The logic is similar to arguments against being shrill. He claimed that even if a lot of people in positions of authority engage in corrupt looking behavior, that doesn’t mean they understand it to be corrupt, so calling the corrupt will merely get them worked up to no useful end. They could well think they are doing the right thing and just be victims of cognitive capture.

I deeply oppose this line of argument. First, it assumes that decision-makers don’t recognize when they are taking ethically problematic actions. The people I know who have yielded to institutional pressures to do the wrong thing say they knew they were doing so and found a way to rationalize it. And I suspect even sociopaths know where the lines are. They have to do a better job of covering their tracks when their conduct is dubious.

Second, it assumes that it isn’t worth taking a firm position on ethics because it will turn off powerful people who have engaged in questionable behavior. Better to be less accusatory in order to have a dialogue with them. I don’t buy that because being indulging their justifications of their conduct helps preserve a bad status quo.

One aspect of American exceptionalism is many still believe the US is cleaner and more above board than most other advanced economies. But if you go overseas, you will find that a lot of businessmen see the US as not particularly ethical. One British colleague who has worked with major US firms described the US as becoming more and more a scam-based economy (in fairness, he was really talking about the financial services industry). An American who works a great deal with foreign investors said his clients saw the US at best as on a par with other big countries, at worst, with Russia.

One of the big reasons for the erosion in US behavior is the notion that elite crimes shouldn’t be prosecuted because it would harm the system. Glenn Greenwald describes the pardon of Richard Nixon as a critical embodiment of this principle. And while people in influential positions have long been able to get away with all sorts of bad conduct, it’s one thing to have, say, speeding tickets disappear quietly (the hoi polloi are no wiser) and quite another to have a tax cheat oversee the IRS. In the old days, propriety and reputations mattered, and that served to check bad behavior.

So it is important to define norms and not shy away from words like “fraud” and “corruption” when they fit. While it would be nice if more people in power were capable of feeling guilt, shame will do. Thus naming and shaming are legitimate strategies for letting the elites know that the broader public is not fooled.

It’s also important to recognize that some people at the top of the food chain are willing to criticize bad actors. Ruane, Cunniff & Goldfarb, the well respected investment firm that among other things, manages the fund Sequoia, sent out a letter that is blistering by the reserved standards of that industry. It says that former Fannie chief Jim Johnson, who is currently on the board of Goldman and Target, is not fit to serve on any corporate board. Those of you who read the book Reckless Endangerment may recall the detailed discussion of how Johnson aggressively cultivated support in Washington and helped forge a coalition among affordable housing backers, banks, realtors, and homebuilders (I read the book as being far more anti-Jim Johnson than anti the GSEs per se).

The Sequoia letter says it will vote against Johnson continuing as a Goldman board member and urged clients to join them in opposing him. It describes how Johnson has “been at the center of several egregious corporate governance debacles,” not just at Fannie but also as a board member of United Healthcare and KB Homes. Oh, and he also got a Friend of Angelo sweetheart loan, when with his rich pay package, he was hardly in need of a break on his mortgage.

I urge you to read this short, scathing letter in full.

It’s welcome to see an investor wage a campaign against a tainted board member, particularly one seen as particularly connected and influential. Along with the investor rejection of Vikram Pandit’s pay package, this may be the beginning of a long overdue demand for greater accountability from the governing classes. And these calls are harder to ignore when they come from experts and peers.

On the Continuing Oxymoron of Ethics at Harvard

There is so much crookedeness among our elites that it’s hard to know, absent more systematic study, whether Harvard is playing a leading role in this decline.

However, the glaring gap between Harvard president Drew Faust’s talk on ethics and her recent actions has stuck with me and I’ve concluded it merits discussion.

One of the basic rules of corporate behavior is that who you pay, promote, and appoint to plum jobs sends strong messages about what sort of behavior the organization really values, as opposed to the ones it professes to value. One common way in which companies signal that the official policies don’t matter all that much is via the Big Producer Syndrome. That occurs when individuals or units not only reap high compensation and other rewards, but are also subject to lower oversight. Most Wall Street firms, in the days when they were partnerships, recognized the need to strike a balance between giving employees the latitude to grasp fleeting opportunities and making sure they didn’t wind up doing harm to the franchise in the long term. The firms that didn’t manage that tension well over time were less successful than the ones that did. But that concern has long gone out the window in a world where financial services companies play with other people’s money and the notion of ethical standards is a quaint relic.

Nevertheless, when the ethics of executives generally and some of its graduates in particular come under harsh scrutiny, Harvard Business School tries to do a bit of image burnishing. After HBS grad Paul Bilzerian was sentenced for securities fraud in 1989, which was also when savings and loans and leveraged buyout companies were collapsing, the school went through a bit of soul searching. I was told by someone deeply involved in fundraising that it had concluded, based on some study, that ethics could not be taught, so it needed to rethink how it selected incoming students. I doubt anything came of that, since there hasn’t been any evidence of meaningful changes in Harvard’s or other school’s screening policies. Sociopaths could easily game any questions aimed at getting at ethical stances and real due diligence on that front would take more time and effort than an admissions department could undertake.

Fast forward twenty plus years. We’ve seen widespread bad behavior among the political and corporate elites, with Harvard at least holding its own. Former Harvard president Larry Summers was singled out by Inside Job as an example of corruption among academic economists. That isn’t surprising, since Summers protected fellow Harvard economics professor Andrei Shliefer when he and one Jonathan Hay were charged with conspiracy to defraud the US government, and Harvard was sued for breach of contract over an advisors program Shliefer and Hays ran in Russia in the 1990s. Some have claimed the real reason the faculty eventually revolted against Summers wasn’t his famed foot in mouth incident about women in math, but simmering anger about the failure to take action against Shliefer given that Harvard paid at least $31 million to settle the litigation.

Summers’ successor, Drew Faust, has tried to signal that Harvard has changed direction under her leadership, but her gestures range from unconvincing to all too revealing. For instance, she talked a good deal about how Harvard Business School had lost its ethical direction (that of course assumes it ever had one) and made a great deal of fuss about the selection of a new new dean who would help remedy this problem. From the Boston Globe:

A professor who has a strong interest in business ethics will become the new dean of Harvard Business School, at a time when the corporate world’s image has been pummeled by fallout from the 2008 collapse of financial markets and ongoing allegations of corruption and greed….

In his more than two decades on the school’s faculty, Nohria has been particularly active in business ethics, frequently writing and speaking on the need for changes in business and leadership training. A 2008 article written by Nohria and fellow faculty member Rakesh Khurana for the Harvard Business Review said “managers have lost legitimacy over the past decade in the face of a widespread institutional breakdown of trust and self-policing in business.’’ The two called for a “rigorous code of ethics’’ for business leaders, similar to the medical profession’s Hippocratic Oath.

If you believe crossing your heart and swearing you will behave in an upstanding manner will make an iota of difference in corporate conduct, I have a bridge I’d like to sell you.

Indeedm, Faust seems to be a fan of the sort of ethics posturing that is regularly lampooned by Lucy Kellaway of the Financial Times. Last April, she pointedly refused to take up a call by professor and former Harvard college dean Harry Lewis to criticize (mind you, merely criticize) professor Michael Porter for his role in producing a well paid report that depicted Libya as a shining example of democracy. Per the Harvard Crimson:

In February 2006, Porter presented a 200-page document to officials in Tripoli as a consultant to Monitor, a firm formed by several Harvard professors that was under several million-dollar contracts with the country.

In the report, Porter argued that Libya “has the only functioning example of direct democracy on a national level,” and that Libyans were able to directly contribute to the decision-making process, which drew heavy fire from Lewis in yesterday’s Faculty meeting.

“To put it simply, a tyrant wanted a crimson-tinged report that he was running a democracy,” Lewis said, bringing up the question of whether the University should acknowledge the “shame” when a faculty member disgraces the University in such a way…

In response to Lewis’ criticism, Faust said that it was not the president’s responsibility to serve as “public scolder-in-chief.”

She said that Harvard recently conducted a review of the University’s policies on conflict of interest. But she said it should also be the University’s priority to support all faculty members to pursue academic inquiry.

I’m sure you recognize the Newspeak. Being paid lots of money to gain access to a valued brand is depicted by Faust as “academic inquiry.”

In January, Faust again showed what the real game is at Harvard by naming Krishna Palepu, a professor at HBS, as her senior advisor for global strategy. An article in Harvard Gazette makes clear that he’s not simply providing input to Faust and other University leaders but also playing an important ambassadorial role:

As senior adviser, Palepu will work closely with the president, provost, and colleagues to help guide the University’s international strategy, refine and test some operational proposals of the International Strategy Working Group, and develop a more effective and coordinated approach to international fundraising and to engaging Harvard alumni living abroad. Palepu will consult widely with colleagues within the University and in the broader Harvard community as he undertakes this role.

In case you missed it, “engaging Harvard alumni living abroad” translates as “traveling to fundraise from rich alumni living overseas.”

Why is this a cause for concern? Palepu is accounting professor turned governance guru who took huge consulting fees by Indian standards while serving as a director of what turns out to be the largest corporate fraud in the history of the country, Satyam Computer Services. An op-ed by Premchand Palety in Mint, one of the biggest daily business newspapers in India, depicts Palepu as a bad role model in the ethics department:

Now the big question arises about the role of independent directors who are supposed to protect the interests of investors…Krishna G. Palepu, who belongs to Harvard Business School, has been too closely associated with Raju to qualify him for an independent director’s post. He has been [founder Ramalinga] Raju’s adviser for over a decade and was also actively associated with the Satyam Learning Centre in Hyderabad.

Palepu should have recused himself from taking the responsibility on grounds of conflict of interest…Palepu and Rao [another business school professor on the board] should have shown their leadership skills in influencing Raju to follow a better governance model . If Raju thought otherwise, as a last resort, they should have resigned from the board. Unfortunately they did nothing of the sort and have lowered their image and also the image of the institutions they represent…

The following is an excerpt from Palepu’s bio data on the Harvard Business School website:…

“Professor Palepu’s current research and teaching activities focus on strategy and governance…

In the area of corporate governance, Professor Palepu’s work focuses on how to make corporate boards more effective, and on improving corporate disclosure. Professor Palepu teaches these topics in several HBS executive education programmes aimed at members of corporate boards: Making Corporate Boards More Effective, Audit Committees in a New Era of Governance. He also co-led Harvard Business School’s Corporate Governance, Leadership, and Values initiative, launched in response to the recent wave of corporate scandals and governance failures.”

Is it so difficult to practice what you preach, Professor Palepu?

The past few months have witnessed many scams in the corporate world; most of them have been a result of bad governance and unethical practices…

The best way to inculcate ethics among students is to have a culture of ethics in the institutions, with faculty members as role models. Rao and Palepu have set a bad example by their conduct in the Satyam-Maytas case. They need to own up responsibility.

Note that this pointed piece ran on December 28, 2008. On January 7, 2009, Raju admitted that Satyam’s accounts were bogus (among other things, Raju had been withdrawing funds monthly to pay for 13,000 fictive employees). Per Wikipedia:

On 10 January 2009, the Company Law Board decided to bar the current board of Satyam from functioning and appoint 10 nominal directors. “The current board has failed to do what they are supposed to do. The credibility of the IT industry should not be allowed to suffer.” said Corporate Affairs Minister Prem Chand Gupta.

So the apparent message from Drew Faust is that being directly involved in an Enron-level scandal doesn’t count if it took place in a third world country. She is happy to have what amounts to a corporate governance fraud as a face to the international business community.

Faust can talk all she wants to about ethics. Her actions repeatedly indicate she isn’t willing to take any action that might get in way of the University’s fundraising or “entrepreneurship” by individual professors. I quit giving money to Harvard long ago, and her stance confirms my decision.

Bank of America Prepares Emergency Plans at Fed Behest, May Need to Amputate on Geographic Basis

As we’ve said repeatedly, despite bank executives braying about the need to be bigger to compete or to gain efficiencies, the evidence runs completely the other way. Every study on bank efficiency in the US has found that once banks hit a certain size level (the most commonly found one seems to be ~$5 billion in assets) banks exhibit a slightly positive cost curve, which means they are more, not less, costly to run. Any economies of scale are probably offset by diseconomies of scope.

So why do bank executives sell and act on a patently phony story? Aside from the fact that doing deals is much more fun than managing a business, the BIG reason is CEO pay is highly correlated with the size of the bank, measured in total assets.

So no one should cry at the prospect that Bank of America might have to shrink to if it continues to be in financial and litigation hot water. Those of you who have been in the financial services industry will recall that it was built out of mergers of large regional banks: NCNB (North Carolina National Bank, later Nationsbank) ate First Union, Bank of America, Fleet, and of course, Countrywide and Merrill.

The Wall Street Journal has gotten some details about “emergency moves” the Charlotte bank would take if it condition worsens. This is not its Dodd Frank mandated “living will” but apparently a set of plans prepared at the request of the Fed. Bank of America is on a short leash known as a memorandum of understanding, which is accompanied by more intrusive oversight.

What is striking is that it did not contemplate a sale or spinoff of Merrill Lynch, which is the operation which makes it most difficult to resolve. Instead, it would issue a tracking stock as a way to raise money.

In other words, even for a bank developing scenarios on how to cope with serious financial trouble, the priority is to raise dough quickly rather than reconfigure the business into something tidier. Even if still not TBTF, it would be less costly to rescue. But, predictably, the priorities of management and their enablers, the regulators, is to prefer quick fixes to badly needed surgery.

Notice that a Countrywide bankruptcy was apparently not included as an option.

From the Wall Street Journal:

Bank of America Corp. has told U.S. regulators that it is willing to retreat from some parts of the country if its financial problems deepen, according to people familiar with the situation….

Bank of America Chief Executive Brian Moynihan put a possible geographic retrenchment on the list submitted in the middle of last year to Fed officials. Also on the list is a potential sale of a separate class of shares tied to the performance of Merrill Lynch & Co., the securities firm owned by Bank of America, according to people familiar with the matter. Merrill was sinking when Bank of America swooped in to buy the firm in 2008, but has since turned itself around. The Fed, which acts as the company’s primary regulator, asked for documentation about contingency plans last year in response to uncertainty about a U.S. recovery and the downward swing in Bank of America’s share price.

The drastic moves would be seriously considered only if Bank of America needs to raise more capital to cushion itself from mortgage woes and other turmoil. The exercise wasn’t intended to force immediate action but rather to prepare Bank of America if its situation worsened, according to a person familiar with the Fed’s approach….

The bank still is operating under a secret U.S. sanction known as a memorandum of understanding, which puts the bank under stricter oversight, despite steps taken by Mr. Moynihan to consolidate risk controls and shed assets. Regulators have warned the board that the sanction could escalate to a more formal, public enforcement action if they aren’t satisfied with the results of the ongoing shake-up.

The article also devotes a surprising amount of space to CEO Brian Moynihan’s leadership. Needless to say, it portrays him as struggling. This sort of account would normally be a sign that he was on his way out, and the story suggests the board would be rid of him if they thought it could find a better replacement:

Another person familiar with the board’s recent discussions about Mr. Moynihan said they are working hard to help him improve his performance. “Who else is going to run the ship?” this person said. “That’s a dilemma.”

As a mortgage investor said to me, “Can you imagine what it’s like being C level at Bank of America? It’s like being in the brace position on an airplane running on one engine.”

What if We Focus on Boosting Employment Rather Than Growth?

Although it is remarkably difficult to come up with decent data, from what I can tell, the Japanese bubble was considerably bigger relative to the size of its economy than the US debt binge was. Yet even though the Japanese aftermath has been remarkably protracted, and arguably worsened by a slow and cautious initial response, visitors to Japan find the country wearing its malaise remarkably well.

One of the reasons may be the Japanese preoccupation with employment. Entrepreneurs are revered not for making money but for creating jobs. Japanese companies went to great lengths to keep workers, cutting senior pay to preserve manning. That was done largely for cultural reasons, since companies are seen as being like families.

But was this preoccupation also good economic policy, and might it have played a more direct role in buffering the worse effects of the bubble aftermath? In this interview, Pavlina Tcherneva argues that the way policymakers think about growth, that demand drives employment, may be backwards.

Is Management Getting Worse?

To some readers, the answer to the headline may seem obvious: Yes, American management is clearly worse than it was, say, thirty or fifty years ago, because short-termism is endemic among public companies, and short-termism leads to all sorts of bad outcomes, like underinvestment and accounting gaming.

But that analysis is simplistic. Short-termism simply shows that management has adopted good for them, bad for pretty much everyone else (save maybe their bankster allies) goals and are pursuing them aggressively.

A comment by John Kay of the Financial Times has the effect of raising much more fundamental questions about the caliber of top managers. Forgive me by starting with a personal anecdote. When I was at McKinsey in the early 1980s, one of my clients was then then Citibank. The partner on the account asked me to get the organization charts of the major investment banks (commercial banks in those days were desperate to become investment banks and not very good at most of the investment banking businesses they could participate in, like M&A and private placements).

I knew Citi’s problem was not its organizational structure but its culture, so I dutifully followed orders, got the org charts, and then wrote a presentation that contrasted how investment banks operated versus commercial banks on five major issues. It became a best seller at Citi.

More than 20 years later, when I saw the partner who was still at McKinsey, he remarked, “You remember that document you wrote on investment banking culture? They are still using some of the slides at Citi.” He thought that was a good thing.

I thought it was a bad thing. It meant Citi had still not learned the lesson of the presentation.

Now to Kay. His article keys off a new book, Good Strategy/Bad Strategy, by Richard Rumelt at the Anderson School at UCLA. What I found disconcerting was this passage, which effectively says that despite the greatly increased presence of MBAs in the corporate world, business practice has not improved and has maybe even regressed:

The message of Prof Rumelt’s book is that strategy is really just careful thinking about business problems. Checklists – Swot (strengths, weaknesses/limitations, opportunities, threats), five forces or seven Ss – are popular because they are a starting point for people who are unaccustomed to structured thought. Good strategy begins with diagnosis. And diagnosis is analysis, not a description of symptoms. You don’t go to your doctor to be told you have a sore throat. You go to be told you have an infection and that an antibiotic will fix it. The doctor tries to discover “what is really going on here?” and the measure of his competence is his ability to do that.

If that also sounds obvious, it isn’t what business people typically do. In the business world – as sometimes in the surgery – the reputation of the CEO or value of the consultant is measured not by the accuracy of the diagnosis but by the confidence with which the prescription is dispensed. Many business gurus resemble George Bernard Shaw’s doctor, Sir Colenso Ridgeon, who treated every ailment with an exhortation to “stimulate the phagocytes”. Their PowerPoint presentations reiterate the patient’s complaint and prescribe their universal template.

Now I am big on stating the obvious, that the MBA is an overrated degree. But one of the things that that degree does provide is some commonsensical frameworks and tools. And naive me, I had assumed that the big reason that the big consulting firms like McKinsey were doing less good old fashioned strategy work was that the prevalence of MBAs meant that big companies were now doing more of the analytical work related to strategy in-house.

But Kay’s observations suggest instead that the effect of more “professionalized” management, perversely, is a greater need to be on the cutting edge of conventional wisdom in order to stand out, which makes them even more susceptible to hucksterism.

An alternate interpretation is that the short-termism has promoted faddishness, since any con that is good enough to enlist top managers can also be sold to the great unwashed investing public, and will pop a stock for a while (or even longer: look at how much the market liked “reengineering” and “outsourcing” and “offshoring”). Or maybe prolonged use of PowerPoint makes people stupid.

“Summer” Rerun: Why Big Capital Markets Players Are Unmanageable

This post first appeared on July 8, 2009

John Kay comes perilously close to nailing a key issue in his current Financial Times comment, “Our banks are beyond the control of mere mortal” in that he very clearly articulates the problem very well but then draws the wrong conclusion:

At Oxford university, I often hear people say there is nothing wrong with the system: the problem is the vice-chancellor/master/bursar/ university officials. And, in a sense, they are right. If the vice-chancellor had the wisdom of Socrates, the political skills of Machiavelli and the leadership qualities of Winston Churchill, not to mention the patience of Job, he or she would be very likely to be able to fulfil the conflicting demands of the post. But such paragons are few and far between. In the meantime we must try to find structures that can be operated by ordinary mortals.

In the same way, the claim that the fault with the banking system lies not with the structure of banks but with the boards and executives that claimed to run them is both correct and absurd…if the failures are both as widespread and as persistent as it appears, the problem is in the job specification rather than with the incumbent. If you employ an alchemist who fails to turn base metal into gold, the alchemist is certainly a fool and a fraud but the greater fool is the patron.

The bank executives pilloried by the UK’s Treasury select committee of MPs were all exceptional people. The vilified Sir Fred Goodwin was an effective manager who had slashed through the National Westminster bureaucracy and revived a failing institution – a task that had defeated many able men before him. His chairman, Sir Tom McKillop, offered experience and ability that met every possible specification for such a role in a big international corporation. As chairman of HBOS, Lord Stevenson was Britain’s supreme networker. This skill is a particularly valuable attribute in an environment where the essence of banking is to extract very large sums of taxpayers’ money while giving as little as possible in return. His chief executive, Andy Hornby, was criticised for being a retailer. But Halifax, half of HBOS, needed retail expertise. The only thing it needed to know about complex securitised products was that there was no good reason to buy them.

Like Sir Fred, Sir Tom, Lord Stevenson and Mr Hornby, most of the people who sat on the boards of failed banks were individuals whose services other companies would have been delighted to attract…

The hapless four were criticised for their lack of banking expertise but it is, in fact, not clear what modern banking expertise is. The world of modern banking requires all the skills of these gentlemen, plus some others, and no one can expect to have all these attributes.

It has been said of Jamie Dimon (who does not have a banking qualification) that his dominance exists because at every meeting all the participants know that he could do each of their jobs better than they could. But the business world cannot operate at all if it can operate only with individuals of the calibre of Mr Dimon. Better, as so often, to follow an aphorism of Warren Buffett’s: invest only in businesses that an idiot can run, because sooner or later an idiot will.

Our banks were not run by idiots. They were run by able men who were out of their depth. If their aspirations were beyond their capacity it is because they were probably beyond anyone’s capacity. We could continue the search for Superman or Superwoman. But we would be wiser to look for a simpler world, more resilient to human error and the inevitable misjudgments. Great and enduringly successful organisations are not stages on which geniuses can strut. They are structures that make the most of the ordinary talents of ordinary people.

The problem is Kay is applying traditional managements structures to investment banking, Even though these entities may have substantial retail arms and bank charters, the area that poses the management challenge is the capital markets businesses. And he makes a dangerous, erroneous assumptions: that mere mortals, meaning generalists, can run these businesses. That is bogus.

What makes capital markets businesses different from any other form of enterprise I can think of is the amount of discretion given of necessity to non-managerial employees, meaning traders, salesmen, investment bankers, analysts. In pretty much any other large scale business, decisions that have a meaningful bottom line impact (pricing, new sales campaign, investment decision) are deliberate affairs, ultimately decided at a reasonably senior level. The discretion that customer-facing staff have in pretty much any business in limited. At what level does someone have the authority to negotiate a contract? And even then, how many degrees of freedom do they have?

By contrast, think how many decisions traders and salesmen in capital market firms make in a day, and their potential bottom line impact (though experiment: how much damage could a truly vindictive trader do in a day or a week, if he decided to blow up his employer?) Investment bankers work over longer time frames, and like many normal businesses, have a lot of things routinized so as to make them more efficient, but it also limits their latitude (standard forms for many types of client agreements, standard pitch book formats, etc). However, unlike “normal” businesses, a frequent activity in investment banking is creating new products, often in a very ad-hoc way, with teams with relevant skills thrown together to try to push something through. The politics are often sharp-elbowed, but people are too pragmatic to let turf issues interfere with getting a new deal launched).

The approach for managing these businesses in the days of partnerships, when the owners were personally liable for losses, was to have small units with partners running them who knew the business and could oversee it properly. Effectively you had four layers: associate/analyst (the college kids, the analysts, did pretty much the same stuff the associates did, who usually had MBAs, except the MBAs got to go to client meetings more often), VPs, and partners, but some of the more senior partners were department heads in units that also had partners (who’d manage either people on their desks, if traders of salesmen, or if in investment banking, had accounts and various VPs and associate types working on each client). But those department heads had also grown up in the business, and were still active in it. Heads of significant departments in turn would be on an executive committee, a part-time role.

The problem with this model is it starts to come under strain when the partner group gets too large. And OTC markets have strong network effects, so having bigger market share confers a competitive advantage. And now there are high minimum scale requirements for being in the business. You need to be in all major times zones with a pretty broad product array. all kinds of back office support, all kinds of IT for risk management, communications, position management…

So the scale of operation required to be competitive is too large for it to be managed by player-coaches who had deep expertise, and like the Dimon example, were more expert than the people working for them. But the normal corporate/commercial banking management structure, with more managerial layers, and the top brass having broader spans of control, was devised in earlier stages of industrial organization, when you had factories or service business with a great deal of routinization of worker and middle manager tasks. Traditional commercial banks are on the same factory format. They handle large volumes of very simple, standard transactions with a high degree of control and oversight. That’s a big reason why it took commercial banks over 15 years to make meaningful headway against investment banks. Although regulations were an issue, the bigger barrier was the radical difference between the two management cultures. There was no regulatory barrier to commercial banks offering mergers & acquisitions, for instance, but they were lousy at that for a very long time.

So Kay is effectively asking for a traditional commercial banking model, businesses “that make the most of the ordinary talents of ordinary people”. There are businesses like that in banking, but they are mainly in retail banking and corporate lending. If you want that world, you need a far more radical change in the industry than anyone is contemplating now. You’d need to go to the world that Taleb advocates, From a list of his ten suggestions:

4. Do not let someone making an “incentive” bonus manage a nuclear plant – or your financial risks. Odds are he would cut every corner on safety to show “profits” while claiming to be “conservative”. Bonuses do not accommodate the hidden risks of blow-ups. It is the asymmetry of the bonus system that got us here. No incentives without disincentives: capitalism is about rewards and punishments, not just rewards.

5. Counter-balance complexity with simplicity. Complexity from globalisation and highly networked economic life needs to be countered by simplicity in financial products. The complex economy is already a form of leverage: the leverage of efficiency. Such systems survive thanks to slack and redundancy; adding debt produces wild and dangerous gyrations and leaves no room for error. Capitalism cannot avoid fads and bubbles: equity bubbles (as in 2000) have proved to be mild; debt bubbles are vicious.

6. Do not give children sticks of dynamite, even if they come with a warning . Complex derivatives need to be banned because nobody understands them and few are rational enough to know it. Citizens must be protected from themselves, from bankers selling them “hedging” products, and from gullible regulators who listen to economic theorists.

If we can’t shut down credit default swaps, which the more I dig, the more I see they had a very direct role in the meltdown CDS on subrprime mortgages started in 2004, and there is a longer form gloss as to how that played a major role, if not the key role, in the superheated demand for “product” particularly subprime, in the manic phase of the credit bubble), we will never get to a world like the one Kay wants to see, or at least not until we hopelessly break the one we have now.

JP Morgan Hit by Ripple Effects of Rakoff Decisions Nixing SEC No Admission Settlements

The wisdom of Judge Rakoff’s tough and controversial decisions taking issue with the decades-long SEC practice of entering into settlements in which companies admit to no wrongdoing is becoming apparent. This is the essence of Rakoff’s beef, as represented in his latest ruling on this topic:

[T]he Court is forced to conclude that a proposed Consent Judgment that asks the Court to impose substantial injunctive relief, enforced by the Court’s own contempt power, on the basis of allegations unsupported by any proven or acknowledged facts whatsoever, is neither reasonable, nor fair, nor adequate, nor in the public interest.

It is not reasonable, because how can it ever be reasonable to impose substantial relief on the basis of mere allegations? It is not fair, because, despite Citigroup’s nominal consent, the potential for abuse in imposing penalties on the basis of facts that are neither proven nor acknowledged patent. It is not adequate, because, in the absence of any facts, the Court lacks a framework for determining adequacy. And, most obviously, the proposed Consent Judgment does not serve the public interest, because it asks the Court to employ its power and assert its authority when it does not know the facts.

Now we’ll put aside the issue that the SEC could enter into settlements that merely provide for monetary damages (ie, the reason Rakoff reviewed the settlement was that it also included provisions that offered injunctive relief). We’ll assume the SEC deems this to be useful (presumably for the incremental PR generated by having a court approve the decision, and/or that injunctive relief can be used to fill the gap between how much the SEC would want in pure monetary terms versus what the presumed miscreant is willing to pay). Rakoff basically says that he can’t decide if any settlement makes any sense if he has no facts, and raises concerns of fairness and public purpose.

Alison Frankel at Reuters highlights a new New York appellate court decision where JP Morgan is being hoist on the Rakoff petard. Bear Stearns, which is now owned by JP Morgan, entered into a $250 million settlement in 2006 over allegations that it cheated customers by engaging in impermissible market timing. The agreement contained standard SEC “without admitting wrongdoing or denying” language. The payment broke down into $160 million of disgorgement and $90 million of penalties.

What may surprise many readers is that the $160 million disgorgment was covered by insurance, or at least JP Morgan thought it was. Per Frankel:

The insurance agreements said the bank was covered for damages awards and charges incurred by regulatory investigations, with one catch: The policies excluded claims “based upon or arising out of any deliberate, dishonest, fraudulent, or criminal act or omission,” if there were a final adjudication reflecting that wrongdoing.

The insurers said no dice, and JP Morgan took them to court to try to force them to pay. The lower court decided in favor of JP Morgan, but the appeals court reversed. And the logic is revealing:

But a ruling Tuesday by the New York state Appellate Division, First Department, suggests the boilerplate language that Ramos cited — and Rakoff has derided — may no longer offer defendants much benefit even without judges specifically rejecting it….

But the decision’s implications may be broader than that. In an opinion written by Justice Richard Andrias, the state judges simply didn’t pay much heed to the SEC “neither admit nor deny” boilerplate. “Read as a whole,” the decision said, “the offer of settlement, the SEC Order … and related documents are not reasonably susceptible to any interpretation other than that Bear Stearns knowingly and intentionally facilitated illegal late trading for preferred customers, and that the relief provisions of the SEC Order required disgorgement of funds gained through that illegal activity.” Moreover, in a footnote, the opinion referred explicitly to Rakoff’s criticism of SEC boilerplate in SEC v. Vitesse Semiconductor.

Putting on a public policy, rather than a legal hat, insurance that has the effect of letting companies and boards buy their way out of the economic consequences of bad conduct is a terrible idea. Even though it is widely accepted that no one would become a director of a public company ex directors and officers insurance, the consequences are detrimental. Why should, for instance, the directors of Lehman not be sued into penury? If we didn’t have D&O insurance, companies would have to pay directors a prince’s ransom to do the job, and a director would have to work really really hard at oversight. That would mean he could probably only sit on one board (ending the board as high level social club phenomenon, another plus) and would do a vastly better job. You’d also see an end to directors who serve as mere decoration (nice enough people, say college presidents or heads of heavyweight not for profits) but add bupkis in terms of monitoring management.

Now I’ll admit we have not seen all the implications of the Rakoff decision, but this first one seems entirely salutary. I suspect on balance, the effect will be to give companies fewer “get out of jail free” cards, which is something that everyone but the SEC and public company executive should welcome.

Corzine’s Know-Nothing MF Global Defense

Jon Corzine’s evasive testimony before the Senate Agriculture Committee was scripted so as to lay foundations for his defense against customer and possibly shareholder suits and reduce the already very low odds of an indictment.

Although I’ll touch on other interesting elements shortly, the key item from his presentation was one that the New York Times’ Dealbook noted:

“I never intended to break any rules,” said Mr. Corzine, dressed in a dark suit but without his trademark sweater vest. “I know I had no intention to ever authorize the transfer of segregated moneys. I know what my intentions were.” Mr. Corzine has not been accused of any wrongdoing….

Still, over three hours of testimony, Mr. Corzine danced carefully around questions touching on the scandal of the missing funds, using phrases like “never intended” and “not to my knowledge.”

To prove fraud, you need to prove intent. So Corzine’s insistence that he didn’t intend for customer accounts to be raided would seem to get him off the hook, unless documents or the testimony from multiple employees establishes otherwise. His justification amounts to blaming any misdeeds on the fog of war: “Yes, I told staffers to be aggressive, but I never meant for them to bayonet old women and babies.”

In other words, if anything bad was done deliberately, it was all a really big miscommunication:

He did not rule out possible wrongdoing at MF Global. In theory, an employee may have misused customer cash after misinterpreting the chief executive’s words, he said.

Now as regular readers know, CEOs morphing suddenly from Masters of the Universe to empty 42 longs who are clueless as far as operational details are concerned was supposed to go the way of the dodo bird with Sarbanes Oxley. Sarbanes Oxley requires key corporate executives, typically at least the CEO and CFO, to certify the adequacy of internal controls. For a financial firm, that has to include risk controls, which were the big point of failure in the crisis and with MF Global. And the beauty of Sarbox is the criminal provisions track the civil, so if a prosecutor were to prevail in a civil suit and thought it had enough dirt to pass the “reasonable doubt” threshold, it could file the related criminal suit.

Knowing violations of Sarbanes Oxley certifications are subject to up to five years in jail; willful violations, up to twenty years. To my knowledge, only one executive has faced charges under Sarbox: HealthSouth’s Robert Scrushy. He won that case, but as someone who followed it off and on in the Birmingham press, it is not a stretch to argue that Scrushy had a position in the Birmingham area that would make him more difficult to prosecute than most CEOs. And it it also pretty typical for it to take a while to perfect cases when using new legal arguments, so losing an early case or two is often part of the learning process.

So a “know nothing” argument would not only be useless in defending against Sarbox charges, it might actually be damaging (“How can you say you know nothing about operations yet sign that certification?”). Note that for financial statements, the usual approach is to shed liability by relying on auditors. But there are no comparable players in the risk modeling/control world. The banks are typically on the bleeding edge in some areas, which often include very profitable new strategies, which works against third party validation.

There were some other oddities in the Corzine testimony. Remarkably, he insists the firm got to be less risky on his watch because its gearing fell from over 37 to one to 30 to one. Immediately after that, however, he describes the repo to maturity trades in some detail, and points out, as others have, that they were treated as off balance sheet for accounting purposes. Since these trades were clearly NOT off balance sheet from an economic standpoint, any discussion of the firm’s true economic risk should include the repo to maturity transactions. It would clearly lead to a higher level of leverage than Corzine presented in his testimony, and likely higher than under the predecessor regime.

In fact, the repo to maturity trade had the exact same defects as the negative basis trade that we described in ECONNED, which blew up the global banking system. There, traders were able to achieve high leverage (typically, they used no capital at all) by holding AAA tranches of CDOs and hedging them with an AAA counterparty (in some cases, remarkably, a mere A rated counterparty, meaning ACA, was deemed acceptable). These were very attractive to traders because all the discounted income over the life of the trade, less funding and hedging costs, was treated as immediate profit. The magic of an AAA rating plus a hedge was treated as if all credit risk had been eliminated. We know how that movie ended.

With MF Global’s repo to maturity trades, the credit risk was effectively assumed away due to the short duration of the trade and the matched funding (and like the negative basis trade, all expected profit was recognized up front). But as has been discussed elsewhere, the people running the book forgot about mark to market risk, that if the value of the trade OR MF Global’s credit rating fell, they’d be required to put up more collateral. With MF Global not having a great credit rating to begin with, failing to recognize that they might face higher haircuts was a glaring oversight.

Finally, it appears that Corzine, thanks to the advice of the Boston Consulting Group, was in the process of trying to become the next Bear or Lehman: a subscale full service investment bank, presumably with a strength in commodities.

The Bear/Lehman movies ended badly for a simple reason: if you are going to compete directly with the big boys, you need roughly 90% of their infrastructure. The business has large minimum scale requirements: back office, computers, broad product mix to serve corporate and institutional clients, presence in major geographies, you might be able to get away with not being in certain secondary locations. Yet you only have 60% to 75% of their volume. That gives you inferior economics, which in turn puts you at a disadvantage in attracting and retaining the dreaded “talent.” Sadly, many producers do have leverage, in the sense that they can take their franchise to another full service firm. If they heads of business units leave and take their top two subordinates with them, the hole is very difficult to plug short term and will have a detrimental impact on related operations.

So what do firms in those positions do? They take on outside risks in the hopes of producing higher returns than the industry leaders, so as to make them more attractive to industry professionals and to help them over time reduce the scale gap with the leaders. But the network effects (primarily, information advantages) of being a top player are so large that even superior risk taking acumen (or just dumb luck) are almost certain to be insufficient to overcome the advantages of the very top firms.

So in other words, MF Global blowing up by taking too much risk was not an accident. It was inevitable, given its strategy, as the examples of Bear and Lehman attest (remember, Lehman suffered a near death experience in the Asian crisis of 1997). But MF Global did unravel awfully quickly. We will hopefully know in due course exactly what bad decisions and management failings were the proximate causes of its death, and more important, the loss of customer funds.

Hubris Watch: US Bank CEO Sniffs About Breaking Rules When His Bank Has Huge Trustee Liability

One of the benefits of the Occupy movement is that it is flushing out some particularly egregious behavior among the top 1%.

A writer for the Minneapolis CityPages managed to worm his way into a presentation to the annual meeting of the Minnesota Chamber of Commerce by US Bank’s CEO, Richard Davis. Even though Occupy Minnesota was protesting outside, Davis chose to ignore them. His speech made clear that the business community does not care about long-term self interest, let alone social responsibility. Housing and the foreclosure crisis were absent from the 2012 legislative priorities. But tax reform, which is code for shifting even more of the cost of government on to the small fry? Yeah, that’s a big deal.

Davis’ apparent lone comment on the public ire against the banks was dismissive:

“‘Everybody’s breaking the rules, blah blah blah,” Davis said at one point, mocking the general sentiment behind the public outrage before admonishing them to “Get over it.”

Davis’ arrogance no doubt seems justified, since only rulebreakers who aren’t in the corporate elite club, like Bernie Madoff, have been brought to justice. And he stole from rich people, which made him a prime target. By contrast, US Bank on Davis’ watch, is a recidivist rulebreaker, but he clearly regards that as a matter of no import. (Davis was US Bank’s president starting in October 2004, was promoted to CEO in December 2006, and became chairman in December 2007).

US Bank is one of the four biggest securitization trustees, along with Bank of New York, Deutsche Bank, and Wells Fargo. That, sports fans, means his bank has massive liability on mortgage backed securitizations. We discussed this issue recently as far as Bank of New York is concerned. The same logic applies to US Bank:

What has gotten less attention is the implication of the probable derailment of this deal for the Bank of New York, and its vulnerability to mortgage litigation. If you think, as banking expert Chris Whalen does, that BofA is a goner by virtue of the odds of very large damages in the various mortgage cases that are in progress, Bank of New York is a goner even faster if (and we really mean when) investors start saddling up to target the bank.

The liability of trustees in mortgage securitizations is so obvious and comparatively easy to prove that I am surprised that no one has yet gone after it. However, investors are probably understandably cautious about filing suits that might expose widespread failures of originators and pacakgers to convey mortgage loans to securitizations, which would lead to lots of collateral damage (no pun intended). The Delaware filing on the BofA settlement highlights the issue, which is that the trustees had made multiple representations in securities filings that the mortgage trusts had the assets they said they did. From our post on the Delaware filing:

And it goes straight to an issue we flagged, that the trustee makes annual certification in SEC filings, and the bar for securities fraud is much lower than under contract law theories. Delaware’s securities laws follow SEC 10(b)5 language re disclosure (that it not merely be narrowly accurate, but that it be free of material omissions). Boldface ours:

The acts and practices of BNYM alleged herein may have violated 6 Del. C. § 7303(2), in that BNYM may have made untrue statements of material fact and/or omitted to state material facts in order to make the statements made, in light of the circumstances under which they were made, not misleading. BNYM’s conduct as described above may have violated the Delaware Securities Act insofar as the Trust PSA requires the Trust annually to certify the following “servicing criteria”:

• “Collateral or security on mortgage loans is maintained as required by the transaction agreements or related mortgage loan documents.
• “Mortgage loan and related documents are safeguarded as required by the transaction agreements;” and
• “Any addition, removals or substitutions to the asset pool are made, reviewed and approved in accordance with any conditions or requirements in the transaction agreements.” [See generally, Trust PSA, [Ex W to NY Petition]].

The Delaware investors in the Trusts may have been misled by BNYM into believing that BNYM would review the loan files for the mortgages securing their investment, and that any deficiencies would be cured.

As we reported in September, lawyers had found evidence that Countrywide did not transfer the notes (the borrower IOUs) to the securitization trusts as stipulated in the pooling and servicing agreements…

Because those agreements had strict cut off dates as to when those transfers had to be completed, and governing law for the overwhelming majority of the trusts (New York law) is unforgiving on this matter (New York trusts are not permitted to deviate from their written directives) the failure to perform as stipulated cannot be remedied…Hence the widespread use of document fabrication to get around this mess.

Note that Biden is not going directly after Bank of New York. He is merely seeking to question and perhaps block the settlement with Bank of America. But the issue he raises is a nuclear weapon.

Biden is clearly well aware of the widespread failure to convey notes to securitization trusts. He made a similar argument in his filing against MERS for deceptive consumer practices. So far, he has not gone after a trustee directly, but he seems to be waiting for an opportunity to take a rifle shot.

Small scale surveys (of two counties in New York, performed by Abigail Field, plus similar studies performed by state level investigators) have found near complete fails by Countrywide, but also less total but still pervasive fails by other originators. Given that there is ample evidence in court filings of chain of title abuses in securitizations where US Bank is the trustee, there is no reason to believe it is a miraculous lone good actor.

Remember, the false certifications we cited above are in many cases ongoing (while those relating to the origination of the deal have passed the statute of limitations as far as Federal securities laws are concerned). Trustees make certifications at the closing of the deal and in annual SEC filings. Even though a trustee could file with the SEC to be exempt from the annual filing requirement if a deal had less than 50 investors, trustees generally made at least one annual filing.

And if trustees are indeed pursued for civil securities liability, it would open the door to criminal action. For a trustee, keeping track of physical documents, particularly mortgage notes, which have clear monetary value, is a basic operational competence. The trustees that screwed up on such a massive scale by definition cannot have had adequate internal controls. Yet Sarbanes Oxley required certain executives, at a minimum the CEO and CFO, to certify the adequacy of internal controls. The statutory language for criminal violations tracks the language for civil violations. Thus, success in a civil case sets up a criminal action; the only obstacle is the higher burden of proof. As we wrote:

Since Sarbanes Oxley became law in 2002, Sections 302, 404, and 906 of that act have required these executives to establish and maintain adequate systems of internal control within their companies. In addition, they must regularly test such controls to see that they are adequate and report their findings to shareholders (through SEC reports on Form 10-Q and 10-K) and their independent accountants. “Knowingly” making false section 906 certifications is subject to fines of up to $1 million and imprisonment of up to ten years; “willful” violators face fines of up to $5 million and jail time of up to 20 years.

The responsible officers must certify that, among other things, they:

(A) are responsible for establishing and maintaining internal controls;
(B) have designed such internal controls to ensure that material information relating to the issuer and its consolidated subsidiaries is made known to such officers by others within those entities, particularly during the period in which the periodic reports are being prepared;
(C) have evaluated the effectiveness of the issuer’s internal controls as of a date within 90 days prior to the report; and
(D) have presented in the report their conclusions about the effectiveness of their internal controls based on their evaluation as of that date;

These officers must also have disclosed to the issuer’s auditors and the audit committee of the board of directors (or persons fulfilling the equivalent function):

(A) all significant deficiencies in the design or operation of internal controls which could adversely affect the issuer’s ability to record, process, summarize, and report financial data and have identified for the issuer’s auditors any material weaknesses in internal controls; and
(B) any fraud, whether or not material, that involves management or other employees who have a significant role in the issuer’s internal controls

The premise of this requirement was to give assurance to investors as to (i) the integrity of the company’s financial reports and (ii) there were no big risks that the company was taking that it had not disclosed to investors.

This section puts those signing the certifications, which is at a minimum the CEO and the CFO, on the hook for both the adequacy of internal controls around financial reporting (to be precise) and the accuracy of reporting to public investors about them. Internal controls for a bank with major trading operations would include financial reporting and risk management.

It’s almost certain that you can’t have an adequate system of internal controls if you all of a sudden drop multi-billion dollar loss bombs on investors out of nowhere.

Failure to comply with the basic requirements of the pooling and servicing agreement and the institutionalized making of false certifications to investors in SEC filings would seem to constitute a gross failure of internal controls.

State attorneys general like Beau Biden and New York’s Eric Schneiderman, who is also investigating a wide range of mortgage abuses, are honing in on trustee liability. And as they get closer to the mark, investors, who are generally conservative, may finally become emboldened and follow suit. The number of filings against the proposed Bank of America $8.5 billion mortgage settlement, another case involving dubious trustee conduct, suggests that long-suffering mortgage investors may finally be roused. And that means that Richard Davis’ smug complacency may prove to be sorely misguided.

“Why Pay for Performance Should Get the Sack”

Yves here. Before reacting reflexively to the thesis of the article, consider this corroborating view from the former chairman of Goldman, John Whitehead, back in 2007:

“I’m appalled at the salaries,” the retired co-chairman of the securities industry’s most profitable firm said in an interview this week. At Goldman, which paid Chairman and Chief Executive Officer Lloyd Blankfein $54 million last year, compensation levels are “shocking,” Whitehead said. “They’re the leaders in this outrageous increase.”

Whitehead went even further, recommending the unthinkable, that Goldman cut pay:

Whitehead, who left the firm in 1984 and now chairs its charitable foundation, said Goldman should be courageous enough to curb bonuses, even if the effort to return a sense of restraint to Wall Street costs it some valued employees. No securities firm can match the pay available in a good year at the top hedge funds.

“I would take the chance of losing a lot of them and let them see what happens when the hedge fund bubble, as I see it, ends,” Whitehead, 85, said….

By Bruno S. Frey, Professor of Economics at the University of Zurich and Margit Osterloh, Professor (em.) for Business Administration and Management of Technology and Innovation, University of Zürich; and Professor, Warwick Business School. Cross posted from VoxEU

As the bonus culture in the financial sector once again comes under attack, this column rubbishes the typical defence that banks need to pay top dollar to attract the best talent.

Scientific literature has extensively dealt with variable pay-for-performance. Despite the fact that serious problems linked to this approach have thus become obvious, many authors continue to support compensation according to predetermined performance criteria because they are committed to the traditional concept of the ’homo oeconomicus’.
Overall, there has been a marked change of opinion in academia (see for instance Bryson and Freeman 2008 on this site). The idea that people are solely self-interested and materially orientated has been thrown overboard by leading scholars. Empirical research, in particular experimental research, has shown that under suitable conditions human beings care for the wellbeing of other persons. Above all, they are not solely interested in material gains (see eg Frey and Osterloh 2002). Recognition by co-workers is greatly important. Many workers are intrinsically motivated, ie they perform work for its own sake because it is found challenging and worth undertaking. This applies not only to qualified employees but also to persons fulfilling simple tasks. They often are proud of their work and performance.

There are four major arguments against variable pay-for-performance:

In a modern economy, it is practically impossible to determine tasks that are to be fulfilled in the future precisely enough so that variable pay-for-performance can be applied. In a society continually faced with new challenges, superiors oftentimes find it impossible to fix ex ante what an employee will have to do in the future.

It would be naïve to assume that the persons subjected to variable pay-for-performance would accept the respective criteria in a passive way and fulfil their work accordingly. Rather, they spend much energy and time trying to manipulate these criteria in their favour. This is facilitated by the fact that employees often know the specific features of their work better than their superiors. The wage explosions observable in many sectors of the economy can at least partly be attributed to such manipulations, eg when managers are able to contract easily achievable performance goals.

Variable pay-for-performance results in employees restricting their work to those areas covered by the performance criteria. In the literature, this is known as the ’multiple tasking’ problem. This may induce employees to spend considerable time and energy during their work trying to find a better-paid job with another firm. They therefore neglect their tasks insofar as they are not contractually fixed by the performance criteria.

Variable pay-for-performance tends to crowd out intrinsic work motivation and therewith the joy of fulfilling a particular task. However, such motivation is of great importance in a modern economy because it supports innovation and helps to fulfil tasks going beyond the ordinary.

Many observers acknowledge these problems connected with variable pay-for-performance and even emphasise them. They nevertheless cling to this form of compensation because they do not see any alternative. However, there are well-proven and effective ways to induce the members of an organisation to perform in a desired manner. The three most important ways are the following:

First, the employees have to be carefully selected. Above all, employers must check whether the job seekers are interested in the work to be performed or solely in the money that will come along with it. In all too many sectors of the economy this task seems to have been neglected. In the financial sector, for example, many persons have been chosen whose only goal is to get as high a salary as possible. They therefore exhibit no loyalty to the firm and immediately accept any job that offers higher compensation. As a result, the fluctuation among employees has increased strongly. Efficiency has been reduced because the tasks have to be taken over by ever new persons who lack the experience necessary.

Secondly, employees have to be paid a fixed compensation corresponding to their performance. They must be given the signal that they are paid a good wage but that they are expected to work accordingly. Thus, a market wage has to be paid in order to be able to win and keep employees. The compensation can after some time be adjusted on the basis of a comprehensive evaluation of their work. This procedure avoids the multiple tasking problem. At the end of the year, one can also distribute part of the profit to employees according to their contribution to overall performance rather than according to ex ante criteria.

Thirdly, awards can be used to enhance employees’ work motivation. Awards such as “Employee of the Month” support social recognition among the members of the firm. They should therefore be presented in a festive ceremony, emphasising what type of performance is important to the firm. Research on awards in a call centre of a credit-card company suggests that the motivation of the persons getting the award is enhanced. The performance of the employees not getting an award is not reduced. Rather, they make an effort to get the award in the future (Neckermann et al 2008). Employees working in a team are usually proud that (at least) one of its members has received an award.

Variable pay-for-performance is an attractive concept to compensate employees only at first sight. It turns out to be a mistake when analysed more thoroughly. As argued here, there are more favourable alternatives available.

Jim Chanos on China’s Contingent Liabilities

Edward here. The overall gist of Jim Chanos’ comments on Bloomberg the other day were that China has off-balance sheet contingent liabilities due to its implicit commitment to state-owned enterprises which are knee-deep in land and property speculation. This speculative excess will lead to credit writedowns. Chanos repeated his contention from CNBC last week that he is net short China as a result, a bet Hugh Hendry has also been making – with spectacular results recently. See Michael Pettis piece on The debt-financed investments of Chinese state-owned enterprises for a comprehensive analysis of this problem.

I should also add that these are the same arguments that are used regarding why Spain and its sick banking sector are having problems in Europe’s sovereign debt crisis. It is also one reason Claus Vistesen has given for being cautious in Denmark. And it is the reason Fannie and Freddie’s nationalisation in the US should have been expected. The point is one needs to consider not just the sovereign, but quasi-sovereign debt that creates contingent liabilities which the sovereign could be reasonably expected to cover in the event of crisis. In France, we may well see this problem crystallized next due to the liquidity crisis affecting French banks.

Bottom line: expect a slow down in China – how much of one is still up for debate. Anything above 7% y-o-y GDP growth should be considered a soft landing though. Below that 7% number, analysts would consider that a hard landing. That is lower, but not necessarily dire. The west would love numbers like that.

P.S. – this is the kinds of excess we’re talking about right here.

Bloomberg Television sent me the following partial transcript:

On the Chinese government’s balance sheet:

"The Chinese government’s balance sheet directly does not have a lot of debt. The state-owned enterprises of the local governments and all the other ancillary borrowing vehicles have lots of debt and its growing at a very fast rate. The assumption is that the state stands behind all this debt. We see that the debt in China, implicitly backed by the Chinese government, probably has gone from about 100% of GDP to about 200% of GDP recently. Those are numbers that are staggering. Those are European kind of numbers if not worse."

On how a Chinese property bubble will play out:

"I think that will be the surprise going into this year, and into 2012 – that it is not so strong. The property market is hitting the wall right now and things are decelerating. The CEO of Komatsu said last week that he is having trouble getting paid for his excavator sales in China. Developers are being squeezed. They’re turning to the black market for lending, this shadow banking system that is growing by leaps and bounds like everything in China.

"Regulators over there are really trying to get their hands around the problem. In the meantime, local governments have every incentive to just keep the game going. So they will continue with these projects, continuing to borrow as the central government tries to rein it in."

Chanos on his long and short positions:

"We are short Chinese banks, the property developers, commodity companies that sell into China, anything related to property there is still a short."

"We are long the Macau casinos. It’s our long corruption, short property play. We feel that there’s American management and American accounting. They are growing at a faster rate even than the property developers."

On the IMF lowering growth estimates for China:

"A lot of people are assuming that half of all new loans in China are going to go bad. In fact, the Chinese government even said that last year relating to the local governments. If we assume that China will grow total credit this year between 30% to 40% of GDP, and half of that debt will go bad, that is 15% to 20%.  Say the recoveries on that are 50%. That means that China, on an after write off basis, may not be growing at all. It may be having to simply write off some of this stuff in the future so its 9% growth may be zero."

Source: Bloomberg Televison

video below (click here if you are using Google Chrome)

Matt Stoller: Happy Lehman Brothers Bankruptcy Day

By Matt Stoller, the former Senior Policy Advisor to Rep. Alan Grayson and a fellow at the Roosevelt Institute. You can reach him at stoller (at) gmail.com or follow him on Twitter at @matthewstoller. Cross posted from New Deal 2.0

Lehman’s bankruptcy happened three years ago today. It should be quite clear at this point that another Lehman is going to happen again. Policymakers didn’t deal with the crisis of 2008-2009; they turned it into a much longer crisis with far greater lasting damage.

There are two intertwined issues with any major financial panic. One issue is liquidity — can an asset be sold or traded without significant movement in the price? Can an institution exchange its assets for assets of similar value? In a bank run, the answer is no. People are too afraid to accept that their bank deposit is worth what is in the account because they don’t trust the bank that tells them what they have in the account. The second issue is solvency — is there enough value to pay off all creditor claims? Are assets greater than liabilities, even in a liquid market?

The basic point to understand about the financial crisis is that it isn’t in fact over. The liquidity crisis of 2008-2009 was temporarily abated, but the solvency problem hasn’t been dealt with. The global financial architecture is essentially dominated by too many obligations, a.k.a. debt, that cannot be paid. This can only be addressed by a mass writedown of debts. Usually creditors don’t like being told they can’t have the money they think they have and force is required. Debtor deals are often preceded by civil wars, world wars, or depressions. But not always — sometimes a debtor cartel can force writedowns. So that’s the solvency issue.

What does this have to do with Lehman Brothers? Well, Lehman’s bankruptcy was the moment when the financial system looked feeble and insolvent. If you did not have an FDIC insured account, you could not be sure that money would be there the next day. Essentially, Lehman’s bankruptcy was the moment that the global bank run for businesses and billionaires became real. Companies that needed to make payroll, insurance companies that needed to pay out claims, corporations that funded themselves in the commercial paper markets, nonprofits and cities using auction rate securities — basically anyone with any need for liquidity — could no longer do business. Investors piled into “safe assets,” a.k.a. Treasury bills, sending the yield “down to a few hundreds of a percent.”

In the repo market, which is where the shadow banking system got much of its funding, there were margin calls because previously somewhat safe assets like corporate bonds required larger haircuts. It was, again, a giant bank run. The Fed and Treasury eventually stopped the bank run, providing enough liquidity and fiscal help to restore temporary confidence to the banking system. But the solvency crisis wasn’t solved. It has been papered over, and remains with us today, ready to rear its ugly head at any moment (see the Eurozone).

A solvency crisis is often accompanied by a liquidity crisis, which is why the FDIC tries to shut down a bankrupt bank on a Friday and reopen it on Monday under new management. You don’t want a bank run when a bank goes under. You want depositors to be made whole and, ideally, to have so much confidence the system works that the real economy is entirely insulated from financial shocks. Unfortunately, the failure to address the solvency problem or put forward a framework that insures the banking system (using a scheme sketched out by Jane D’Arista in this prescient 1991 paper titled “No More Bank Bailouts”) means that users of the financial system are nervous.

Lehman Brothers itself was insolvent, but its problems were probably common among investment banks at the time. I don’t have anything to add on why that institution went under. For that, the Valukas report on the firm’s bankruptcy provides an excellent explanation. Basically, everyone in a position of power in and around the investment bank was corrupt. Lehman had fairly reasonable risk controls; management just ignored them. Senior Lehman officer Ian Lowitt noted this in the summer of 2007, after a decision to ignore risk limits. “In case we ever forget; this is why one has concentration limits and overall portfolio limits. Markets do seize up.”

Yes, they do.

The regulators knew. As Anton Valukas, the bankruptcy trustee said, “So the agencies were concerned. They gathered information. They monitored. But no agency regulated.”

There was the failure of information sharing among regulatory agencies, about which Valukas said:

Like most Americans, I was disturbed to learn after 9/11 that various intelligence agencies did not always share information with one another. I thought we learned something from that, but apparently not.

And then there was the whole misleading investors problem, with Repo 105. But all of this was framed by a basic solvency crisis, which Tim Geithner memorialized with his comment about “air in the marks” in the bad assets on Lehman’s books. The investment bank owed more than it owned, and everyone knew it. It was a solvency crisis, that then became a liquidity crisis.

This could have been fixed. But it hasn’t been, because of an overall failure of financial-friendly economists. I’ll quote Alice Rivlin, in a “let them eat cake” moment in 2008 on the foreclosure wave that triggered the crisis.

We should not forget that a lot of good came from the housing boom. Millions of people moved into new or better housing. Most of them (including most sub-prime borrowers) are living in those houses and making their mortgage payments on time.

Why should anyone think that Lehman won’t happen again? Elites have learned nothing. This was obvious during the crisis itself, when Nouriel Roubini noted the stark difference between public and private conversations:

And while policy makers and regulators now claim that everything is on the table in terms of reforming a faulty financial system they stress in private that their preferred approach would be one of “self-regulation” and reforms undertaken by private financial institutions rather than new rules and regulation imposed by authorities.

Many people are frustrated that the response to the crisis hasn’t been stronger. But it was always obvious that the goal of the crisis measures was to get the financial elites back to ordinary business as quickly as possible. In that context, the most reasonable question in the world is, why wouldn’t Lehman happen again? We don’t have a persuasive answer to that question. And until we do, we’re still in crisis

Anne Sibert: The damaged ECB legitimacy

Yves here. This post may strike readers as a tad wonky, but the role and governance of central banks has become a subject of debate in the US, and I expect it to move more into the spotlight in the EU as the crisis continues. And as you read the post, the ECB had been trying to avoid scrutiny for good reason. It manages to make the oft-criticized Fed look good.

Anne Sibert is the wife of former central banker, now Citigroup chief economist Willem Buiter, who was a very outspoken and vocal critic of the Fed during the crisis, particularly of its “quasi fiscal role,” meaning the way it subsidized banks in ways that involved taking real balance sheet risk outside Congressional budgetary processes. Buiter argued this might well be a violation of the Constitution.

He and Sibert have written and done advisory work together, often for central banks. They were called in by Iceland shortly before its crisis erupted, and apparently told the central bank it was toast. Her experience makes Siebert a commentator who cannot easily be ignored.

By Anne Sibert, Professor and Head of the School of Economics, Mathematics and Statistics at Birkbeck College, London and a member of the a member of the Monetary Policy Committee of the Central Bank of Iceland. Cross posted from VoxEU

The European Central Bank was once known for its obsessive focus on price stability. Since the global economic crisis, however, its role has extended to preventing the insolvency of banks and sovereign countries. This column argues that such a move has badly harmed the institution’s legitimacy – something that will damage both its policy effectiveness and confidence in the governing bodies of the EU as a whole.

The ECB’s role has evolved in its decade-long existence. In this note I describe how the choices of the ECB have damaged the institution’s legitimacy. This matters because decreased legitimacy lowers the ECB’s future policy effectiveness and weakens the legitimacy of all other institutions of governance in the EU, including the European Commission, the European Court of Justice, and the European Parliament.

In evaluating the ECB’s performance, I split the last eight years into two parts:

The benign period up until August 2007 when the institution was focused on price stability; and

The period after when the ECB was called upon to help contain the liquidity crisis and, within its powers as a central bank, to mitigate the banking sector insolvency and sovereign debt crises.

Prior to August 2007 the ECB produced stable and only slightly above-target inflation. However, it lacked procedural transparency. The Treaty makes it clear that it was intended that members of the Governing Council should vote. An astonishing 834 words are devoted to describing exactly how the voting mechanism is to work. Unfortunately, in comparison to other central banks that are supposed to make decisions by majority rule, such as the central banks of Japan, Sweden, the UK, and the US, the ECB is opaque about how its policy rate decisions are reached. It does not reveal the vote or publish minutes. When questioned by the press or the European Parliament about the lack of procedural transparency, ECB President Trichet’s stock response has been to view transparency as being equivalent to explaining one’s decisions ex post and to extoll the virtue of the ECB in this regard.

No voting

It turns out that votes on policy rates are never taken. Apparently, some small subset of the Governing Council decides, prior to the meeting, what the policy rate will be and this is then presented to the entire Governing Council, which we are to believe always or almost always unanimously approves. This explains how the Governing Council is able to produce the lengthy post-policy meeting statement that Mr Trichet views as the ECB’s major contribution to transparency. With the decision made before the meeting, there is ample time to prepare it.

That this extraordinary decision-making mechanism has gone on for so long with no formal explanation beggars belief. Who gets to make the decision? Why is it that no Governing Council member has ever insisted upon their legal right to a vote on monetary policy? Is there really never any dissent? How can that be? That we are able to ask these questions about an institution that is supposed to be one of the world’s two most important central banks is not good for its legitimacy. Moreover, while this arrangement has functioned well enough so far, what would happen if some future president were a little less like Mr Trichet and a little more like, say, Davíð Oddsson?

In Mr Trichet and the Governing Council’s defence, the ECB is woefully badly designed. The Governing Council has 23 members – a ludicrous size for a decision-making body. If each member gets a ten-minute opening statement, the rate-setting meeting would have gone on for almost four hours before any actual debate begins. With no formal way of reducing the size of the decision-making body, Mr Trichet may have had little choice but to make monetary policy informally.

Pre-crisis

In the period after the crisis the ECB has done a reasonable job relative to other central banks. It initially responded to the August 2007 liquidity crisis by dousing markets with liquidity in an attempt to drive down the interest rate. This was bad as the problem was not that financial institutions could not borrow at a reasonable interest rate using the good-quality collateral demanded by the Eurosystem. Instead, it was that they could not sell their asset-backed securities or use them as collateral because the markets for these assets had dried up. However, as the liquidity crisis continued and widened into a solvency crisis, the ECB’s policies evolved. When – for example – the spread between the three-month LIBOR and the overnight indexed swap rate widened, the ECB responded sensibly by undertaking liquidity-providing longer-term refinancing operations with a maturity of three months and offsetting these with their main (short-term) refinancing operations. In mid-October 2008 it made the necessary and massive changes in what was to constitute eligible collateral.

Financial stability role

Unfortunately, the ECB has not been a model of openness in its financial stability role. It does not tell us how it values illiquid marketable securities or how it decides its haircuts. When a member of the ECON committee of the European Parliament asked about how asset-backed securities are valued for collateral, Trichet said, “This is done by the system in ways which I considered appropriate but that we can improve at any time if we judge that they should be improved…”. In other words, I’m not going to tell you and only our opinion matters.

The ECB’s haircut policies are hard to fathom. Why do haircuts increase sharply with an asset’s maturity even when the potential illiquidity does not necessarily do so? This policy only encourages the issuance of short-term debt. No wonder banks are facing massive short-term debt refinancing requirements during a period that they are also trying to access the markets for additional capital. With no explanation, one might wonder if the ECB even has a coherent theory of how to determine haircuts.

This opacity about collateral policies is potentially much more damaging to legitimacy than the lack of transparency in monetary policy. In deciding what securities to accept as collateral and how to value and haircut them, the Eurosystem is redistributing wealth.

In its attempt to maintain financial stability the ECB and Eurosystem have had to walk a fine line between providing just enough liquidity to keep potentially solvent institutions afloat and subsidising the financial sector. Given the lack of transparency it is not easy to judge how well they have done at this, but a couple of examples show that sometimes – through design or otherwise – they have strayed into the subsidisation territory.

One example was the policy of allowing Icelandic banks to borrow from the Eurosystem using each other’s debt as collateral.

Another was the unlimited one-year fixed rate liquidity provision of June 2009 which may have been a transfer of about €1 billion from taxpayers to delighted banks (see Buiter 2009).
Playing Santa Claus to banks – Icelandic or otherwise – is not part of the ECB’s mandate and does not enhance its legitimacy.

So far, the ECB appears to have been less competent in managing the sovereign debt crisis than it was in managing the liquidity and banking crises. That ECB policymakers did not speak out about the state of Greek finances, although they must have realised by 2004 that Greece was verging on insolvency, and that they continued to accept Greek sovereign debt on the same terms as they accepted German sovereign debt must have suggested to the market that there were two possibilities. Either, the ECB had superior information suggesting Greece was unlikely to be insolvent or the ECB knew that Greece – or at least its creditors – would be bailed out if Greece were to become insolvent. This may have led the market to be complacent for far too long.

Securities Market Programme

The introduction of the Securities Market Programme threatens the ECB’s legitimacy as the potential fiscal role is an inappropriate activity for an independent central bank. One can imagine that it must have been distasteful to Mr Trichet to undertake such a task, but – understandably – he may have viewed it as a less unpalatable option then allowing Greece to default in May 2010.

Not all uses of the Securities Market Programme are inappropriate, however.

In the event of a wholesale creditor run based solely on self-fulfilling expectations, it is reasonable for a central bank to intervene and act as a lender of last resort to financial institutions that would otherwise be solvent.

Likewise, in the event of a run on sovereign debt that is based solely on self-fulfilling expectations, it is reasonable for a central bank to make it clear that it stands ready to purchase as much of the debt as it takes to halt the run.

As the recent rise in the yields on Spanish and Italian debt was likely a result of fear-based self-fulfilling expectations, the ECB was justified in its purchases of this debt.

The failing of the institution is that it is not credible that it is willing to purchase enough of the debt to contain the run.

Unfortunately, the ECB’s insistence on secrecy with respect to the programme is particularly damaging. It is widely believed that the average discount to face value paid for the Greek debt acquired (prior to August at least) was no more than 20%. The national central banks appear to have sought out the lucky counterparties. And, the ECB won’t say who they are or how much they paid. The possibilities for corruption under such a system are endless. And one does not have to be a conspiracy theorist to imagine that taxpayers throughout the Eurozone were called upon to subsidise German and French banks after their own governments failed to exercise proper regulation and supervision.

Advice for the new President

The incoming ECB president does not face an enviable situation. The sovereign debt crisis is gaining strength, dampening the economic recovery that might have otherwise been expected to follow the liquidity and solvency crises. His predecessor set a reasonably high standard for competency, but his opacity damaged the legitimacy of the organisation.

The Decline of Manufacturing in America: A Case Study

One frequent and frustrating line that often crops up in the comments section of this blog is that American labor has no hope, it should just accept Chinese wages, since price is all that matters. That line of thinking is wrongheaded on multiple levels. It assumes direct factory labor is the most important cost driver, when for most manufactured goods, it is 11% to 15% of total product cost (and increased coordination costs of much more expensive managers are a significant offset to any savings achieved by using cheaper factory workers in faraway locations). It also assumes cost is the only way to compete, when that is naive on an input as well as a product level. How do these “labor cost is destiny” advocates explain the continued success of export powerhouse Germany? Finally, the offshoring,/outsourcing vogue ignores the riskiness and lower flexibility of extended supply chains.

This argument is sorely misguided because it serves to exculpate diseased, greedy, and incompetent American managers and executives. In the overwhelming majority of places where I lived in my childhood, a manufacturing plant was the biggest employer in the community. And when I went to business school, manufacturing was still seen as important. Indeed, the rise of Germany and Japan was then seen as due to sclerotic American management not being able to keep up with their innovations in product design and factory management.

But if you were to ask most people, they’d now blame the fall of American manufacturing on our workers. That scapegoating serves to shift focus from the top of the food chain at a time when executives have managed to greatly widen the gap between their pay and that of the folks reporting to them.

Let me give you an all too typical example of how American management has contributed to the demise of our industrial competitiveness, namely, the former Mead Corporation paper mill in Escanaba, Michigan, which is now part of NewPage, owned by Cerberus.

The Escanaba mill makes coated paper. Coated paper is shiny paper, the sort you find in most magazines, catalogues, and art books. Coated paper is fussy to manufacture, which makes it daunting in a continuous process setting like a mill. In a highly-capital intensive continuous process business, downtime is hugely expensive.

In 1969, Mead added a #3 machine in Escanaba. Paper machines are very long-lived; you’ll find machines over 100 years old in use, since older, well maintained, well-located machines (as in with access to comparatively cheap power and pulp) can be competitive on grades of paper which are made in small runs (as in the slow speed of the machine is not a negative). The #3 machine was world class at the time of its installation. There was no reason to think it could not be highly competitive through 2020 or 2030 if properly maintained.

Starting up a new machine, however, is not an easy process, and the #3 machine was not operating at the expected efficiency level. Management nevertheless pressed forward with a further mill expansion in 1970-1971, of a kraft-recovery system. The best workers on the #1 machine were moved to the #3 machine which did not solve the problems on #3 and worsened the results of the #1 machine. It took an over two year turnaround effort to get the mill operations up to a good level of productivity.

By the mid 1970s, the Escanaba mill had gone from being the dog to the star. Mead had reorganized to be decentralized, so the Escanaba mill had its own sales force and a true stand-alone P&L Escanaba was one of 40 divisions yet produced the majority of Mead’s free cash flow. Mead added added a #4 machine in Escanaba in 1982. The mill was recognized as one of the best coated paper makers in the US, and demanding publishers such as National Geographic, Smithsonian, and Playboy sought out its product

Mead has also had troubled period with its unions, in particular a bad strike in 1975-6. But a real turn came in the later 1980s. Mead had had a series of record-breaking profit years, each higher than the last, yet sought to squeeze the unions in 1989.

The 1980s were the heyday for papermakers. By the later 1990s, Mead had started scrimping on shutdowns, which is when the plant’s equipment gets maintenance and repairs. Twice a year shutdowns were replaced by annual shutdowns.

In 2002, Mead merged with WestVaco to form MeadWestVaco. The shallow dot-bomb era recession led to further reductions in reinvestment. A $5 million shutdown budget for Escanaba was reduced to under $2 million, even as the departing Mead CEO received a $30+ million golden parachute.

Cerberus acquired the Escanaba mill along with four other MeadWestVaco mills in 2005, forming the company now known as NewPage. Cerberus set return on invested capital targets that were, to put it politely, audacious for the paper industry, which led it to scrimp even more on keeping the plant operations up to snuff.

Cerberus also, in a remarkably bone headed move, bought some troubled mills from Stora Enso, apparently on the hope that it would be able to corner the coated paper market. Consistent with that strategy, Cerberus prefers to shutter mills that don’t meet its return targets rather than sell them, apparently out of the misguided view that it can remove enough capacity to affect its pricing power (this logic is questionable for a second reason: paper grades are specific, and the mills sold may not wind up being competitors of remaining NewPage operations). From CapeCod Today:

Some revealing statistics: NewPage shut down six mills in 2008. It closed its paper mill in Niagara, Wisconsin, the only major source of employment in a city of 1,800. The mill provided 319 jobs, with workers averaging $60,000-a-year. According to local officials, the plant had two potential buyers, but NewPage let the mill sit idle. Wrote newspaper columnist Ed Lowe at the time, “The hardship of the mill closure here parallels that of Kimberly (Wis.), where 600 well-paying paper mill jobs were scuttled as part of the evolving business plan of NewPage…Both mill closures devastated their communities…Some lifelong residents of Niagara worry that their city’s future ended with the production at the mill.”

In Kimberly, NewPage refused to sell to two buyers and declined the support of the Governor to keep the plant open. “This is a case of a corporation taking a productive, profitable plant and closing it, and refusing to sell it to anyone else,” Andy Nirchl, president of the United Steel Workers local, said at the time.

It tried putting through a 60% price increase in 2009, and was forced to roll it most of the way back as its competitors implemented only modest price hikes. This took place when the standing of the mills was falling. Escanaba was shipping product that had breakage problems; its quality had gone from being among the best to middling to low. In 2010, NewPage has had three CEOs, including the notorious Bob Nardelli, who has been named one of the worst CEOs of the 2000s and the worst CEO of all time by CNBC. Paper industry incumbents have not thought much of Cerberus’s management acumen. From Paper and Other Absolute Truths:

President and CEO, E. Thomas Curley, had barely learned the most efficient traffic routes to the office, when he was handed a check for $1.265 million, told not to come back, and, by the way, “don’t forget that you ‘resigned’”. Not a bad four month gig – I doubt that Lady Gaga does that well.

I believe that Mark Suwyn, Chairman and company Director, had been with NewPage from the “Cerberus” beginning. NewPage lost money every year under Suwyn, and was the worst managed company in the business. For that performance, Suwyn will walk away with a cool $2 million.

As an aside, it was reported that Suwyn engaged his son’s consulting firm in 2009, at a cost of $747,000, to provide training for “improving communications skills, consensus building and problem solving abilities.” (NewPage 2009 SEC Form 10-K, at 117). That is so disappointing, and in such bad taste. The program apparently didn’t work either.

The very good news is that there is no upper level management of NewPage. There is no Chairman. There is no President. There is no CEO. If this were allowed to continue for a few years, some real progress could be made.

Robert Nardelli, who has a big Cerberus title, is responsible for the NewPage performance, and is now the non-executive chairman of NewPage. That non-executive title is very important. It means he shouldn’t be in a position to make any decisions.

This entire mess was created, of course, by Cerberus mismanagement. They hired the wrong people, gave them impossible marching instructions, and have continue to play an expensive game of musical chairs at the highest levels of the company. The initial strategy of “pump and dump” didn’t work, and now Cerberus is relegated to actually operating a company. This is not their strength. But then, what is their strength?

If you think this criticism sounds overly harsh, read some earlier posts on NewPage (see here and here). Independent of the bad management, the paper industry is a poor candidate for an LBO, since it has high operating leverage, high ongoing reinvestment needs, is cyclical, and does not offer high returns even at the best of times. Unless you are confident you’ve bought at the bottom of a cycle, it’s one of the worst conceivable industries for a private equity investment.

NewPage lost $88 million in the first quarter 2011, which is an improvement over the $175 million loss for the same quarter in 2010. Its second quarter loss widened to $132 million. NewPage has held up payments to contractors, apparently to preserve dwindling cash.

Cerberus is negotiating a restructuring of the NewPage debt and may file for bankruptcy. The financiers will all get their cut and will move on to the next deal. Yet the workers at these mills and the communities they anchor, like Chillicothe, Ohio and Luke, Maryland (two other places I lived when I was growing up) will suffer the consequences of this rent extraction.