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Monday, January 6, 2014
Macy’s and Martha Stewart Living Reach Settlement
Thursday, January 2, 2014
Tuesday, August 20, 2013
Simon & Schuster and Barnes & Noble Reach a Deal
Beyond a certain point, retribution shades into vengeance.
The theory of evolution, if it is to explain the existence of conscious life, must become more than a physical theory.
Sunday, June 23, 2013
Unable to Reach Deal, Europe Plans New Talks on Bank Rescues
Monday, June 3, 2013
Advertising: Courting Thrifty Consumers With Value and Quality Brands Stress Value and Quality to Reach Thrifty Consumers
Sunday, May 12, 2013
DealBook: Philip Falcone, Hedge Fund Manager, and S.E.C. Reach Deal
Steve Marcus/ReutersPhilip Falcone, chief of the hedge fund Harbinger Capital Partners.12:24 a.m. | Updated
When federal regulators sued the high-flying money manager Philip A. Falcone last summer, they claimed his actions “read like the final exam in a graduate school course in how to operate a hedge fund unlawfully.”
By Thursday, the agency appeared to be softening its tone.
Nearly a year after the Securities and Exchange Commission accused him of manipulating the market, using hedge fund assets to pay his own taxes and “secretly” favoring select customers at the expense of others, Mr. Falcone disclosed in a public filing that he had “reached an agreement in principle” to settle the two cases with the agency. The S.E.C. also struck a deal with Harbinger Capital Partners, Mr. Falcone’s flagship hedge fund.
The settlement, which came after a federal judge in New York questioned aspects of the cases, would be a moral victory of sorts for Mr. Falcone, who has stubbornly resisted a deal for more than a year. It might also reignite concerns that the S.E.C.’s results sometimes fall short of its ambitions.
The S.E.C.’s punishment of Mr. Falcone appeared steep, if only because it spelled an end to his long career as a hedge fund wizard. Mr. Falcone, who made a fortune betting against the subprime mortgage market in 2007, has agreed to at least a two-year ban from raising new capital, a death knell for a hedge fund manager. He must also “take all actions reasonably necessary to expeditiously” return money to investors who are fleeing the fund, according to the public filing on Thursday.
But with the exodus of capital, and a wireless venture that he bankrolled in bankruptcy, Mr. Falcone’s hedge fund was already resigned to its fate. And the fine print of the S.E.C. deal suggests that Mr. Falcone, who is not required to admit or deny the agency’s accusations, could escape relatively unscathed.
“The settlement, itself, would change very little in Falcone’s life,” said Erik Gordon, a professor of law and of business at the University of Michigan.
For one, the deal comes with an $18 million penalty from the S.E.C. — a rounding error to a hedge fund billionaire. Mr. Falcone will personally pay $4 million of the penalty, according to people briefed on the matter, while the fund’s management company will pay the rest. One of the people briefed on the matter noted that $18 million was higher than what Mr. Falcone initially offered to pay and was a substantial sum given that the hedge fund’s investors did not suffer any financial harm.
Still, the two-year ban comes with a loophole. According to the people briefed on the matter, the ban does not apply to the nine investment advisers that Mr. Falcone runs through Harbinger Capital. The S.E.C. granted the carve-out, the people said, so Mr. Falcone could unwind the hedge fund without harming investors by selling off pieces at fire-sale prices.
More important, perhaps, Mr. Falcone can retain his control of the Harbinger Group, a publicly traded conglomerate that he uses to make a broad array of investments. In recent years, Mr. Falcone has started to emerge as something of a private equity investor, taking varied stakes in the insurance business and consumer goods industry, including the company that produces the George Foreman grill. That business remains largely unaffected by the S.E.C. deal.
The settlement, the people said, is also notable for something that it did not include: a common provision that prohibits defendants from committing future violations with fraudulent intent.
The lack of a so-called fraud injunction, an unusual victory for the target of an S.E.C. action, is a reminder of broader concerns about the toughness of the agency. During the tenure of Robert Khuzami, the former enforcement chief of the S.E.C. who filed major cases against Wall Street firms, the agency came under scrutiny for not leveling bigger fines. He notably butted heads with a federal judge in New York, Jed S. Rakoff, who in 2010 called the agency’s $150 million settlement with Bank of America over lax public disclosures “half-baked justice at best.”
Now that the S.E.C. is in transition under a new chairwoman, Mary Jo White, the agency is vowing once again to strike a hard line against financial fraud.
An S.E.C. spokesman declined to discuss the terms of the settlement with Mr. Falcone, given that approval of the agency’s commissioners is still required. Mr. Falcone’s lawyer, Matthew S. Dontzin, also declined to comment.
The settlement emerged after earlier attempts at a deal came up short. Mr. Falcone, the people briefed on the matter said, refused to settle last year as long as the S.E.C. insisted on applying an injunction against fraud, which would amount to something of a rebuke. In June, the S.E.C. held its ground, deciding to file its cases instead.
But then the S.E.C. received a warning sign from Judge Paul Crotty, who at a hearing in February declared that in one part of a case: “I’m having difficulty seeing exactly where the wrong occurred here.”
Settlement talks, the people said, resumed just days later. This time, Mr. Falcone was willing to pay a larger sum. And the S.E.C. agreed to drop its bid to impose the fraud injunction. Agency officials, the people briefed on the matter said, decided that a fraud injunction in this case would be redundant. Mr. Falcone, the people said, will still have to settle charges that he committed fraud, and is prohibited from breaking the law.
The S.E.C. also decided to impose an independent monitor on the firm. But the agency agreed to pick the monitor, the people said, from a list of five people Mr. Falcone recommended.
“It appears to be a pragmatic resolution of a matter in which the judge expressed some doubt about the S.E.C.’s charges,” said Stephen J. Crimmins, a partner at the law firm K&L Gates and a former enforcement official at the S.E.C.
For Mr. Falcone, the deal could close a painful chapter in his long Wall Street career.
There was a time when Mr. Falcone, who made his way from rural Minnesota to the Harvard hockey team, was seen as one of the savviest investors on Wall Street. His prescient bet against subprime mortgages made him the envy of the hedge fund world and led Harbinger’s assets to soar near the top of the industry.
The success also thrust him and his wife, Lisa Maria, into the ranks of New York’s moneyed elite. Their charitable donations, like a $10 million gift to the High Line in Manhattan, were overshadowed only by a flashy taste for fashion and real estate that made them the subject of tabloid fascination.
But Mr. Falcone’s fortunes tumbled last year. A bet on LightSquared, an upstart wireless venture he sought to build from scratch, soured as the government blocked his effort to build a 4G network. A year ago, the company filed for bankruptcy, dealing a blow to Mr. Falcone, who once owned 96 percent of LightSquared’s shares.
Then the S.E.C. came bearing down on him. In June, after settlement talks broke down, the agency filed two sets of civil fraud charges against Mr. Falcone.
In one case, it accused Mr. Falcone of cornering the market in a particular category of bonds. In a separate action, the S.E.C. accused Mr. Falcone of allowing three unidentified banks and investment firms — Goldman Sachs, HSBC and Paamco, according to people briefed on the matter — to withdraw money from his hedge fund when others could not.
The S.E.C. also took aim at Mr. Falcone for taking a $113.2 million loan from his fund to pay his own tax bill in 2009. He borrowed the money, the S.E.C. said, at a time when the fund had blocked investor redemptions and then kept the deal secret for five months.
The accusations led to an unsparing critique from the S.E.C.
“Not only are hedge fund managers expected to be savvy investors, they are supposed to serve the interests of their clients,” Bruce Karpati, head of the S.E.C.’s asset management unit, said at the time. Mr. Karpati, who announced his departure from the agency on Thursday, then added: “Here, in addition to raiding a fund for personal benefit and cutting secret deals with favored investors, Falcone then lied to investors about what he had done.”
Wednesday, March 6, 2013
DealBook: Bondholders and Mexico Glass Maker Reach Deal
Steve Marcus/ReutersPaul Singer, chief of the hedge fund Elliott Management.MEXICO CITY — The giant Monterrey glassmaker Vitro said Monday that it had reached an agreement with bondholders, ending a dispute among powerful financiers that had ricocheted between Mexican and American courts.
Under the agreement, Fintech, which is owned by the Monterrey-born investor David Martinez, will buy the bonds held by a group of hedge funds and pay additional cash to cover legal fees. In return, Fintech will receive a 13 percent stake in a Vitro subsidiary and a $235 million note issued by the subsidiary.
Bondholders will receive 85.25 cents on the dollar for their bonds, according to the agreement. The company said that Fintech would buy a “substantial majority” of the $729 million in bonds that are in dispute.
The legal fight had produced ripple effects in the emerging debt markets. For example, Cemex, one of the world’s largest building materials companies, was forced to sign a “Vitro clause” when it issued debt last year. Cemex, with a reputation for strong corporate governance and a company that is also based in Monterrey, Mexico’s industrial heartland, promised debtors that it would not grant subsidiaries or related-party creditors the same rights as bondholders.
“Ever since Vitro came out with this cockamamie scheme,” there has been uncertainty about bankruptcy proceedings in Mexico, said Arturo C. Porzecanski, economist in residence at American University’s School of International Service.
The Vitro bondholders had been fighting the company in United States courts, arguing that Vitro borrowed money from its subsidiaries, turning them into new creditors who then outvoted bondholders on a plan to restructure $1.2 billion in defaulted debt.
A Monterrey court approved the plan in February 2012, where bondholders who agreed to the new financial plan received almost 69 cents on the dollar for their debt, according to James V. Harper, the head of research at BCP Securities in Greenwich, Conn.
But several giant hedge funds, including Elliott Management and Aurelius Capital Management, held out. Elliott Management is run by Paul E. Singer, who has made a career out of extracting payments from debtors that have defaulted.
Instead, the funds asked American courts to reject the Mexican bankruptcy plan, calling it “a testimony to audacity, brazen manipulation and greed.”
Last June, Judge Harlin DeWayne of the Federal Bankruptcy Court in Dallas refused to apply the Mexican bankruptcy plan in the United States. A federal appeals court upheld the judge’s decision in November.
Mr. Harper said those decisions removed any legal bankruptcy protection for Vitro in the United States and forced it to negotiate. “I think they were surprised when they didn’t get it,” he said. “I don’t think they counted on such aggressive opposition.”
Without protection, Vitro might have faced collection efforts on its sales in the United States, which amounted to $446 million last year.
It is rare for an American judge to refuse to enforce another country’s bankruptcy law in the United States, Mr. Harper said. “That was a substantial setback for Vitro and a substantial victory for the holdouts.”
Noting that the Mexican government had filed a brief in support of Vitro, Mr. Porzecanski, the economist, said, “The fact that the workout process was not recognized in the United States leaves Mexico with a black eye.”
Under the agreement announced Monday, Vitro and the bondholders agreed to drop all legal disputes.
“These agreements allow us to close the book on a challenging period for our company, and focus entirely on our business and meeting our customers’ needs,” said Vitro’s chairman, Adrián G. Sada.
It was Fintech’s owner, Mr. Martinez, who helped Vitro put together a plan to revamp its finances. Mr. Martinez remains a mystery, despite being known as a collector of art and owner of one of the most expensive apartments in Manhattan, atop the Time Warner Center.
“Fintech’s participation was crucial in order to establish the foundation for the agreements we have reached,” Claudio Del Valle, Vitro’s chief restructuring officer, said in a statement.
Tuesday, March 5, 2013
Sovereign Bank, Land Developer Reach Accord in Bankruptcy Discovery Dispute
Tuesday, December 25, 2012
Media Decoder Blog: Arbitron Deal Extends Nielsen's Reach Into Consumer Habits
With its $1.26 billion acquisition of Arbitron, announced on Tuesday, Nielsen is buying much more than the most widely followed radio ratings service. It is also extending its already substantial reach into the overlapping forms of media through which people consume their entertainment and news, and spend their money — information that is essential to advertisers.
Nielsen is best known for its television ratings, but its various branches also track an array of consumer product sales, like books and music, as well as consumers’ habits online and through their mobile devices. Just on Monday, for example, Nielsen announced a new system with Twitter to rank TV shows by their levels of social-media chatter.
Arbitron, meanwhile, has remained primarily focused on radio consumption, which has held surprisingly strong in the Internet age as people stay plugged in to their favorite radio stations, particularly while driving.
According to Arbitron’s most recent statistics, more than 241 million people in the United States, or about 92 percent of the population ages 12 and over, listen to the radio each week. And unlike television, the vast majority of the ads on broadcast radio are for local businesses.
Through the deal with Arbitron, Nielsen should be able to track even more of consumers’ media consumption and buying habits. In a presentation to investors and Wall Street analysts, Nielsen said that by adding Arbitron’s radio data to its portfolio, it would be able to increase the total amount of time in a given day it could track the listening and viewing habits of the average American to seven hours from the current five.
“That is a very big deal when your job is to measure how consumers ultimately form and change behaviors,” David L. Calhoun, Nielsen’s chief executive, said in a conference call. “And it’s that linkage of buy and watch that ultimately allows us to provide those insights.”
In early trading, Arbitron’s shares shot up by nearly 24 percent, reflecting the premium Nielsen will pay for the shares; Nielsen’s stock was up about 1.3 percent. Nielsen is active in more than 100 countries and last year had $5.5 billion in revenue. Arbitron is a much smaller company, but has substantial profit margins; last year it generated $53 million in net income on $422 million in revenue.
As some analysts see it, the challenges for the combined companies will include measuring the growth of online audio and linking Arbitron’s value for local advertising with Nielsen’s more extensive and national data.
For now, Internet radio services like Pandora are not measured by Arbitron in “apples to apples” terms alongside broadcast radio stations, which Pandora has complained puts them at a disadvantage with advertisers and media-buying agencies. But those measurements may become essential as online listening grows and is embraced by even the biggest radio broadcasters, like Clear Channel Communications.
Laura Martin, an entertainment and media analyst with Needham & Company, said that Nielsen’s expertise and its aggressive push into online markets could be an advantage in exploiting Arbitron’s local radio data.
“It’s interesting that they will have the management I.Q. of Nielsen in charge of local advertising possibilities,” Ms. Martin said. “The Internet is moving at the speed of light, and the next big promise of advertising cash is sitting in local. In Nielsen’s hands those relationships may turn into something that Arbitron didn’t think of.”
Ben Sisario writes about the music industry. Follow @sisario on Twitter.
Friday, November 23, 2012
Deal on Aid to Greece Is Within Reach, Germans Say
Melissa Eddy contributed reporting from Berlin and Niki Kitsantonis from Athens.