Meet the New Boss - Same As the Old Boss

This week, attorney general Andrew Cuomo criticized AIG’s spending on executive compensation. “In the last several months, as A.I.G. was teetering toward bankruptcy, and operating with unreasonably small capital, A.I.G. nevertheless made numerous extraordinary expenditures in the form of executive compensation payments, junkets and perks for its executives.” He was particularly dismayed by a $5 million cash bonus and a $15 million “golden parachute” that were given in March to A.I.G.’s chief executive at the time, Martin J. Sullivan.

Cuomo denounced this spending as it violated New York State law. In addition, he threatened to take legal action against the company if needed. It was only after the subpoenas were issued that A.I.G., in turn, said it would “fully cooperate” with the attorney general’s office. This included, agreeing to cancel a $10 million severance package for its former chief financial officer, Steven J. Bensinger.

The agreement came a day after Attorney General Andrew M. Cuomo assailed A.I.G. for making “unwarranted and outrageous expenditures” which he said violated New York law and that he found particularly “irresponsible and damaging” especially in light of the federal government’s $123 billion rescue of the company. The terms of the agreement call for A.I.G. to provide the AG’s office with a complete accounting of all compensation paid to senior executives. A.I.G. also agreed to eliminate all activities not justified by legitimate business needs. AIG will immediately cancel more than 160 events with costs exceeding more than $750,000 per event, for a total savings of more than $8 million.

AIG CEO Edward Liddy, who testified before the sub committee commented on the public outrage: "Obviously, we are meeting today at a high point of public anger. I share that anger. As a businessman of some 37 years, I have seen the good side of capitalism. Over the last few months, in reviewing how AIG had been run in prior years, I have also seen evidence of its bad side. Mistakes were made at AIG on a scale few could have ever imagined possible. The most critical of those was the creation of a credit default swap portfolio, which eventually became subject to massive collateral calls that created a liquidity crisis for AIG.”

Liddy, who took the reigns last September after the company had turned to the U.S. Government for financial support, went on to thank the Federal Reserve and the U.S. Treasury, “…. for making the extraordinarily tough call to provide that support. It has meant that together we have been able to preserve jobs and businesses, and protect policyholders who rely on the promise of insurance to secure their well-being.”

With high hopes tempered with a measure of cynicism, we sit, we wait and we watch as the wind blown stench of the meltdown slowly invades and taints our entire world. We voted one administration out and another in, while we eliminated one group of CEO’s and anointed the next group in their place. Our new administration is still bailing out in a directionless manner while corporate America continues their attempt to take what they can only relenting under threat of subpoena. Meet the new boss, same as the old boss….

Keep it in The Family

While UBS has been at the epicenter of an international tax shelter fraud and while the investment banking market has been silent, one of their employees, Francis Tucci has been spending his time and most likely UBS resources in a most unique manner.  In an attempt to discredit a fund in which his family and his father - Gerald Tucci were both invested, Francis an investment banker at UBS has been applying his own brand of due diligence.  With not much else to do, he has been allegedly utilizing UBS resources during firm work hours, to better understand the underlying assets in the fund in which his family had invested.  With all of his time and effort along with a wealth of resources behind him, provided by UBS, what did our investment banker learn?  Simple, companies in the micro-cap market often have low revenue and low prices.  Bravo, Francis, but we recommend you hang on to your day job as long as you can, because there’s no place for you in the world of due diligence, but maybe we can find one in the family business.

When Gerald and his family decided they wanted to redeem their investment, a recent article in Forbes stated, that according to assertions filed in legal papers, that the Tucci family sent two burly men to the offices of the NIR Group in Roslyn, NY, who stated they were, “silent partners” of the Tucci’s and demanded their investment capital along with profits, returned immediately and in cash, $1.5mm.  The Tuccis “silent partners” even brought their own brief case, empty, confident they could utilize unethical tactics, to retrieve their money illegally that very moment.  Further, according to legal papers filed, these men also threatened the manager of the fund and his entire family, causing the temporary need for protection professionals.

These are indeed bleak economic times with many funds simply unable to handle the pressure and redemptions - we find, some left with no options- close, while others, utilize gates to retard the process.

Most commonly, we see restructures that provide several options for investors allowing the investor a bit of latitude in light of the tough decision they must make.  These options are always dictated by the guidelines of the previous investment documents that are signed by both manager and investor.  This contract and the guidelines within it are to ensure that each and every investor is treated equally.  Without them, lawlessness ensues.  This lawlessness may be exactly what the Tucci’s had counted on.

As an investment banker at UBS, Francis Tucci should have understood that his family and their investments were bound by the documents they signed.  And in all likelihood he did.   We believe this is why he and his father Gerald Tucci and brother Michael Tucci made the alleged decision to send goons to the Roslyn offices of the NIR Group.  Their goal was to simply utilize fear and threats as tactics to circumvent the legal documents. In other words, the Tuccis attempted to break the law.  Given the vast fraud rumors regarding UBS; and considering Tucci’s colorful past and now present, perhaps there is far more here than meets the eye.  The one thing we do know for sure, the Tuccis are indeed a group that likes to, keep it in the family.

Article Written by:  A. Pennington

The Real World - A Due Diligence Tale

The author of this article is an active FOF manager who declined having his name used.

As a due diligence specialist in the fund of funds space of the financial world, my job consists of finding appropriately performing opportunities for others and receiving a fee for directing clients to these investments.  This process includes a stringent, often referred to as onerous, due diligence process, during which we meet the managers and   investment professionals.  We review every facet of their organization including: operations, back office, analysts, traders, partners’ history and even the managers’ personal credit. This process typically takes many months of countless hours of extremely hard work reviewed and agreed upon by a handful of dedicated employees who work with me as a team.  Together, we have made hundreds of recommendations over the last 20 years. This onerous, systematic form of due diligence has always been the process that leads to our recommendation, for better or worse.  This, over time has led to many relationships with managers all over the world (these as well, are for better or worse) and as such, I have come to know many of these people who managed my clients money, very well. 

Recently, many were caught completely off guard by the news of market maven, Bernard Madoff and the fact that the supposedly steady returns he had been delivering for decades, was nothing more than a ponzi scheme.  There were obvious exceptions.  Most notably, Markopolous and JP Morgan’s Jamie Diamond.  The former, had been trying to prove to anyone that would listen, including the SEC, that Madoff’s returns were not possible.  Markopolous had created an accurate financial model years earlier in 2001 that proved for a fact (and beyond a doubt for those of us who understood Mr. Matkopolous’ computations), that Madoff’s returns, based on his acknowledged strategy was not possible.  The latter, well they figured it out too.  In fact, many people on wall

street had it figured out.  This is exactly why no major investment bank was caught up in the Madoff scandal in its final stages.  As a member of a team (most of us work for many years on a team before we become managers) that performed due diligence on Madoff many years earlier, we too found, what many others in the industry found, these returns were not possible for a myriad of reasons.   This and situations like it, (Bayou, Stanford) continue to take the street by surprise.   With clients more nervous than ever I have become more concerned than ever with rumors and innuendo.  When mathematical modeling, credit checks and top down reviews check out, next we check the “rumor mill.”  It’s a big world, but a much smaller financial community within, than the average investor realizes.  While we never believe them at all, we still believe in doing as much homework as one can do.  Even doing it twice.  

Due it Over Stupid

From the wisest FOF manager to the normal investor - all are going through the typical due diligence steps again, with each and every current investment.  Needless to say, my team is not happy and has been sleep deprived and cranky for quite some time, as am I.  During the first 6 months of investment reviews we covered many hedge funds with many strategies.   Even the best of managers are currently under tremendous stress for obvious reasons and I must admit, we too feel the weight of the markets and the turning of the tide as many of our best clients demand their funds returned.  Regardless of return profile, in times of uncertainty, investors flee the markets.  It is an unfortunate fact, that history has never seen a greater time of flight from the stock market (and credit markets for that matter).  The fear is palpable and we are all guilty of the horrible crime of trampling over one another on our way out the door.  It seems we all vaguely recall the flight attendant warning us to walk, not run to the exit and still, we simply cannot help but sprint in an every-man for himself fashion, to a soon to be disclosed finish line.  It’s an odd position to be in, we did well for our clients in certain spaces, and not so well in others.  It doesn’t seem to matter.  The loyalty lies within the money.  Not toward any particular FOF or manager, rather it lies within the simplicity of the golden rule.  And everyone wants their gold back, yesterday, if not sooner.   We have an equal percentage of withdrawal in all.  One fund, the NIR Group, an alternative investment fund, had a strong return, another, Laurus Funds, a slight loss, yet we were invested in both. The percentage of requested redemption from each is nearly identical.  This shows us two things.  First, people want their money, but secondly and more importantly, they want their money regardless of profit and potential which is indicative of irrational behavior. We spoke to the independent auditor of one fund, Marcum & Kliegman, a regional firm with hundreds of employees and far more clients as well as a division dedicated and specializing in fund auditing.   They assured us, in regard to NIR, there were no issues they were aware of and had been the fund’s auditor since inception.  They also were quick to point out that they have over 300 professionals on staff, aren’t a small firm and represent hundreds of investment partnerships.  We were also referred to an independent 3^rd party valuation firm who also had evaluated this particular funds portfolio, WTAS.  My team spoke with WTAS regarding their valuation in the market, FASB 157 and how they had worked with the fund in order to determine an independent 3^rd party evaluation apart from the accounting firms audit to further assure investors that the methodology is sound and that it meets all legal requirements and regulatory standards of accounting.  This is a national firm with hundred of professionals, some of whom we had dealt with on previous evaluations of other funds, so we felt confident in their assessment abilities. 

Next, we went on to speak to one of the market makers who the fund works with and whom we believe is responsible for a sizable portion of the firms trading, which clears through Penson Financial Services (PFS), located in Dallas, TX.  He has traded micro-cap securities for many years and is considered an industry veteran.  He and his team, trade hundreds of millions of shares each day, many of those shares are on behalf of the fund in question.  We were able to discuss trading on these investments and the nuances involved in this niche market.  He described other like funds and their strategies from his perspective.  We spoke with him in detail about the overall market, its liquidity and where he believed micro-cap market was heading.     

Due Sue 

Legal due diligence has become very important.  We live in the most litigious society in the world during a time of world wide economic strife, so we not only have to review all litigation, we also have to determine the effect, if any, such litigation may have on our decision to invest or directly on our currently existing underlying investments. Over the past few years, the firm had restructured and grown, but had also had several departures, as well as their fair share of bad press, all of which, is disconcerting.  The rumor mill had this particular fund named in several lawsuits, as it turns out, they were the plaintiff in, all but one litigation.  Mostly, these were standard suits against portfolio companies for not adhering to their deals.  Non-performance seemed to be the common thread.  The company invariably seems to make the claim that the fund(s) manipulated the stock and/or shorted when it agreed not to short.   It is important to note that we reviewed all litigation the firm has been involved in (since inception) and all the times the firm had to deal with this counter claim (of shorting), not once has any company proven that they or anyone associated with their firm committed any wrong doing.   Our legal due diligence determined that in all likelihood no shorting occurred.  In addition our conversation with traders all pointed in the same direction.  The suits were frivolous and most likely just a tactic in an attempt to scare the investor (fund) into settlement.  None of these companies have every proved any of their allegations and, in fact, all counter-claims against the fund, were dismissed with prejudice.  

During our review, we found one case in which our client fund was the defendant.  As we came to understand it relates to the company restructure.  According to the law enforcement report, “two large gentlemen entered the offices of NIR and demanded to see the fund manager over the restructuring.”  We confirmed with the manager that an investor had indeed hired and sent two big guys to ‘collect’ their investment on the investors’ behalf.  The firm’s general counsel took an impromptu meeting at which time the gentlemen explained that the investor wanted their money returned immediately; anyway possible and if not, the manager and his family were at risk.  The firms’ owner immediately spoke to counsel and law enforcement personnel giving them all the information, which include the clients’ name, Tucci and the fact that this particular client was part of as larger investment group introduced by disgruntled former partner, Kenny Yellin.   Yellin had resigned almost a year earlier and had been threatening the manager, the employees and counsel ever since.  Yellin was the topic as we find out of an investigation into an insurance claim that he made under a homeowners insurance policy.  This came up from our discussions with law enforcement.  

As you can see, legal due diligence provides us with many challenges as it has infiltrated every aspect of our society and become impossible to avoid.  Therefore we find this area of our expertise must not only be empirical, but more importantly, it must be viewed with a fluid understanding of its effect on our underlying and future investments in order to adapt to the rapidly changing environments.   In other words, it has become our job to interpret the legal consequences as it relates to investment as opposed to how it relates to legality.

Just Due it

When determining initial suitability of a fund we look at many aspects of company.  Paramount is independence.  Auditors, they must be independent.  In addition, they must be sizable and they must be well known and respected firms.  In addition, many funds are turning to independent 3^rd party auditors or valuation experts who review and evaluate the funds portfolio evaluation methodology, in addition to the primary auditors.  This provides the manager and the investor with another layer of protection and an even greater assurance that the underlying accounting valuation methodology is quite sound.  This theme of individuality must also be applied to traders, market makers and clearing agencies.  The same basic principles apply.  They must all be independent of the fund, sizeable and widely recognized as respectable known entities in their respective fields.  Once we have made these determinations and are comfortable with our financial due diligence, we combine it with our legal due diligence.  In this case, legal exposure as it related to the underlying investment was determined to be minor and would most likely have little to no effect on the underlying investment.  

On it’s own, financial due diligence is an obvious must for any fund of funds.  It is crucial however, to avoid the mistake of under estimating any appearance of impropriety, especially as it concerns related party entities, their inter-dependence and its possible effect on the underlying investment.  In addition, legal due diligence hinges on the ability to not only understand the law, but equally as important, is the ability to fluidly determine a possibly undetermined outcome and its affect on an investment.  It is only when these two partners in due diligence are combined, than one can finally see the whole picture.   It’s absurd to believe that a Madoff feeder fund like Ascot Partners or Fairfield Greenwich, did the appropriate underlying due diligence, in my opinion.  There are far too many obvious red flags, including the methodology and especially the incestuous relationship between trading firm and clearing agency.  Finally, anyone who has followed the story is now aware that their auditor, Friehling & Horowitz was a firm so tiny, experts scoff at the possibility of such a firm handling the multi-billion dollar accounting necessary if Madoff’s trades and accounts had actually existed.

As time goes on, we find our jobs harder and harder to do and recently, even tougher to keep.  Day to day we find more and more phone calls to be redemption requests from panicked investors.  While we certainly cannot blame them for giving in to their emotions in this market many looking at tremendous losses, I am personally looking forward to a day where we can all look back and confidently think to ourselves, “we made it through.”  I’m not exactly sure when this turmoil will cease or when that day will come.  I’m not even exactly sure what this melt-down we will have made it through is, but I am confident that when that time arrives, my due diligence process will prove its resilience and the managers that warrant it, the ones that adapt, that persevere, they will be the ones who receive my clients investments.

The Thain Lewis Machine

Sign me up!  

Bonuses.  Perks.  Offices.  Staff.  Planes. Cars.  Drivers. No need to produce profits.  In fact we don’t have to really do anything except come up with deal structures that only we understand, bury the inherent risk pitch it as safety to the client, then flip the whole package to the other guy.  Then, do it again.  

There is no one left in the free world that has not heard about the obscene bonuses the once tall investment bank Merrill Lynch paid its people minutes before it’s acquisition by Bank of America.  It was in the coming months, as B of A stock plummeted, that we would come to learn of bailout bonuses and the possibility that the Fed forced Bank of America to take over the behemoth before it was too late.  

Now the former CEO of Merrill, John Thain and Kenneth D. Lewis, Bank of America’s CEO, are under fire for allowing this to happen and for what they knew.  The when, the where and then the inevitable, for gods sake how???  Why would several of the parties generally considered responsible for causing the collapse of the credit markets and the stock markets, resulting in the loss of many billions upon billions of dollars possibly receive a bonus? Do you get a bonus if the firm you work at doesn’t do well? I certainly don’t.

This incestuous paradigm that has gripped Wall Street for decades must stop.  First compensation packages were large.  Then they became larger as salaries became tied to tremendous bonuses and perks.  Then they became enormous, including signing bonus, equity in the company, salary and bonus, regardless of performance.  This madness needs to come to an end and given today’s political climate, the compensation scam that’s infected Wall Street may be coming to a close sooner than many would prefer.

Now, to be clear, I am all for performance based compensation.  If one meets a specific performance goal, then you should certainly be rewarded by a reasonable bonus.  However, if the firm has to take money from the government to stay alive, or needs to be acquired to survive, the definition of what is reasonable, very quickly needs to be redefined.  We are tremendously confident in the new administrations ability to act swiftly and act fairly.

Article written by: Simon B.