Prosecuting Those With Bad PR
CEO's of companies struggling on the brink of failure often make happy, confident public statements that all is well. Is that a crime?
Well, it depends on how you look at it. It comes down to a CEO's fiduciary responsibility to the company's investors, and how that is regulated for public companies. We think of fibbing to inflate the company stock poorly serves investors, but what about when the company is facing a liquidity crisis? Isn't public optimism in a liquidity crisis exactly what is needed to serve shareholder's interests? Consider Treasury Secretary Paulson, and his near criminal declaration of a financial crisis, and the effect these ill-considered statements have had on the economy.
It is hard for me nowadays not to think about Jeff Skilling, who sits in jail for making what the jury thought to be overly optimistic public statements about the company's financial health (I know you are thinking that he was put in jail for all that off balance sheet accounting and gimmickry, but in fact the prosecution never chose to bring these charges in the trial). Even Skilling's jury, which was pretty clearly predisposed to convict, seemed to acknowledge that he did not make these statements for personal gain.
So why is Skilling in jail and not, say GM CEO Rick Wagoner? Wagoner was making a lot of happy-face statements just a few months before his company acknowledged they were facing chapter 11 if Congress did not bail him out. For extra credit, Wagoner told Congress $15 billion would be enough of a bailout, when he had to have been pretty confident it was not going to come close to cover the hole he faced.
Tom Kirkendall asks some of the same questions, and looking at the cases he cites, it seems fairly clear that the difference between prosecuted and un-prosecuted CEO's has more to do with their like-ability, celebrity status, and general PR position than their specific actions.
Postscript: I have actually been thinking about the Enron bankruptcy a bit lately for another reason. Remember that massive natural gas shortage we had when Enron went bankrupt? Neither do I. That's because chapter 11 is a pretty well-oiled process in this country. Enron shareholders, bondholders, and management lost most their investment (and their jobs) but Enron's productive assets and skilled employees didn't disappear. Enron's assets were bought by other companies who hopefully will employ them more profitably and productively than Enron had.
The same goes for GM. We have a well-understood and proven process for taking a company like GM through bankruptcy. However, we are instead replacing this well-understood and practiced process with a new process, called something like "Congressionally-managed restructuring funded with taxpayer dollars." Does anyone really think this new process is better than the one we have? Its only advantage, at least to some, is that it may preserve some management jobs, and shareholder and bondholder value, at the expense of taxpayers and any real effort for long-term reform of how GM's assets are managed.
