Tag: Reimagining Capitalism

J&J’s Texas Two-Step

The Daily Escape:

Wallowa Lake near Joseph, OR – May 2022 photo by Danny J Goff

From Judd Legum:

“Nearly 40,000 lawsuits have been filed against Johnson & Johnson (J&J), alleging that the company’s baby powder causes cancer. The lawsuits claim that customers became sick with mesothelioma or ovarian cancer after being exposed to asbestos contained in talcum powder.”

In July 2018, a Missouri jury awarded $4.7 billion in damages to 22 women who said they contracted ovarian cancer from J&J baby powder. According to judge Rex Burlison, J&J:

“…knew of the presence of asbestos in products that they knowingly targeted for sale to mothers and babies, knew of the damage their products caused, and misrepresented the safety of these products for decades.”

Obviously J&J appealed, and an appeals court reduced the verdict to $2 billion. J&J wasn’t satisfied and further appealed the verdict, ultimately to the US Supreme Court. In June 2021, however, the Supremes refused to hear the case, letting the $2 billion award stand.

J&J had no interest in bankruptcy, but came up with another strategy to protect most of its assets from the current and any future judgements. In July 2021, the company launched “Project Pluto,” in which J&J would create a new subsidiary, LTL Management, which would “own” the liability for the baby powder litigation. It also would receive about $2 billion in cash. LTL would then declare bankruptcy.

More from Judd Legum:

“J&J is attempting to exploit a 1989 Texas law, deploying a legal maneuver known as the “Texas two-step.” J&J temporarily became a Texas company and then executed a “divisive” merger. The move split J&J into two new companies: one with almost all of the assets and no baby powder liability and another with all of the baby powder liability and few assets.” The latter almost immediately filed for Chapter 11 bankruptcy.

More:

“By filing for bankruptcy, all civil litigation against LTL Management is immediately halted. The claimants no longer have the ability to have their claims heard in court. Instead, if the scheme is successful, all claimants have to split up a limited pool of assets defined by J&J.”

That’s the “Texas Two-Step.” You may remember that in 2021, the NRA had requested to be reincorporated in Texas when it filed for bankruptcy, a move hailed by Texas governor Gregg Abbott. It would also have led to splitting the NRA into two companies, with the liability in the new firm. That effort failed when a Texas judge wouldn’t allow the move without the approval of New York State, something NYS wouldn’t do.

It’s possible in every state to split a company’s assets and liabilities through a spin-off, and spin-offs have often been used to fraudulently transfer assets that might be part of a bankruptcy. The Two-Step exploits a quirk of Texas law, which defines “merger” as including not just two companies merging into one, but also the exact opposite, when a company divides into two or more entities.

Texas and Delaware are the two states that allow for such “divisive” mergers. This type of “merger” avoids what in bankruptcy circles is called a “fraudulent transfer” of assets, assets that should by rights be considered a part of the bankruptcy estate to be divided among the firm’s creditors.

The deemed lack of an asset transfer is what makes the Texas Two-Step unique and interesting to J&J.

The Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, led by Sen. Sheldon Whitehouse (D-RI), is looking into the legality of the Texas Two-step:

“It does not make sense for a $450 billion corporation with 38,000 people with potentially lethal injuries to be able to carve off $2 billion…and walk away from the responsibility for what it did.”

We’ll see what becomes of the lawsuits against J&J and the LTL Management company.

More broadly, this shows we need to substantially strengthen the US bankruptcy fraudulent transfer laws. Unfortunately, that’s a political fight between the capitalist wolves and the consumer lambs, with all the best lawyers on the side of the wolves. For example, J&J has retained Neal Katyal, former Acting US Solicitor General under Obama to help with their liability carve-out. Katyal is earning $2,465/hour while working for J&J. Seems reasonable, no?

The wolves know that the legal positioning really matters. They will fight tooth and nail to keep the firm’s money in the firm and out of the hands of the plaintiffs. Even though there are substantially more lambs than wolves, the lambs have neither the resources nor the smarts to protect themselves.

These greedy schemes by America’s biggest firms are designed to dodge financial responsibility. J&J is attempting to cheat cancer patients from getting what the courts have already awarded them.

The management and their attorneys should face prison time for depriving justice to these consumers who won in court.

If we can’t bring Capitalism to heel, it must go.

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Musk Buys Twitter

The Daily Escape:

High tide, Bandon, OR – April 2022 photo by Bobbie Shots Photography

The Boston Globe is reporting that Musk is purchasing Twitter.

Musk is one of the great entrepreneurs of the 21st Century. He’s redefining space travel with SpaceX. He’s revolutionized internet communication with his Starlink low-earth orbit satellites, having more than 2,000 satellites in orbit. And he’s made Tesla the global leader in Electric Vehicles. And that has made him very rich.

Now he’s using some of his Tesla money along with a lot of Other People’s Money (Morgan Stanley, Barclays, and Bank of America) to buy Twitter and take it private. Bloomberg says Musk’s pledging $21 billion of his own money. The Banks are going to lend him $12.5 billion, secured by an additional $62.5 billion of his Tesla shares.

The rest of the purchase price will be funded by $13 billion in debt that Twitter will take on. After the deal closes, Twitter will have about $1 billion in interest payments due on the new debt annually. Twitter’s cash flow is projected to be about $1.43 billion this year and $1.85 billion in 2023. So debt payments will now be a huge chunk of Twitter’s future cash.

Since this is America, it’s unlikely that any government agency will stand in the way of the sale, but there are two things wrong with it.

First is how Musk became so fabulously wealthy. As Ranjan Roy points out at Margins, his rapid ascent to wealth is due to his unusual compensation package at Tesla. The package set what appeared to be unrealistic goals for sales and profits.

In early 2018, when the comp package was agreed, there was plenty of doubt whether Tesla could scale its manufacturing capacity. Musk had repeatedly said Tesla was on the verge of bankruptcy, yet over the next few years, Tesla both stabilized and grew. It went from producing around 90k cars/quarter in 2018, to nearly 300k in the last quarter of 2021. Revenue grew from $12 billion to $54 billion. Tesla produced nearly 1 million cars in 2021.

At the same time, Tesla’s stock price went to the moon, making Musk the world’s richest human. Not incidentally, much of that was helped by Musk’s tweeting. Ranjan Roy says:

“…since the Spring of 2013, it was clear Tesla’s business results and Musk’s tweeting could have a self-reinforcing impact, and that…cycle…became more clear in recent years. Shortly after Musk signed his giant package, the really high-volume tweeting began, and the rest is wealth accumulation history.”

Musk realizes that he’s dependent on his Twitter marketing strategy. He has 80+ million Twitter followers, and unfettered access to his account is vital to his current and future business interests. Why? His current Tesla 10-year pay package has nearly hit its maximum targets in just four years.

Musk needs to think about where he gets his next giant gain in wealth.

This is the challenge of today’s capitalism: Boards with little real vision give stupendous compensation packages that turn out to be easily achievable. And the SEC allows entrepreneurs with media savvy to pump up their own stock at little personal risk.

Yes, Musk and Tesla have both paid fines to the SEC for stock manipulation. In a September 2018 settlement, Musk and the SEC agreed that he would step down as Tesla Chair and pay a $20 million penalty. Tesla also had to pay a $20 million fine.

But these were just minor costs of doing business compared to the personal wealth he’s created.

The second problem is that Musk, (and maybe a few on Twitter’s board) think that individual users should decide who and what gets seen and heard online. Musk says he wants Twitter to be an open playing field for competitive speech.

That may be peachy in the abstract. But we all know that every unmoderated platform goes to shit because it only takes a few bad-faith users to make it miserable for everyone.

For now, Twitter has decided that Trump can’t post on its platform. It decides whether to delete a post about vaccines if it deems the post to be misinformation. Most people don’t have the time to learn what’s real and reliable, and history shows how susceptible most are to harmful misinformation campaigns. Expect this to change after Musk buys Twitter.

Scott Galloway says:

“In an unmoderated online forum, all speakers do not play by the same rules or have the same tools. University of Maryland professor David Kirsch has found that automated pro-Tesla Twitter accounts are responsible for 20% of the tweets about Tesla, and that the launching of these bots correlates with increases in the company’s stock price.”

Rupert Murdoch transformed media in order to exercise greater influence over society. Does America need Musk to become another Murdoch? There’s a good chance one of his first acts as the Tweeter-in-Chief will be to re-instate Trump’s account, something that will have very serious political consequences.

Wrongo is a capitalist, but we’ve always needed rules to reign in the worst of the market’s players. And rules require umpires. Without umpires, anticompetitive and illegal acts go unpunished. Worse, today people insist, in the name of freedom, on their right to shout down all dissenting voices.

In America, underregulated economic winners have funded think tanks. Some have bought politicians. Some, newspapers and cable news stations. Musk is buying Twitter. They’re trying to convince us that the umpire is the enemy.

Musk wants you to live in a Wild West of speech and power. Are you ready for that?

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Are the Wrong People Manipulating the Market?

The Daily Escape

Green River covered bridge in Guildford, VT photo by jackalatch

Out of nowhere, we’re all hearing about “GameStop”. From The NYT:

“Traders on the Reddit message board, r/wallstreetbets, a community known for irreverent market discussions, made GameStop their cause du jour and rushed to buy out-of-the-money GameStop options.”

GameStop (GME) is a struggling, mid-size retailer stuck in a legacy business. They sell physical video games in a world where you buy and play them online. The financial fundamentals for GameStop suggest that its price should be below $20. It’s a real company, with about 53,000 employees, but it’s not worth anything close to its current valuation. It began the year at $19, got as high as $350, and is currently dropping like a stone, at about $196 right now.

Here’s how the r/wallstreetbets crowd made it happen: A hedge fund shorted GME — betting the price would go down — and thousands of retail investors banded together on Reddit to buy the stock, driving the price up. That caused the hedge funds to lose money, since they had to buy the stock for more than they had sold it for.

The r/wallstreetbets crowd numbers about 2 million subscribers. They realized that GME’s float (the number of shares physically available to trade) was very small, small enough that any large order or volume of buy orders would greatly affect its share price.

They knew that GME’s stock could be driven up to the point where the hedge funds that shorted the stock would have to panic-buy them to cover their short positions and contain their losses. They also understood that this could seriously damage those hedge funds.

This is known as a short squeeze, and Wall Street players do it all the time. What’s different is that a bunch of day traders got in on the action. A well-executed short squeeze is a thing of beauty, and in this case, it’s out in the open, and probably legal.

No one seems to be managing this effort. It’s a self-organized campaign with people using message boards to communicate with each other. What’s interesting is that this time, it’s the institutions that were caught with their pants down.

R/wallstreetbets is drawing on techniques used during the 2016 presidential election. Over the course of that campaign, a loosely organized community of alt-right meme pushers and their followers, located on sites like 4chan and Reddit, used social media to barrage Hillary Clinton with an endless flow of memes targeting her supposed inauthenticity and corruption.

They exploited social media to disrupt the normal workings of the US political system, just like these traders are doing this week to the pros on Wall Street. Interestingly, the traders on r/wallstreetbets, describe themselves as “Like 4chan found a Bloomberg Terminal”. It’s a remarkable testament to the internet’s ability to facilitate collective action.

From Bloomberg:

“This is all fascinating. In the space of 12 years, the role of the short-seller has turned on its head. Back in 2008, it was the shorts who upset the status quo, revealed what was rotten in the state of Wall Street, and brought down the big shots. They were even the heroes of a big movie. It was the Wall Streeters who attacked them.”

Now, short-selling hedge funds are seen as part of a corrupt establishment (as they should). And there is a deep generational divide: those unable to own their own home, who have student debt up the wazoo, and are forced to plan retirement without a pension have a stunningly unfair deal, compared to those of an older generation. That percolates into anger, in this case, partly directed at hedge funds.

Anger, at least as much as greed, has the capacity to make us throw caution to the winds. Many of us have a lot to be angry about. It’s impossible to foresee the consequences of similar angry bubbles driven by social media.

It also made a few titans of Wall Street angry. Here’s Leon Cooperman:

This is hilarious! Short positions get squeezed all the time, but the fact that he’s losing to a bunch of losers, who are “sitting at home getting their checks from the government, trading their stocks.” is unacceptable!

For God’s sake these people didn’t even go to Wharton!

And early on Thursday, Wall Street got a measure of revenge, when the trading platform Robin Hood suspended trading in GME. More than half of all Robinhood users own at least some GameStop stock.

No shortage of irony when you’re named Robin Hood, but you protect the rich by blocking everyday citizens from trading.

It’s almost as if capitalism is a tyrannical system arranged to benefit a select few.

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Is Ending Income Inequality a “Radical” policy?

The Daily Escape:

Mount Robson & Berg Glacier, BC, Canada – June 2019 photo by DrTand the women

New York Magazine’s Eric Levitz writes: (brackets and emphasis by Wrongo)

“…the Federal Reserve just released…its new Distributive Financial Accounts data series [that] offers a granular picture of how American capitalism has been distributing the gains of economic growth over the past three decades. Matt Bruenig of the People’s Policy Project took the Fed’s data and calculated how much the respective net worth of America’s top one percent and its bottom 50 percent has changed since 1989.

He found that America’s super-rich have grown about $21 trillion richer since Taylor Swift was born, while those in the bottom half of the wealth distribution have grown $900 billion poorer.”

This is what a few of the Democratic presidential candidates have been talking about, some loudly and some quietly, for the past few months. Levitz asks the right question:

“So, is an economic system that distributes its benefits in this manner consistent with Americans’ common-sense views of economic justice? If not, would incremental changes be sufficient to bring it into alignment with the median American’s values? Or would more sweeping measures be required?”

In a sense, Democrats are testing whether advocating for changing Capitalism is an argument that voters will accept in 2020. More from Levitz:

 “Some Democratic presidential candidates say that America’s economic system is badly broken and in need of sweeping, structural change. Others say that the existing order is fundamentally sound, even if it could use a few modest renovations. The former are widely portrayed as ideologues or extremists, the latter as moderates.”

Essentially, the question is “who’s the extremist?” in the Democratic Party. This conflation of “extreme” or “radical” with “bad” is what the GOP and the Main Stream Media do every day, and it weakens our policy-making.

We use “extremist” or “radical” as a way of signaling that a policy position is too awful to consider.

If you simply say that something is bad, then you are forced to defend your position. But, when you describe it as “extreme“, you’ve called it bad, and people will HEAR that you think it’s much too big a change to even discuss.

Respectable talking heads like Judy Woodruff will ask: “Will Americans really go for THAT?”

This is bad faith messaging about important questions. This is so ingrained into people who talk about politics that it largely goes unquestioned. We shouldn’t care about pundits and broadcasters saying how extreme or not extreme something is. We should care about the merits of the argument.

Republicans have been calling Democrats “extreme” “radical” and “Socialist” for decades. They’re using bad-faith tactics; de-legitimizing an idea or a candidate without having to debate on the merits.

Bernie Sanders and Elizabeth Warren are offering “extreme” policies only if our baseline is what the average Congress critter’s economic agenda looks like. It’s not clear why that’s an appropriate yardstick.

Did we think calls for sweeping change in Egypt were extremism when students took to the streets demanding basic civil rights? Do we think the young people demonstrating today in Sudan are radicals?  Our assessment (and support) of these dissenters’ ideologies has more to do with how far their values are from those of their corrupt political and military leaders.

And also by how close they seem to be to our core values.

Whether it is extreme or moderate to propose sweeping changes to American capitalism should depend on how close our existing system is to how a just economic system operates. And these latest data show that the one percent have gotten $21 trillion richer since 1989, while the bottom 50% have gotten $900 million poorer.

This is what economic class warfare looks like. Saying that isn’t hyperbole. The earnings and wealth of a majority of our citizens has been systematically declining with the complicity and power of our government, in order to benefit the rich.

It shows how bad things are when the “radical” in American politics is anybody who argues that the American economy isn’t working for a huge percentage of the population.

Judy Woodruff may think that the economy is great, but incrementalism has failed most of us for the past 40 years.

Given all this, any politician who insists that American capitalism is “already great” is clearly someone who is indifferent to economic inequality.

We need to adopt redistributive economic policies. That may sound like an extreme position, but the alternative of continuing our growing wealth inequality, should really be thought of as far more radical.

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The Long Battle to Reform Capitalism

The Daily Escape:

Poppies in bloom, Southern California – March 2019 photo by Leslie Simis. This annual explosion of color is enhanced this year by extraordinary rainfall

You can call the period in US history from FDR to Nixon “America’s social democratic era”.  A collection of politicians had hammered out the policies and regulations that became FDR’s New Deal in America. It became a period of post-war prosperity during which inequality narrowed, economic growth boomed, and optimism reigned.

The characteristics these policies shared were reciprocity and generosity. For the citizen, there was some form of social support that grew from Social Security in 1935 through the 1960’s with Medicare and Medicaid. In 1970, Nixon implemented the Environmental Protection Agency. There was also a willingness to care for the disadvantaged. Our Marshall Plan and our commitment to foreign aid are both great examples. The success of social democracy in the postwar era weakened the market’s power to act independently within our society.

But then things changed. Our government’s role became a helpmate for corporations, financial institutions, and their lobbyists. The result has been growing inequality between suppliers of capital and the suppliers of labor, even of highly educated labor, like teachers and professors. Economic growth slowed, and we have developed a permanent underclass that seems impervious to repair.

Yesterday, we talked about Economic Dignity, and how focusing on it might help solve inequality. Today’s market economics is partly based on the ideas of Jeremy Bentham and John Stuart Mill, economists who viewed human beings as supreme over the state. As individuals who would make rational decisions to maximize utility. It turned out to be incomplete, since it left out key dimensions of human psychology, like the individual’s need for social esteem or respect. In other words, they ignored economic dignity.

Couple that with Milton Friedman’s idea, that the mission of the firm is to solely maximize profits, that any responsibilities to its employees, consumers, or society should be ignored. Profit maximization at all costs has done great damage to American society. And conservatives and free marketers have married the ideas of these three economists, making the removal of government from markets their primary mission.

But what they call “the market” is really a bundle of regulatory (and non-regulatory) rules by which market activities operate. The mix of free and regulated market activities can be changed, even though capitalists say we shouldn’t change the rules, because it adds uncertainty to markets.

Just because in baseball, three strikes and the batter is out, or with four balls, there is a free pass to first base, doesn’t mean it has to be that way. It could be five strikes and you’re out, or three balls is a walk.

As an example, we tend to fight unemployment with “trickle-down” solutions. That means we bribe the rich and corporations to hire more. But, the bribe is always bigger than the payrolls that are generated.

We could fight unemployment with fiscal policy, such as infrastructure spending by the government. It would employ many, possibly hundreds of thousands, and there would be no need to pay any entity more than was warranted by the tasks at hand.

America needs a return to what economist Paul Collier calls the “cornerstones of belonging”— family, workplace, and nation, all of which are threatened by today’s market driven capitalism. That means capitalism has to return to the ethics of the New Deal. Joseph Stiglitz, Nobel laureate in economics, says: (parenthesis and emphasis by Wrongo)

Over the past half-century, Chicago School economists, (including Milton Friedman) acting on the assumption that markets are generally competitive, narrowed the focus of competition policy solely to economic efficiency, rather than broader concerns about power and inequality. The irony is that this assumption became dominant in policymaking circles just when economists were beginning to reveal its flaws.

Stiglitz says we need the same resolve fighting for an increase in corporate competition that the corporations have demonstrated in their fight against it. We’ll need new policies to manage capitalism.

It means higher taxes on profits.

It means paying workers more.

It means rebuilding public assets like roads.

It means teaching students to be both technically capable, and grounded in their values.

Speaking of needing to teach our students, if you think we’re not in a rigged game, think about one “USC student” who is part of the admissions fraud scandal, Olivia Jade Giannulli. She was on the yacht of the Chairman of USC’s Board of Trustees when she heard about it.

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College Admissions Fraud: A Teachable Moment About Capitalism

The Daily Escape:

Eagle pair on nest, Litchfield County CT – 2015 photo by JH Clery

With the college admissions fraud, wealthy Americans are now bribing people to get their kids into college. It’s just another way that the wealthy are rigging the game. Robert Reich enumerates:

We’ve become a nation where any number of greased poles stop your ascent. People with wealth seem unwilling to compete fairly. It turns out that executives from Pimco, Hercules Capital, and the co-chairman of the law firm, Willkie Farr & Gallagher, were named in the buy your way into Yale scam, along with a few Hollywood types.

It’s become very difficult to differentiate between applicants for the prestige colleges. Good grades and test scores and life experiences are no longer enough to help a kid to stand out the way they might have a few years ago. So some are bribing their way to the head of the line.

It’s just another cost of doing business in America. The truly wealthy can just pay for a new building and see their children get into the best universities. But, the merely rich can’t do that. OTOH, they can’t be expected to simply earn their way in.

As for the kids: They all knew whether what was on their applications was true or not. They had to be in on the scam. This is what passes for the charmed life of the rich in the USA: Kids knowingly cheat right along with their cheating, entitled parents, because they believe they deserve to go to Georgetown.

Robert Reich is correct, this is the rot that concentration of wealth has brought to our country.

Randall Lane has a long read at Forbes about “Reimagining Capitalism” in which he summarizes his one-on-one discussions with two dozen billionaires, including face-to-face meetings with the three richest people in the world, Bill Gates, Jeff Bezos, and Warren Buffett, about capitalism’s future. Lane says:

“Virtually every billionaire I spoke with acknowledged that higher taxes on the billionaire set are inevitable; most even saw them as beneficial, if correctly applied. According to Gates, Buffett, Khosla and others, the correct way to levy taxes on the superrich is….Either an estate tax without the loopholes that currently render it useless or a higher capital gains tax applied only on extreme fortunes…”

He quotes Buffett about the disparity of earnings between the top 1% and the bottom 50%:

“The market system as it gets more specialized pushes more money to the top….The natural function of a more specialized market economy is to divert more and more of the rewards to the top. That’s something I don’t think we’ve fully addressed in this country.”

Lane points out that Bill and Melinda Gates even went on Steven Colbert and called for higher taxes on the super-rich.

Younger Americans know that the deck is stacked. That may be in part why some kids play along with their parents and cheat to get into Harvard.

An often-cited 2016 Harvard University survey found that 51% of American youth aged 18 to 29 no longer support capitalism. Only 42% said they back it, while just 19% were willing to call themselves “capitalists.” A follow-up focus group study concluded that most felt that:

“Capitalism was unfair and left people out despite their hard work.”

Gene Sperling, Obama’s Director of the National Economic Council, has an interesting take on redefining our overall economic goal. He says we should strive for “Economic Dignity”. His conclusion is that the Fed and the Congress should implement a full employment monetary and fiscal policy that fosters tight labor markets.

Sperling says that would be a triple win for economic dignity, because it would lead to higher wages, and it would give companies greater incentive to provide advanced training to their employees. Meanwhile, high labor demand gives more workers some “take this job and shove it” leverage that they lack today.

Taken together, it would allow people to care for and provide opportunity to their families, something that is at the core of America’s beliefs.

Young Americans know that capitalism in its current form creates inequality, oppression, and exploitation. It could be made to work for all if it were more responsive to society’s needs, and yes, if it provided economic dignity for all.

Those who have been rewarded by capitalism shouldn’t be able to use their bounty to make the lives of others worse than they are. This isn’t just about the Koch brothers. It’s also about the merely wealthy who scam the college admissions system to get their kids into better schools.

We should be showing the young that there’s a better form of capitalism.

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