Protecting Real Economy Firms from Speculating Predators

A number of issues relevant to postings on these pages have been raised during the campaigning for the UK general election. For example, following Kraft’s acquisition of Cadbury, the Labour government proposes to raise the voting threshold for such deals from a simple majority to two thirds of shareholder votes and to exclude from voting any shares acquired since the bid was announced. This would at least slow down some such deals, but as the Liberal Democrats claim, would go nowhere near re-imposing a ‘public interest’ test which would give ministers the power to intervene in deals deemed to be against the public interest. Such a test was abandoned in 1992 with the support of both main parties. But public interest is a vague and inadequate hurdle for such deals, especially when likely British governments will claim the preservation of free and open markets is the prime public interest. So electrical supply company Chloride, and bus and train operator Arriva, the latest targets of foreign bidders, can expect little protection. Unlike, for example, their German counterparts, whose employee stakeholders have 50% representation on the supervisory board and would be able to provide some protection against bids which were against the long term interests of the company, as opposed to the short term interests of its shareholders. UK law requires directors should take the interests of all stakeholders into consideration, not just what the government of the day regards as the public interest.

Another issue that has caused some debate in the run up to the election is the Liberal Democrats’ proposal to again separate commercial banking from hedging and speculative activities, and to tax and regulate the latter differently from traditional banking. This would have the added benefit of breaking up some firms which are currently ‘too big to fail’. The two main parties are united in their objections to this approach, presumably for fear it would reduce London’s attractions as the world’s largest hedging base, and some might leave. However, hedge funds may find the United States even less comfortable. And most G20 nations are moving in that same direction. The days when ‘socially useless’ hedging enjoys total freedom may be numbered.

Going for Goldman

The problem with the Securities and Exchange Commission’s long overdue pursuit of the potentially fraudulent practice in Goldman Sachs is that it is likely to take a long time to conclude, will cost an arm and a leg, and its outcome is far from certain. If and when the UK authorities follow SEC’s example, it would be likely to cost more, take longer, and be even less likely to produce convictions.

The problem is that such legal actions engage with the details of credit default swops (CDSs), collateralised debt obligations (CDOs) and the whole panoply of financial derivatives that have been deliberately invented to mislead and defraud. CDOs were invented so as to deliberately disguise the real extent of liabilities and so make a firm appear less risky and therefore capable of taking on more debt, which was done with the same deliberate intention to mislead and defraud. This is a minefield where the attribution of blame and intent is full of deliberately confusing and opaque detail.

It would be better to step back from the detailed machinations and simply take a view of the truth and fairness of a firm’s published accounts. It is not difficult to do with the benefit of hindsight. Where balance sheets have been seen not to reflect a true and fair account of a company’s position, the auditor who certified the balance sheet should be prosecuted. They are paid vast sums for their expertise and diligence in certifying company accounts. Auditors who are party to misleading accounts, are guilty of either incompetence or dishonesty. They should surely have to face the full force of the law and be struck off by their professional body. Similar treatment should be meted out to those who presented the misleading accounts. And those who gained through their deliberate misrepresentation and have taken large bonuses as a result, should be similarly treated, with their fraudulently earned bonuses being repaid.

This would be a major change in accepted custom and practice, but it is to be hoped the SEC’S action against Goldman Sachs is a first step in that direction.

Fat Cat Corruption

It was Peter Drucker who invented the 20 to 1 ratio, suggesting top executives wouldn’t be able to manage their firms effectively if they paid themselves more than 20 times their lowest paid employees, because of the ‘hatred’ and ‘contempt’ in which they would be held. Today, top executives in both public and private sectors pay themselves vastly more than 20 times, simply because they can, authorised by compliant remuneration committees of fellow fat cats.

The phenomenon results from what Bruno Frey referred to as the “crowding out” effects of extrinsic monetary rewards, the intrinsic motivations arising from the satisfaction of doing an interesting and hugely worthwhile job, being “crowded out” by the monetary rewards being pressed upon them or placed within their grasp. (The “socially useless” financial sector is excluded from these considerations – that’s another story!)

Executives in the real economy, and the public sector, may well have started out with intrinsic motivations to leave the world a better place for their brief presence in it. But these higher aims are “crowded out” in what becomes a mindless chase for more money.

But the person inside inevitably judges what others would think if they saw an act of theft, whether it’s picking up a £10 note on the street and pocketing it, or taking a multi-million pound salary. As Adam Smith indicated, it matters what others think; they would prefer others to think well, rather than ill, of them. Only when they know others think irredeemably ill, do they no longer care how their acts impact. Then there is nothing to lose, so they themselves become lost. They surround themselves with sycophants and hangers on, who insulate them from the hatred and contempt of their fellow humans. It’s a pity the sycophants include government ministers and politicans, for example George Osborne and Peter Mandelson notoriously meeting on a fat cat’s yacht a couple of years ago.

Devastating Mistakes of Economics

In 1792, William Pitt told parliament that Adam Smith’s “extensive knowledge of detail … will …furnish the best solution to every question … of political economy.” Since then it’s been downhill all the way. For Smith, the industrial firm (his famous pin factory) was the key to economic progress, with the market only serving to enable the division of labour. But economists have always given primacy to the market, almost ignoring the industrial firm, because they don’t begin to understand it. In late nineteenth century, economists adopted differential calculus to model the economy, which meant describing the firm as a “production function” comprising two variables, price and quantity, and seeking to maximise profit. This was not just stupid, but hugely damaging. Maximising one thing requires the neglect of everything else, which has done great damage to Anglo-Saxon industry. Finally, in the 1980s, still completely unable to conceive of what a firm involves, they adopted the agency idea, claiming that the managers of a firm were the agents of its shareholders and should not therefore be maximising profit but maximising shareholder wealth. It is a lie. Managers have no contract with shareholders, but with the firm which is a legal entity in its own right. Shareholders do not own the firm – if they did they would not enjoy limited liability. They own shares which entitle them to dividends and capital growth, both at risk. Maximising shareholder wealth, as required by Friedman and followers, requires neglecting everything else. When specific decisions have to be taken, notably in the case of hostile takeovers, this is crucial. It has destroyed much of what remains of Anglo-Saxon industry, the latest British example being Cadbury. It has also justified the obscenity of top executive share option bonuses, which unless reversed will be the source of what is called euphemistically, social unrest.