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After MF Global, a Need to Find New Ways to Protect Customers

The MF Global story still lingers as an insolvency matter, but now we hear rumblings that there will be no criminal charges. It may well be that no crimes were committed, but if this is so, it is time for a serious rethink of how broker-dealers handle customer property.

In theory, customer property at a brokerage firm should be even more secure than money in a bank, because banks use fractional reserves, meaning that by design they have “used” a large part of the depositors funds, while customer property at a brokerage firm is supposed to be segregated in a special fund at a third-party custodian bank.

Somehow, it never works out that way.

Since the Great Depression, banks have overcome the inherent weakness of fractional reserves with insurance from the Federal Deposit Insurance Corporation. Brokerage accounts have insurance, too, but it's limited. Most notably, Securities Investor Protection Corporation insurance covers only securities, defined es sentially as plain-vanilla stuff (stocks, bonds, mutual funds). That leaves commodities and futures traders out in the cold.

The simple solution is to extend S.P.I.C. insurance to all types of investments. But is this also a simplistic solution?

Bank account insurance comes with bank regulation. This means the F.D.I.C. and either a state or federal bank regulator oversees the bank. And by bank here, we mean the actual subsidiary of the holding company that provides bank accounts.

Brokerage firms are regulated, to be sure, but it's not quite the level of oversight that regulators have with depository banks. And the insurer, S.I.P.C., has no regulatory role at all.

Handing out insurance to brokerage firms without simultaneously ramping up the degree of oversight is a great way to prop up shaky brokerages at taxpayer expense. But that is probably not quite the point of providing insurance to brokerage accounts.

Stephen J . Lubben holds the Harvey Washington Wiley chair in corporate governance and business ethics at the Seton Hall University School of Law and is an expert on bankruptcy.



Former College Football Coach Accused of Running a Ponzi Scheme

Federal regulators have accused a Hall of Fame college football coach of running a Ponzi scheme that defrauded fellow coaches and his former players.

Jim Donnan, a head coach of both Marshall University and the University of Georgia during the 1990s who later became a broadcaster on ESPN, is accused of teaming up with an Ohio businessman to cheat investors out of $80 million.

The Securities and Exchange Commission filed a civil lawsuit in Federal District Court in Atlanta on Thursday seeking to recover the ill-gotten gains and impose a penalty on Mr. Donnan, who lives in Athens, Ga., and his Cincinnati-based partner, Gregory L. Crabtree.

Victims of Mr. Donnan's supposed Ponzi scheme includes Barry Switzer, the former Dallas Cowboys coach; Kendrell Bell, the former Pittsburgh Steelers linebacker who played for Mr. Donnan at Georgia; and Billy Gillispie, the former University of Kentucky basketball coach, according to court filings.

Mr. Donnan, 67, r aised money from about 100 investors for a company called GLC Limited, a liquidation business that purportedly acquired leftover merchandise from large retailers and resold them to discount stores at a profit. He promised investors returns of between 50 percent and 380 percent.

Among his investors were former players, said the S.E.C. He told one unnamed player, according to the complaint, “Your Daddy is going to take care of you” and “if you weren't my son, I wouldn't be doing this for you.” The player later invested $800,000.

What he was doing, regulators say, is stealing from him. Of the $80 million raised, only $12 million was used to purchase merchandise, with balance used to pay earlier investors in the scheme, the S.E.C. said. Mr. Donnan took $7.4 million for himself, according to the lawsuit.

“Donnan and Crabtree convinced investors to pour millions of dollars into a purportedly unique and profitable business with huge potential and little risk,” said William P. Hicks, associate director the S.E.C.'s Atlanta office, in a statement. “But they were merely pulling an old page out of the Ponzi scheme playbook, and the clock eventually ran out.”

Last December, after the business unraveled, Mr. Donnan and his wife sought bankruptcy protection after investors went to court demanding millions of dollars from them. Mr. Crabtree and his wife also filed for bankruptcy.

Mr. Donnan is well-known in the football-crazed states of Georgia and West Virginia. In 1992, his team at Marshall, which is in located Huntington, West Virginia, won a Division I-AA national championship. Mr. Donnan went on to coach for five seasons at the University of Georgia, one of the country's most powerful college football programs, before being fired in 2000.

Neither Edward D. Tolley, a lawyer for Mr. Donnan, nor Michael Schmidt, a lawyer for Mr. Crabtree, immediately returned a telephone call seeking comment.

During a call with the media on Thursday, the S.E.C. declined to comment on whether federal prosecutors were investigating the case.



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Shine Is Off Wall Street\'s Big Bet on Internet Start-Ups

In early 2011, it seemed like easy money.

As the valuations of Internet start-ups like Facebook and Twitter skyrocketed on the secondary markets, scores of investors rushed to capture a piece. The big Wall Street banks were no exception.

JPMorgan Chase opened the optimistically named Digital Growth Fund, a $1.2 billion account. Goldman Sachs made a direct investment in Facebook - to the tune of half a billion dollars. Morgan Stanley's mutual funds, meanwhile, bought millions of shares in online gaming company Zynga before its initial public offering.

Though promising at the time, nearly all those bets have soured.

Zynga has plunged 70 percent from its offering price. Groupon, once heralded as “the fastest-growing company ever” on the cover of Forbes magazine, is off more than 73 percent and slipping. And the golden child of the new Web, Facebook, is struggling to convince investors to hold on. Its stock has lost more than 40 percent of its val ue and many fear it could stumble further in the coming months as shareholder lock-ups expire, potentially flooding the market with more and more Facebook shares.

On Thursday, Facebook's first lock-up expired.

Investors who sold during the initial public offeringâ€" a group that includes Peter Thiel, one of Facebook's earliest backers, Accel Partners and Goldman Sachs (Mark Zuckerberg, the chief executive, is excluded)- are now free to sell about 271 million shares. Shares of Facebook slipped on Thursday, falling roughly 6 percent during the first hour of trading, to break the $20 mark. Between now and May 18, 2013, there will be four more waves, a chilling prospect for prospective investors.

Though the jury is still out on how these young businesses will ultimately fare and whether the investments of 2011 will turn to busts, Wall Street's biggest investors have plenty of skin in the game.

Morgan Stanley, for instance, the lead underwriter for many o f these stocks, purchased millions of shares in companies like Zynga, LinkedIn and Facebook at their initial public offerings, and in some cases, before. In February 2011, it bought more than 5 million shares in Zynga at about $14 a share. According to a filing submitted earlier this month, its mutual funds still own about 32 million shares, or roughly 6.9 percent of the gaming company's class A stock. The firm has also made big loan commitments, with more than $1 billion earmarked for Facebook and about $250 million pegged to Zynga, according to people with knowledge of the matter.

Shares of Zynga fell slightly on Thursday, opening at $3.03.

Goldman Sachs, which has also agreed to provide substantial loans to Facebook and Zynga, led a $1.5 billion investment in the social network in January 2011 at a $50 billion valuation. While most of that block went to its international clients, Goldman made a direct investment of nearly half a billion dollars. Entities affil iated with Goldman, which includes the direct investment and its private clients, managed to sell 28.7 million shares in Facebook's I.P.O. at $38 a pieceâ€" a profitable outcome.

The firm, however, is still holding on to 37.3 million shares. It's less certain if Goldman will make any money on this remaining block. It paid about $20 a share for its January investment, according to a person with knowledge of the deal, who requested anonymity because the terms of the deal are private.

Representatives for Goldman and Morgan Stanley declined to comment.

JPMorgan and its formidable balance sheet has also been active.

The bank, which secured a surprise No. 2 spot in Facebook's I.P.O., has about $1.6 billion in loan commitments to Facebook, according to one person close to the firm. Earlier this year, Facebook announced that it had expanded its credit facility to $5 billion and received a $3 billion bridge loan. The firm's exposure to Zynga is far smaller. It has agreed to provide about $195 million in loans, this person said. JPMorgan may end up losing more money from its Digital Growth Fund, which has large investments in Twitter and LivingSocial. Although LivingSocial, the daily deals site, had raised hundreds of millions of dollars at a valuation north of $3 billion, its fortunes have slipped in lock-step with Groupon's, a far larger rival. Amazon.com, which owns a 29 percent stake in the company, recently wrote down the value of its investment to $271 million.

JPMorgan has also loaned about $40 million to LivingSocial, the person familiar with the matter said.



Best Buy Founder Presses Case for Takeover Talks

More than a week after unveiling a takeover proposal for Best Buy - and making little headway - the founder of the struggling electronics retailer is trying to again prod the company into entertaining his offer.

The founder, Richard Schulze, sent a letter to Best Buy's board on Thursday, reaffirming his commitment to buying the company for as much as $8.8 billion. In the letter, he described a takeover as a “win-win” for the retailer and for himself.

“I am deeply concerned about the direction of the company and, as Best Buy's largest shareholder, I cannot simply stand aside,” he wrote. “I still hope to work with the board on a mutually beneficial transaction â€" but you should know that I am not going away.”

He again asked for directors' permission to conduct due diligence and to form a group of investors to buy the company - a requirement under Minnesota corporate law.

“You can easily test how real my proposal is by granting me permi ssion to form a group and by providing basic due diligence information necessary to present a fully financed offer and allow shareholders the opportunity to receive a substantial cash premium for their shares,” Mr. Schulze wrote.

Thursday's letter was sent after the company declined to provide an immediate response to Mr. Schulze's offer of $24 to $26 a share in cash. Investors, too, have evinced skepticism of a deal happening: While shares of Best Buy have risen 9.8 percent since the bid was unveiled, they remain well below the proposed price.

The letter comes days before Best Buy is set to report its latest quarterly earnings, when the company's current management is expected to announce more details of its own turnaround plan.

In the letter, Mr. Schulze again reiterated that he could raise the necessary funds to pay for a takeover. He said that he would roll in at least $1 billion of his holdings, and potentially all of his 20 percent stake, to help fi nance a transaction.

All told, he would likely need to raise about $3 billion in equity capital, along with perhaps $7 billion in debt financing. His investment bank, Credit Suisse, has said that it is “highly confident” that it can arrange the financing, though people close to Best Buy have scoffed at the possibility.

Mr. Schulze wrote in his letter that he has been told with a number of “leading private equity firms” that they are prepared to commit money, subject to due diligence. Among the leveraged buyout shops that he has been speaking to are Kohlberg Kravis Roberts, TPG Capital, Apollo Global Management and Leonard Green & Partners, according to a person briefed on the discussions.

While he has hoped not to name the firms that he has been talking to, Mr. Schulze may identify them at a later date if it would advance his cause. It is a delicate point, since many private equity firms prefer not to be seen as hostile bidders.

In a statement on Thursday, Best Buy responded:

Best Buy's board of directors will review and consider the letter in due course, consistent with its fiduciary duties, and will, as always, pursue the best course for its shareholders. Minnesota law does not prevent him from further exploring and engaging in discussions with his private equity partners, and he does not need the consent of Best Buy's board of directors to bring forward a proposal that names them.



Morgan Stanley Smith Barney Trader\'s Big Bet

Last update: 7:06 AM ET, Aug 16



What to Know Before Accepting Private Equity

Puneet Mehta, an Atlanta entrepreneur, remembers how eager he was to take the money. When investors courted him, he felt “razzle-dazzled,” enchanted by their promises to help him build the online marketing business he had founded in 2006.

“Our goal was to expand rapidly with , put in a bunch of sales teams, get some distribution networks going,” Mr. Mehta explained. He ended up with $1.5 million in private equity growth investments and venture capital. “But I realized after we had raised the money that there were so many clauses that came with it that I had lost complete control of the company,” he said.

Mr. Mehta quickly grew upset with his new bosses, who, he said, handed control to “finance guys who had no idea what marketing was,” moved operations into exorbitantly expensive office space, installed a board above him and hired a new president and chief financial officer with hefty salaries. “Every day was torture to go in there, being an employee at the company I started,” he said.

One morning, he arrived at the office to learn that a beloved colleague had been fired. And so Mr. Mehta quit. The company's revenue dropped to zero, he said; today, it exists only on paper.

Especially since Mitt Romney's résumé became presidential campaign fodder, there has been much debate about the merits of private equity, which is known for its focus on short-term gains. Private equity investors typically use a mix of debt and equity to buy a large stake in underperforming companies, then re-engineer their financial, managerial and operational structures, with the goal of selling them at a profit within five years.

Thanks to horror stories like Mr. Mehta's and attack ads against Mr. Romney, the industry's reputation has taken some hits. But private equity remains a tempting option for some small-business owners. After all, bank credit has been hard to come by and other financing options can be extremely expensive. And with capital gains taxes expected to rise next year, some owners may be motivated to sell sooner rather than later.

Private equity firms in what is known as the lower-middle market typically seek out undervalued but scalable enterprises with more than $10 million in annual revenue and $3 million in Ebitda, or earnings before interest, taxes, depreciation and amortization. So should growth-minded owners like Mr. Mehta consider selling to private equity?

Interviews with a dozen small-business owners and investors revealed a common theme: Go slowly. Here are some things to consider before taking the money.

KNOW YOUR INVESTORS Private equity firms are not sentimental. They have an ironclad imperative: buy low, sell high. They usually purchase a controlling share in a company, bring in a combination of debt and equity, and manage the company in a way meant to increase its worth. Ideally, everyone profits when the company is sold, including the former owner, who gets a slice that is worth more than the original pie.

“Most private equity investors are looking to make, at minimum, about two times their money and be in the deal for three to five years,” said Daphne J. Dufresne, a managing director at RLJ Equity Partners. “So if your plan was to pass your company down to your firstborn, then private equity is probably not a good fit.”

KNOW WHAT YOU WANT “Starting with the end in mind is key,” said Justin Redfearn McLain, managing member of Duart Mull, the investment management arm of a family trust in Atlanta. “What do you want? Are you trying to get capital for growth or for yourself but continue in the day-to-day operations? Or do you just want out entirely?”

Owners who hope to stay involved should remember that most private equity firms want a controlling stake. For some founders, becoming employees of the companies they created is fine, if that's what it takes to grow. For others, it's intolerable.

“It's not my experience that private equity companies care about long-term value, because they're not in it for the long term, so it just wasn't in my nature to stay on,” said Alan Newman, who started Seventh Generation, a distributor of household and personal care products, in 1988 and helped found Magic Hat, a beer company, in 1994.

He walked away from Magic Hat when his partners sold it to a private equity firm in 2010. For Mr. Newman, Magic Hat had never been entirely about profit. “My vision was always creating this really cool, interesting company where people really liked work and we had an impact on our community,” he said.

John Warrillow, a serial entrepreneur and the author of “Built to Sell,” put it in blunter terms. “Provided your goals are aligned with theirs and you go into it with your eyes wide open, that is fine,” he said, “but they are not going to care about the soul of your company.”

DO YOUR HOMEWORK When considering a deal, entrepreneurs should run background checks, call a private equity firm's former clients and speak to members of corporate boards where the firm's investors are active. “I'm doing diligence on you, you should do diligence on me,” said Michael A. Smart, the managing partner of CSW, a private equity firm in New York.

A private equity partner should bring deep industry expertise, fresh connections and experience in tapping new markets: in short, more than just money. Troy D. Templeton, managing partner at Trivest, a firm in Coral Gables, Fla., that invests in founder- and family-owned businesses, said smart business owners should ask the following kinds of questions: Do the investors add value? Can they do things I could not do - introduce me to new markets, help me source products from different areas, help me with online lead generation, bring me into the digital age?

For an entrepreneur who finds the rare match of capital, talent and cooperation, the benefits of private equity can be considerable. “They've got so many insights you can't even pay for,” said Ryan Eleuteri, owner of the Charleston Beverage Company, which sells premium bloody mary mix.

Last fall, Mr. Eleuteri teamed up with Duart Mull, Mr. McLain's firm, which brought capital to the company - both equity and debt - and now owns 30 percent of it.

With $50,000 in revenue for all of 2010, Charleston Beverage was an unusually small candidate for private equity. Duart Mull “generally seeks companies that have a developed product and customer base,” Mr. McLain explained. “Albeit small, Charleston Beverage met these requirements.”

As for his decision to purchase a minority stake, he said, “We are doing this, in part, so Ryan and the other founders can retain majority ownership, because we want them to be motivated and incentivized to grow the company versus feeling like they are working for the investors.”

Mr. Eleuteri said his new partners helped him expand distribution. He now expects $250,000 to $300,000 in sales for 2012.

“I get to operate my business every day as a small-business owner, but if an issue arises, they've got a vested interest in my success,” Mr. Eleuteri said of his partners. “It's almost like having a big brother watching out for you. You get in a schoolyard fight and it's like, ‘Do you really want to do this? I've got my 6-foot-4 linebacker brother behind me.'”

But for Mr. Mehta, the entrepreneur who said he was burned by private equity, there is no going back. He swore off outside financing altogether in his current endeavor, a start-up called Local Marketing Inc., which he said was profitable and generating several million dollars a year in revenue.

“Now we basically get approached by a bank or a company every month to give us money,” he said, “but we don't need it.”