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Study: Number of Federal Class-Action Security Lawsuits Fell in 2012

As the stock markets improved last year, it appears, demand for federal shareholder lawsuits diminished.

The number of federal class-action securities lawsuits filed in 2012 amounted to 152 cases, according to a new study by Cornerstone Research. That’s below the level in 2011, in which 188 suits were filed, and the average of the 15 years prior, which was 193.

And that drop was consistent across a broad array of potential legal areas. Federal lawsuits filed over announced mergers, for example, fell by nearly a third in 2012 from 2011, to 13 cases. (The study’s authors caution that the drop may be because plaintiffs are pursuing claims in state courts, rather than turning to the federal court system.)

Filings against Chinese companies that pursued stock listings in the United States â€" at one point a red-hot topic â€" tumbled to 10 cases last year, from 31 in the prior year.

And new lawsuits tied to the financial crisis finally disappeared for the first time, as the market turoil of 2008 receded even further into the distance.



Allergan to Buy MAP Pharmaceuticals for $958 Million

Allergan has agreed to pay nearly $1 billion to acquire MAP Pharmaceuticals and gain full control of its experimental treatment for migraine headaches, the two companies announced Tuesday night.

The purchase price of $25 a share in cash is a 60 percent premium over MAP’s closing price on Tuesday of $15.58 a share. The deal, worth $958 million in total, suggests that Allergan has great faith that MAP’s new migraine treatment will win regulatory approval from the Food and Drug Administration by the agency’s deadline of April 15.

The two companies sad the deal had been unanimously approved by the boards of both companies and was expected to close in the second quarter.

Allergan already had the rights to help market the migraine drug, known as Levadex, in the United States and Canada, but after an acquisition it would have control of all the profits and costs globally.

Allergan is most known for Botox, a form of the botulinum toxin, which is used for cosmetic purposes as well as medical ones, including to treat chronic migraines with the goal of reducing the frequency of headaches. By contrast, Levadex is meant to treat migraines after they occur, making it complementary to Botox, Allergan said.

Levadex is actually a new form of an old drug, known as dihydroergotamine, or DHE, which has been used to treat severe migraine attacks for decades. DHE is typically given by intravenous infusion, requiring patients to get to a hospital at a time when many would rather remain in a dark quiet room.

Levadex, by contrast, is breat! hed into the lungs using an inhaler similar to one used for asthma, allowing people to use it at home.

The Food and Drug Administration declined to approve Levadex last March, though MAP said the rejection was related to manufacturing and questions about use of the inhaler, not the safety and efficacy of the drug. It resubmitted its application, with additional data and answers to questions from the F.D.A., in October.
Levadex would be the first approved product for MAP, which is based in Mountain View, Calif.

Allergan said that if Levadex is approved by April, the transaction will be dilutive to earnings per share by about 7 cents in 2013 and become accretive in the second half of 2014.

Allergan was advised by Goldman Sachs and the law firm Gibson, Dunn & Crutcher. MAP was advised by Centerview Partners and the law firm Latham Watkins.



At Davos, Is the Party Over

DAVOS, Switzerland â€" In previous years, the Friday night of the World Economic Forum was always filled with big dinners and blow-out parties.

Certain bashes were among the most coveted. Google held a standing-room only party at Steigenberger Belvedere Hotel, complete with bands flown in from New York and beyond. Across the street, Accel Partners, the venture capital firm behind Facebook, held a wine tasting at the Kirchner Museum, often flying in cases of vintage wine from California. And slightly earlier in the evening, Nike held a huge dinner with the slogan, “No Speeches. No Powerpoint. And no ties.”

This Friday, however, the operative slogan could be “No dinner. No parties.”

All three companies - Google, Accel and Nike - are not holding events this year. Perhaps more important, virtually all of the senior people from all three companies are not attending Davos, either. Eric Schmidt, Google’s executive chairman, had been a regular attendee. Also missing this year are the Gogle co-founders, Larry Page and Sergey Brin, who often flaunted the dress code and wore jeans and shirts to the proceedings.

Accel, which usually sends a delegation of venture capitalists in search of the next big thing, is virtually missing in action â€" with the exception of Joe Schoendorf, a partner at the firm, who started the party almost two decades ago. And the Nike contingent is now a shell of itself without any of its most senior people attending.

Have those companies given up on Davos for good Is there something bigger here at play than just parties Those are some of the questions being asked, however, answers have been forthcoming - at least not yet.

hose executives are not the only ones skipping Davos this year. Bono, a regular, is not in attendance, nor is President Bill Clinton. Also not here is Niall Ferguson, the historian who typically leads multiple panels.

For those worried that there won’t be any parties on Friday, fear not: Marissa Meyer, ex-Google who ! now heads up Yahoo, has stepped in to sponsor a cocktail party. And rumors are rampant that Sean Parker, the Internet entrepreneur, is holding an exclusive party Friday night.



Microsoft May Back Dell Buyout

The effort to take Dell private has gained a prominent, if unusual, backer: Microsoft.

The software giant is in talks to help finance a takeover bid for Dell that would exceed $20 billion, a person briefed on the matter said on Tuesday. Microsoft is expected to contribute up to several billion dollars.

An investment by Microsoft â€" if it comes to pass â€" could be enough to push a leveraged buyout of the struggling computer maker over the goal line. Silver Lake, the private equity firm spearheading the takeover talks, has been seking a deep-pocketed investor to join the effort. And Microsoft, which has not yet made a commitment, has more than $66 billion in cash on hand.

Microsoft and Silver Lake, a prominent investor in technology companies, are no strangers. The private equity firm was part of a consortium that sold Skype, the online video-chatting pioneer, to Microsoft for $8.5 billion nearly two years ago. And the two companies had discussed teaming up to make an investment in Yahoo in late 2011, before Yahoo decided against selling a minority stake in itself.

A vibrant Dell is an important part of Microsoft’s plans to make Windows more relevant for the tablet era, when more and ! more devices come with touch screens. Dell has been one of the most visible supporters of Windows 8 in its products.

That has been crucial at a time when Microsoft’s relationships with many PC makers have grown strained because of the company’s move into making computer hardware with its Surface family of tablets.

Frank Shaw, a spokesman for Microsoft, declined to comment.

If completed, a buyout of Dell would be the largest leveraged buyout since the financial crisis, reaching levels unseen since the takeovers of Hilton Hotels and the Texas energy giant TXU. Such a deal is taking advantage of Dell’s still-low stock price and the abundance of investors willing to buy up the debt issued as part of a transaction to take the company private. And Silver Lake has been working with Dell’s founder, Michael S. Dell who is expected to contribute his nearly 16 percent stake in the company to a takeover bid.

Yet while many aspects of the potential deal have fallen into place, including a potential price of up to around $14 a share, talks between Dell and its potential buyers may still fall apart.

Shares of Dell closed up 2.2 percent on Tuesday, at $13.12. They began rising after CNBC reported Microsoft’s potential involvement in a leveraged buyout. Microsoft shares slipped 0.4 percent, to $27.15.

Microsoft’s lending a hand to Dell could make sense at a time when the PC industry is facing some of the biggest challenges in its history. Dell is one of Microsoft’s most significant, longest-lasting partners in the PC business and among the most committed to creating machines that run Windows, the operating system that is the foundation of much of Microsoft’s profits.

But PC sales were in a slump for most of last year, as consumers diverted their spending to other types of devices like t! ablets an! d smartphones. Dell, the third-biggest maker of PCs in the world, recorded a 21 percent decline in shipments of PCs during the fourth quarter of last year from the same period in 2011, according to IDC.

In a joint interview in November, Mr. Dell and Steven A. Ballmer, Microsoft’s chief executive, exchanged friendly banter, as one would expect of two men who have been in business together for decades.

Mr. Dell said Mr. Ballmer had gone out of his way to reassure him that Microsoft’s Surface computers would not hurt Dell sales.

“We’ve never sold all the PCs in the world,” said Mr. Dell, sitting in a New York hotel room brimming with new Windows 8 comuters made by his company. “As I’ve understood Steve’s plans here, if Surface helps Windows 8 succeed, that’s going to be good for Windows, good for Dell and good for our customers. We’re just fine with all that.”

Microsoft has been willing to open its purse strings in the past to help close partners. Last April, Microsoft committed to invest more than $600 million in Barnes & Noble’s electronic books subsidiary, in a deal that ensures a source of electronic books for Windows devices. Microsoft also agreed in 2011 to provide the Finnish cellphone maker Nokia ! billions ! of dollars’ worth of various forms of support, including marketing and research and development assistance, in exchange for Nokia’s adopting Microsoft’s Windows Phone operating system.



S.E.C. Fills Senior Enforcement Spot

The Securities and Exchange Commission announced on Tuesday that Vincente L. Martinez, a veteran of the agency, will run a powerful unit that culls tips about Wall Street wrongdoing.

The unit, named the Office of Market Intelligence, was a central feature of the S.E.C.’s makeover in the aftermath of the financial crisis. Known at the agency as the “point guard” of the enforcement division, the office harvests tips, opens investigations and ultimately assigns cases to enforcement lawyers.

“Our Office of Market Intelligence employs next-generation technology and data analysis to inform and drive our enforcement effort and priorities in the years to come,” Robert Khuzami, the S.E.C.’s enforcement director, said in a statement. “Vince has the vision and dedication to lead that effort given his talent, commitment, and prior service to the S.E.C.,” added Mr. Khuzami, who recently announced that he will leave the agency.

A veteran regulator, Mr. Martinez has close ties to the S.E.C. and the Office of Market Intelligence, or O.M.I. He was an S.E.C. enforcement lawyer for eight years, a tenure that included a stint as O.M.I.’s assistant director.

Mr. Martinez, the S.E.C. said, will return to the agency next month. The S.E.C. poached him from the Commodity Futures Trading Commission, where he was the first director of the agency’s whistleblower office.

“I am honored and pleased to rejoin the S.E.C. staff,” he said in the statement, highlighting O.M.I.’s “contributions to the protection of investors by further developing our ability to proactively identify risks and ferret out misconduct.”

The S.E.C.’s enforcement roster is in transition. Mr. Khuzami, who has not yet announced his next step, will depart in the coming days. Mr. Martinez fills a gap that opened when Thomas A. Sporkin, the inaugural director of O.M.I., exited last summer. Mr. Sporkin ! had built a team of more than 40 former traders, accountants and securities lawyers who sift through the hundreds of tips the agency receives each day. He also collaborated with the Federal Bureau of Investigation to have agents embedded with the regulator.

Mr. Sporkin was initially replaced by Lori Walsh, who became the acting chief of O.M.I. Ms. Walsh, the agency said, will stay on as Mr. Martinez’s deputy.



Morgan Stanley\'s Pay Later Plan

Is Morgan Stanley mortgaging its future through compensation

For years, the bank and its rivals have paid employees with a mix of stock and cash. The stock is typically deferred over several years, a move aimed at aligning employees’ interests with the firm’s and keeping people in their seats. Deferred stock is accounted for in the year that the employee gets it, so stock grants given for 2012 that don’t vest for three years will be accounted for by firms in 2015.

Cash, though, is paid - and accounted for - upfront.

But in recent years, Morgan Stanley has been deferring its cash bonuses for top earnings for up to three years. Not surprisingly, the amount of deferred compensation â€" cash and stock â€" has risen sharply at Morgan Stanley, according to regulatory filings. In 2009, the firm deferred 40 percent of its total compensatio.. That percentage climbed to 60 percent in 2010 and 75 percent in 2011.

Morgan Stanley says the move is good corporate governance, tying their employees’ interests to the firm’s and giving them a bigger pool to claw back if something goes wrong.

Yet, critics say it also pushes the tab for current compensation into the future, when Morgan Stanley will have to pay for the compensation of past years.

“The amount the firm is deferring has been growing and eventually that tab will come due,” said a rival Wall Street executive who asked not to be named.

The firm, however, insists that the way it pays people won’t be an issue in coming years.

A year ago, Morgan Stanley’s chief executive, James P. Gorman, told analysts that 2011 was “a high-water mark” for accounting for deferred compensation. “We are acutely aware of the impact of deferral decision on future periods, but with the last years behind us, we will have more flexibility in the years to come,” h! e said.

The firm’s decision to lay people off will work in its favor, at least when it comes to compensation. At the end of 2012, Morgan Stanley had 57,061 employees to pay, and just announced it was letting go of 1,600 employees. This time last year, 61,546 people worked for the firm. This leaves the firm with fewer people to pay, alleviating the pressure on the compensation pool.

As well, by pushing more compensation into the future, it is likely that more shares and cash will be left on the table from employees who leave voluntarily, or are terminated for cause. Morgan Stanley is also paying less money to those who remain, which should reduce future compensation payouts.

And this year, the firm changed the formula for compensation that will be deferred, a move it says resulted in fewer people seeing their compensation pushed into the future. More than 82 percent of eligible employees got their cash bonuses upfront. Cash bonuses were deferred for the remaining 18 percent of emploees, the top earnings.

It’s not known what percent of the total bonus this group accounts for, but the total amount of deferred compensation in 2012 went down, Ruth Porat, the firm’s chief financial officer, said in a recent interview.

Of course, Morgan Stanley is also hoping to increase its revenue, which would give it more money to pay people with. In 2012, Morgan Stanley reported revenue, adjusted for an accounting charge, of $30.51 billion, up from $28.55 billion the year before.



Financial Reports Reveal Economic Challenges, but Few Solutions

The important and self-important of global finance are again gathering at the annual World Economic Forum in Davos, Switzerland. This year, the mandatory reading should be two recent reminders from JPMorgan Chase and the Federal Reserve that we are light years from understanding or preventing financial crises.

The reminders come in the form of JPMorgan’s management task force report on the bank’s billions in losses from the “London whale” trade and the released transcripts of the 2007 Federal Reserve meetings. The report and the transcripts provide a sobering lesson that the people who run our financial system not only have a lot of work to o, they still aren’t sure what that work is.

Let’s start with JPMorgan’s $6.2 billion trading loss.

JPMorgan is a huge institution with more than $2 trillion in assets. Banks typically lend their deposits, but for the tens of billions that JPMorgan cannot lend, this remainder is turned over to its chief investment office. This unit is charged with earning returns on this money and also using these billions to hedge the enormous financial institution against bad events.

What happened next was that a number of C.I.O. traders got stuck.

The traders made a complex financial bet that was intended in part to hedge the bank from another big credit disruption. But the trading position became so large â€" more than $50 billion in notional value â€" that the JPMorgan traders couldn’t liquidate it without hundreds of millions of dollars in losses. Instead of liquidation, they went in the other direction, adding some $30 billion more in notional value to the portfolio, hoping this! would save them. But that trade still didn’t work, and JPMorgan lost an estimated $169 million in the first two months of 2012. It was then that the traders added another $40 billion to the portfolio.

The trade went really bad after that.

In early April, reports emerged of an outsize bet by a JPMorgan trader in London â€" the “whale.” Hedge funds went on the attack as they took offsetting positions in anticipation that the bank couldn’t hold the trade. The funds were right. JPMorgan lost $412 million on the first trading day after Bloomberg News and The Wall Street Journal reported about the London whale, and the losses would subsequently mount.

The internal report details what went wrong, and it is head-scratching. In the middle of a meltdown, JPMorgan traders fudge numbers, ignore orders, try to evade pesky regulations and in general scramble as they try to salvage their trade. Management races to understand what is going on at the subsidiary while markets go haywire in ways tha no one ever expected or that JPMorgan’s models predicted. After the first-day loss of $412 million, Ina R. Drew, then the head of the chief investment office, wrote in an e-mail that it was an “eight sigma event,” according to the report. The Reuters columnist Felix Salmon calculated that the chances of it happening was one in 800 trillion.

Unfortunately, the bank’s trading debacle was just history repeating itself.

You could substitute the names, but this story of self-interest, unexpected market events and huge losses is similar to almost every other financial blowup of the last two decades.

In every instance, the question is: Where were the regulators Well, one answer comes from the recent release of the transcripts from the 2007 meetings of the Federal Reserve. The transcripts portray a regulator that not only failed to appreciate the risk that had built up in the fina! ncial sys! tem and the coming storm, but also seemed to misunderstand fundamentally the subprime mortgage market.

For example, in the Federal Reserve’s August 2007 meeting, the mortgage lender Countrywide Financial was described as having a “strong franchise.” Countrywide has since saddled its acquirer, Bank of America, with tens of billions of dollars in losses.

In this meeting, the Federal Reserve governors went on to discuss the economy and noted that despite the recent market turmoil, it had a “reasonably good” chance of returning to its trend growth. The gem from this meeting was a remark by Frederic S. Mishkin, who stated that since “subprime market is really a very small percentage of the total credit markets,” the fact that the markets were now turning a critical eye to this sector was a “good thing.”

It’s all sobering. Not only are financial trading losses hard to predict and manage from the inside, but regulators with a farther view often do not appreciate the risk, the markets or the prospect of the losses. It happened with subprime mortgages and again after the financial crisis with JPMorgan’s trading loss, a loss that even the firm’s chief executive, Jamie Dimon, who had a vaunted reputation as a risk manager, could not prevent.

The JPMorgan report in particular is disheartening. One is struck that nothing we have really done so far! in terms! of financial reform would have prevented JPMorgan’s loss. Certainly the requirement that boards have systemic-risk committees wouldn’t have done anything. If the traders and JP Morgan’s management can’t monitor things, how could the boards In fact, how can anyone anticipate a one-in-800-trillion event

This all adds strength to those who argue to break up the banks or limit their financial activity through the Volcker Rule.

Which brings us to the World Economic Forum.

Flipping through the forum’s program, it is once again filled with events that are Davos-like, like a panel on “Connected Transportation â€" Hype or Reality.” But nowhere do the words “financial crisis” even appear in the preliminary program, though there is a worthwhile discussion of the crisis in Mali. And flipping throughits 80-odd pages, I counted only two panels on big systemic risk issues even tangentially related to financial institutions. Instead, the panels are the same old Davos big think and global stuff, except now instead of about China dominating the world, it is about whether China will make it.

This is a problem. We are five years past the beginnings of the financial crisis, and there is still no real explanation for what happened, let alone a solution. Was it a unique event that should have been foreseen and prevented How can we regulate these institutions when smart people like Federal Reserve governors can miss so much And is breaking up banks even feasible in a global economy

Here, JPMorgan has admirably provided its own self-analysis, and its task force prescribes more risk analysis, better risk models and management â€" all of the comforting things you would want â€" as a remedy. But would it really prevent a one-in-800-trillion event, or even just an event its traders didn’t model

The W! orld Economic Forum and its leaders appear to be moving on, but if the financial titans gathered there are really going to fight off the small but growing number of critics who are calling for the breakup of the big banks or even more likely a stronger Volcker Rule, they should put forth an alternative or an explanation for why these blowups keep occurring. The forum would seem to be an ideal place to do it.



How Companies Can Sue Defendants in Insider Trading Cases

Insider trading was once said to be a victimless crime. Yet, many parties can claim that they were harmed by such actions, including those who were on the other side of the actual trades, the stock market, the corporation whose shares were involved in the inside trades or even a hedge fund used as the vehicle for the trading.

To that end, leading Wall Street firms are suing two convicted defendants, seeking millions in compensation. They are relying on a federal law, the Mandatory Victims Restitution Act, which has been interpreted to allow companies that incur costs in cooperating with the government to seek repayment of their expenses from defendants. The statute requires a court to order the reimbursement to victims of “other expenses incurred during participation in the investigation or prosecution of the offense.”

One recent case involves Joseph F. Skowron III, a portfolio manager at a hedge fund owned by Morgan Stanley, ho pleaded guilty to trading on information about a failed drug trial that allowed the fund to avoid approximately $30 million in losses.

A United States district judge in Manhattan, Denise L. Cote, sentenced Mr. Skowron to five years in prison and ordered restitution to Morgan Stanley of $3.8 million for its legal costs related to the criminal and civil investigations of the trading. In addition, the court required him to return $6.4 million, which represented 20 percent of his compensation from 2007 to 2010.

Mr. Skowron’s appeal of the restitution order was presented last week in the United States Court of Appeals for the Second Circuit.

Another case seeks to recover money from Rajat Gupta, who was convicted last year of tipping Raj Rajaratnam with inside information about Goldman Sachs while he was a director of the firm.

Judge Jed S. Rakoff of the Un! ited States District Court for the Southern District of New York sentenced Mr. Gupta in 2012 to two years in prison and is now considering Goldman’s request to be reimbursed nearly $7 million it spent in legal fees related to the case.

Insider trading cases usually require companies to conduct internal investigations to aid the government in determining who might be a source of any secret information. These cases almost always involve dealing with the Securities and Exchange Commission and the Justice Department in their parallel investigations, and the two agencies often file tandem civil and criminal cases.

But the crucial word in the Mandatory Victims Restitution Act is “incurred,” and there isn’t a consensus among federal courts over what expenses are covered.

Companies want it to include all costs related to any part of the case, including dealing with the S.E.C. even though it can only pursue a civil enforcement case. Defendants take a much narrower view, arguing that mandatry restitution covers only expenses arising as direct result of the criminal prosecution by the Justice Department.

The United States Court of Appeals for the District of Columbia Circuit adopted a restrictive view of the statute in United States v. Papagno, a case in which a government agency sought to recover $160,000 it spent on an internal investigation of suspected theft. The court held that only those expenses related to a specific request by prosecutors as part of the criminal case are recoverable, like responding to a subpoena or wearing a wire.

The court stated: “We have trouble seeing how a victim can be said to participate in the criminal investigation or prosecution when (as here) it is conducting its own internal investigation for its own purposesâ€"an internal investigation neither required nor requested by criminal investigators or prosecutors.”

The Court of Appeals for the Second Circuit took a ! broader v! iew of what can be reimbursed in United States v. Amato, in which a company’s internal investigation of a complex fraud by its employees resulted in a restitution order of more than $3 million for legal fees and accounting costs.

The Court of Appeals found that those costs were a direct and foreseeable consequence of the criminal conduct by the defendant, concluding that “this fraud would force the corporation to expend large sums of money on its own internal investigation as well as its participation in the government’s investigation and prosecution of defendants’ offenses is not surprising.”

The prosecutions against Mr. Skowron and Mr. Gupta were held in the Federal District Court for the Southern District of New York , so the more liberal standard of the Amato case applies. That makes it more likely that at least the claim for legal fees sought by Morgan Stanley and Goldman will be required.
Given the split i how the appeals courts deal with this issue, however, the Supreme Court may have to step in and resolve just what expenses are incurred as part of a criminal case.

Whether the order to repay Morgan Stanley a portion of Mr. Skowron’s compensation is a more difficult issue. Judge Cote relied on a different provision of the restitution statute that allows for reimbursement for any property of the victim’s that was damaged or lost as a result of the crime.

Judge Cote concluded that Mr. Skowron deprived Morgan Stanley of his honest services by trading on inside information that was prohibited by the firm, and therefore he damaged its property - meaning $6.4 million of his pay.

He was not charged with honest services fraud, which was limited by the Supreme Court in Skilling v. United States to cases involving bribes or kickbacks. It is not clear how his compensation damaged Morgan Stanley or whether the 20 percent ! represent! s his gains from the illegal trading.

If the Court of Appeals for the Second Circuit allows for this type of claim for reimbursement, then this is likely to be another avenue for firms to seek recovery when employees engage in misconduct that results in harm to the firm.

The Mandatory Victims Restitution Act is not the only means by which a firm can seek to recover from a defendant in an insider trading case. Morgan Stanley filed a lawsuit [attached] in Federal District Court for the Southern District of New York last October accusing Mr. Skowron of fraud, breach of fiduciary duty and being a “faithless servant.” It seeks to claw back $32.5 million in compensation that he received and reimbursement of the $33 million the firm paid to settle the S.E.C.’s civil enforcement case from his insider trading.

It would not be a surprise if Goldman Sachs filed a suit against Mr. Gupta asserting the same violations from his tipping of Mr. Rajaratnam to reclaim at least some of his director’ fees.

The wave of insider trading cases has cost companies millions of dollars in dealing with the S.E.C. and Justice Department, which expect corporations to cooperate with the investigations. Look for Wall Street firms to increase efforts to recover at least some of those expenses from dealing with the government.

US vs. Rajat Gupta Restitution Memo by

Morgan Stanley vs. Joseph F. Skowron III Civil Complaint by



How Companies Can Sue Defendants in Insider Trading Cases

Insider trading was once said to be a victimless crime. Yet, many parties can claim that they were harmed by such actions, including those who were on the other side of the actual trades, the stock market, the corporation whose shares were involved in the inside trades or even a hedge fund used as the vehicle for the trading.

To that end, leading Wall Street firms are suing two convicted defendants, seeking millions in compensation. They are relying on a federal law, the Mandatory Victims Restitution Act, which has been interpreted to allow companies that incur costs in cooperating with the government to seek repayment of their expenses from defendants. The statute requires a court to order the reimbursement to victims of “other expenses incurred during participation in the investigation or prosecution of the offense.”

One recent case involves Joseph F. Skowron III, a portfolio manager at a hedge fund owned by Morgan Stanley, ho pleaded guilty to trading on information about a failed drug trial that allowed the fund to avoid approximately $30 million in losses.

A United States district judge in Manhattan, Denise L. Cote, sentenced Mr. Skowron to five years in prison and ordered restitution to Morgan Stanley of $3.8 million for its legal costs related to the criminal and civil investigations of the trading. In addition, the court required him to return $6.4 million, which represented 20 percent of his compensation from 2007 to 2010.

Mr. Skowron’s appeal of the restitution order was presented last week in the United States Court of Appeals for the Second Circuit.

Another case seeks to recover money from Rajat Gupta, who was convicted last year of tipping Raj Rajaratnam with inside information about Goldman Sachs while he was a director of the firm.

Judge Jed S. Rakoff of the Un! ited States District Court for the Southern District of New York sentenced Mr. Gupta in 2012 to two years in prison and is now considering Goldman’s request to be reimbursed nearly $7 million it spent in legal fees related to the case.

Insider trading cases usually require companies to conduct internal investigations to aid the government in determining who might be a source of any secret information. These cases almost always involve dealing with the Securities and Exchange Commission and the Justice Department in their parallel investigations, and the two agencies often file tandem civil and criminal cases.

But the crucial word in the Mandatory Victims Restitution Act is “incurred,” and there isn’t a consensus among federal courts over what expenses are covered.

Companies want it to include all costs related to any part of the case, including dealing with the S.E.C. even though it can only pursue a civil enforcement case. Defendants take a much narrower view, arguing that mandatry restitution covers only expenses arising as direct result of the criminal prosecution by the Justice Department.

The United States Court of Appeals for the District of Columbia Circuit adopted a restrictive view of the statute in United States v. Papagno, a case in which a government agency sought to recover $160,000 it spent on an internal investigation of suspected theft. The court held that only those expenses related to a specific request by prosecutors as part of the criminal case are recoverable, like responding to a subpoena or wearing a wire.

The court stated: “We have trouble seeing how a victim can be said to participate in the criminal investigation or prosecution when (as here) it is conducting its own internal investigation for its own purposesâ€"an internal investigation neither required nor requested by criminal investigators or prosecutors.”

The Court of Appeals for the Second Circuit took a ! broader v! iew of what can be reimbursed in United States v. Amato, in which a company’s internal investigation of a complex fraud by its employees resulted in a restitution order of more than $3 million for legal fees and accounting costs.

The Court of Appeals found that those costs were a direct and foreseeable consequence of the criminal conduct by the defendant, concluding that “this fraud would force the corporation to expend large sums of money on its own internal investigation as well as its participation in the government’s investigation and prosecution of defendants’ offenses is not surprising.”

The prosecutions against Mr. Skowron and Mr. Gupta were held in the Federal District Court for the Southern District of New York , so the more liberal standard of the Amato case applies. That makes it more likely that at least the claim for legal fees sought by Morgan Stanley and Goldman will be required.
Given the split i how the appeals courts deal with this issue, however, the Supreme Court may have to step in and resolve just what expenses are incurred as part of a criminal case.

Whether the order to repay Morgan Stanley a portion of Mr. Skowron’s compensation is a more difficult issue. Judge Cote relied on a different provision of the restitution statute that allows for reimbursement for any property of the victim’s that was damaged or lost as a result of the crime.

Judge Cote concluded that Mr. Skowron deprived Morgan Stanley of his honest services by trading on inside information that was prohibited by the firm, and therefore he damaged its property - meaning $6.4 million of his pay.

He was not charged with honest services fraud, which was limited by the Supreme Court in Skilling v. United States to cases involving bribes or kickbacks. It is not clear how his compensation damaged Morgan Stanley or whether the 20 percent ! represent! s his gains from the illegal trading.

If the Court of Appeals for the Second Circuit allows for this type of claim for reimbursement, then this is likely to be another avenue for firms to seek recovery when employees engage in misconduct that results in harm to the firm.

The Mandatory Victims Restitution Act is not the only means by which a firm can seek to recover from a defendant in an insider trading case. Morgan Stanley filed a lawsuit [attached] in Federal District Court for the Southern District of New York last October accusing Mr. Skowron of fraud, breach of fiduciary duty and being a “faithless servant.” It seeks to claw back $32.5 million in compensation that he received and reimbursement of the $33 million the firm paid to settle the S.E.C.’s civil enforcement case from his insider trading.

It would not be a surprise if Goldman Sachs filed a suit against Mr. Gupta asserting the same violations from his tipping of Mr. Rajaratnam to reclaim at least some of his director’ fees.

The wave of insider trading cases has cost companies millions of dollars in dealing with the S.E.C. and Justice Department, which expect corporations to cooperate with the investigations. Look for Wall Street firms to increase efforts to recover at least some of those expenses from dealing with the government.

US vs. Rajat Gupta Restitution Memo by

Morgan Stanley vs. Joseph F. Skowron III Civil Complaint by



Financial Reports Reveal Economic Challenges, but Few Solutions

The important and self-important of global finance are again gathering at the annual World Economic Forum in Davos, Switzerland. This year, the mandatory reading should be two recent reminders from JPMorgan Chase and the Federal Reserve that we are light years from understanding or preventing financial crises.

The reminders come in the form of JPMorgan’s management task force report on the bank’s billions in losses from the “London whale” trade and the released transcripts of the 2007 Federal Reserve meetings. The report and the transcripts provide a sobering lesson that the people who run our financial system not only have a lot of work to o, they still aren’t sure what that work is.

Let’s start with JPMorgan’s $6.2 billion trading loss.

JPMorgan is a huge institution with more than $2 trillion in assets. Banks typically lend their deposits, but for the tens of billions that JPMorgan cannot lend, this remainder is turned over to its chief investment office. This unit is charged with earning returns on this money and also using these billions to hedge the enormous financial institution against bad events.

What happened next was that a number of C.I.O. traders got stuck.

The traders made a complex financial bet that was intended in part to hedge the bank from another big credit disruption. But the trading position became so large â€" more than $50 billion in notional value â€" that the JPMorgan traders couldn’t liquidate it without hundreds of millions of dollars in losses. Instead of liquidation, they went in the other direction, adding some $30 billion more in notional value to the portfolio, hoping this! would save them. But that trade still didn’t work, and JPMorgan lost an estimated $169 million in the first two months of 2012. It was then that the traders added another $40 billion to the portfolio.

The trade went really bad after that.

In early April, reports emerged of an outsize bet by a JPMorgan trader in London â€" the “whale.” Hedge funds went on the attack as they took offsetting positions in anticipation that the bank couldn’t hold the trade. The funds were right. JPMorgan lost $412 million on the first trading day after Bloomberg News and The Wall Street Journal reported about the London whale, and the losses would subsequently mount.

The internal report details what went wrong, and it is head-scratching. In the middle of a meltdown, JPMorgan traders fudge numbers, ignore orders, try to evade pesky regulations and in general scramble as they try to salvage their trade. Management races to understand what is going on at the subsidiary while markets go haywire in ways tha no one ever expected or that JPMorgan’s models predicted. After the first-day loss of $412 million, Ina R. Drew, then the head of the chief investment office, wrote in an e-mail that it was an “eight sigma event,” according to the report. The Reuters columnist Felix Salmon calculated that the chances of it happening was one in 800 trillion.

Unfortunately, the bank’s trading debacle was just history repeating itself.

You could substitute the names, but this story of self-interest, unexpected market events and huge losses is similar to almost every other financial blowup of the last two decades.

In every instance, the question is: Where were the regulators Well, one answer comes from the recent release of the transcripts from the 2007 meetings of the Federal Reserve. The transcripts portray a regulator that not only failed to appreciate the risk that had built up in the fina! ncial sys! tem and the coming storm, but also seemed to misunderstand fundamentally the subprime mortgage market.

For example, in the Federal Reserve’s August 2007 meeting, the mortgage lender Countrywide Financial was described as having a “strong franchise.” Countrywide has since saddled its acquirer, Bank of America, with tens of billions of dollars in losses.

In this meeting, the Federal Reserve governors went on to discuss the economy and noted that despite the recent market turmoil, it had a “reasonably good” chance of returning to its trend growth. The gem from this meeting was a remark by Frederic S. Mishkin, who stated that since “subprime market is really a very small percentage of the total credit markets,” the fact that the markets were now turning a critical eye to this sector was a “good thing.”

It’s all sobering. Not only are financial trading losses hard to predict and manage from the inside, but regulators with a farther view often do not appreciate the risk, the markets or the prospect of the losses. It happened with subprime mortgages and again after the financial crisis with JPMorgan’s trading loss, a loss that even the firm’s chief executive, Jamie Dimon, who had a vaunted reputation as a risk manager, could not prevent.

The JPMorgan report in particular is disheartening. One is struck that nothing we have really done so far! in terms! of financial reform would have prevented JPMorgan’s loss. Certainly the requirement that boards have systemic-risk committees wouldn’t have done anything. If the traders and JP Morgan’s management can’t monitor things, how could the boards In fact, how can anyone anticipate a one-in-800-trillion event

This all adds strength to those who argue to break up the banks or limit their financial activity through the Volcker Rule.

Which brings us to the World Economic Forum.

Flipping through the forum’s program, it is once again filled with events that are Davos-like, like a panel on “Connected Transportation â€" Hype or Reality.” But nowhere do the words “financial crisis” even appear in the preliminary program, though there is a worthwhile discussion of the crisis in Mali. And flipping throughits 80-odd pages, I counted only two panels on big systemic risk issues even tangentially related to financial institutions. Instead, the panels are the same old Davos big think and global stuff, except now instead of about China dominating the world, it is about whether China will make it.

This is a problem. We are five years past the beginnings of the financial crisis, and there is still no real explanation for what happened, let alone a solution. Was it a unique event that should have been foreseen and prevented How can we regulate these institutions when smart people like Federal Reserve governors can miss so much And is breaking up banks even feasible in a global economy

Here, JPMorgan has admirably provided its own self-analysis, and its task force prescribes more risk analysis, better risk models and management â€" all of the comforting things you would want â€" as a remedy. But would it really prevent a one-in-800-trillion event, or even just an event its traders didn’t model

The W! orld Economic Forum and its leaders appear to be moving on, but if the financial titans gathered there are really going to fight off the small but growing number of critics who are calling for the breakup of the big banks or even more likely a stronger Volcker Rule, they should put forth an alternative or an explanation for why these blowups keep occurring. The forum would seem to be an ideal place to do it.



Rajat Gupta Seeks Reversal of Insider Trading Conviction

Rajat Gupta, a former Goldman Sachs board member, has asked a federal appeals court to reverse his conviction on insider trading charges, arguing that a judge made a series of incorrect rulings during his trial.

“This court should reverse the convictions in view of the court’s serious evidentiary errors, which decisively tipped the scales in this case,” wrote Mr. Gupta’s lawyers in its brief to the United States Court of Appeals for the Second Circuit in Manhattan, which was filed late Friday.

A jury found Mr. Gupta guilty of leaking Goldman boardroom secrets to his friend, the former hedge fund manager Raj Rajaratnam. Mr. Gupta, 64, of Westport, Connectcut, is free on bail pending the resolution of his appeal.

Lawyers for Mr. Gupta made several arguments on appeal. Among the most significant arguments on appeal is that the government should not have been allowed to use certain wiretap evidence during the trial.

Judge Jed S. Rakoff, the trial court judge, allowed the jury to hear two incriminating taped conversations involving Raj Rajaratnam and his traders suggesting that the Mr. Rajartanam had a source inside Goldman.

On one wiretap - perhaps the most damning piece of evidence presented at trial - Mr. Rajaratnam tells a colleague, “I heard yesterday from somebody who’s on the board of Goldman Sachs that they are going to lose $2 per share.”

Mr. Gupta’s lawyers argued that Mr. Rajaratnam’s statement is the unreliable hearsay testimony “of a kn! own fabulist.”

“Without a proper basis for admission, these untestable, unreliable hearsay statements had no place in a criminal trial, and their admission alone compels reversal,” Mr. Gupta’s lawyers wrote.

Mr. Gupta also argues that Judge Rakoff erred in curtailing the testimony of Mr. Gupta’s daughter, Geetanjali Gupta, who had planned to testify that her father was furious with Mr. Rajaratnam because of a money-losing investment he had made with the hedge fund manager. Her testimony, argued Mr. Gupta’s lawyers, “would have led the jury to question whether Gupta had any motive to tip the man who had stolen millions from him.”

The 72-page brief was signed by Seth P. Waxman, the lawyer spearheading Mr. Gupta’s appeal. Mr. Waxman served during the Clinton administration as a United States solicitor general, the federal government’s top appellate advocate. Now a partner at WilmerHale, he has argued more than 50 cases before the Supreme Court.

Also on the brief wer Mr. Gupta’s trial team at Kramer Levin Naftalis & Frankel, led by Gary P. Naftalis.



Egan-Jones Barred for 18 Months on Some Ratings

The Securities and Exchange Commission said on Tuesday that Egan-Jones, the upstart credit ratings firm run by Sean Egan, had agreed to an 18-month ban from rating asset-backed and government securities issuers as a Nationally Recognized Statistical Rating Organization .

The agreement settles accusations that the firm made misstatements about its record when applying for a government designation, the S.E.C. said.

“Accuracy and transparency in the registration process are essential to the Commission’s oversight of credit rating agencies,” Robert Khuzami, director of the S.E.C.’s division of enforcement, said in a statement.

Egan-Jones, which also agreed to correct any deficiencies and submit a report describing those steps, can still rate asset-backe and government securities issuers during the ban â€" just not with the government blessing that confers special authority on its opinions. The firm retains that designation for its other ratings categories.

Egan-Jones plans to re-apply for the designation once the ban ends, said Bill Hassiepen, co-head of the ratings desk at Egan-Jones, who called the settlement terms “agreeable.”

“The firm is most satisfied that this matter is resolved and behind us,” Mr. Hassiepen said in a statement. “This settlement allows Egan-Jones to focus all of our efforts and resources on what we do best â€" producing the most timely, accurate and independent ratings in the business.”

The S.E.C. had accused Egan-Jones of exaggerating its record in its application to the government. The firm had said it had 150 ratings of asset-backed securities and 50 ratings of governments under its belt, when it actually had none at that time, according to the agency. The S.E.C. had also found that Egan-Jone! s had violated provisions governing conflicts of interest.

Egan-Jones, notable for its business model of charging investors rather than issuers for its ratings, neither admitted nor denied the accusations.



Can Britain Forge Looser Ties to Europe Without Losing Influence

LONDON - Last year, Prime Minister David Cameron of Britain used his appearance at the World Economic Forum to vent frustration with the European Union, listing some of the policies he would ditch if he could throw off Europe’s regulatory shackles.

“In the name of social protection, the E.U. has promoted unnecessary measures that impose burdens on businesses and governments, and can destroy jobs,” he argued, adding a list of directives that hewould dearly like to scrap.

One year later, Mr. Cameron is following through on that pledge. He is promising to renegotiate Britain’s ties to the 27-nation bloc, forge a new and looser relationship, and probably put the outcome of those talks to a referendum.

A speech on Europe, planned for last week, was postponed because of the crisis in Algeria. It has been rescheduled for Wednesday, ahead of a possible visit by Mr. Cameron to Davos, Switzerland.

It was unclear whether Mr. Cameron would attend Davos this year and speak on the same theme. But his tough line on Europe echoes growing British disenchantment with a bloc whose single currency union, which the British never joined, has been in crisis for three years.

Yet, supposing Mr. Cameron were to succeed in scaling down Britain’s involvement, some central questions will arise. Can Britain play a more limited role in Brussels and still retain significant influence there And what might that mean for Britain’s full partic! ipation in one of the world’s biggest single markets

In their 40-year history of engagement with a unifying Europe, Britons have never embraced the ideal of unity; instead they have seen their ties to the Continent in pragmatic terms. Increasingly, London’s conclusion seems to be that the costs in terms of regulatory burdens and financial contributions are not outweighed by clear benefits.

Mr. Cameron argues that to stabilize support for the European Union in Britain, the relationship must be loosened and focused more on the bloc’s single market of almost 500 million people.

Britain, which already is in the second tier of European Union membership, not only stayed out of the euro â€" and unlike most of the others on the sidelines has no intention of joining â€" but also does not participate in Europe’s Schengen passport-free travel zone. The British government also announced last year that it would opt out of a range of justice and security policy areas.

A group of Conservatie lawmakers argued last week for five treaty changes, including those that would allow any country to block new European Union legislation on financial services, and would repatriate social and employment laws to national capitals. Britain’s euro-skeptics are also blunt in their criticism of the bloc’s agricultural, fisheries and regional aid programs

Many would ideally like to keep just one element of European Union membership, access to the single market, though achieving such status looks highly improbable.

Even those who sympathize with Mr. Cameron’s stance argue that a more detached position comes at the price of reduced influence, though they contend the cost of not changing would be higher. What is more, they argue, leverage in some of the policy areas is of limited value anyway.

“There is a trade-off, there is no doubt,” said Mats Persson, director of Open Europe, a research organization that favors a change in Britain’s relationship with the union. “If you red! uce the l! evel of E.U. influence in the British economy and society, you will lose some influence over some policy areas.”

But Mr. Persson argues that “if there is no change in Britain’s E.U. relationship, its membership is in question, which would really reduce its influence.”

Others worry that Britain is weakening its own position. Charles Grant, director of the Center for European Reform, a research institute in London, says that already “British influence in Brussels is at its lowest level in the 25 years I have been following the E.U.”

And critics argue that standing back from more policy arenas would increase the country’s sense of alienation from the bloc and fuel popular sentiment that things are stacked against Britain. A more detached relationship could also prove a disadvantage in the deal-making culture that prevails in Brussels.

Officially, decisions on legislation in Brussels are made by national governments under a complex series of rules before going to the European Parliament, whose approval is also required. In some cases, like tax policy, all 27 national governments need to agree, though in many others a weighted majority is required.

But relatively few decisions are actually put to a vote by governments. In practice, countries strike informal agreements and compromises, often trading support on one issue for a reciprocal agreement, sometimes in an unrelated area of policy.

In this twilight zone, horse-trading abounds. For example, Britain once supported Germany, which wanted to water down planned rules on takeovers, in exchange for help from Berlin to soften new European Union legislation on workers’ rights.

The fewer areas in which a country participates, the less influence it has to barter.

Something similar affects another area of unoff! icial inf! luence: control of crucial positions in Brussels. When the last round of top European Union jobs was decided, Tony Blair, a former British prime minister, was a contender to become the president of the European Council, the body in which national governments meet. But Britain’s absence from the euro currency and the Schengen zone made this a nonstarter.

The prime minister at the time, Gordon Brown, wanted a top economic post for Britain in the European Commission, the exeutive of the bloc. Instead, he got a foreign policy position for Catherine Ashton, reflecting the fact that Britain remained an engaged player in that area.

The euro has dominated the agenda in Brussels for the last three years, but Britons have reduced prospects of making big careers in this policy area because London has no power to lobby for them.

“If you are in the Treasury in London, why the hell would you go to Brussels” said one European Union official not authorized to speak publicly.

That trend now looks likely to extend to justice and security policy. Britain recently held the most senior position in the justice and home affairs directorate of the European Commission, partly because the British used to be enthusiastic about cooperation in that forum. A Briton, Rob Wainwright, is currently t! he direct! or of Europol, the bloc’s law enforcement agency.

But given the government’s decision to distance itself, it will be harder for Britons to get such top jobs in the future.

Declining career prospects for British officials are reflected in staff recruitment figures, released in April 2011. They showed that the European Commission now employed more Poles than Britons, though Britain has a larger population and joined the European Union’s forerunner more than 30 years before Polish accession in 2004.

Britain has fewer than half France’s number of European Commission officials, and the situation seems destined to deteriorate because relatively few Britons are applying for entry-level jobs.

All this risks creating a downward spiral in British influence, which the country would need to counter by being more effective in the areas in which it remains.

“I think Britain still could have clout in more limited areas if it keeps friends and allies,” Mr. Grant said. “But the fat that we are not, for example, so engaged in justice and home affairs weakens our bargaining power across policy areas and weakens the career prospects of British officials.

Mr. Grant added, “There has been a steady diminution in the last few years, which you could plot on a graph: the more you distance yourself the less influence you have.”



Pressures at Home, Tensions Offshore

China’s gross domestic product grew 7.8 percent in 2012, its slowest pace since 1999. China’s growth slowdown appears to have bottomed and for the fourth quarter of 2012 China’s economy grew at 7.9 percent, slightly ahead of the expected 7.8 percent. Many analysts questioned the health of the apparent recovery and the limited progress in rebalancing the economy away from investment toward consumption.

In spite of the improvement in the Chinese economy, the construction and mining sectors have remained relatively weak. Caterpillar€˜s China operation has had some difficulties, and it now turns out Caterpillar has to deal with not only a weak economy but also what it says was outright fraud.

In 2011 Caterpillar announced the acquisition of ERA Mining Machinery for up to $886 million. Late Friday afternoon, on the eve of a three day weekend, Caterpillar issued a news release saying that it had “uncovered deliberate, multiyear, coordinated accounting misconduct” in ERA’s operations.

Another month, another Chinese fraud, a cynic might quip. What makes this scam so remarkable is that a huge multinational with decades of experience in China was fooled, possibly because of! a “distracted board of directors”, and that the principal shareholders of ERA â€" Emory Williams, the former President of the American Chamber of Commerce in Beijing and James E. Thompson III, heir apparent to the Crown Shipping fortune â€" are prominent Western expatriates.

Caterpillar has not publicly accused Mr. Williams or Mr. Thompson of misconduct but the release says that “Caterpillar’s investigation of these matters is ongoing and any other comment at this time is not appropriate.”

SIGNIFICANT INCOME INEQUALITY may be hampering China’s rebalancing from investment-led to consumption-driven growth. For the first time since 2000 the Chinese government has released official estimate of the country’s Gini Coefficient, a measure of income inequality. According to National Bureau of Statistics, China’s 2012 Gini coefficient was 0.477, similar to the 2011 United States Gini figure. The bureau also reports that the measure has declined since 2008.

There was much skepticism about the official calculations and a separate report released last month by researchers from a Chinese University claims that China’s Gini was actually 0.61 in 2010. Most likely it is somewhere between 0.477 and 0.61, and regardless of the true number it is clear that income disparities, along with a slower economy, air pollution, unsafe food, among many issues, are an increasing source of frustration for its citizens.

China’s new leadership is clearly feeling pressure, and it is tempting to conclude that the increasingly dangerous dispute between China and Japan over the Diaoyu/Senkaku Islands is driven in part by Beijing’s need to distract its populace from problems at home. However, the risks of a conflict to the leadership in Beijing are immense. If China were to fight and lose any clash with the Japanese, the Communist Party could face an immediate and terminal legitimacy crisis.

The hope is that things will not escalate beyond patrols and rhetoric given the deep economic ties between Japan and China as well as the danger of U.S. involvement in any clash given the U.S.-Japan security relationship. Both sides continue to talk, though mostly past each other, and a prominent Japanese politician arrived in Beijing on Tuesday carrying a letter to Xi Jinping from Prime Minister Shinzo Abe of Japan.

As the politicians talk, growing numbers of ships and aircraft are maneuvering in a relatively small area around the islands, significantly heightening the risk of accidents. A 2001 collision between a Chinese fighter jet and a U.S. spy plane in the South China Sea resulted in the death of the Chinese pilot, several days detention for the U.S. crew and the loss of U.S. equipment. The crisis ended peacefully after Washington sent expressions of regret that Beijing trumpeted in domestic media as an apology.

It is hard to believe that a similar mishap involving Chinese and Japanese would end so quickly or peacefully. China’s relentless media campaign since last summer, the anti-Japanese teachings so prevalent in the Chinese education system, and the imperative of any new leadership to not look weak, especially toward the Japanese, could mean that if there is some sort of an accident, especially one that results in the death of Chinese, Beijing may have so painted itself into a corner that it will have respond with force.

THE COSTS OF A CONFLICT could be asronomical, but history is rife with miscalculations that have repeatedly demonstrated you can not rule out irrational actions in the heat of nationalism.

Even if this round of the dispute is resolved peacefully, the underlying problems will remain, the Chinese-Japanese relationship has corroded further and China, Japan and their neighbors will want to increase military spending to prepare for future, inevitable disputes.

Mistrust between China and the United States has increased. China blames the United States for giving the islands to Japan to administer and believes that with the U.S. security umbrella Japan would no longer dare to challenge China.

A Xinhua commentary on Inauguration Day declared that “Obama could build a l! egacy by ! boosting trust with China.” Xinhua’s suggestions may be difficult for President Obama to accept, but his handling of the Diaoyu/Senkaku Islands crisis and the overall U.S.-China relationship in his second term will likely define a significant part of his foreign policy legacy.



Appearance of Consensus Is Breaking Down in China

GUANGZHOU, China â€" For two decades after the Tiananmen Square crackdown in 1989, China seemed on the surface like a country where free-market and even laissez-faire principles prevailed. It looked as if a consensus had been reached on putting economic policy and the headlong pursuit of affluence ahead of ideology and politics.

That appearance of consensus, which in fact had always masked some internal divisions in the Communist Party and in Chinese society at large, is now breaking down. The question is whether this will lead to greater political openness, an authoritarian clampdown to restore the veneer of stability, or social turmoil â€" all possibilities that could have hard-to-predict consequences for the country’s economic expansion, and for the world’s.

The unraveling has been visible in several ways, including the large environmental protests that have occurred in nearly a dozen Chinese cities over the last year and a half. Tens of thousands of residents of each of those cities, icluding Dalian and Tianjin, have turned out in successful efforts to block the construction of chemical factories, smelters and power plants, as fears of pollution outweigh the promise of job creation.

The breakdown was also apparent in September, when thousands of demonstrators carried large portraits of Mao past the Japanese embassy in Beijing as tension between China and Japan mounted over disputed islands near Taiwan.

The protesters’ choice of Mao posters conveyed an undercurrent of criticism of the country’s present leaders, who conspicuously omit Mao and his collectivist ideology from most speeches these days.

And even more recently, the breakdown of the consensus was evident during four days of protests over free speech this month outside the offices here of the most famous crusading newspaper in China, Southern Weekend, also known as Southern Weekly.

The journalists were calling for the removal of a provincial propaganda chief who had rewritten a New Year’s edit! orial, contorting an anguished review of social troubles into a paean to the accomplishments of the Communist Party.

“It is very clear that the kind of willingness that has been there, in the name of economic growth, to brush everything under the carpet is now gone,” said Odd Arne Westad, a professor of international history at the London School of Economics.

While the police peacefully persuaded demonstrators to go home on the fourth day, it was significant that the protest lasted as long as it did.

“People were standing on the podium saying, ‘press freedom, press freedom,’ and the police did not drag them down â€" it shows that the police in dealing with societal conflict now respect the right of free speech, and it is a new evolution that the people feel they have the right of free speech,” said Yuan Weishi, a retired historian at Sun Yat-Sen University in Guangzhou who is also one of the best-known liberal intellectuals in southern China.

Clutching several placards coered with slogans in Chinese characters, a short-haired young man in a brown jacket bravely hovered near the newspaper’s driveway through the fourth day of the protest, despite police efforts to persuade him to leave. As police officers formed a human wall that moved back and forth to prevent him from walking over to talk to a foreign journalist, he yelled over their shoulders, “The police have no right to prevent me from speaking to anyone.”

While the Chinese Constitution guarantees freedom of speech, that freedom has only infrequently been permitted on a broad scale since the founding of the Communist state in 1949, and seldom in the centuries before that. But the growing perception that the freedom exists or should exist, particularly among young people accustomed to fairly freewheeling discussions on the Internet, suggests a fundamental shift in Chinese society.

Equally important is that young people in China today increasingly seem to feel not only that they have a right to spe! ak out, b! ut also that they have a responsibility to air social problems.

Mr. Westad, who was living in China before, during and immediately after the Tiananmen Square killings, noted that among the young, this sense of personal responsibility in addressing social ills in a public way was last apparent in the 1980s, before nearly disappearing in the subsequent repression and amid the “get rich quick” mentality that later emerged.

What is far less clear is whether the emerging, faint hints of pluralism in China can produce a new social consensus and perhaps even a few tentative steps toward democracy. The question is whether the dialogue will someday produce something like the Arab Spring, which Vali R. Nasr, dean of the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University describes as a series of headless revolutions â€" hard to decapitate, but also hard to guide, control or predict.

Sharp, conflicting divisions about China’s future were visible at the Southern Weekend protests, and could someday prove to have been an early warning of social schism.

On one side of the newspaper’s driveway were a dozen self-appointed advocates of some combination of stricter authoritarianism, anti-Western nationalism and economic isolationism. These demonstrators, representatives of a “new left” group called Utopia, castigated the newspaper’s journalists as unpatriotic. They also denounced a list of culprits that might have been lifted from a far-right blog in the West, claiming an international conspiracy of financiers, the media and the United States government.

Yet more numerous and more noisy on the other side of the driveway were the free-speech protesters, mostly young journalists and their local supporters, who also received heavy support in Chinese ! Internet ! postings. They showed personal courage in assailing a senior censor, a daring that is becoming increasingly common in China as more and more people start standing up to the authorities and often suffer few penalties for doing so â€" except if they call for a multiparty democracy or a review of the Tiananmen Square killings.

The advocates of greater political openness may have time on their side. Utopia demonstrators tend to be middle-aged, part of a generation whose early education was stunted by the Cultural Revolution when many schools and universities effectively closed.

The free-speech demonstrators were considerably younger and far better educated, beneficiaries of China’s huge expansion of higher education in recent years.

The educated youth of China also seem less inclined for now to support aggressively nationalistic policies toward China’s neighbors, professors and young people say. College students were numerous in a previous round of anti-Japanese protests in 2005, particulaly in Guangzhou. But Japanese fashions and popular entertainment have become much more popular among young Chinese since then.

The rioters who overturned and destroyed about 100 Japanese-brand cars during demonstrations in major Chinese cities in September, before a more peaceful march in Beijing, tended to be predominantly older, blue-collar workers.

Mr. Yuan, the historian, said he perceived an evolution in the thinking of the country’s elite. “The mind-set is changing, all the way from the central government to local officials,” he said.



AT&T to Buy Atlantic Tele-Network Business for $780 Million

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Hilco Takes Control of Music Retailer HMV

LONDON - The private equity firm Hilco Consumer Capital has bought the debt of the struggling British music retail chain HMV, according to three people with direct knowledge of the matter.

The debt deal gives Hilco effective control over the HMV, which entered into administration, a form of bankruptcy, last week. The music retailer, with its well-known trademark of a dog next to a gramophone, has suffered from weak consumer spending in its home British market. HMV had outstanding debt of $279 million as of Oct. 27, the latest figures available, although Hilco is understood to have paid less to purchase the debt.

Hilco was appointed on Monday as an adviser to the accountancy firm Deloitte, which is overseeing HMV’s restructuring, and bought the company’s outstanding debt from a consortium of banks led by Royal Bank of Scotland and Lloyds Banking Group, the people said, who spoke on the condition of anonymity because they were not authorized to speak publicly.

Hilco has a track record f acquiring struggling retail brands. In 2009, the private equity firm bought the assets of Polaroid for $85.9 million in cash and equity and acquired the brand name and logos of Linens ‘n Things, the home-furnishings chain, for $1 million.

The private equity firm also picked up HMV’s Canadian operations in 2011 for $3.3 million, and already has relationships with many of the British company’s suppliers. Hilco is expected to decide within the next month about the future of HMV’s 240 stores across Britain, Ireland, Singapore and Hong Kong, according to one of the people with direct knowledge of the matter.

The deal is the latest stage in the history of the British music retail chain, which can date its origins back to the early 20th century. HMV, whose name stands for His Master’s Voice, opened stores across North America in the 1980’s, but eventually closed its last outlet in New York in the early 2000’s.

As consumers have increasingly bought music and movies from onli! ne retailers like Amazon.com and Apple’s iTunes, HMV and other retailers have struggled to match their rivals on cost. Last week, the British division of the entertainment retailer Blockbuster also entered administration, which is equivalent to Chapter 11 bankruptcy in the United States.



Back in Power, Abe Aims to Spend Japan Back to Economic Vitality

TOKYO - Perhaps the pendulum was destined to swing back.

Japan, once lauded as an economic miracle, has spent much of the last two decades playing the world economy’s poster child for policy gone wrong. But as austerity budgets bring no end to economic dormancy in Europe, the Japanese government’s profligate ways are getting an unlikely second look.

Enter Shinzo Abe, Japan’s intrepid new prime minister, who promises to blaze a trail even further away from deep cuts and lean economics.

He and his predecessors have been warned countless times by economists that Japan, saddled with a sky-high debt and rapidly graying population, must also focus on austerity to avoid financial ruin. But Mr. Abe, who has returned as prime minister after a short-lived stint in 2006-7, has decided to flout such advice.

Not yet a monh back in office, he has essentially ordered the Bank of Japan to fire up its printing presses without limit and has promised to pump 12 trillion yen ($134 billion) into public works and other government projects. Mr. Abe has also assembled two panels of economists and executives to advise him on a path that might finally lead Japan out of its economic malaise.

“We are making a break with the shrinking economy of the past,” Mr. Abe told the Japanese people as he announced the stimulus spending. “From now on, the government is spearheading the economics of growth.”

With his newfound audacity, Mr. Abe has made Japan a living experiment in how long a country can defy the seemingly inevitable reckoning that accompanies living well beyond its means. And Mr. Abe has also implicitly demanded a whole new unde! rstanding of the causes of Japan’s prolonged economic slump.

“Finally, we have a politician who understands what’s been wrong with Japan’s economy all along,” said Koichi Hamada, an economist at Yale University who has long argued for an aggressive monetary solution to Japan’s economic woes.

Like any country, Japan has its structural faults, but the main culprit behind its malaise has been the central bank, Mr. Hamada said.

The bank’s failure to do enough to fight deflation, the across-the-board fall in prices, profits and wages that has sapped the strength from Japan’s economy since the late 1990s, has trumped all other efforts by Japan to grow, he said.

Mr. Hamada, 77, an adviser to the prime minister, has been named in the local media as one of Mr. Abe’s preferred picks to take oer as governor at the central bank. Mr. Hamada said it was unlikely he would accept, however, citing health reasons.

So far, markets have reacted positively to Mr. Abe’s economic push. Foreign investors have helped to push up the Nikkei 225 share average more than 20 percent since mid-November, when Mr. Abe, an opposition leader at the time, began promoting aggressive monetary and fiscal policies.

The yen fell last week to a two-year low against the dollar, a boon to Japanese exporters. Meanwhile, Mr. Abe’s talk of ramping up spending has not, for now, brought about the feared disruption in government bond markets; interest rates on the government’s long-term borrowing remain well under 1 percent.

Still, the enthusiastic market response has hardly silenced the debate between those who declare that Japan is now on the threshold of a welcome rise in prices, profits and tax revenue, and doomsayers who warn that officials are ignoring risks of fiscal insolvency, bond sell-offs and! runaway ! inflation.

For Mr. Abe’s critics, his pump-priming could energize markets and buoy the economy in the short term, but would eventually push Japan even further toward the fiscal brink. Interest rates may be low now, they say, but will rise with inflation â€" or even spike â€" if investors start to question the effectiveness of Mr. Abe’s growth policies or grow too jittery about government debt, which is now more than twice as big as Japan’s entire economy.

Even a moderate rise in interest rates, critics warn, could weigh heavily on a debt-servicing burden that already makes up a quarter of Japan’s annual budget. The country’s widening trade deficit and a graying population that is eating into its savings are further worries.

“Investors are mainly worried about Europe right now, but that concern could easily jump to Japan,” said Toshihiro Nagahama, chief economist at the Daiichi Life Research Institute in Tokyo. “The Europeans at least have a plan to try to get back to fiscalhealth. The Japanese have no plan.”

Mr. Abe’s supporters, on the other hand, argue that Japan will better stoke investor confidence by finally beating deflation and generating growth, not by simply tinkering with budgets. Those advocates, referred to as the reflation school or “refle-ha” in Japanese, argue that aggressively aiming for a healthy level of inflation targeting â€" and the weaker yen the policy has already brought about â€" will galvanize exports, revive production, spur profit, expand employment, raise wages and drive up tax revenue in a virtuous cycle of growth, one that will more than make up for the higher debt-service costs.

Moreover, if there is moderate inflation with no large rise in borrowing costs, Japan could inflate away some of its debt, they say. Leading the charge on the economic growth front is a star-studded panel of eight chief executives and an academic who will join cabinet ministers as advisers on bolstering the country’s competitiveness.

â! €œNinety-! nine percent of Japan’s economic stagnation can be put down to the abnormally tight monetary policies of the Bank of Japan,” said Takuro Morinaga, an influential economist who has led the refle-ha charge. “It’s written in every college freshman’s yearbook, that an increase in the money supply will lead to rising prices. It’s basic economics.”

The argument between the two camps is, as Mr. Morinaga points out, a debate over the fundamental causes of Japan’s decades of economic stagnation since the collapse of its bubble economy after 1990. And here, Mr. Abe, until now better known for his revisionist views of Japan’s wartime history, also pushes an alternative reading of Japanese economic past.

The now widely accepted take on Japan’s economic malaise has focused on the structural faults that hold back its economy, from an inflexible labor market to the heavy-handed role played by a largely uninspired and vested public sector. Many of Japan’s once-stellar exporters have done aterrible job at innovation, and have lost much of their dynamism, critics say, even as Japan has been unable to retool its economy to generate more domestic demand.

And public works spending in the 1990s fueled pork-barrel politics and built many “bridges to nowhere,” but did almost nothing to bring growth to the wider economy. All the while, the lavish spending was disastrous for Japan’s public debt.

Mr. Abe’s critics charge that flooding that broken system with more money, with no bold restructuring of the economy, is not effective. The money will go to all the wrong places, they predict, like keeping uncompetitive “zombie companies” afloat or helping to maintain excess capacity in industries ranging from autos to consumer electronics with little regard to international or domestic consumer demand.

And without a fundamental restructuring of the economy, these critics say, there are limits to what the central bank can do. And worse, they warn, a loose monetary policy co! uld infla! te another damaging bubble, memories of which still remain fresh in financial circles here.

“All that extra money becomes like morphine for the Japanese economy â€" we become dependent on it, and we keep on asking for more,” said Mana Nakazora, chief credit analyst for Japan at BNP Paribas. “In the meantime, fiscal restraint weakens. It’s a very risky strategy for Japan.”

The central bank, for its part, has printed money since 2001 in a bid to reverse the deflationary slump. But critics accuse the bank of pulling back prematurely in 2006 at the first signs of economic recovery. That dashed inflationary expectations, and the economy remained entrenched in deflation.

Japan needs to do much more to combat the persistently strong yen that has battered its exporters, the refle-ha say. They point especially to the punishing gap between te South Korean won, which weakened by 60 percent in the wake of the global financial crisis, and the yen, which strengthened 20 percent. That gave South Korean exporters the decisive upper hand as they crushed Japanese rivals in markets everywhere.

The refle-ha are somewhat more divided on public works spending, mainly for construction, which many argue did help soften the blow of Japan’s post-bubble recession. But the spending did not lead to a wider recovery, they acknowledge, either because the government pulled back too quickly or because the spending was aimed at the wrong targets and had only a weak ripple effect on the rest of the economy.

Mr. Abe has gone to pains to argue that his Liberal Democratic Party â€" which for many in Japan has become synonymous of the pork-barrel spending of an earlier era â€" has changed, and that his stimulus will focus on more productive sectors. But a look at Mr. Abe’s recent stimulus plans, with up to 6 trillion yen earmarked for public works, ! suggests ! he will have a lot of convincing to do.

“We get the impression that the Liberal Democratic Party is going on a spending spree out of elation that it was able to take back the reins of the government,” the Asahi daily newspaper said in an editorial last week.

But perhaps the biggest question mark over Mr. Abe is how long he can keep blazing a trail without falling victim to Japan’s revolving door of leadership, which has brought the country seven prime ministers in almost as many years. In a country long-accustomed to falling prices, there is already grumbling from within Mr. Abe’s own party that if prices rise more quickly than wages, it could hurt people’s pocketbooks. And the public will have a chance to voice any displeasure it might have with Mr. Abe’s policies this summer, when Japan holds elections for Parliament’s upper house.

Last time around, public opinion turned so harshly against Mr. Abe that a stress-induced intestinal illness led him to resign. This time, he is rmed with a new anti-inflammatory drug that he says will keep his health problem in check. What his other wonder drug, inflation, will do for the Japanese economy is another question altogether.



Inmet Urges Rejection of First Quantum\'s Takeover Bid

Inmet Mining said on Tuesday that it had rejected a $5.2 billion takeover bid by a rival, First Quantum Minerals, arguing that it was too cheap a price for the Canadian copper miner.

The response, more than one month after First Quantum unveiled its latest cash-and-stock offer, may set off a race for one of the world’s major copper miners.

Inmet said in its statement on Tuesday that it is considering “strategic alternatives,” usually code for a sale or joint venture, and has approached a number of unnamed third parties about possible transactions.

In the meantime, Inmet is urging shareholders to reject First Quantum’s tender offer, which is scheduled to expire at 5 p.m. on Feb. 14. The bid was valued at about $72.87 last month.

The mining sector is playing host to a round of consolidation, as companies seek greater scale to take advantage of a boom in the production of meals and minerals. Last year, Glencore agreed to buy Xstrata, in a $32 billion deal.

By merging with Inmet, First Quantum is aiming to become one of the world’s biggest copper producers, hauling some 1.3 million metric tons of the metal annually by 2018.

The board of Inmet said in its statement on Tuesday that First Quantum’s offer failed to take into account the expected yields at its Cobre Panama site in Latin America. The 13,600-hectare site, located west of Panama City, is one of the biggest untapped copper deposits left in the world, and Inmet expects the site to boost its production by 176 percent in about five years’ time.

The company added that a merger could yield significant risks to its shareholders. In part, Inmet cited First Quantum’s poorer development record and lack of experience in Latin America.

“The Inmet Board has concluded that the First Quantum Offer fails to adequately compensate shareholders for Inmet’s low risk asset base and its strong pros! pects for growth and value creation at Cobre Panama,” David R. Beatty, Inmet’s chairman, said in a statement.

“The board is engaged in a thorough and rigorous process aimed at investigating all potential strategic alternatives to maximize shareholder value.”

Inmet is currently being advised by CIBC and the law firm Torys, while a special committee of its board has retained Scotia Capital.