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The Fed Gets a Bubble Cop

Watch out, Wall Street. The Federal Reserve, a primary banking regulator, is trying harder to spot speculative excesses.

In a speech on Thursday, governor Jeremy C. Stein, who joined the Fed last year, focused on parts of the financial markets that show signs of overheating. He went into considerable detail, citing metrics that appear designed to spot bubbles. Specifically, Mr. Stein raised a red flag about junk bonds and mortgage-backed securities, and how investors are financing their purchases of such assets.

Wall Street has often been a facilitator of bubbles, and in their formation, financiers find plenty of seemingly sound justifications for strongly rising asset prices.

Of course, the Fed is against rampant speculation weakening the banks and distorting the wider economy. But central bank officials say they don’t want to take tough action like raising interest rates to stamp out speculation in specific asset classes, because such a response may unnecessarily cool large sectors o the real economy that aren’t frothy.

Testifying before the Financial Crisis Inquiry Commission in 2010, Fed Chairman Ben Bernanke explained why, in the middle of the last decade, the central bank didn’t raise interest rates to stifle what appeared to be an overheating housing market. “Monetary policy is a blunt tool,” he said. “Raising the general level of interest rates to manage a single asset price would undoubtedly have had large side effects on other assets and sectors of the economy.”

But that stance carries a big risk: What if the Fed fails to spot when localized speculation has tipped into something much more dangerous

Mr. Stein’s speech shows that the Fed wants to get better at making that distinction.

First, he says, after many months of ultra-low interest rates, there are signs of frothiness. He sees it especially in junk bonds and securities backed with mortgages.

Mr. Stein takes things a step further, though. He addresses those parts of the ma! rket infrastructure that could magnify the pain caused by a potential sell-off in such bonds. In particular, he focused on the link between short-term borrowing and bond purchases. Financial firms take out short-term loans and use that money to buy longer-term, higher-yielding assets.

But in jittery times, short-term loans stop becoming available. Investors then have to sell the longer-term assets financed with the short-term debt. On a broad scale, this can cause vicious declines in longer-term assets, and paralysis across the system if the selling turns into a panic. The Fed, therefore, has to make sure that investors aren’t using too much of this short-term debt.

Mr. Stein notes, approvingly, that Wall Street firms are using less short-term borrowing to finance their vast inventories of bonds. But he also recognizes that disorderly selling of bonds could come from another source, like exchange-traded funds. “If investors in these vehicles seek to withdraw at the first sign of trouble, the this demandable equity will have the same fire-sale-generating properties as short-term debt,” he said.

Mr. Stein singles out a sector that has recently grown a lot â€" the investment funds that buy government-backed mortgages. They use repo loans to finance their investments. As of the fall, these real-estate investment trusts, or REITs, had nearly $400 billion of assets, up from around $150 billion at the end of 2010, Mr. Stein said. If repo costs go up and the mortgage bonds fall in price, the funds could suffer.

However, industry analysts who cover such trusts aren’t worried. Even after their growth, the trusts represent only a small portion of the overall market for mortgage-backed bonds, says Bill Carcache, analyst at Nomura. He also says the trusts don’t use an excessive amount of borrowed money. “Leverage levels are very comfortable,” he said.

Mr. Stein then turned his gaze on commercial banks’ mortgage-bond holdings. The longer a bond’s maturity, or the amoun! t of time! investors have to wait to be fully paid off, the more sensitive it is to movements in interest rates. The Fed governor notes that the maturity of banks’ mortgage bonds is near historical highs. He warns, “The added interest rate exposure may itself be a meaningful source of risk for the banking sector and should be monitored carefully-especially since existing capital regulation does not explicitly address interest rate risk.”

But for all the forensics, Mr. Stein didn’t say whether there was frothiness in United States Treasuries. With its enormous bond buying programs, designed to whip up economic growth, the Fed has driven down the price of government bonds.

Critics say this is creating a bubble in Treasuries, which has to be serious because they make up such a large asset class. Skeptics add that all the big central banks are buying large amounts of government debt, encouraging unstable levels of government borrowing. This could harm the wider economy in the same was as excessive motgage debt did, they say.

One critic is Kevin Duffy, a portfolio manager at Bearing Asset Management, a hedge fund. In response to Mr. Stein’s speech, he asks, “Where is the mention of debt buildups at the government level that the central banks are enabling”



Unwieldy Proposals From Einhorn and Apple

Both Apple and David Einhorn could use some of the iPhone maker’s famed simplicity.

Apple, the $430 billion technology company, has combined three governance fixes better considered separately. Also a bit unwieldy is an idea from the boss of the hedge fund Greenlight Capital to unlock value at Apple. A sleeker approach makes more sense.

Preferred stock lies at the heart of the spat uncorked on Thursday. Apple has proposed several changes to its articles of incorporation ahead of its shareholder meeting later this month. One is a clearly positive shift to majority voting for directors. Another is a largely administrative, though sensible, move to attach a par value to Apple’s common stock.

The third change would prevent Apple’s board from issuing preferred stock without shareholder approval. Calpers, the $243 billion California pnsion fund and governance champion, supports the whole package. That’s no surprise, since governance advocates worry that directors can use a blank check for pref issuance to deter takeovers. Mr. Einhorn, though, wants Apple to consider issuing preferred stock. He has initiated a legal effort to force Apple to break the package into three separate shareholder votes, claiming federal rules governing public companies require this.

Legalities aside, the cleanest response would be for Apple to comply. Greenlight says the company has ruled that out. Either way, Mr. Einhorn could also streamline his own approach. He’s right that Apple shares look cheap, particularly considering its $137 billion cash pile and more than $40 billion of annual cash accumulation. But his idea, floated last year, of distributing preferred shares carrying a fixed dividend yield as a way to crystallize more value may not be the most user-friendly place to start.

A more straightforward initial effort could be to pus! h Apple to pay a much larger regular stock dividend than the smallish payout it has started making. If that doesn’t enhance the company’s value, other ideas could be considered. If Mr. Einhorn’s preferred shares then looked attractive enough, shareholders could still vote for them even if Apple’s proposed changes are all enacted.

The company’s design guru, Jony Ive, keeps busy masterminding the uncluttered look and feel of Apple’s gadgets and software. His boss, Timothy D. Cook, and shareholders like Mr. Einhorn might benefit from a similar mind-set in the boardroom.

Richard Beales is assistant editor at Reuters Breakingviews. For more independent commentary and analysis, visit breakingviews.com.



How to Use Windows 8 Search for It

I’m deep, deep into Windows 8. When you write a book about an operating system, you wind up rummaging around in dark corners of it that very few people ever see. You learn its quirks and virtues just as you would a person you live with.

A couple of weeks ago, I celebrated some really great Windows 8 features that nobody talks about. There are plenty of bright spots like that.

(A note: I have written a how-to manual for Windows 8 for an independent publisher; it was neither commissioned by nor written in cooperation with Microsoft.)

But I’ve alwaysbeen troubled by the duality of Windows 8: the fact that it has two completely different environments. One is for finger operation on touchscreens; the other is the traditional mouse/keyboard desktop.

The traditional desktop runs regular Windows programs (Photoshop, Quicken, iTunes, and so on); the new touchscreen interface, which I’ll call TileWorld, requires a whole new set of full-screen, fairly simple apps.

(Several readers wrote to me to scold me for not calling it the Metro interface. Sorry, but that is not what Microsoft calls it, as we learned this summer. Nor is its name the Modern interface; that was an early, internal name Microsoft had for it. When you ask Microsoft what it’s called, the company says it should simply be called “Windows 8,” insisting that it’s not two different env! ironments at all.)

As you may have heard, the Start menu is gone in Windows 8. Instead, you have a Start screen â€" the Home screen for TileWorld. If you use Windows 8, you will be spending a lot of time here.

For the longest time, this screen didn’t bother me. It’s just the Start menu, expanded so that you don’t have to burrow through all those menus. In fact, the Start screen even has groupings of tiles that correspond to the submenus of the old Start menu: Microsoft Office, Accessories and so on.

But the more I learned to do things in Windows 8, the more I wrote tutorials for doing them, the more I realized the enormous drawback of this setup: you have to search for everything.

Over and over and over again, in Microsoft’s help system, in online tutorials, and in real life, you discover that the first step when making some adjustment in Windows 8 is to search for it. Want to add or remove features Go to the Start screen and search for features. Want to set up remote access o to the Start screen and search for remote. Turn on Compatibility Mode Go to the Start screen and search for compatibility. Adjust error reporting Go to the Start screen and search for problems. Convert text to speech Go to the Start screen and search for speech. Use the System Restore feature Go to the Start screen and search for restore. Set up the new File History feature Go to the Start screen and search for file history.

And on, and on, and on.

And you know what makes it worse There’s no way to search your entire computer at once, as the Mac or Windows 7 does. You must search for either programs, or settings, or files. You can’t search all three categories at once.

If you’re operating on a touchscreen, that means it takes an extra tap (on “Settings”) every time you search for a setting. If you have a keyboard, there’s a keystroke just for searching for Settings (Windows key+W). But that’s still one more keystroke than Windows 7 required.

Why have we gone b! ack to ty! ping filenames to open them Wasn’t that the beauty of the graphical user interface â€" of the Mac, of Windows That you could point and click instead of typing out commands

Now, this is Windows, after all; there seem to be 63 ways to do anything. You don’t have to search. For the Settings example, you could, of course, go back to the desktop and open the Control Panel and burrow into it just as you did in Windows 7.

But guess what There’s no Start menu anymore to list the Control Panel. So getting to the Control Panel takes four steps (go to desktop, open Charms menu, open Settings panel, select Control Panel). You can choose its name from the secret X menu that normal people don’t know exists (point to the lower-left corner of the screen, wait for the Start-screen thumbnail to appear, right-click). Or you can make a shortcut icon for the Control Panel and leave it on your desktop, if you can figure out how to do that.

None of those methods are as simple, obvious or quick as the oldway: just listing Control Panel in the Start menu.

Yes, I know there are ways to restore the Start menu (one good one: the free Classic Shell). And you should absolutely do that; it makes Windows 8 infinitely more efficient.

It’s clear from the engineering team’s blogs that Microsoft put incredible amounts of thought into re-imagining Windows. I mean, blood, sweat, and tears over every design decision. (They have a post about designing the on-screen keyboard; they used eye-tracking systems to figure out where people look when they type on a tablet! Another post discusses multiple-monitor setups.)

S! o that’! s why this gigantic conceptual breakdown absolutely baffles me. Surely, in all those millions of person-years of testing, somebody at Microsoft must have observed that opening things â€" arguably the single most immediate task of an operating system â€" requires more steps now than before.

When you consider the slow sales of Windows 8, the general public bafflement, and the departure of Windows 8 mastermind Steven Sinofsky, Microsoft probably realizes that the split-personality design of Windows 8 was a misfire. It’s inevitable that Microsoft is already hard at work fixing the problem; that’s how Microsoft works. Refine, refine, refine, no matter how many years it takes.

My question is: How do you fix something whose founding concept is flawed

This should be an interesting plot to follow.



Apple Responds to Einhorn Proposal: We\'ll Think About It

How does Apple Inc. respond to a public campaign by one of its best-known investors, who happens to be a widely followed hedge fund manager, against one of its shareholder proposals

Diplomatically, it seems.

Apple said in a statement on Thursday afternoon that it would continue to evaluate ways of returning some of its $137 billion cash pile to investors, after David Einhorn called on fellow stockholders to reject the company’s plan to eliminate a kind of preferred stock.

The hedge fund magnate, who bolstered his threat by suing Apple in federal court in Manhattan, has asked the iPhone maker to consider issuing preferred shares to existing investors as a way to make use of its enormous war chest.

In its response, Appe said it would continue to evaluate Mr. Einhorn’s idea, which the investor has raised in the past. And the company added that it could still implement the proposal even if its own plan to eliminate certain kinds of preferred shares succeeds.

The main point of Apple’s response appears to be this: “Apple’s management team and Board of Directors have been in active discussions about returning additional cash to shareholders.”

Read the full statement below:

By early last year, Apple’s cash balance had built to a point beyond what we needed to run our business and maintain flexibility to take advantage of strategic opportunities, so we announced a plan to return $45 billion to shareholders over three years. As of next week we will have executed $10 billion of that plan.

We find ourselves in the fortunate position of continuing to generate large amounts of cash, including $23 billion i! n cash flow from operations in the last quarter alone.

Apple’s management team and Board of Directors have been in active discussions about returning additional cash to shareholders. As part of our review, we will thoroughly evaluate Greenlight Capital’s current proposal to issue some form of preferred stock. We welcome Greenlight’s views and the views of all of our shareholders.

As a part of our efforts to further enhance corporate governance and serve our shareholders’ best interests, Proposal #2 in our proxy includes some recommended changes to our articles of incorporation. These changes were recommended independently of Greenlight’s proposal and would not preclude Apple from adopting their concept. Contrary to Greenlight’s statements, adoption of Proposal #2 would not prevent the issuance of preferred stock. Currently, Apple’s articles of incorporation provide for the issuance of “blank check” preferred stock by the Board of Directors without shareholder approval. If Propoal #2 is adopted, our shareholders would have the right to approve the issuance of preferred stock. As such, Proposal #2 has the support of many of our shareholders.

We remain committed to having an ongoing dialogue with our shareholders to get perspectives around return of capital and driving shareholder value.



Taking on Apple, Einhorn Has a History of Public Calls

When David Einhorn sued Apple on Thursday, it was a rare rebuke by a hedge fund manager against the world’s most valuable company.

Of course, Mr. Einhorn, the president of Greenlight Capital, has built a career on publicly challenging big companies, even when those moves are unpopular. Beginning with a bet against Allied Capital in 2002, Mr. Einhorn has attracted a cult following on Wall Street, with pronouncements that can move stock prices.

Mr. Einhorn’s legal challenge to Apple, an effort to prevent the company from eliminating preferred shares, is the latest skirmish by the hedge fund manager. Below is a look back at some of his most memorable calls.

2012: Chipotle | Mr. Einhorn announced a bet against Chipotle Mexican Grill at a conference in October, and the share price of the fast-food chain promptl fell. With a slide presentation, the investor argued that the business was vulnerable to competition, especially from the likes of Taco Bell. But the company’s shares recovered and have been on a gradual path upward.

2011: General Motors | Shares of General Motors fell after the company’s initial public offering in 2010, and to Mr. Einhorn that was an opportunity to buy. Noting that investors were reluctant to own a company that was still partially owned by the government, Mr. Einhorn said G.M. was in better shape after its restructuring and was undervalued by the market. The investment mitigated Greenlight’s disappointing performance in the fourth quarter of 2012.

2011: Green Mountain Coffee Roasters | Its stock had been a darling of Wall Street, rising thirtyfold over five years. But Green Mountain came under pressure in October, when Mr. Einhorn questioned the company’s accounting in a closely watched slide presentation. The shares fell sharply, seeming to affirm Mr. Einhorn’s power. But the stock price began to recover near the end of 2012, following a robust earnings report, and it contributed to a quarterly loss for Mr. Einhorn’s hedge fund.

2011: The New York Mets | Though he grew up a Milwaukee Brewers fan, Mr. Einhorn turned his attention to the New York Mets, entering negotiations to buy a $200 million stake in the baseball team. Deep in debt and losing money, the team was also fighting a legal battle stemming from the collapse of Bernar L. Madoff‘s Ponzi scheme. In the end, the talks fell apart when the parties couldn’t agree on terms.

2008: Lehman Brothers |Mr. Einhorn began betting against Lehman Brothers in 2007, before the rest of the financial world recognized the investment bank’s troubles. He announced his bet in May of 2008, at a conference attended by big investors, and entered into a public battle with the investment bank. Lehman went bust that fall.

2002: Allied Capital | Mr. Einhorn rose to prominence after announcing a bet against Allied Capital in May. He argued that the company! was over! valuing its assets, a claim that executives vehemently denied. The fight dragged on for years, and Mr. Einhorn was even questioned by the Securities and Exchange Commission. He was ultimately victorious, when the S.E.C. found in 2007 that Allied had violated securities laws. The stock later lost much of its value, and in 2009 Allied agreed to sell itself to Ares Capital.



Among the Fixed-Income Also Rans

Credit Suisse’s fourth-quarter results contain bad news for fixed-income wannabes.

The Swiss bank was among the first to adjust its debt-trading business to the harsher realities of new Basel III regulations, so it can probably weather the 28 percent quarter-on-quarter revenue drop it has just suffered in this segment. Other rivals may be less fortunate.

Fixed-income trading is a two-league competition. Goldman Sachs and the five balance-sheet “flow monsters” make up the top flight with a combined market share of about 60 percent. Other banks â€" including Credit Suisse â€" are scrapping it out in the second division.

At this stage of the bank reporting season, thereâ€s little to suppose that any of the second-tier fixed-income banks are closing the market share gap in a meaningful way. Fixed-income revenue at Morgan Stanley was down 44 percent quarter on quarter, a bigger fall than at the Wall Street banks in the debt-trading premiership.

Yet market share is only one way to view the fixed-income world. Credit Suisse, whose former fixed-income head Gael de Boissard was promoted to co-run overall investment bank operations, has spent the last year focusing on profitability. By its count, 80 percent of the 81 fixed-income business lines Credit Suisse has retained made a return on equity last year of 15 percent under Basel III.

That may be down in large part to the beneficial conditions that prevailed last year for credit and securitized products. Negative real returns on government bonds pushed investors to! seek yield on lower-grade debt, and as a result it was relatively easy for Credit Suisse to make a turn. By contrast, the environment was poor for interest rate and foreign-exchange trading, where scale players tend to overshadow Credit Suisse.

Nonetheless, the Swiss bank made the most of the conditions. In the third quarter of last year it made revenue on every day it traded, a cleaner record than at Goldman Sachs and JPMorgan Chase. In the fourth quarter, it lost money on only two days, each time less than 25 million Swiss francs. That’s impressive though the bank also cut risk-weighted assets in fixed income by 31 percent over the year to $122 billion.

But market share is still one important indicator of fixed-income health. A quarter ago, Credit Suisse’s smaller size appeared no great barrier to revenue. After the precipitous 28percent fall in the period just gone, second-tier rivals BNP Paribas, Societe Generale and Royal Bank of Scotland may fear that the good early news was a false dawn.

Dominic Elliott is a columnist at Reuters Breakingviews. For more independent commentary and analysis, visit breakingviews.com.



Helping Start-Ups With Local Support and National Networks

When Will Fuentes planned an extended business trip to Seattle last year, he tapped into the local chapter of a national networking group there. Within hours, Mr. Fuentes, who founded the Arlington, Va., software company Lemur Retail, had secured a work space, introductions and even restaurant recommendations via the group, the Startup America Partnership.“Before I flew out there, I already had five or six meetings set up with potential clients and other key contacts, as well as one potential acquirer,” Mr. Fuentes said.

A couple of years ago, entrepreneurs would have needed several trips to make similar connections outside their own cities. Even in this era of social networks and venture conferences, start-ups are is still surprisingly disconnected on a national level.

“Each region has its ties, but in many cases, entrepreneurs are operating in silos,” said Carolynn Duncan, the chief executive of Portland Ten, a mentring program for early-stage companies, mainly in Oregon. “An entrepreneur in Oregon doesn’t have an easy way to network with entrepreneurs in Washington D.C.”

Startup America, a nonprofit organization with an all-star cast of deep-pocketed backers, is trying to bridge the gap. The organization, which was started in January 2011 as the brainchild of AOL’s co-founder, Steve Case, and the Ewing Marion Kauffman Foundation, wanted to bring a private-sector support to start-ups â€" without financial strings attached.

“Supporting start-ups throughout the country is the only way to make sure the American economy is firing on all cylinders,” said Mr. Case, wh! o is the chairman of the partnership.

Start-ups are a crucial driver for job creation in the United States. From March 1994 to March 2010, businesses less than one year old created 3.9 million jobs a year on average, according to the Bureau of Labor Statistics, though that number has declined during the recent economic weakness.

The Small Business Administration and Uited States Chamber of Commerce have long been a resource for start-ups, but these government agencies have a broad mandate. There is a “growing recognition,” said Mr. Case, that high-growth start-ups â€" those with the potential to be national or international companies â€" have different needs and requirements than traditional small businesses.

Startup America’s initial focus was to provide support to start-ups through deals on goods and services, like 40 percent off FedEx shipping and free flights on American Airlines. But the group quickly realized that start-ups needed more practical help, like sharing best practices and networking.

Soon after the par! tnershipâ! €™s start, entrepreneurs around the country starting contacting Startup America, asking how they could create their own networks and reach out to counterparts in other states. “Most of these regions were already coming up with their own initiatives or thinking about them,” said the organization’s chief executive, Scott Case, a founder and former chief technology officer of Priceline.com (and no relation to Steve Case). “We’re helping to stitch together all these parts.”

Taking cues from the entrepreneurs, Startup America has turned its attention to building such a network. Nearly 12,000 members are now affiliated with local Startup America initiatives in 30 states. The partnership expects to add another 10 states this year.

Each Startup America region is spearheaded by local “champions” who come together several times a year atnational conferences, communicate via Google groups and have access to an online “idea center” where they can brainstorm about, say, bringing in outside capital or hosting a start-up conference. These envoys are all “founder types” at different stages of their careers, Scott Case said. “Some have exited companies and are looking to continue to feed that creative drive. Others understand that if they can strengthen their community, they can strengthen their own company.”

Brooks Bell, founder of an eponymous 22-employee digital consulting business based in Raleigh, N.C., became involved with the partnership in 2011 after realizing that many potential clients considered her area a backwater. “I realized that was impacting my company’s brand, too,” she said.

Mrs. Bell pointed out that other national groups, like Entrepreneurs’ ! Organizat! ions, offer resources for high-growth companies. Yet, their emphasis is typically on supporting individuals rather than elevating the region and networking nationally. “They also tend to focus on early-stage companies,” she said. Until Startup America, she added, “there weren’t a lot of opportunities for early-stage companies to interact with funded companies.”

Though Startup America regions work off the same blueprint, each takes a slightly different approach. In Maryland, the staff and champions volunteer virtually. Startup Tennessee partnered with the Entrepreneur Center in Nashville, which runs a nonprofit incubator program. Startup Colorado works out of Silicon Flatirons, a center for law, technology and entrepreneurship at the University of Colorado Law School, and finds partners to fnance specific projects.

Although the regional chapters operate independently, they benefit from the credibility of a national organization. “It’s helping elevate our start-ups nationally and get them in front of audiences we never would have,” said Andy Stoll, an entrepreneur in the Iowa City, Iowa, area, where rebuilding from the floods in 2008 has helped generate a boom in start-up activity.

“To have the opportunity to sit in a room with their board and have Steve Case ask me, ‘What are the three things that those of us at this table can do to really help support the Indiana community’ is amazing and a humbling experience,” said Michael Coffey, a partner at DeveloperTown, an Indianapolis design and development firm that works with companies of all sizes.

In the end, it’s all about business.

Aaron Schwartz, a co-founder of the San Francisco-based Modify Watches, initially joined Startup America for the discounts. Now, he’s also tapping into the partnership ! to networ! k, including finding corporate clients who order custom watches and vendors. “I now have a contact in Tennessee who has offered to look into manufacturing our watches there,” he said

Mr. Fuentes of Lemur Retail found two potential clients, both national chains, through his connections in Seattle last year; he’s currently in talks with those companies. He’s also helping his Northwest counterparts make inroads in the Washington area. He likens the experience to a fraternity or alumni organization of entrepreneurs.

“When people contact me from my high school or college, I pick up the phone,” he said. “This is no different.”



Don\'t Make Poison Pills More Deadly

Under a publicly announced agenda for 2013, the Securities and Exchange Commission is to examine the rules governing when shareholders must disclose the acquisition of a significant position in a public company. An unintended and harmful effect of such a change may be that it will help companies adopt so-called low-threshold poison pills - arrangements that cap the ownership of outside shareholders at levels like 10 or 15 percent. The S.E.C. should be careful to avoid such an outcome in any rules it may adopt.

Under current S.E.C. rules established under the Williams Act of 1968, outside shareholders who obtain stakes of 5 percent or more of a company’s stock must publicly disclose their holdings within 10 days. The S.E.C., however, is planning to consider a rule-making petition, filed by a prominent corporate law firm, that proposes to reduce the 10-day period, as well as to count derivatives toward the 5 percent threshold.

p>Supporters of the petition argue that earlier disclosure would benefit public investors by enabling selling investors to obtain the somewhat higher market price that an earlier disclosure might bring. This, however, needs to be weighed against the costs to investors from discouraging activist outside shareholders. As I explained in an earlier column, there is much evidence showing how such shareholders confer significant benefits on their fellow investors.

Whatever view one takes on this tradeoff, the push for tightening disclosure rules is at least partly driven by the benefits that earlier disclosure would provide for corporate insiders. Supporters of the petition have made it clear that tightening disclosure requirements is intended to alert not only the market but also incumbent boards and executives in order to help them put defenses in place more quickly.

The drafters of the Williams Act env! isioned a landscape that would allow outsiders who were not seeking to control a company to keep accumulating shares, provided that they made the required disclosures. But companies in the United States have been increasingly using poison pills with low thresholds to limit the stakes of outside shareholders they disfavor.

Poison pills were developed in the 1980s to enable insiders to block a hostile acquisition. Over time, however â€" and without sufficient attention by investors and public officials â€" companies have started to use poison pills to prevent acquisitions of stakes that fall substantially short of a controlling block.
Indeed, among the 637 companies with poison pills in the FactSet Systems database, 80 percent have plans with a threshold of 15 percent or less. No other developed economy grants corporate insiders the freedom to cap the ownership of blockholders they disfavor at such low levels.

The current ability of insiders to adopt low-threshold poison pills is a highly relvant factor for any assessment of the rules governing the relationship between incumbents and outside shareholders. In particular, the S.E.C. should recognize that tightening disclosure requirements could impose costs on public investors and the economy by facilitating the use of such pills.

Consider a situation in which an investor opposed by management makes a public announcement immediately upon accumulating a 5 percent stake. Then suppose the company quickly adopts a poison pill with a low threshold that prevents or drastically limits further accumulation of stock by the buyer. In this case, the company’s response to the immediate disclosure would not enable public investors to capture higher prices for shares they sell to the large shareholders; to the contrary, it would prevent these investors from selling shares to the large shareholder at mutually beneficial prices.

Furthermore, by entrenching insiders and insulating them from engagement by large outside shareholders, low-thresh! old poiso! n pills could well impose costs on public investors who do not wish to sell their shares.

If the S.E.C. does decide that tightening disclosure requirements is desirable, it should design the rules to avoid aiding the use of such poison pills. This could be done by limiting the application of tightened disclosure requirements to companies whose charters do not permit the use of low-threshold poison pills.

Proponents of the petition, which has thus far failed to attract any supportive comments from institutional investors, should endorse including such a limitation in any reform. Doing so is necessary to address concerns that tightened disclosure requirements might be aimed at protecting entrenched insiders rather than public investors.

This column develops delves into a discussion that was part of a Conference Board debate with Martin Lipton.



Ackman to Herbalife: You\'re Not the Girl Scouts

William A. Ackman is not letting his adversary compare itself to the Girl Scouts.

Mr. Ackman, head of the hedge fund Pershing Square Capital Management, issued a fresh challenge on Thursday to Herbalife, the nutritional supplements company that he is betting against.

In a document posted online, Pershing Square takes aim at Herbalife’s disclosures about its business model. The company, which Mr. Ackman has accused of being an abusive pyramid scheme, sells its products through a network of independent distributors, who turn around and sell to customers or consume the products themselves.

Seeming to leave no statement by Herbalife unchallenged, the hedge fund manager even addressed a comment by Michael Johnson, the chief executive, who compared his company’s model to that of the Girl Scouts.

“When Girl Scouts sell cookies, do 11 levels of ‘upline’ Girl Scouts receive sales commisions Do the top 1 percent of Girl Scouts receive 88 percent of the award badges” Pershing Square asks in the document released on Thursday. “How many former Girl Scouts have sued the Girl Scouts’ organization and accused it of running a pyramid scheme”

Mr. Ackman was responding to a presentation by Herbalife last month â€" which itself was a rebuttal to Mr. Ackman’s opening salvo.

In the weeks since, the debate over the company has turned into a high-stakes drama on Wall Street, drawing in prominent investors and even leading to an bitter argument on live television.

In previous responses, Herbalife has cited its long history of sales growth and its compensation plan, which i! t says focuses on product sales, not recruitment.

“Herbalife is a financially strong and successful global nutrition company, having created meaningful value for shareholders, significant opportunities for distributors and positively impacted the lives and health of consumers since our founding in 1980, ” Barbara Henderson, a spokeswoman for the company said in a statement. She said Pershing Square was motivated by its “reckless” short position.

Mr. Ackman, however, is still pressing the company for more of a response.

“Herbalife management has repeatedly stated its commitment to total transparency,” he said in a statement. “In response to this invitation, we have prepared a substantial number of detailed questions.”

The initial questions center on whether distributors make their money primarily from retail sales outside the network or from recruiting other distributors. Citing a statement by the Federal Trade Commission, Pershing Square suggests that that distinctionis important in determining whether the company is a fraud.

“What proof can the company provide that bona fide retail sales (defined as sales to non-distributors) at sufficient profits occur such that Herbalife’s distributors obtain their monetary benefits primarily from sales to independent, third-party retail customers rather than from recruiting rewards” Pershing Square asks.

Over its 40-page document, the hedge fund challenges various aspects of Herbalife’s presentation in January and poses many pointed questions.

For instance, Pershing Square asks Herbalife to release more details about a report by Lieberman Research Worldwide, which used an Internet survey to conclude that the majority of Herbalife’s sales went to people outside the distributor network.



A Sensible Change in Taxing Derivatives

It’s not every day that I’m happy with Congress.

Readers may recall David Kocieniewski’s article about Ronald S. Lauder, an heir to the Estée Lauder fortune with a net worth of more than of $3 billion.

Among the legal tax loopholes Mr. Lauder used was one that allowed him to defer millions in taxes by entering into a transaction known as a variable prepaid forward contract. This instrument allows shareholders who hold appreciated stock to monetize an investment without immediately paying tax on the capital gains.

Representative Dave Camp, the Michigan Republican and chairman of the House Ways and Means Committee, recently released a discussion draft of proposed legislation that would tax most financial derivatives on a “mark-to-market” basis. This means that at the end of each year, derivative holders would estimate the market value of the derivative, recognizing tax gains and losses each year rather than waiting until they sell the instrument.

The proposed legislation is an important first step toward a more sensible approach to taxing financial instruments, an area of the tax code plagued by complexity, inconsistency and opportunities for gamesmanship.

While Mr. Camp’s proposal has some imperfections, he should be commended for putting forward a smart piece of legislation. It not only closes some loopholes, it finally presents a fundamental ! and sensible response to the development of modern financial instruments.

The building blocks of our current tax system were laid down in 1954, long before derivatives were commonplace. Mr. Camp’s proposal would shift the taxation of financial instruments like options, swaps and futures from our current realization-based system to a mark-to-market system.

Suppose for example that you approach an investment bank to purchase an option to acquire 1,000 shares of Facebook at $30 a share, just above today’s market price. Assume the option is long-dated and expires in five years. By the end of the first year, assume the value of Facebook has increased to $40 a share.

Under current law, the option contract is treated as an open transaction, and the option holder would not pay tax on the appreciation in value until the option is sold or, if exercsed, until the underlying Facebook stock is sold.

But Mr. Camp’s proposal would require the option to be valued at the end of each year based on what the profit would be had the option been sold and repurchased it at the end of each year. If the option declined in value, you would have the benefit of a tax loss.

Wall Street has responded cautiously to the proposal. A change in the law would not necessarily hurt Wall Street directly. Most financial instruments held by investment banks and some other financial institutions are already taxed on a mark-to-market basis because the banks are treated as dealers, not investors, under section 475 of the tax code.

The proposal would instead probably hurt individuals who enter into bespoke financial contracts with banks in order to avoid tax. The change thus might hurt Wall Street indirectly by reducing demand for such contracts.

But cleaning up the taxation of derivatives would also benefit Wall Street by making it easier for companie! s with bu! siness reasons to hedge risks to do so without facing tax uncertainty. (Legitimate business hedging would be carved out of the new mark-to-market system.)

The legislation includes some intelligent exemptions where mark-to-market would create unnecessary grief, such as for real estate transactions.

There are some additional problems with the legislation that need to be addressed. One is the tax treatment of compensatory stock options, which would be taxed on a mark-to-market basis under the proposal, but were probably not intended to be. Another might be the tax treatment of convertible notes, a common form of financing for early stage start-ups.

Yet another is the unintended application to stock purchase agreements where there is a significant period of time between signing and closing. And valuation of many nontraded derivatives will be tricky. These issues are likely to be addressed as the legislation moves forward.

From a public policy standpoint, the proposal deserves the praise t has received. David S. Miller, a prominent tax lawyer at Cadwalader, Wickersham & Taft, calls the proposal “perhaps the most dramatic reform to our federal tax system since it was introduced nearly a hundred years ago.”

The proposal, Mr. Miller explains, “would replace a dozen sets of rules with a single rule - mark-to-market - and would finally match the tax treatment of derivatives with their economics. It would dramatically improve and simplify the tax code and prevent gaming and abuse.”

Edward D. Kleinbard, a law professor at the University of Southern California, notes the “intelligent, courageous, and sorely needed substantive reforms” in the proposal.

Like Mr. Miller, Professor Kleinbard knows his stuff; he spent many years working on the taxat! ion of fi! nancial instruments as a partner at Cleary Gottlieb Steen & Hamilton. He knows the flaws in our current system and how its inconsistencies are exploited.

Professor Kleinbard praised Mr. Camp for the “exemplary” process of putting out work product early, allowing for commentary and critique from those without back-channel access to the legislative process. The final product will surely benefit.

Nits aside, the proposal is a good one and would accomplish what it sets out to do. It would shut down transactions like Mr. Lauder’s by making the appreciated shares he holds subject to mark-to-market taxation.

It simplifies the tax code, increases fairness and better aligns tax law with the underlying economics. It is an exceptional example of open, bipartisan, sensible lawmaking. Mr. Camp and his counterpart on the Senate Finance Committee, Max Baucus, Democrat of Montana, have held a series of joint hearings on tax overhaul, and we are now enjoying the first fruits of the harvest.

For further reading on the taxation of derivatives, see Taxation of Financial Products: Options for Fundamental Reform by Alex Raskolnikov, and Balance in the Taxation of Securities: An Agenda for Reform by David Schizer.

Victor Fleischer is a professor at the University of Colorado Law School, where he teaches partnership tax, tax policy and deals. Twitter: @vicfleischer



Einhorn to Sue Apple Over Plan to Discard Preferred Stock

David Einhorn has long been known as a fervent fan of Apple Inc. But the hedge fund magnate is making an unusually public stand to oppose a move by the maker of the iPad: a lawsuit.

His hedge fund, Greenlight Capital, said on Thursday that it was suing Apple in an effort to block a move that would eliminate preferred shares. In a letter to fellow stockholders, Mr. Einhorn said that the move to amend the company’s charter would unnecessarily limit the technology giant’s ability to create value for shareholders and called on them for support.

“This is an unprecedented action to curtail the company’s options,” he wrote in the letter. “We are not aware of any other company that has ever voluntarily taken this step.”

Activists have taken on increasingly bigger targets in recent years, including the likes of Hess and Procter & Gamble. But no one has dared to take on the onetime darling of the hedge fund community.

The opposition by Mr. Einhorn is the latest sign of investor dissatisfaction with a company whose stock price in recent years had been almost unearthly in its gains. That growth had drawn not only Greenlight, which now holds 1.3 million shares â€" a more than $590 million stake â€" but a virtual army of hedge funds hitching their investment performance to Apple’s rising star.

But over the last several months, shares in Apple have tumbled, leaving many with a sour taste in shareholders’ mouths. In a letter to Greenlight investors last month, Mr. Einhorn joked that some of his fund’s stumbles were because “our ap! ple was bruised.”

On Thursday, however, he took a more adversarial tone.

Mr. Einhorn praised Apple as “a phenomenal company filled with talented people creating iconic products that consumers around the world love.” But he expressed deep dissatisfaction over how Apple manages its finances, complaining that the company’s enormous $137 billion cash hoard is shortchanging shareholders.

It appears that the move by Apple to eliminate preferred shares in its charter is the final straw. Mr. Einhorn noted that he has called upon the company to issue to existing shareholders a perpetual preferred stock that would pay out a dividend. In one scenario, the company would initially distribute $50 billion carrying a 4 percent annual dividend, and then issue more over time.

Mr. Einhorn added that he has raised the issue with Apple executives several times, only to be rejected.

As Apple’s share price has fallen â€" it is down more than 26 percent over the last six months â€" the hedgefund manager said that shareholders are owed more.

“The recent, severe under-performance of Apple’s shares, which are down approximately 35 percent from their peak valuation, underscores the need for the company to apply the same level of creativity used to develop revolutionary technology for its consumers to unlock the value of its strong balance sheet for its shareholders,” he wrote in the letter.

Mr. Einhorn also protested that Apple was tying the preferred stock proposal to two other initiatives that he does support: allowing for simple majority voting for directors and establishing a par value for common stock.



Lazard\'s 4th-Quarter Profit Surged as Deal Assignments Picked Up

What a difference a year has made for Lazard.

The independent investment bank said on Thursday that its adjusted profit jumped to $81.6 million in the fourth quarter, up from just $1.4 million the same time a year ago, as deal-making improved.

The year-ago period also was weighed down heavily by accounting charges tied to efforts to rein in deferred compensation.

The fourth-quarter profit amounts to 61 cents a share, nearly double the average analyst estimate of 34 cents a share, according to Capital IQ.

Using generally accepted accounting principles, the firm reported a narrower loss in the fourth quarter of $4.1 million.

Firms that specialize in advising on mergers and acquisitions benefited from a growth in deal-making in the fourth quarter. While overall takeover activity remains low, investment bankers predict that more companies will seek growth by buying other businesses.

“We’re about as well-positioned as we’ve ever been,” Kenneth Jacobs, Lazard’s chaiman and chief executive, said in a telephone interview.

He added that the current banking environment, which has imposed additional costs on bigger firms with more complex businesses like trading, favors the independent model of Lazard and rivals like Evercore Partners. One bigger competitor, Barclays, recently disclosed that it plans to lay off about 275 people from its investment banking unit in New York City.

“We think we’ve got the ideal model for today and the next decade or so,” Mr. Jacobs said.

Lazard’s core financial advisory division reported ! a 19 percent jump in operating revenue, to $309 million, with those gains coming primarily from deal-making. Assignments that closed in the quarter â€" which meant the full payment of fees â€" included Hertz’s $2.3 billion takeover of the Dollar Thrifty Automotive Group.

And the firm is advising on a number of prominent transactions, including Anheuser-Busch InBev’s proposed takeover of Grupo Modelo of Mexico (although regulators are seeking to block the bid on antitrust grounds); T-Mobile USA’s merger with MetroPCS; and the IntercontinentalExchange’s purchase of NYSE Euronext.

The only weak spot was in the restructuring unit, which advises clients on bankruptcies and corporate turnarounds. Mr. Jacobs said that he expected that business, whose operating revenue fell 36 percent to $48 million, to remain muted for some time.

azard’s other big business, asset management, also performed well in the fourth quarter, with operating revenue rising 20 percent from the year-ago period to $245 million. Virtually all of the asset classes that the firm invests in performed strongly, Mr. Jacobs said.

One of the firm’s main focuses over the past few years has been reining in compensation expenses, something that investors like Nelson Peltz have made a key focus. The firm said that its adjusted compensation for last year was $1.2 billion, almost flat from 2011. And the ratio of its awarded compensation to revenue came in at 59.4 percent for the year, compared to 62 percent a year ago.

The firm took a $103 million charge in the quarter tied to its cost-savings plan.

“We’ve been very disciplined in the last few years,” Mr. Jacobs said. â€! œWe still! have more progress to go, but we’ve made steps in the right direction.”

The cost-savings intiatives that Lazard has rolled out are expected to be fully completed next year.



K.K.R.\'s Profit Jumps 22% on Investment Gains

Improving markets lifted the fortunes of Kohlberg Kravis Roberts in the fourth quarter, as the investment firm reported a 22 percent jump in profit.

K.K.R. said on Thursday that it earned $347.7 million for the quarter, as all of its businesses showed strong gains. For the year, the firm earned $2.1 billion.

The fourth-quarter profit, reported as economic net income and which includes unrealized gains from investments, comes out to 48 cents a share. That is more than double the 20 cents a share average of analyst estimates compiled by Capital IQ.

Private equity shops have benefited from an improvement in the markets, which have bostered the value of their own holdings. Last week, the Blackstone Group reported a 43 percent leap in fourth-quarter earnings.

K.K.R. said that the value of its investments rose 4 percent for the quarter and 20 percent for the year.

The strongest performers among the firm’s investments included Alliance Boots, a British pharmacy chain; HCA, the giant hospital operator that went public last year; and the Nielsen Company, the media measurement company.

They also make selling portfolio companies a more attractive prospect, letting these firms harvest tangible returns from their investments. That was reflected in K.K.R.’s results: The firm reported a nearly fourfold increase in d! istributable earnings for the quarter, to $546.3 million. That metric tracks how much a firm actually paid to its limited partners.

And K.K.R.’s assets under management rose 13.9 percent from the third quarter, to $75.5 billion.

The firm’s co-founders and co-chairmen, Henry R. Kravis and George R. Roberts, said in a statement that that the growth of their private equity portfolio outpaced the Standard & Poor’s 500-stock index last year by about 7 percent last year.



Rate-Rigging Investigation Rolls On

The global investigation into interest-rate manipulation has emboldened prosecutors to crack down on banks, and the settlement with the Royal Bank of Scotland on Wednesday underscored that strategy. “I want financial institutions to know that this department will absolutely hold them to account,” said Lanny Breuer, head of the Justice Department’s criminal division. As part of the $612 million deal that American and British authorities reached with R.B.S., the bank’s Japanese unit was required to plead guilty to criminal wrongdoing, echoing an earlier action taken against a subsidiary of UBS. “These cases represent the first units of a big bank to agree to criminal charges in more than a decade,” DealBook’s Mark Scott and Ben Protess write.

An American institution could be among the next to settle rate-rigging claims. “Citigroup and JPMorgan Chase are under investigation by the Commodity Futures Trading Commission, the American regulator leading the case, though actions are not imminent,” Mr. Scott and Mr. Protess report. “Deutsche Bank, which set aside an undisclosed amount to cover potential penalties and suspended five employees tied to the case, is expected to settle with authorities in late 2013, several people briefed on the matter said. But the timetable could shift. The bank is not in formal settlement talks and is not prepared to resolve the case, the people said.”

“A person involved in the investigation indicated that the first banks to settle were among the worst actors in the rate case. But they also received a ‘discount’ for their eager cooperation, according to people with knowledge of the matter.” Mr. Breuer said: “Our investigation is far from finished.”

The cases announced so far give other banks some idea of what to expect. Three questio! ns come into play, Peter J. Henning writes in the White Collar Watch column: how much it will cost, whether a guilty plea will be required and whether embarrassing e-mails will be released. “All these issues will mean that governments and regulators will have the upper hand when negotiating settlements with banks in cases involving Libor manipulation,” he writes.

The winners in all this may be the lawyers and other advisers. Julia Werdigier writes: “Bills from law firms are piling up at the major banks as they need extra advice to fend off lawsuits. Hordes of advisers, including consulting and accounting firms, take over desks at their banking clients to find better ways to oversee employees. And public relations firms are being paid to stand by in case another scandl erupts that further tarnishes the industry’s reputation.” In the R.B.S. case, the British government was pitted against itself, as the government still owns an 82 percent stake as a result of a bailout. As with past cases, this one included a trove of colorful e-mails.

E-MAILS SHOW FLAWS IN JPMORGAN’S MORTGAGE DEALS  | 
“When an outside analysis uncovered serious flaws with thousands of home loans, JPMorgan Chase executives found an easy fix,” Jessica Silver-Greenberg reports in DealBook. “Rather than disclosing the full extent of problems like fraudulent home appraisals and overextended borrowers, the b! ank adjus! ted the critical reviews, according to documents filed early Tuesday in federal court in Manhattan. As a result, the mortgages, which JPMorgan bundled into complex securities, appeared healthier, making the deals more appealing to investors.”

“The trove of internal e-mails and employee interviews, filed as part of a lawsuit by one of the investors in the securities, offers a fresh glimpse into Wall Street’s mortgage machine, which churned out billions of dollars of securities that later imploded. The documents reveal that JPMorgan, as well as two firms the bank acquired during the credit crisis, Washington Mutual and Bear Stearns, flouted quality controls and ignored problems, sometimes hiding them entirely, in a quest for profit.”

CREDIT SUISSE SWINGS TO PROFIT  | 

Credit Suisse on Thursday announced fourth-quarter net income of 397 million Swiss francs ($436 million); it posted a loss of 637 milion francs in the period a year earlier. The Swiss bank also said it would increase its cost-cutting target by 400 million francs, to 4.4 billion francs, by the end of 2015. Julia Werdigier writes: “While UBS’s shares jumped after it said in October it would cut 10,000 jobs to streamline the business, Credit Suisse investors were far less impressed with changes the bank announced in November.” Brady W. Dougan, the bank’s chief executive, said in a statement on Thursday that profitability was “further benefiting from the strategic measures.”

ON THE AGENDA  |  K.K.R. reports earnings on Thursday morning, as does Sprint Nextel. LinkedIn announces results in the evening. The European Central Bank and the Bank of England issue decisions about intere! st rates.! Mark Carney, the Bank of Canada governor who is set to succeed Mervyn A. King as head of the Bank of England, is taking questions from British lawmakers at a committee hearing. Data on consumer credit for December is out at 3 p.m. The analyst Meredith Whitney is on Bloomberg TV at 7:30 a.m. Robert Rubin is on CNBC at 8 a.m. Sallie Krawcheck, former head of Bank of America’s wealth management division, is on CNBC at 5 p.m.

IN EUROPE, ANOTHER BIG BUYOUT IN THE WORKS  |  With the financial world still digesting news of the $24.4 billion deal for Dell, a report comes of another big buyout possibly taking shape in Europe. Private equity firms are in “accelerated talks” with lenders over possible $15.7 billion bids for EE, the telecommunications company formerly know as Everything Everywhere, in what would be Europe’s largest private equity-backed takeover since the financial crisis, The Financial Times reports, citing unidentified people with knowledge of the talks. “A group formed by Apax and K.K.R. and another led by Blackstone and CVC Capital Partners are working on competing offers, these people said.” The groups are said to be considering bids using about $4.7 billion of equity, and are looking to secure about $11 billion of debt financing, the newspaper reports.

Mergers & Acquisitions Â'

How the Dell Deal Is Being Financed  |  A filing on Wednesday gave more detail on the planned ! $24.4 bil! lion buyout of Dell, including that Michael S. Dell and his investment firm were contributing $750 million in cash. REUTERS

Dell Directors Sued Over Buyout  |  Michael S. Dell and other directors “were sued by an investor over claims the computer maker’s board is shortchanging shareholders” in the buyout deal, Bloomberg News reports. BLOOMBERG NEWS

Cantor Fitzgerald Said to Be in Talks to Buy Broker  |  The Financial Times reports that Cantor Fitzgerald isin “late-stage talks” to acquire Seymour Pierce, one of London’s oldest stockbrokers. FINANCIAL TIMES

American Airlines Deal Approaches Finish Line  |  AMR, the parent of American Airlines, and US Airways “are hashing out the last major details of a merger agreement that would create the world’s largest airline and are racing to finalize a deal, said people close to the discussions,” The Wall Street Journal reports. WALL STREET JOURNAL

Liberty’s Bid for Virgin Media Pushes the Envelope on Debt  |  Liberty Global’s $23 billion offer for Virgin Media has most of th! e hallmar! ks of the precrisis boom, Christopher Hughes of Reuters Breakingviews writes. DealBook Â'

INVESTMENT BANKING Â'

Ireland to Liquidate Anglo Irish Bank  |  The Irish government has passed emergency legislation to liquidate Anglo Irish Bank, one of the country’s largest, as part of a plan to restructure debt payments. DealBook Â'

Former Top Media Banker Sues Los Angeles and 2 Police Officers  |  A former top Deutsche Bank deal maker sued the cit of Los Angeles and two of its police officers on Wednesday, accusing the men of beating him and smearing his reputation in a widely publicized arrest last year. DealBook Â'

Barclays Said to Be Cutting Jobs in New York  |  Barclays “dismissed trading-division employees this week as it notified regulators its investment bank is cutting 275 jobs in New York City,” Bloomberg News reports. BLOOMBERG NEWS

JPMorgan Becomes Top Bank by Market Value  |  JPMorgan Chase overtook Wells Fargo this week as its stock price rose. BLOOMBERG NEWS

What It Takes to Get an Internship on Wall Street  |  “The increasing battle for internships has also upped the amount of sector-specific knowledge would-be interns are expected to have,” and “the prep process has become a cottage industry,” New York magazine’s Kevin Roose says. NEW YORK

Former Bank of America Chief Sells Home  |  Kenneth D. Lewis, who led Bank of America during the financial crisis, has sold his home in Charlotte, N.C., for $3.15 million, The Charlotte Business Journal reports. CHARLOTTE BUSINESS JOURNAL

Japanese Banks Flock to Solar Power Projects  | 
BLOOMBERG NEWS

PRIVATE EQUITY Â'

Blackstone to Buy Stake in Shopping Centers  |  The Blackstone Group agreed to buy a majority stake in 40 shopping centers in the United States in a deal worth about $1.1 billion, Bloomberg News reports. ! BLOOMBERG! NEWS

Blackstone in Deal for Indian Business Park  | 
REUTERS

HEDGE FUNDS Â'

Tilson Shifts Strategy After Rough Year  |  The hedge fund manager Whitney Tilson said in a letter to investors that he would move toward more long bets on stocks, after losing 1.7 percent last year, CNBC reports. “The amount of time I spent on shorts impacted my ability to find great longs,” he said. CNBC

Herbalife Releases More Information About Distributors  |  With its business model under scrutiny, Herbalife said on Wednesday “that 88 percent of its distributors received no payments in 2012, including 71 percent who did not recruit any other distributors,” Reuters reports. REUTERS

I.P.O./OFFERINGS Â'

Evertec, Backed by Apollo, Files for I.P.O.  |  Evertec, a payment processor backed by Apollo Global Management, is looking to raise up to $100 million in an I.P.O., Reuters reports. REUTERS

A Guide to Staying Private on the New Facebook  |  Somini Sengupta of The New York Times offers four simple questions to help users of Facebook protect their privacy in light of new settings. NEW YORK TIMES

VENTURE CAPITAL Â'

Google to Acquire Marketing Services Firm for $125 Million  |  Google agreed to buy Channel Intelligence, which works with the search giant’s shopping division, for $125 million in cash. NEWS RELEASE

Venture Capitalist Discusses Market for Enterprise Software  |  Peter Levine, a partner at Andreessen Horowitz, tells AllThingsD: “There’s an awakening up and down the stack for new products that are going to service the enterprise.” ALLTHINGSD

LEGAL/REGULATORY Â'

Cravath Hires 2nd Official From Obama Administration  |  In hiring David J. Kappos, the departing director of the patent office, Cravath, Swaine & Moore signaled the importance of government policy to powerful law firms! . DealBook Â'

Prosecutors Said to Focus on SAC Capital Manager  |  Reuters reports: “U.S. prosecutors are nearing a decision on whether to pursue criminal charges against SAC Capital Advisors portfolio manager Michael Steinberg related to an insider trading investigation involving shares of Dell Inc , according to two people familiar with the matter.” REUTERS

Geithner to Join Council on Foreign Relations  |  Timothy F. Geithner, who stepped down as Treasury secretary last month, is joining the Council on Foreign Relations as a distinguished fellow. He is alsoplanning to write a book and will begin meeting with publishers shortly, Annie Lowrey reports in the Caucus blog. DealBook Â'

Time to Revive the Financial Transaction Tax  |  A financial transactions tax would take a 3-cent nip out of every $100 traded, and raise billions. The burden of proof is on opponents to explain how so slender a tax could harm the capital markets, Jesse Eisinger writes in The Trade. The Trade Â'

Former Analyst in S.&P. Case Is Identified  |  Bloomberg News reports that a man called “Executive H” in the government’s lawsuit against Sta! ndard & P! oor’s is Frank Raiter, a former managing director who now lives on a farm in Virginia. BLOOMBERG NEWS

California’s Wealthy Are Tested by Higher Taxes  |  “With the new year, big earners are confronting a 51.9 percent federal-state income tax hit on earnings over $1 million, the result of a confluence of new tax-the-rich levies imposed by California and Congress in the closing days of 2012. That is officially the highest in the nation,” The New York Times reports. NEW YORK TIMES



Rate-Rigging Investigation Rolls On

The global investigation into interest-rate manipulation has emboldened prosecutors to crack down on banks, and the settlement with the Royal Bank of Scotland on Wednesday underscored that strategy. “I want financial institutions to know that this department will absolutely hold them to account,” said Lanny Breuer, head of the Justice Department’s criminal division. As part of the $612 million deal that American and British authorities reached with R.B.S., the bank’s Japanese unit was required to plead guilty to criminal wrongdoing, echoing an earlier action taken against a subsidiary of UBS. “These cases represent the first units of a big bank to agree to criminal charges in more than a decade,” DealBook’s Mark Scott and Ben Protess write.

An American institution could be among the next to settle rate-rigging claims. “Citigroup and JPMorgan Chase are under investigation by the Commodity Futures Trading Commission, the American regulator leading the case, though actions are not imminent,” Mr. Scott and Mr. Protess report. “Deutsche Bank, which set aside an undisclosed amount to cover potential penalties and suspended five employees tied to the case, is expected to settle with authorities in late 2013, several people briefed on the matter said. But the timetable could shift. The bank is not in formal settlement talks and is not prepared to resolve the case, the people said.”

“A person involved in the investigation indicated that the first banks to settle were among the worst actors in the rate case. But they also received a ‘discount’ for their eager cooperation, according to people with knowledge of the matter.” Mr. Breuer said: “Our investigation is far from finished.”

The cases announced so far give other banks some idea of what to expect. Three questio! ns come into play, Peter J. Henning writes in the White Collar Watch column: how much it will cost, whether a guilty plea will be required and whether embarrassing e-mails will be released. “All these issues will mean that governments and regulators will have the upper hand when negotiating settlements with banks in cases involving Libor manipulation,” he writes.

The winners in all this may be the lawyers and other advisers. Julia Werdigier writes: “Bills from law firms are piling up at the major banks as they need extra advice to fend off lawsuits. Hordes of advisers, including consulting and accounting firms, take over desks at their banking clients to find better ways to oversee employees. And public relations firms are being paid to stand by in case another scandl erupts that further tarnishes the industry’s reputation.” In the R.B.S. case, the British government was pitted against itself, as the government still owns an 82 percent stake as a result of a bailout. As with past cases, this one included a trove of colorful e-mails.

E-MAILS SHOW FLAWS IN JPMORGAN’S MORTGAGE DEALS  | 
“When an outside analysis uncovered serious flaws with thousands of home loans, JPMorgan Chase executives found an easy fix,” Jessica Silver-Greenberg reports in DealBook. “Rather than disclosing the full extent of problems like fraudulent home appraisals and overextended borrowers, the b! ank adjus! ted the critical reviews, according to documents filed early Tuesday in federal court in Manhattan. As a result, the mortgages, which JPMorgan bundled into complex securities, appeared healthier, making the deals more appealing to investors.”

“The trove of internal e-mails and employee interviews, filed as part of a lawsuit by one of the investors in the securities, offers a fresh glimpse into Wall Street’s mortgage machine, which churned out billions of dollars of securities that later imploded. The documents reveal that JPMorgan, as well as two firms the bank acquired during the credit crisis, Washington Mutual and Bear Stearns, flouted quality controls and ignored problems, sometimes hiding them entirely, in a quest for profit.”

CREDIT SUISSE SWINGS TO PROFIT  | 

Credit Suisse on Thursday announced fourth-quarter net income of 397 million Swiss francs ($436 million); it posted a loss of 637 milion francs in the period a year earlier. The Swiss bank also said it would increase its cost-cutting target by 400 million francs, to 4.4 billion francs, by the end of 2015. Julia Werdigier writes: “While UBS’s shares jumped after it said in October it would cut 10,000 jobs to streamline the business, Credit Suisse investors were far less impressed with changes the bank announced in November.” Brady W. Dougan, the bank’s chief executive, said in a statement on Thursday that profitability was “further benefiting from the strategic measures.”

ON THE AGENDA  |  K.K.R. reports earnings on Thursday morning, as does Sprint Nextel. LinkedIn announces results in the evening. The European Central Bank and the Bank of England issue decisions about intere! st rates.! Mark Carney, the Bank of Canada governor who is set to succeed Mervyn A. King as head of the Bank of England, is taking questions from British lawmakers at a committee hearing. Data on consumer credit for December is out at 3 p.m. The analyst Meredith Whitney is on Bloomberg TV at 7:30 a.m. Robert Rubin is on CNBC at 8 a.m. Sallie Krawcheck, former head of Bank of America’s wealth management division, is on CNBC at 5 p.m.

IN EUROPE, ANOTHER BIG BUYOUT IN THE WORKS  |  With the financial world still digesting news of the $24.4 billion deal for Dell, a report comes of another big buyout possibly taking shape in Europe. Private equity firms are in “accelerated talks” with lenders over possible $15.7 billion bids for EE, the telecommunications company formerly know as Everything Everywhere, in what would be Europe’s largest private equity-backed takeover since the financial crisis, The Financial Times reports, citing unidentified people with knowledge of the talks. “A group formed by Apax and K.K.R. and another led by Blackstone and CVC Capital Partners are working on competing offers, these people said.” The groups are said to be considering bids using about $4.7 billion of equity, and are looking to secure about $11 billion of debt financing, the newspaper reports.

Mergers & Acquisitions Â'

How the Dell Deal Is Being Financed  |  A filing on Wednesday gave more detail on the planned ! $24.4 bil! lion buyout of Dell, including that Michael S. Dell and his investment firm were contributing $750 million in cash. REUTERS

Dell Directors Sued Over Buyout  |  Michael S. Dell and other directors “were sued by an investor over claims the computer maker’s board is shortchanging shareholders” in the buyout deal, Bloomberg News reports. BLOOMBERG NEWS

Cantor Fitzgerald Said to Be in Talks to Buy Broker  |  The Financial Times reports that Cantor Fitzgerald isin “late-stage talks” to acquire Seymour Pierce, one of London’s oldest stockbrokers. FINANCIAL TIMES

American Airlines Deal Approaches Finish Line  |  AMR, the parent of American Airlines, and US Airways “are hashing out the last major details of a merger agreement that would create the world’s largest airline and are racing to finalize a deal, said people close to the discussions,” The Wall Street Journal reports. WALL STREET JOURNAL

Liberty’s Bid for Virgin Media Pushes the Envelope on Debt  |  Liberty Global’s $23 billion offer for Virgin Media has most of th! e hallmar! ks of the precrisis boom, Christopher Hughes of Reuters Breakingviews writes. DealBook Â'

INVESTMENT BANKING Â'

Ireland to Liquidate Anglo Irish Bank  |  The Irish government has passed emergency legislation to liquidate Anglo Irish Bank, one of the country’s largest, as part of a plan to restructure debt payments. DealBook Â'

Former Top Media Banker Sues Los Angeles and 2 Police Officers  |  A former top Deutsche Bank deal maker sued the cit of Los Angeles and two of its police officers on Wednesday, accusing the men of beating him and smearing his reputation in a widely publicized arrest last year. DealBook Â'

Barclays Said to Be Cutting Jobs in New York  |  Barclays “dismissed trading-division employees this week as it notified regulators its investment bank is cutting 275 jobs in New York City,” Bloomberg News reports. BLOOMBERG NEWS

JPMorgan Becomes Top Bank by Market Value  |  JPMorgan Chase overtook Wells Fargo this week as its stock price rose. BLOOMBERG NEWS

What It Takes to Get an Internship on Wall Street  |  “The increasing battle for internships has also upped the amount of sector-specific knowledge would-be interns are expected to have,” and “the prep process has become a cottage industry,” New York magazine’s Kevin Roose says. NEW YORK

Former Bank of America Chief Sells Home  |  Kenneth D. Lewis, who led Bank of America during the financial crisis, has sold his home in Charlotte, N.C., for $3.15 million, The Charlotte Business Journal reports. CHARLOTTE BUSINESS JOURNAL

Japanese Banks Flock to Solar Power Projects  | 
BLOOMBERG NEWS

PRIVATE EQUITY Â'

Blackstone to Buy Stake in Shopping Centers  |  The Blackstone Group agreed to buy a majority stake in 40 shopping centers in the United States in a deal worth about $1.1 billion, Bloomberg News reports. ! BLOOMBERG! NEWS

Blackstone in Deal for Indian Business Park  | 
REUTERS

HEDGE FUNDS Â'

Tilson Shifts Strategy After Rough Year  |  The hedge fund manager Whitney Tilson said in a letter to investors that he would move toward more long bets on stocks, after losing 1.7 percent last year, CNBC reports. “The amount of time I spent on shorts impacted my ability to find great longs,” he said. CNBC

Herbalife Releases More Information About Distributors  |  With its business model under scrutiny, Herbalife said on Wednesday “that 88 percent of its distributors received no payments in 2012, including 71 percent who did not recruit any other distributors,” Reuters reports. REUTERS

I.P.O./OFFERINGS Â'

Evertec, Backed by Apollo, Files for I.P.O.  |  Evertec, a payment processor backed by Apollo Global Management, is looking to raise up to $100 million in an I.P.O., Reuters reports. REUTERS

A Guide to Staying Private on the New Facebook  |  Somini Sengupta of The New York Times offers four simple questions to help users of Facebook protect their privacy in light of new settings. NEW YORK TIMES

VENTURE CAPITAL Â'

Google to Acquire Marketing Services Firm for $125 Million  |  Google agreed to buy Channel Intelligence, which works with the search giant’s shopping division, for $125 million in cash. NEWS RELEASE

Venture Capitalist Discusses Market for Enterprise Software  |  Peter Levine, a partner at Andreessen Horowitz, tells AllThingsD: “There’s an awakening up and down the stack for new products that are going to service the enterprise.” ALLTHINGSD

LEGAL/REGULATORY Â'

Cravath Hires 2nd Official From Obama Administration  |  In hiring David J. Kappos, the departing director of the patent office, Cravath, Swaine & Moore signaled the importance of government policy to powerful law firms! . DealBook Â'

Prosecutors Said to Focus on SAC Capital Manager  |  Reuters reports: “U.S. prosecutors are nearing a decision on whether to pursue criminal charges against SAC Capital Advisors portfolio manager Michael Steinberg related to an insider trading investigation involving shares of Dell Inc , according to two people familiar with the matter.” REUTERS

Geithner to Join Council on Foreign Relations  |  Timothy F. Geithner, who stepped down as Treasury secretary last month, is joining the Council on Foreign Relations as a distinguished fellow. He is alsoplanning to write a book and will begin meeting with publishers shortly, Annie Lowrey reports in the Caucus blog. DealBook Â'

Time to Revive the Financial Transaction Tax  |  A financial transactions tax would take a 3-cent nip out of every $100 traded, and raise billions. The burden of proof is on opponents to explain how so slender a tax could harm the capital markets, Jesse Eisinger writes in The Trade. The Trade Â'

Former Analyst in S.&P. Case Is Identified  |  Bloomberg News reports that a man called “Executive H” in the government’s lawsuit against Sta! ndard & P! oor’s is Frank Raiter, a former managing director who now lives on a farm in Virginia. BLOOMBERG NEWS

California’s Wealthy Are Tested by Higher Taxes  |  “With the new year, big earners are confronting a 51.9 percent federal-state income tax hit on earnings over $1 million, the result of a confluence of new tax-the-rich levies imposed by California and Congress in the closing days of 2012. That is officially the highest in the nation,” The New York Times reports. NEW YORK TIMES