Bain and screwing the FDIC

[RecycleMichael]

http://www.rollingstone.com/politics/news/the-federal-bailout-that-saved-mitt-romney-20120829?page=2

The Federal Bailout That Saved Mitt Romney
Government documents prove the candidate's mythology is just that

By Tim Dickinson

August 29, 2012

Mitt Romney likes to say he won't "apologize" for his success in business. But what he never says is "thank you" – to the American people – for the federal bailout of Bain & Company that made so much of his outsize wealth possible. According to the candidate's mythology, Romney took leave of his duties at the private equity firm Bain Capital in 1990 and rode in on a white horse to lead a swift restructuring of Bain & Company, preventing the collapse of the consulting firm where his career began. When The Boston Globe reported on the rescue at the time of his Senate run against Ted Kennedy, campaign aides spun Romney as the wizard behind a "long-shot miracle," bragging that he had "saved bank depositors all over the country $30 million when he saved Bain & Company."

In fact, government documents on the bailout obtained by Rolling Stone show that the legend crafted by Romney is basically a lie. The federal records, obtained under the Freedom of Information Act, reveal that Romney's initial rescue attempt at Bain & Company was actually a disaster – leaving the firm so financially strapped that it had "no value as a going concern." Even worse, the federal bailout ultimately engineered by Romney screwed the FDIC – the bank insurance system backed by taxpayers – out of at least $10 million. And in an added insult, Romney rewarded top executives at Bain with hefty bonuses at the very moment that he was demanding his handout from the feds.

With his selection of Paul Ryan as his running mate, Romney has made fiscal stewardship the centerpiece of his campaign. A banner at MittRomney.com declared, "We have a moral responsibility not to spend more than we take in." Romney also opposed the federal bailout for Detroit automakers, famously arguing that the industry should be forced into bankruptcy. Government bailouts, he insists, are "the wrong way to go."

But the FDIC documents on the Bain deal – which were heavily redacted by the firm prior to release – show that as a wealthy businessman, Romney was willing to go to extremes to secure a federal bailout to serve his own interests. He had a lot at stake, both financially and politically. Had Bain & Company collapsed, insiders say, it would have dealt a grave setback to Bain Capital, where Romney went on to build a personal fortune valued at as much as $250 million. It would also have short-circuited his political career before it began, tagging Romney as a failed businessman unable to rescue his own firm.

"None of us wanted to see Bain be the laughingstock of the business world," recalls a longtime Romney lieutenant who asked not to be identified. "But Mitt's reputation was on the line."

The trouble began in 1984, when Bain & Company spun off Bain Capital to engage in leveraged buyouts and put Romney in charge of the new operation. To free up money to invest in the new business, founder Bill Bain and his partners cashed out much of their stock in the consulting firm – leaving it saddled with about $200 million in debt. (Romney, though not a founder, reportedly profited from the deal.) "People will tell you that Bill raped the place clean, was greedy, didn't know when to stop," a former Bain consultant later conceded. "Did they take too much out of the firm? You bet."

The FDIC documents make clear what happened next: "Soon after the founders sold their equity," analysts reported, "business began to drop off." First came scandal: In the late 1980s, a Bain consultant became a key figure in an illegal stock manipulation scheme in London. The firm's reputation took a hit, and it fired 10 percent of its consulting force. By the time the 1989 recession began, Bain & Company found itself going broke fast. Cash flows weren't enough to service the debt imposed by the founders, and the firm could barely make payroll. In a panic, Bill Bain tapped Romney, his longtime protégé, to take the reins.

In Romney's own retelling, he casts himself as a selfless and loyal company man. "There was no upside," he told his cheerleading biographer Hugh Hewitt in 2007. "There was no particular reason to do it other than a sense of obligation and duty to an organization that had done great things for me."

In fact, Romney had a direct stake in the survival of Bain & Company: He had been working to build the Bain brand his entire career, and felt he had to save the firm at all costs. After all, Bain sold top-dollar strategic advice to big businesses about how to protect themselves from going bust. If Bain & Company went bankrupt, recalls the Romney deputy, "anyone associated with them would have looked clownish." Indeed, when a banker from Goldman Sachs urged Bain to consider bankruptcy as the obvious solution to the firm's woes, Romney's desperation began to show. He flatly refused to discuss it – and in the ensuing argument, one witness says, Romney almost ended up in a brawl when the Goldman banker advised him to "go love yourself." For the sake of Romney's career and fortune, bankruptcy was simply not an option – no matter who got screwed in the process.

According to the government records obtained by Rolling Stone, Bain & Company "defaulted on its debt obligations" at nearly the same time that "W. Mitt Romney . . . stepped in as managing director (and later chief executive) in 1990 and led the financial restructuring intended to get the firm back on track."

Romney moved decisively, and his early efforts appeared promising. He persuaded the founders to return $25 million of the cash they had raided from Bain & Company and forgive $75 million in debt, in return for protection from most future liabilities. Romney then consolidated Bain's massive debts into a single, binding loan agreement with four banks, which received liens on Bain's assets and agreed to delay repayments on the firm's debts for two years. The federal government also signed off on the deal, since the FDIC had recently taken control of a bank that was owed $30.6 million by Bain. Romney assured creditors that the restructuring would enable Bain to "operate normally, compensate its professionals competitively" and, ultimately, pay off its debts.

Almost as soon as the FDIC agreed to the loan restructuring, however, Romney's rescue plan began to fall apart. "The company realized early on that it would be unable to hit its revenue targets or manage the debt structure," the documents reveal. By the spring of 1992, Bain's decline was perilous: "If Bain goes into default," one analyst warned the FDIC, "the bank group will need to decide whether to force Bain into bankruptcy."

With his rescue plan a bust, Romney was forced to slink back to the banks to negotiate a new round of debt relief. There was only one catch: Even though Bain & Company was deep in debt and sinking fast, the firm was actually flush with cash – most of it from the looted money that Bill Bain and other partners had given back. "Liquidity is strong based on the significant cash balance which Bain is carrying," one federal document reads.

Under normal circumstances, such ample reserves would have made liquidating Bain an attractive option: Creditors could simply divvy up the stockpiled cash and be done with the troubled firm. But Bain had inserted a poison pill in its loan agreement with the banks: Instead of being required to use its cash to pay back the firm's creditors, the money could be pocketed by Bain executives in the form of fat bonuses – starting with VPs making $200,000 and up. "The company can deplete its cash balances by making officer-bonus payments," the FDIC lamented, "and still be in compliance with the loan documents."

What's more, the bonus loophole gave Romney a perverse form of leverage: If the banks and the FDIC didn't give in to his demands and forgive much of Bain's debts, Romney would raid the firm's coffers, pushing it into the very bankruptcy that the loan agreement had been intended to avert. The losers in this game would not only be Bain's creditors – including the federal government – but the firm's nearly 1,000 employees worldwide.

In March 1992, according to the FDIC documents, Romney approached the banks and played the bonus card. Allow Bain to pay off its debt at a deep discount, he demanded – just 35 cents on the dollar. Otherwise, the "majority" of the firm's "excess cash" would "be available for the bonus pool to its officers at a vice president level and above."

The next month, when the banks balked at the deal, Romney decided to prove he wasn't bluffing. "As the bank group did not accept the proposal from Bain," the records show, "Bain's senior management has decided to go forth with the distribution of bonuses." (Bain's lawyers redacted the amount of the executive payouts, and the Romney campaign refused to comment on whether Romney himself received a bonus.)

Romney's decision to place executive compensation over fiscal responsibility immediately put Bain on the ropes. By that July, FDIC analysts reported, Bain had so little money left that "the company will actually run out of cash and default on the existing debt structure" as early as 1995. If that happened, Bain employees and American consumers would take the hit – an alternative that analysts considered "catastrophic."

But Romney didn't dole out all of Bain's cash as bonuses right away. According to a record from May 1992, he set aside some of the money to put one last squeeze on the firm's creditors. Romney now demanded that the banks and the government agree to a deal that was even less favorable than the last – to retire Bain's debts "at a price up to but not exceeding 30 cents on the dollar."

The FDIC considered finding a buyer to take over its loans to Bain, but analysts concluded that "Bain has no value as a going concern." And the government wasn't likely to get much out of Bain if it allowed the firm to go bankrupt: The loan agreement engineered by Romney had left the FDIC "virtually unsecured" on the $30.6 million it was owed by Bain. "Once bonuses are paid," the analysts warned, "all members of the bank group believe this company will dissolve during 1993."

About the only assets left would be Bain's office equipment. The records show FDIC analysts pathetically attempting to assess the value of such items, including an HP LaserJet printer, before concluding that most of the gear was so old that the government's "portion of any liquidation proceeds would be negligible."

How had Romney scored such a favorable deal at the FDIC's expense? It didn't hurt that he had close ties to the agency – the kind of "crony capitalism" he now decries. A month before he closed the 1991 loan agreement, Romney promoted a former FDIC bank examiner to become a senior executive at Bain. He also had pull at the top: FDIC chairman Bill Seidman, who had served as finance chair for Romney's father when he ran for president in 1968.

The federal documents also reveal that, contrary to Romney's claim that he returned full time to Bain Capital in 1992, he remained involved in bailout negotiations to the very end. In a letter dated March 23rd, 1993, Romney reassured creditors that his latest scheme would return Bain & Company to "long-term financial stability." That same month, Romney once again threatened to "pay out maximum bonus distributions" to top executives unless much of Bain's debt was erased.

In the end, the government surrendered. At the time, The Boston Globe cited bankers dismissing the bailout as "relatively routine" – but the federal documents reveal it was anything but. The FDIC agreed to accept nearly $5 million in cash to retire $15 million in Bain's debt – an immediate government bailout of $10 million. All told, the FDIC estimated it would recoup just $14 million of the $30 million that Romney's firm owed the government.

It was a raw deal – but Romney's threat to loot his own firm had left the government with no other choice. If the FDIC had pushed Bain into bankruptcy, the records reveal, the agency would have recouped just $3.56 million from the firm.

The Romney campaign refused to respond to questions for this article; a spokeswoman said only that "Mitt Romney turned around Bain & Company by getting all parties to come to the table and make difficult decisions." But while taxpayers did not finance the bailout, the debt forgiven by the government was booked as a loss to the FDIC – and then recouped through higher insurance premiums from banks. And banks, of course, are notorious for finding ways to pass their costs along to customers, usually in the form of higher fees. Thanks to the nature of the market, in other words, the bailout negotiated by Romney ultimately wound up being paid by the American people.

Even as consumers took a loss, however, a small group of investors wound up getting a good deal in the bailout. Bain Capital – the very firm that had triggered the crisis in the first place – walked away with $4 million. That was the fee it charged Bain & Company for loaning the consulting firm the services of its chief executive – one Willard Mitt Romney.

[AquaMan]

Disgusting.

[Ed W]

Remember rule number one: Facts, however interesting, are irrelevant. 

The Republican noise machine will do its best to drown this in false equivalency and assorted nonsense.

[AquaMan]

Its not that extraordinary in the business world to manipulate your position to benefit yourself and your friends. Especially if its at the expense of the government or the taxpayers. Its disgusting to then tell the world that it never happened and you would be against such behavior by others.

Free cell phones for poor people? Outrageous! Discounting loans by 2/3 by threatening to divide company assets among executives, thereby avoiding paying creditors, including taxpayers? Well, that's just bidness. The bonus for screwing the govt? $4million dollars to Mitt for consulting fees.

Makes the proposition that he built that company by himself, without help from the government, rather humorous.

Too complicated for the average joes who would be astounded by his behavior though. They'll believe it was just Rolling Stone heads who are part of the liberal media bias.



edit-mis-read part of the story. He was not with Bain and Co. but with Bain Capital.

[Teatownclown]

MORE BREAKING NEWS!

http://www.nytimes.com/2012/09/02/business/inquiry-on-tax-strategy-adds-to-scrutiny-of-finance-firms.html?_r=1&pagewanted=all
Inquiry on Tax Strategy Adds to Scrutiny of Finance Firms
By NICHOLAS CONFESSORE, JULIE CRESWELL and DAVID KOCIENIEWSKI
Published: September 1, 2012 258 Comments

The New York attorney general is investigating whether some of the nation's biggest private equity firms have abused a tax strategy in order to slice hundreds of millions of dollars from their tax bills, according to executives with direct knowledge of the inquiry.
The attorney general, Eric T. Schneiderman, has in recent weeks subpoenaed more than a dozen firms seeking documents that would reveal whether they converted certain management fees collected from their investors into fund investments, which are taxed at a far lower rate than ordinary income.

Among the firms to receive subpoenas are Kohlberg Kravis Roberts & Company, TPG Capital, Sun Capital Partners, Apollo Global Management, Silver Lake Partners and Bain Capital, which was founded by Mitt Romney, the Republican nominee for president. Representatives for the firms declined to comment on the inquiry.

Mr. Schneiderman's investigation will intensify scrutiny of an industry already bruised by the campaign season, as President Obama and the Democrats have sought to depict Mr. Romney through his long career in private equity as a businessman who dismantled companies and laid off workers while amassing a personal fortune estimated at $250 million.

Some executives at the firms said they feared that Mr. Schneiderman, a first-term Democrat with ties to the Obama administration, was seeking to embarrass the industry because of Mr. Romney's roots at Bain. Others suggested that the subpoenas, which were issued by the attorney general's Taxpayer Protection Bureau, might be part of an effort to recover more revenue for New York under state tax law. The attorney general's office does not have the power to enforce federal tax laws.

A spokesman for Mr. Schneiderman declined to comment.

The tax strategy — which is viewed as perfectly legal by some tax experts, aggressive by others and potentially illegal by some — came to light last month when hundreds of pages of Bain's internal financial documents were made available online. The financial statements show that at least $1 billion in accumulated fees that otherwise would have been taxed as ordinary income for Bain executives had been converted into investments producing capital gains, which are subject to a federal tax of 15 percent, versus a top rate of 35 percent for ordinary income. That means the Bain partners saved more than $200 million in federal income taxes and more than $20 million in Medicare taxes.

The subpoenas, which executives said were issued in July, predated the leak of the Bain documents by several weeks and do not appear to be connected with them. Mr. Schneiderman, who is also co-chairman of a mortgage fraud task force appointed by Mr. Obama, has made cracking down on large-scale tax evasion a priority of his first term.

As a retired partner, Mr. Romney continues to receive profits from Bain Capital and has had investments in some of the funds that documents show used the tax strategy.

The campaign issued a statement saying that Mr. Romney did not, however, benefit from the practice. "Investing fee income is a common, accepted and totally legal practice," said R. Bradford Malt, a lawyer for Mr. Romney who manages his family's investments and trusts. "However, Governor Romney's retirement agreement did not give the blind trust or him the right to do this, and I can confirm that neither he nor the trust has ever done this, whether before or after he retired from Bain Capital."

Managers at a typical private equity firm or hedge fund collect from their investors management fees based on the size of the fund. But most of their compensation comes as a share of the profits earned by the fund. The Internal Revenue Service allows those profits to be considered "carried interest," taxed at the capital gains rate typically reserved for investments.

The tax strategy used by Bain and other firms to convert management fees — the compensation normally taxed as ordinary income — into capital gains is known as a "management fee waiver." The strategy is widely used within the industry: 40 percent of the 35 buyout firms based in the United States surveyed in 2009 by Dow Jones said their partners used at least some of the firm's fees to make investments in their funds.

But some prominent firms appear to avoid the practice. The Carlyle Group and Blackstone Group have stated in regulatory filings that their partners have not diverted management fees into investments in their funds.

In the varied world of private equity, some firms may have lawyers who are not aware of the strategy or have steered their clients away from it, said a lawyer at one firm who has used the strategy for his clients. Others, he said, may not have the operational capabilities to handle the complex transactions.

Apollo Global Management, the buyout firm co-founded by Leon Black and now publicly traded, is among those that use the conversion strategy. Between 2007 and 2011, Apollo converted more than $131 million in fees into investments in its funds, according to S.E.C. filings. A spokesman for the firm declined to comment.

Likewise, K.K.R. converted more than $180 million in fees between 2007 and 2009, according to its filings. Kristi Huller, a spokeswoman for the firm, declined to comment about any regulatory matter, but said in an e-mail that K.K.R. had not used the tax strategy "for the past few years."

Other firms that received subpoenas include Clayton, Dubilier & Rice; Crestview Partners; H.I.G. Capital; Vestar Capital Partners; and Providence Equity Partners. Representatives for all these firms declined to comment.

Tax lawyers have justified the arrangements by arguing that converting the management fees into carried interest, which could lose some or all of its value if a fund does poorly, entitles the managers to the lower capital gains rate, which is intended to help mitigate the risks taken by investors.

"They're risking their management fee — they're giving up the right to that management fee in any and all events," said Jack S. Levin, a finance lawyer whose firm has represented Bain on some matters. Mr. Levin said he did not consider the practice risky or even aggressive.

"The I.R.S. has known that private equity funds have been doing this for 20 years," he said.

In 2007, the agency began taking a closer look at suspected tax abuses at hedge funds and private equity firms. In a statement at the time, an I.R.S. spokesman said that management fee conversions were among several "areas of possible noncompliance." But no formal ruling appears to have emerged.

Some private equity firms take what tax experts consider a less aggressive approach to the conversions, waiving fees on all of a given fund's investments over the lifetime of the fund, which can be 10 years.

But other firms choose which funds or even which particular investments to waive fees on frequently, like every year or every quarter. Such arrangements may allow the executives to apply the waiver only when they believe their funds are more likely to appreciate in value, substantially reducing their investment risk.

Mr. Schneiderman is also looking at whether private equity executives treated management fees as a return of invested capital — potentially escaping taxation entirely — or deferred payouts of the converted fees in ways that improperly reduced their tax liabilities.

Executives at three of the firms subpoenaed by Mr. Schneiderman, who asked for anonymity because they were bound by confidentiality agreements, said that disclosures to their investors clearly stated that the waived fees were allocated equally to all the investments in a fund.

The leaked documents show that Bain has in recent years waived management fees in at least eight private equity and other funds, including one formed as early as January 2002. The documents stated that Bain executives had the right to decide either annually or each quarter whether to waive some or all of their management fees; they also had the ability to convert the waived fees into investments in particular companies held by the funds.

Victor Fleischer, a law professor and finance expert at the University of Colorado who has been critical of the tax rules for private equity firms, said he believed Bain had waived management fees into investments with so little risk that the arrangement would not qualify for the capital gains rate if challenged by the I.R.S.

"There is a tension between economic risk and tax risk that is supposed to be inversely proportional," Mr. Fleischer said. "The way Bain set it up there's not much risk at all, so it's hard to see how this income should receive capital gains treatment."


Michael Luo contributed reporting.

Little is known about RMoney's finances, except that he makes a windfall on capital gains each year, since he has refused to release his tax returns.