A Sweet Spot for US Equities: Opportunity and Dangers

The US equity markets are on a roll. Today, the S&P 500 hit an all time high, just weeks after the Dow also broke its record. While it has been less than five years since the crisis of 2008 and the epic collapse of equities in the last quarter of that year, the returns earned by those who stayed the course, even relative to pre-crisis price levels, is a testimonial to the dangers of staying out of equity markets for extended periods.  As with every other market surge, this one has brought with it the usual questions: Have stocks gone up too far, too fast? Are we due for a correction? Should we stay in the market or take profits? I could cop out and use the excuse that I am not a market timer, but that would be a lie. All investor are market timers, with the differences being one of degree. So, the honest truth is that I have a view about markets but that it does not dominate my investment decision process.

Since it is so easy to be swayed by story telling, when talking about equity markets, I try to bring the same tools to assessing markets that I do for individual stocks. The intrinsic value of equities, in the aggregate, is determined by four variables:

1. Cash returned to equity investors: Ultimately, we buy stocks to get cash flows in return, with those cash flows evolving over the last three decades from almost entirely dividends to a mix of dividends and stock buybacks. Holding all else constant, the more cash that is returned to investors in the near term, the more you will be willing to pay for stocks. 
2. Expected growth: The bonus of investing in equity, as opposed to fixed income, is that you get to share in the growth that occurs in earnings and cash flows in future periods. Other things held equal, the higher the expected growth in earnings and expected cash flows, the higher stock prices should be. 
3. Risk free rate: The risk free rate operates as more than base from which you build expected returns as investors. It also represents what you would earn from investing in a guaranteed (or at least as close as you can get to guaranteed) investment instead of stocks. Consequently, stock prices should increase as the risk free rate decreases, if you hold all else fixed. 
4. Risk premium: Equities are risky and investors will demand a “premium” for investing in stocks. This premium will be shaped by investor perceptions of the macro economic risk that they face from investing in stocks. If the equity risk premium is the receptacle for all of the fears and hopes that equity investors have about the future, the lower that premium, the more they will be willing to pay for stocks. 

Note that while it is easy to focus on each of these variables and draw conclusions about the impact on stock prices, they tend to move at the same time and often pull in different directions. For instance, stronger economic growth will push up earnings growth but interest rates will usually go up as well. In a similar vein, paying out more in cash flows to investors in the current period will often mean less being invested into businesses and lower growth in the future. It is the trade off that determines whether stock prices will go up or down as a consequence. On each of these variables, the US equity market is looking at "good" numbers right now: the cash returned to investors by US companies has rebounded strongly from post-crisis lows, earnings growth is reasonable, the risk free rate is at a historic low and the equity risk premium, while not quite at pre-crisis levels, has declined significantly over the last year. To explore both where we are and the potential dangers that we face as investors, let’s take a look at each variable.

1. Cash flows
a. Background: Until the early 1980s, the primary source of cash flows to equity investors in the United States was dividends. As I noted in this post from a while back, US companies have increasingly turned to returning cash in the form of buybacks. While there are some strict value investors who believe that dividends are qualitatively better than buybacks, because they are less volatile, the aggregate amount returned by US companies in buybacks is too large to be ignored. 

Over the last decade, buybacks have been more volatile than dividends but the bulk of the cash flows returned to stockholders has come in buybacks.
b. Level: In the most recent twelve months for which data is available (through December 2012), the companies in the S&P 500 bought back almost $400 billion worth of stock, much more than the $270 billion that they paid out in dividends. In terms of index units and as a percent of the level of the index, the aggregate cash flows have recovered fully from their post-2008 swoon.
c. Sustainability: While it is good that cash flows are bouncing back, we should worry about whether companies were over reaching and paying out too much in 2012, perhaps in advance of the fiscal cliff at the end of 2012, in which case you should expect to see a drop off in cash flows in the near term. There are three reasons to believe that this is not the case. First, as Birinyi Associates notes in this blog post, the pace of buybacks is increasing in 2013, not dropping off, with the buybacks authorized in February 2013 at an all-time high. Second, the cash returned in 2012 may have been a historic high in dollar value terms, but as a percent of the index, it is close to the average yield over the last decade. Third, the aggregate cash balances at the S&P 500 company amounted to 10.66% of firm value at the end of 2012, suggesting that companies have cash on hand to sustain and perhaps even increase cash returned to stockholders. While a portion of this cash is trapped, it is possible that corporate tax reform, if it happens, will release this cash for distribution to stockholders.

2. Expected growth
a. Background: For dividends and buybacks to continue to grow in the future, there has to be growth in earnings. While that growth can be estimated by looking at history or by tracking analyst forecasts of earnings for the individual companies, it has to be earned by companies, reinvesting their earnings back into operations and generating a healthy return on equity on those investments.
Intrinsic growth rate = Equity Reinvestment Rate * Return on equity
Thus, while history can sometimes yield skewed values (up or down) on growth and analysts can become overly optimistic or pessimistic, the intrinsic growth rate will be grounded in reality.
b. Level: To look at earnings growth in the S&P 500, lets begin by looking at history. In the table below, we report on earnings growth rates over 5 years, 10 years, 20 years and 50 years in index earnings.

	Arithmetic average	Geometric Average
Last 5 years	6.46%	4.42%
Last 10 years	9.66%	8.33%
Last 20 years	9.60%	8.28%
Last 50 years	8.30%	6.90%

Over the last 5 years, the compounded average annual growth rate in aggregate earnings for the S&P 500 has been 4.42%. As the most widely followed index in the world, analyst estimates of growth in earnings are widely available both for individual companies in the S&P 500 index and for aggregate earnings in the index. Using the former to construct a bottom-up estimate of growth yields 10.57% as the expected growth rate in March 2013. Since there is evidence that analyst estimates of growth are biased upwards at the company level, we also looked at the “top down” estimates of growth that analysts are forecasting for aggregate earnings in March 2013, obtaining a lower growth rate of 5.33% a year for the next 5 years.
c. Sustainability: Are analysts over estimating earnings growth? One way to check is to compute the intrinsic growth rate by computing the equity reinvestment rate and return on equity for the index. To compute the equity reinvestment rate, we use the aggregate cash returned to investors (75.31) in 2012 and the earnings on the S&P 500 (102.47) in 2012:
Equity Reinvestment Rate = 1 - 75.31/102.47 = 26.51%
To compute the return on equity on the index, we divide the aggregate earnings on the index in 2012 by the aggregate book value of equity on the index (613.14) at the start of 2012:
Return on equity = 102.47/613.14 = 16.71%
The product of the two yields a sustainable growth rate:
Sustainable growth rate = .2651 * .1671 = .0443 or 4.43%
While this number is lower than the top-down analyst estimate of growth, it is within shouting distance of the estimate. There is, of course, a concern that some investors and analysts have voiced about the operating earnings number reported for the S&P 500, arguing that it is over stated. If it is, then the equity reinvestment rate and ROE are both over stated, and the expected growth rate will be lower.

3. Equity Risk Premium (ERP)
a. Background: Put simply, the equity risk premium is the market price of equity risk. It is determined on the one hand by perceptions of the macro risk that surround investors, with greater risks going with a higher ERP, and on the other hand by the collective risk aversion of investors, with more risk aversion translating into a larger ERP. A larger ERP implies that investors will pay lower prices for the same set of equity cash flows. The conventional wisdom that this number is stable in mature markets was shaken by the banking crisis of 2008, as premiums in the US and European equity markets experienced unprecedented volatility.
b. Level: There are two ways in which ERP can be estimated. One is to look at a long period of history and to estimate the premium that stocks would have generated, over an above the treasury bond rate, over that period. This “historical” premium approach yields 4.20% as the ERP for US stocks in 2013, using data from 1928-2012. The other is to estimate an “implied” premium, by backing out an internal rate of return from current stock prices and expected cash flows. This approach yields much more volatile equity risk premiums over time, as can be seen in the graph below: 

The implied ERP at the start of 2013 was 5.78%, lower than the ERP at the start of 2012, but still at the high end of the historical range.
c. Sustainability: I have been estimating the monthly ERP for the S&P 500 since September 2008, and as can be seen in the figure below, the premium of 5.43% at the start of March 2013 represents a significant decline from a year ago. Note, though, that it is still much higher than the premium that prevailed in September 2008, just prior to the crisis. In fact, the average implied ERP over the last decade has been 4.71%, lower than the current implied ERP.

[I have an  long, not-very-fun update that I do on equity risk premiums that you can download and peruse, if you are so inclined. It includes everything that I know about ERP]

4. Risk free rate
a. Background: As sovereigns increasingly face default risk, it is an open question whether any investment is risk free in today’s environment. However, for an investor in US dollars, the return you can expect to make on a long term treasury bond not only represents a base from which all other expected returns are computed but is an opportunity cost of investing in something risk free instead of stocks.
b. Level: By any measure, risk free rates are at historic lows in much of the developed world. On March 26, 2013, the ten-year US Treasury bond rate was at 1.91%, well below where it stood prior to the last quarter of 2008 and well below rates that prevailed a decade earlier. 

The average for the ten year bond rate for the last decade was 3.59% and lengthening the time period pushes the average up to 4.62% (last 20 years) and 6.58% (last 50 years)
c. Sustainability: Is the treasury bond rate destined to rise and if it does, will it bring down stocks? To answer this question, we have to look at what has kept rates low for such an extended period. While the answer to some is that it is the Fed’s doing, I, for one, don’t attribute that much power to Ben Bernanke. The Fed has played a role, but it has succeeded (if you can call it success) only because inflation has been benign and real economic growth has been abysmal for this period. There are at least four scenarios that I see for the future direction of interest rates, with differing implications for stocks. 

Scenario	Treasury bond rate	Outlook for stocks
More of the same (anemic economic growth, low inflation)	Stays low	Neutral
Stronger economic growth, low inflation	Rises to reflect higher real growth	If economic growth translates into earnings growth, neutral. If not, mildly negative.
Low economic growth, high inflation	Rises to reflect higher inflation	Negative. Higher required returns on stocks, no offsetting positive.
Higher economic growth, low inflation, Fed Magic	Stays low	Positive

If you believe that the Fed can keep a lid on interest rates, as economic growth returns, the outlook is positive for stocks. I think that the most likely scenario is that the interest rates will rise as the economy improved, and the outlook for stocks will depend in large part on whether earnings growth picks up enough to offset the interest rate effect.

Valuation of the S&P 500 Index

To see the interplay of these numbers and the resulting consequences for stocks, I valued the S&P 500, as of March 26, 2013, using the following inputs: 

Based upon my assumptions, the market’s current winning ways can be justified. Replacing the current implied equity risk premium with the average premium over the last decade (4.71%) yields a level of almost 1800 for the index, and using the analyst-estimated growth rate will make it even higher. Higher risk free rates have a negative, albeit muted, effect on value, if accompanied by higher growth rates, but do have a much more negative impact, if growth rates remain unchanged. You may have very different views on the market drivers and if you are interested, you can input your numbers into the attached spreadsheet to get an assessment of value for the S&P 500 index.

Bottom line

When stocks hit new highs, the natural impulse is to look for signs of over valuation, but there are good reasons why US stock prices are elevated: cash flows are high, growth looks good, the macro risks seem to have faded (at least some what) and the alternatives are delivering lousy returns. In the near term, stocks remain vulnerable to two possibilities. One is that another macro crisis will pop up (Italy, Spain, Portugal or a non-EU black sheet) that will cause equity risk premiums to jump back to the 6%+ levels that we have seen so often in the last 5 years. The other is a sudden surge in interest rates, unaccompanied by better earnings or higher earnings growth. Since all risky asset classes (corporate bonds, real estate etc.) will be also adversely affected by either of these developments, I don't see much point to shifting from equities to other risky assets to protect myself against these risks. I could, of course, choose to stay in cash, but as the last 5 years have indicated, waiting for the "right time" to invest can leave you on the sidelines for too long. So, I am going to stop worrying about the overall market and go back to finding under valued companies.

Marty Lipton: Shareholder Champion, Stakeholder Protector or Management Tool?

I do not personally know Marty Lipton, nor have I met him. Based on what I have read about him and by him (he is a prolific writer), he strikes me as an extremely competent lawyer and he is certainly a good friend and champion of New York University (the institution that I teach at), chairing the board of the trustees for the university. I have never, though, thought of him as a champion of long term shareholders in publicly traded companies, which is the role he plays in a recent article by Andrew Sorkin in the New York Times.

The article itself was precipitated by a post, titled "Bite the Apple, Poison the Apple", by Mr. Lipton in the Harvard Law School Forum on Corporate Governance and Financial Regulation, where he argued that the threat to the company from activist shareholders (and David Einhorn, in particular) should serve as a clarion call for action to deal with the misuse of shareholder power. I am not sure what powers Mr. Einhorn misused in making his case that Apple should do something with its cash, but knowing Mr. Lipton's views on corporate governance (which is to side with incumbent managers, no matter what), I was not surprised by the article, but I was that it was picked up in the New York Times by Sorkin. In his article, Sorkin implicitly accepts Lipton's view that activist investors are short term, that they do damage to companies by being vocal and that long term shareholders are not served by activism.  I think he is wrong on all three counts.

1. Activist Investors are no more short term than any other investor group

To address the question of whether activist investors are interested in the long term, Sorkin quotes Leo Strine, the Chief Judge of the Delaware Court of Chancery, who seems to have seen evidence to conclude that "the answer is usually no".  I consider myself to be a long term shareholder: I do my homework before buying the shares and I have a median holding period of eight years. I don't operate under any illusions about what drives activist investors to do what they do, which is the desire to make money on their investments (and who does not?). However, I have not seen any evidence that would lead me to believe that activist investors are any more short term than any other group of investors, and there is, in fact, evidence to the contrary. 

• Holding period: The studies that I have seen of both institutional activists (holding period of about 20 months, on average) and individual activists provide evidence that they hold their investments for longer than their passive counterparts. In fact, Sorkin undercuts his argument that stockholders are short term by noting that Nelson Peltz has been a stockholder in Heinz for more than six years, Bill Ackman is a long term investor and director at JC Penney and David Einhorn has held Apple stock for many years. 
• Cash focus: It is true that activist investors often push for companies to return more cash to stockholders, either as dividends or in stock buybacks, but why is this evidence that they are short term? Assuming that companies that reinvest money back into their own businesses are more long term than companies that return cash makes no sense, if these companies operate in bad businesses. The companies that are typically targeted by activists are mature companies that have cash surpluses and relatively few investments and returning cash back to their stockholders strikes me as exactly what investors would want them to do.

It is possible that Judge Strine was misquoted on his claim that activist investors are usually short term, and if so, he should set the record straight. It is also possible that he has evidence to back his claim, and if he does, I would love to see it. There is a third possibility that he was engaging in some casual empiricism, which we are all inclined to do now and then, but is a dangerous practice, if you are the chief judge in one of the most powerful courts (at least when it comes to business law) in the country.

2. Activist investors have every right to be vocal, even if they are wrong

Sorkin is disturbed by the use of the media by activists to make their case for change, and that the change that they are pushing for may not be the "right" change for other shareholders in the long term. I don't share his trepidation about either one. As a long term investor who is looking for price catalysts, I envy the megaphones that activist investors have to broadcast their views and be their own catalysts. Not also that activist investors are not alone in using the media to make their cases. In fact, the media's favorite long term investor, Warren Buffet, has never been shy about using the media to good effect to generate returns on his investments.

Do private equity investors push for changes that may not be in sync with long term stockholders? Sure! I have argued that activist investors are often too focused on "financial' value creation and too little on "operating" value creation. However, it is a leap from there to claim, as Mr. Lipton has, that David Einhorn does not have the right to make his argument or that doing it in public is somehow damaging to Apple. As a shareholder, he has every right to make his case and the rest of the shareholders have the right to decide whether they agree with his proposal or with incumbent managers (who may oppose it).  You don't have to believe that managers are always wrong and activist investors are always right to also believe that it is healthy for everyone concerned for managers to have to explain what they are doing to stockholders. If managers are credible (and their track record will play a role in this) and can make a good case that they are right (and activist investors are wrong), they stand a good chance of winning over stockholders to their side. If managers are not credible and/or refuse to make a case for their actions, I think that stockholders will and should be more receptive to activist investors' suggestions. 

3. Long term shareholders are well served by activism

As a shareholder in any company, I welcome the appearance of an activist investor (or two) into the shareholder ranks. The game, as it is structured, is tilted in favor on incumbent managers. Activist investors, motivated as they are by self interest, help to shift the balance back (even if it is only a little bit). In fact, in the absence of activism, you can rest assured that boards of directors will continue to be rubber stamps for  CEOs pushing through their own agendas, aided and abetted by an ecosystem of lawyers, bankers and consultants who make money of the status quo. And the status quo stinks at many companies, with about third of all publicly traded companies actively destroying value for their owners. (I will back this up in a future post) It is these companies that are disproportionately targeted by activist investors and deservedly so, and long term stockholders welcome them, for the most part. In fact, the evidence suggests that stock prices at companies targeted by activist investors go up on the announcement of the targeting, and stay up for the long term. 

As for Mr. Lipton, he has either created or had a hand in creating some of the worst abominations in corporate governance. From fathering the "poison pill" to arguing that  stockholders should have no say on CEO pay, he has been on the management's side of every corporate governance issue over the last three decades. In fact, reviewing his briefs over the years, it is clear that his problem is not with activist investors but with any investors who deign to question management motives or actions. To Mr. Lipton, the only good stockholders are masochists, who takes the punishment that is meted out silently, raise no protests and vote with their feet.  As a stockholder, I would rather have David Einhorn, at his worst, on my side than Mr. Lipton at his most magnanimous. To argue, as Mr. Lipton does in his brief on Apple, that his entreaties on part of management are in the best interests of long term stockholders is analogous to making a case that Marie Antoinette was really championing the cause of French bakers when she supposedly asked her starving populace to eat cake. 

What about the other stakeholders in the firm? When apologists for management use the interests of other stakeholders as their shield against accountability, I, for one, take it for it is, a smokescreen. I don't believe that managers who  insulate themselves against stockholder pressures care about protecting the interests of employees, customers or society. In fact, I will wager that these managers will use the same "other stakeholder interests have to be served" excuse with each of these groups, while the only interest group that is finally served is their own.

In fact, I think that the company that Mr. Lipton focused on, in his post, Apple, illustrates my point. I love the company and its products but as a stockholder, I have become increasingly frustrated with its managers, in general, and Tim Cook, in particular. In fact, I am not alone, since a third of the stockholders at the annual meeting a short while ago voted against his pay package. As I see Mr. Cook go from forum to forum, saying nothing of substance and wreaking havoc on the stock price almost every time he talks, I want more activism, not less. 

Bottom line

Managers at public companies are human, make mistakes, and are often unwilling to change their minds (or ways) without pressure from stockholders. The boards of directors at these companies, in spite of all of the corporate governance legislation passed in the last few decades (or perhaps because of the legislation) tend to go along with incumbent management, unless pushed to act. That push will not come from traditional institutional investors, who are too timid or lazy to challenge the status quo, and the small shareholders (long term or short term) have little chance of being heard. Without activist investors rocking the boat, who is left to challenge managers to explain their actions?  

Hundred dollar bills are hard to come by!

It looks like I just I cannot stay away from the Apple story, with Tim Cook making a splash (or a belly flop) with his speech in New York yesterday and David Einhorn's proposal coming in for scrutiny from investors and the press. This article in the New York Times DealBook does a pretty good job of summing up the proposal and its underlying thesis, and I was surprised to see my name mentioned, with Mr. Einhorn quoted as having said that my analysis "brings to memory the old joke about the economist who refused to pick up a $100 bill on the street because in an efficient economy, there can’t be $100 bills lying around.” I am flattered that I was even part of this conversation, given that Mr. Einhorn has probably never heard of me nor read my thoughts about market efficiency. I am also grateful that this was all he said about me, because I have been accused of far worse than ignoring hundred dollar bills on the floor. (Just take a look at the comment section of my prior blog posts). My motives for this post are not defensive but I do have a weakness of not being able to let an analogy go, especially when it can be used to good effect. So, at the risk of being labeled an egghead, here is what I think about hundred dollar bills on floors.

1. Location, location, location: Is it possible that you could find $100 bill on the street? Sure, but you have to get very lucky and the likelihood that you will find one is also going to vary depending on what street you are walking on. Your odds are probably better on Rodeo drive in Los Angeles, where there are wealthy shoppers and relatively few pedestrians (since no one in LA walks more than a block) than on a busy street in New York, where there are literally thousands of people, most of who don't have hundred dollar bills, walking with you. Apple is one of the most highly followed, most talked about stocks in the world and is more like Penn Station in New York City than Rodeo Drive.  I have gone through through Penn Station twice every week day, on my commute, for the last 20 years and have never found a hundred dollar bill on the floor. In fact, I don't think I have even found a twenty. I have found a few dollar bills, several quarters, lots of dimes and thousands of pennies.   It is entirely possible that this is because I am a finance professor and am blinded by my belief in efficient markets, but most of the readers of this blog are not. So here are my questions for you: Have you ever found a hundred dollar bill on the floor? How about a twenty dollar bill? Do you find a lot of these? (If so, could you please let me know the street that you walk on... I am willing to relocate... Incidentally, I put this question to my class of 400 today and there were three people who said that they had found $100 bills on the ground. Two of them were in bars at the time. There is a great analogy in here for investors but I am afraid to even go there.... So, I will leave it to your imagination....)
2. There is a cost to looking for "free" money: Perhaps, Mr. Einhorn's point is that those of us who have never found hundred dollar bills on the floor have just not been looking, but there are people who do and I am not sure that it is a lucrative enterprise. Using the Penn Station analogy again, there are still a few public phones left in the station, and every day as I walk through, I see people doing the phone scan, where they check the change alcove for money that callers have left behind. Could you make money doing this? I guess so, but it depends upon how much value you attach to your time.
3. And watch your back pocket: I have spent more of my life now in New York City than any other part of the world, and I guess that some of the native New Yorker has rubbed off on me. If I did see a hundred or twenty dollar bill on the floor in front of me, my scam detection antenna goes into high alert. From experience, I know that when something in this city looks like easy money, there is a catch. In this particular case, I would not be surprised to find out when I bend to pick up the "free" hundred dollar bill that it is (a) a fake bill and (b) that my back pocket will be picked while I am bending over.  
4. Don't build expectations around luck: If I did find a hundred (or even a twenty) dollar bill on the floor and I felt safe enough to lean over and pick it up, I would feel "lucky" that I found it, but I would not mistake serendipity for skill. I would certainly not build my household budget on the assumption that I will find not one but three hundred dollar bills on the floor every month in Penn Station. That would be not only foolhardy but a recipe for a unbalanced budget.

I have nothing personal against Mr. Einhorn, other than the standard New York lament that he is a Mets fan and not a Yankee fan. I have agreed with him more often than not and shared his disdain for the over-the-top assumptions that analysts were making for companies like Green Mountain Coffee. In fact, I will offer an argument for Mr. Einhorn's proposal that I think is more substantive than any that I have heard made yet. His suggestion that Apple issue preferred stock to its common stockholders is built on the presumption that, with interest rates at historic lows, there is a void in the market now for  investors (perhaps institutions that need the cash and get a break on taxes on preferred dividends) who would like to make a reasonable return on a safe investment. The assumption is that these investors will  pay a premium (over and above "fair" value, given the risk of the cash flow) for the 4% preferred stock that Apple will issue, and that common stockholders will capture this premium (by selling the preferred shares that they are granted by Apple to these "premium paying" investors). That is not an unreasonable argument, but my skepticism is based on two considerations. The first is that if this is true, we should be able to see the evidence in the preferred stock market, where preferred stock issued by companies that have solid balance sheets and substantive cash flows should be trading at premium prices. Is that happening? I don't know, but if Mr. Einhorn wants to make his case stronger, he should present evidence of the phenomenon, perhaps by comparing preferred dividend yields to earnings yields on common stock and corporate bond spreads. The second is the question of scalability. It is possible that Apple's common stockholders may be able to capture some of this premium with the first $50 billion of preferred stock issue, but will the premium persist as the issue gets scaled up to $100 billion or to $430 billion? I don't think it will, but I remain willing to be persuaded otherwise, and the onus is on Mr. Einhorn to provide the justification. In fact, much of the noise around this proposal comes from the misconception that a company can choose both the face value of its preferred stock and the dividend yield. If Apple issues $500 billion (face value) in preferred stock and sets the dividend yield at 4%, that preferred stock will not have a market value of $500 billion.

I started this post with the note that Tim Cook was in San Francisco yesterday, delivering a speech to a conference. Listening to what he said, I was reminded of why I continue to be frustrated with Apple's management. First, I don't think any CEO should be labeling a proposal by one his leading stockholders as a "silly sideshow", even if he disagrees with that plan. (Correction: As some of you have noted, Mr. Cook labeled the lawsuit as a silly sideshow, and not the proposal itself. A little more palatable, but Einhorn has the right to sue and Apple has the right to show, in court, that the lawsuit is frivolous and get it thrown out... )  Second, Mr. Cook made a highly publicized speech and told investors nothing of substance. I know that he dropped nuggets of information that may or may not be useful to investors, but talking about how much more money Apple will pay developers next year is the equivalent of a dinner party host with an elephant in the dining room talking to his guests about the the quality of the place settings. At the moment, investors in Apple are centered on the $137 billion in cash that the company has accumulated, and continues to add to, and they want to know what Apple's plans are for that cash. I am sure that Tim Cook has plenty of well paid consultants, giving him advice, but I will offer mine for free, knowing that it will be ignored. Mr. Cook, if you have nothing of substance to tell investors, it is best that you not talk at all, because if you do make more speeches like the one you delivered yesterday, you will more damage than good (as the market response showed)!

Returning to my central theme, what would I do if found a hundred dollar bill on the floor? First, I will check my surroundings to make sure that I am not the sucker in a con game, and I will then bend down and pick it up. Second, I hope (to be ethical is easy in the abstract, much more difficult in practice..) that I will remember what my mother taught me and look to see if I can find the legitimate owner of that cash. If I do not, I will think of it as my lucky find and treat it accordingly. I will, however, not spend the following days searching for hundred dollar bills on the floor, nor will I build my investment portfolio on the assumption that I will keep finding more free money on the floor.

Michael Dell's Conflicted Buyout

Let’s say that you are interested in selling your house and hire a realtor, and that the realtor comes back with what she says is the “best” offer for the house, forgetting to mention that she is the buyer. I would assume that you would be screaming about conflict of interests from the rooftops, right? Now, let’s change the story a little bit. Assume that you are the CEO of a publicly traded company that has been targeted by a group, interested in buying the company. Your fiduciary responsibility to your stockholders, if you decide to sell, is to try to deliver the “highest price” that you can get from the potential buyers. But what if you are also heading the buyout group that is trying to buy the company? The conflict of interest you face would be untenable, since you would, as the lead buyer, want to pay the lowest price. That is, of course, the problem in any management buyout and the issue has risen to the surface with the announcement by Michael Dell, CEO of Dell, that he would like to take the company back private for $13.65/share; that would translate into a $24 billion bid for the company, with about $15 billion coming from debt. Dell will be augmenting his 14% stake in the company by investing more of his wealth but he will joined as an equity investor by Silver Lake, a private equity firm. 

The standard "management" defenses

So, how do managers in a management buyout defend what seems to be a flagrant conflict of interest? They offer one of three arguments:

1. The “fair value” fig leaf: The managers will hire appraisers/investment bankers to value the firm and ensure that investors get a “fair” value. In fact, the board of directors at Dell will (and Silver Lake) have a bunch of investment banks (JP Morgan Chase is the lead bank but it looks like a whole nest of investment banks is involved in this deal and it is unclear who is doing what, though they are all getting paid) that they can draw on  to make this judgment on whether the offering price is a fair one. Without casting any aspersions on the valuation capabilities of these investment banks, there is no chance that any of them can deliver unbiased opinions, when so many fees ride on this deal getting done. Will they deliver a value called a fair value to justify the deal? Of course, but that value will be a “legally defensible” value, not a fair one; the gap between the two is a wide one. 
2. The “market is right" and "we are paying a premium" kabuki: It is amazing how quickly managers in management buyouts discover the wisdom of markets. As Dell will undoubtedly point out, “if markets thought we were worth only $11/share a few weeks ago, you should consider yourself to be lucky to get a premium on that price”. Interesting argument, but the market price, even in an efficient market, is based on the information that is available about a company, often with the company as the source for the information. The problem in Dell or any other management buyout is that the same management that is buying the company from stockholders has controlled the information spigot for the months leading up to the dal. How do we know that they have not suppressed good news and been liberal about revealing bad news leading into this transaction? I may be overly suspicious of management intentions, but that is the problem when you play both sides of the field.
3. The “open to other offers” defense:  Managers are also quick to point out that there is time for other bidders to make higher offers for the company and that they remain open to other offers. Talk is cheap, though, and all this openness requires a board of directors that will seriously consider alternate offers and an acquirer who is willing to surmount the obstacles of a shortened calendar and antipathy from managers. To give Dell credit, it has hired another investment bank, Evercore, to find potential buyers for the company, with their fees tied to their ability to find a higher bid. I applaud Dell for at least trying to create a modicum of fairness in the process, even if the intent is to fend off future lawsuits, but Dell's board has already shown their hand in this deal, as this news story indicates.

What's so special about Dell

Now, why pick on Dell, if these are problems in every management buyout? The Dell deal magnifies all of the tensions for three reasons:

1. It is a “big” deal, not the biggest ever but at approximately $24 billion, it does rank among the biggest.
2. Dell is a high profile stock, widely held and extensively followed. Investors believe that they understand the company and its operations.
3. Not every buyout has a marquee name atop the buyer board that has been so closely attached to the company. Michael Dell, who started Dell when he was a student at the University of Texas, became incredibly wealthy from Dell’s success in public markets. While he did take a hiatus from the day-to-day management of the company, he has been the CEO of the company since January 2007. During those last 6 years, Michael Dell has pushed been open about his vision for the company, and with a compliant board has spent billions in acquisitions and investments to expand the company's footprint in the enterprise solutions business. In the fiscal year ended February 2012 alone, Dell spent almost $2.7 billion in acquisitions in pursuit of his dream.

Dell's possible pitches, pitfalls and fixes

I do not envy Michael Dell or his bankers, though they will be richly compensated for their stress, because there are four potential sales pitches that they can make to investors and none of them casts the company or its management (especially Michael Dell) in a favorable light.

1. Company has made expensive mistakes over the last few years, it has not been well managed and the market is right in its recognition of those mistakes.

The pitfall: The same management that made those mistakes now wants to buy the company at a lower price that they, in a sense, caused. That looks to me like rewarding management for a job badly done. Furthermore, for the last few years, Michael Dell has been telling stockholders that these were not mistakes (and were making healthy returns). Paraphrasing a question that you hear in every political scandal, I would ask Mr. Dell: What did you know about these mistakes and when did you know them? Put more bluntly, were you misleading us about the quality of your decisions then or are you misleading us now? (Take a look at Michael Dell's annual reports to stockholders for the last few years)

A fair fix: As I see it, there are two possible fair solutions. One is that Michael Dell can take the company private, as long as he agrees to cover the cost of his mistakes. Put simply, take the money that Dell has spent over the last five years on acquisitions and investments (an amount in excess of $7 billion), charge a reasonable return (a break even where they delivered just the cost of equity) and add it to the value of the company now. In fact, Southeastern Asset Management, which holds more than 7% of Dell shares and is the second largest stockholder in the company, made exactly this pitch in a letter that they sent to Dell’s board, when they took Michael Dell at his word, capitalized his mistakes and estimated an value of $23.72 per share. The other is that since Michael Dell claims that $13.65 is a fair price for the shares, he should be willing to be bought out at that price. Perhaps, Southeastern should make an offer to buy out Michael Dell's stake at 13.65/share. If he refuses, it would indicate that this is a fair price for him to buy the company, but not to sell it.

2. Company has made the right decisions over the last few years but the market has been wrong in assessing the effect on value.

The pitfall: This creates a more defensible scenario for Michael Dell, since he does not have to admit to past mistakes or misleading investors about them, but it creates a whole new set of problems. If this pitch is true, he is arguing that the market price today is too low, relative to intrinsic value. If he is consistent with this argument, I would expect to see JP Morgan (or whoever his hired appraiser is) to come back  tell the board that the offered price is too low and that it has to be raised to a much higher number. I may be cynical, but I feel that this is not going to happen and that the investment bankers are going to come back with a valuation that justifies whatever the Michael-Dell led buyout team decides to do (even if it is sticking with the current offered price).

A fair fix: One is to have an appraiser who has no ties to the board, the managers or to Silver Lake make an assessment of value per share. To those who feel that no appraisal will ever be fair, here is an alternate one (and this is one that Southeastern Asset Management has suggested as well). Give the existing stockholders a chance to be part of the buyout deal. In other words, offer the shareholders a choice of either cashing out at the buyout price or staying on as part of the buyout team. Michael Dell could reduce the debt he needs for the transaction and will end up with a much larger piece of the company.

3. Company has made wrong decisions in the past, but it was forced to make these decisions by a “short sighted” market. Once it becomes a private business, it can make the right decisions for the future.

The pitfall: That is an interesting argument, but the onus for backing it up then has to be on Dell (the man and the company) both in terms of what has been done and future plans. Looking backwards, what is it that the market has forced Dell to do over the last few years? Did it force Michael Dell to spend money on these past acquisitions and investments that are not paying off? Did it force him to make the big bet on enterprise solutions?  If so, how did that happen? Looking forward, what is it that Michael Dell plans to do differently? And what is the basis for his claim that these actions will not be received well by the market. It does not seem fair to blame a market for reacting badly to changes he has not made or even made explicit.

A fair fix: Let us start with a mea culpa from Michael Dell for mistakes made in the past and an explanation of how the market forced those on him. He should then continue by putting forth the changes that he plans to make to the company, once he takes it private. Let the market react to these changes and he can then pay a price based on that reaction. 

4. This is not about value, price or changing the way the company is run. Michael Dell is just tired of running a company in the market spotlight, with the stresses of answering to stockholders, analysts and rating agencies. He just wants to go back to running a private business.

The pitfall: Okay, fair enough, and I feel bad for Mr. Dell, but he got his riches from playing in the same market spotlight. Is he willing to return all that cash back to the market? I know that he is investing more than just his stake in the company but how much of his total wealth will be in invested in a private Dell? Also, has he made clear to Silver Lake, his private equity partner in this transaction, that this deal is not about making money but bringing him inner peace? Finally, does he really think that the lenders who lent $15 billion on this deal will be more forgiving than stockholders of mistakes?

A fair fix: Michael Dell takes the company private, and either invests back in the company all of the gains he made from the public marketplace or gives it to charity. Also, let’s get an iron card guarantee from everyone involved in the buyout that Dell will not be going back public in 5 or 10 years. 

The Investor Choices

As investors in Dell, what are your choices? I see three possible ones, depending upon how much energy and resources you are willing to pour into the battle.

1. The “karmic” surrender: You accept that bad things happen to good investors, and that this is your fate as a Dell investor. You will take whatever the price that is offered in the deal as your best price and move on without much sound or fury. (I know that this is is the Wikipedia version of karma and that there are deeper and more profound versions of it... So, please, please don't post to tell me that...)
2. The Primal Scream: You have your “Howard Beale” moment, where you take the best price that Michael Dell will offer, but not before you rant and rave about how unfair the world is to investors like you. 
3. Storm the castle:  You go for the win. You will need large institutional investors to follow Southeastern Asset Management’s lead and rouse themselves from their slumber and join in the fight. To get you started, here is are some of the largest institutional stockholders as of the last filing: T. Rowe Price (4.41%), Blackrock (4.32%), Vanguard Group (3.63%), State Street (3.58%). After all, Dell owns only 14% of the shares and you could create a coalition that could this deal. I am not a stockholder in Dell, have never been excited about the company, but I will contribute a small part to your struggle. I valued Dell, using my estimates, and arrived at a value per share of $16.38/share. You will, of course, have different views about Dell's future and arrive at a different value. Go ahead and download the model, value the company, and let’s get a shared Google spreadsheet going. Revolutions start with small protests.

Here is my sense of this deal. At $13.65/share, Michael Dell is probably getting a bargain, but I don't think it is a huge one. As a consequence, it is going to be difficult to find another buyer who will offer a significant premium over the buyout price. I also think that Dell's depleted value today is a consequence of Michael Dell's management over the last few years and it bothers me that he will be benefiting as a result of his own mistakes. If nothing else, as a Dell stockholder, I would like an honest admission from Michael Dell that the wreckage at Dell is not the market's fault but his own, and a couple of dollars more per share on the buyout price will soothe my pain a little.