The Ethical Barometer

The Securities Exchange Commission cut corporate executives some slack on insider trading. The execs could file 10b5-1 plans that disclosed their schedules for buying and selling stock in their companies. Follow the plan, no insider trading charges. However, the execs found the loopholes. You don’t have to follow the plan — you can cancel at any time. You can also change the plan at any time and not tell anyone that you are doing so. The vaccine company execs did a whole lot of plan modifications on the stock in their companies once the clinical trials began. They made some serious money and all without insider trading. They just didn’t disclose their modifications. Making modifications is an indication of something being afoot at your company. About 60% of executives’ dabbling in stock last year was done under plans. All done with full immunity from inside trading. Now we will have to regulate insider modifications.

From the New York Times, “CNN has barred Chris Cuomo from engaging in strategy sessions with the governor’s aides, but has said it would not prohibit him from speaking directly with his brother about the scandal.” The scandal is now former Governor Andrew Cuomo’s grappling with accusations of harassment and more from 11 women. Chris Cuomo had done so in the past, even having his soon-to-be-ex-governor brother on the show for interviews, even as he was helping said governor/brother with strategy for dealing with the accusations, report, and looming impeachment. CNN told Chris Cuomo that such conduct was, “inappropriate.” Mercy, the rough treatment! Nonetheless, Chris Cuomo’s show sallied forth without mentioning the nation’s biggest story. That’s crackerjack journalism.

Could you talk to a sibling facing sexual harassment allegations without suggesting strategies? “Here’s what you ought to do,” would be the first words out of my mouth.

There are only two ways to manage a conflict: You disclose whatever. CNN and Chris already failed the public on this one. So the answer is, “Don’t do it!” CNN proposed a leave of absence with a guaranteed return for Chris Cuomo. Chris Cuomo instead went to the Hamptoms. That oughta do it. The Hamptons cleanses everything. You can bet that the phone lines between Albany and Sag Harbor are full of strategizing. But Chris Cuomo will be back on the air thanks to the mish-mash of ethical standards the Cuomos and CNN follow when it comes to conflicts.

The Credit Suisse board commissioned an investigation into the losses the bank has faced resulting from its ties to Archegos. By March 23, 2021, Credit Suisse had $27 billion in exposure on its Archegos investment. While it dawned on few people at the bank that it might be good to obtain a little more collateral from Archegos, no one ever asked. In international banks, the right hand does not always know what the left hand is doing. The end result, according to Credit Suisse’s review by a law firm is that Credit Suisse did not care to know the answers about what was really going on with Archegos.

Bill Hwang, the founder of Archegos had a long history with Credit Suisse as well as one with the SEC. His now defunct hedge fund, Tiger Asia, settled insider trading charges with the SEC. Mr. Hwang was banned from trading in Hong Kong. That’s when Credit Suisse stepped in and helped Mr. Hwang relaunch a hedge fund in the United States, the no defunct Arcehgos. Credit Suisse employed no additional scrutiny despite Hwang’s history. There was also no additional action when the margin calls on Archegos kept coming even as Credit Suisse’s risk exposure ballooned to $530 million. When credit risk managers escalated their concerns about risk and exposure due to Archegos, Credit Suisse’s combination of poor processes and too many junior staffers resulted in no action being taken to rein in Hwang. By March of 2021, Credit Suisse had $27 billion in exposure due to Archegos. The communication was so poor that the CEO was unaware of the extent of his bank’s exposure.

Perhaps the most telling part of the report was, “The business was focused on maximizing short-term profits and failed to rein in, and, indeed, enabled Arcehgos’s voracious risk-taking.” The young ‘uns running risk and oversight were meeting their numbers and doing well, temporarily. No reason to rock the boat. They created a massive risk with no systems in place to curb it.

Good news, though. Credit Suisse has hired a chief risk officer from the ranks of Goldman Sachs. It will take a great deal more than that to straighten around the culture of this bank.

Corporations should not be involved in politics.Should they feel the necessity to get involved, is it too much to ask for consistency?

Toyota announced that it will no longer donate to Republicans who disputed the 2020 presidential election. Toyota is right to seek to preserve respect for elections. However, Toyota is confused. “Disputing” and “accepting” are two different things. Toyota took no such action in 2016. The late John Lewis refused to recognize (accept) that Donald Trump was a legitimately elected president because of his belief of “Russian interference.” In 2000, following the U.S. Supreme Court decision on Florida and all its hanging chads, there was a conga line of disputers who spent four years chanting “Not my president” rhetoric directed at Mr. Bush.

Elections are close, battles are heated, and emotions run high. To dispute an election is permitted constitutionally. To refuse to recognize election outcomes undermines the ability to govern. Toyota is withholding money from those who exercised rights. Toyota did not take action against those who refused to recognize election results in the past.The steps to exercise a right are finite. Once the process ends, the election is final. There is no end to a refusal to accept. Under Toyota’s donation policy, it has chosen a path that undermines a right and protects those who actually do undermine elections.

Erin Gilmer, an attorney and consultant to hospitals on medical privacy and compassionate health care, died on July 7, 2021 at the young age of 38. The cause of death was suicide. Ms. Gilmer suffered from rheumatoid arthritis, Type I diabetes, and occipital neuralgia. She was divorced and estranged from her parents.

She was an advocate for patients and an expert in that area who shared her knowledge for no cost online. Despite being an attorney and consultant, she struggled financially, confessing to reliance on food stamps. In a 2014 speech at a Stanford medical conference she told attendees that when she could not make ends meet, “I would disguise myself in my nice white-girl clothes and go to the salad bar and ask for a new plate as if I had already paid.” The Barometer is unclear on what constitutes “white-girl clothes” and why they are a disguise for purloining at a salad bar.

She added, “I’m not proud of it, but I’m desperate. It’s survival of the fittest.” Clay Risen, “Erin Gilmer, 38, Lawyer and Disability Rights Activist,” New York Times, July 19, 2021, p. B6.

Sometimes those who do much good for so many feel free to cross a few ethical lines here and there in the name of achieving those good things or to just survive. However, survival for some depends on that salad bar staying afloat. You get enough clean-plate faux diners and the salad bar’s margins take a dive. If everyone behaved as Ms. Gilmer did, well, patient advocacy would be irrelevant. Survival of the fittest. There is some irony here.

Nonetheless, RIP, Erin Gilmer, RIP.

The Barometer was awaiting the opening of the doors to the mighty Planet Fitness gym, you know, the alleged “Judgement-free zone.” The English spelling of “Judgment” in the United States will not be corrected because as a Planet Fitness manager responded to the Barometer as she raised the issue, “It was judgmental to point out a spelling error.” Ah, alert the National Spelling Bee folks for the rules must change.

A gentleman also awaiting fitness on his own planet began espousing his political views, as he always does when we are found together at the locked door. He explained to us that New York was going to indict Trump and his company and added, “I hope he goes to jail and that they lock him up for life.” Seemed a little harsh for an income tax issue involving executive perquisites. And Trump was not the one who got the perks.

Then came the New York Racing Commission banishing Bob Baffert from racing in New York because of allegations of cheating (i.e., his winning horse in the Kentucky Derby had banned substances that showed up in a post-race drug test). Bob Baffert is one who gets as close to the line as a human being can get and sometimes his toes cross over that line. His autobiographical book has some frightening admissions about his behaviors in the climb to the top. The worst part about the admissions is that he seems to have no self-awareness that his book includes such admissions.

Nonetheless, a New York court has lifted the Baffert suspension because he was suspended without a chance to be heard. Like the Planet-Fitness zealot, emotions often kick in and the powerful and those who wish they had power want those they believe to be bad out and now! Baffert was banned without an evidentiary hearing. He was banned because so many in the sport have strong feelings about him and allegations of his cheating. Off with his head!

There are similar (stronger?) feelings about former President Trump. He is already out of office but many want him banished from life for life. In the words of so many defenders of rights in different context, “This is not who we are.”

This is a nation of due process. This is a nation that subscribes to the notion Benjamin Franklin articulated as follows, “That it is better 100 guilty Persons should escape than that one innocent Person should suffer.” Franklin called it “a Maxim that has been long and generally approved.” He was referring to similar statements by Voltaire and Blackstone (although Blackstone limited his swath to ten going free).

A longstanding maxim across religions and ethics scholars is that we should treat others as we would want to be treated. Regardless of what Baffert or Trump may or may not have done, they need their chances to be heard. That chance to be heard is a small price for a society to pay to be certain that they are not mistaken in their perceptions and beliefs. Due process is the protection against emotional swings that pass judgment without even being willing to listen to the defenses, explanations, or facts those charged wish to share.

President Biden’s son has discovered his inner self and is now a painter of art the quality of which brings up to $500,000. Not to worry. He has a solution. He is going to keep everything a secret from everyone. The New York City gallery will be responsible for rejecting “suspicious offers.” Did no one see “Mickey Blue Eyes”? The art world has long been an ideal forum for money launderers from the underworld, the third world, and the drug world. The talent-lacking sons of Cosa Nostra bosses have also managed to become highly desired painters. Gallery owners did the deals for protection, for favors, and for cuts in the deals.

Hunter will have large sums appear in his bank account, from whence and whom it came will be a secret. And, of course, we can all trust the buyers of the Hunter paintings to keep their purchases secret and not display their new treasures. Don’t you know that buyers and bidders will be kept confidential? Certainly there would be no use of front men in this scenario. When Communists sidle up to the art world, there is no limit to the havoc they can wreak. Not to worry. Be happy! We will be blithely ignorant.

There are two ways to manage a conflict of interest: Disclose it or don’t do it. The latter is the only choice when there is no way to clean up a transaction of influence. If ever we have had a transaction of influence it would be the purchase of flea-market-level art offered up by the current U.S. president’s son. What could possibly go wrong here? Watch “Mickey Blue Eyes” to find the answer.

Chris Paul is 36 years old and just 6-feet tall. He was once poison in the NBA — one team gave away its draft picks just to be free from Paul’s contract. Today, having scored 41 points in Game 6 of the NBA semi-finals, Mr. Paul is known as the Point God.

Mr. Paul has led, what the Barometer tries to explain to students, a nonlinear life. He did not go from high school basketball star to college scholarship to the NBA. He played junior varsity basketball in high school. He had been on the varsity team as a bench warmer and went back to JV in order to play more. He went to Wake Forest for two years, and he was drafted into the NBA with a resulting unremarkable career. A decade and one-half later the Phoenix Suns and its ragtag club made a trade and got Mr. Paul. Mr. Paul has done for the Suns what he did for the JV teams — he leads so that others become better.

Michael Jordan carried bitterness around with him after he did not make varsity. Chris Paul saw it as a chance to play more and now, “the best thing that ever happened to me.” They sportscasters call him old. For the court he is ancient. But all those years mean that he has had more time on the court than any other player. He gained experience and calm. Humility from that JV background gives him the moral authority to lead. The Winston-Salem Chronicle described Mr. Paul in a headline about the success of his JV team, “Paul’s leadership, unselfish play set him apart in basketball.”

The linear life follows a pattern previously determined and documented as the path to success and goal achievement. Just because “everybody does it” does not mean it is the right or ethical path as we face ethical dilemmas in our lives. The same principle carries over into life generally. Sometimes the achievement arrives just because you took the road less traveled. The ragtag Suns have been operating at JV for many years, until Chris Paul. He makes everyone around him better.

Once in a great while, sports stories surprise us, pleasantly.

Now that’s a headline one does not expect to read. A combination of words that seems beyond the realm, as it were. Nonetheless, the Vatican is a country and can indict, pardon, and fire as it sees fit. New York Times, July 4, 2021, p. A10.

Cardinal Giovanni Angelo Becciu, the former chief of staff for the Vatican’s Secretariat of State, was indicted, along with nine others, for money laundering, fraud, and abuse of office. It seems the Vatican investment in some real estate in London’s Chelsea neighborhood went south. The building had been a Harrods Department Store showroom but was to be turned into luxury apartments. Dreams turned to dust, and the Vatican lost about 350 million Euros in the deal. Turns out that the broker involved has refused to turn over title to the building the Vatican thought it bought. Business risk is inevitable but a broker purloining a building from the Catholic Church is something more than a risk. “Multiply it by infinity, and take it to the depth of forever, and you will still have barely a glimpse of what I’m talking about,” to quote Joe Black, aka Death.

Already, Pope Francis has stripped Cardinal Becciu of his employment as “head of the Vatican’s saint-making department.” The Barometer does not know the qualifications for heading up such a unit, but being under indictment would surely call Cardinal Bicciu’s credentials into question.

All have denied wrongdoing. Cardinal Bucciu, through his lawyer, maintains “absolute innocence.” He was also charged with embezzlement. Another Vatican employee who was charged with abuse of office said the indictment was a “procedural blunder.” He may not get that whole “multiply by infinity” thing either.

In baseball we have the umps checking the hats, gloves, belts, and fingers of the players. The umps are looking for sticky stuff! They have made players change their hats and take off their belts. One player dropped his drawers mid-field in protest to these checks for “sticky stuff.”

The only “sticky stuff” permitted under MLB rules is rosin. So, the players have been mixing pine tar or rosin with sunscreen. That concoction gives pitchers an extra grip on the ball. With that grip, pitchers get that spin on the ball, something that makes life tough for batters. So, MLB is cracking down, as it were, and checking for “sticky stuff.” So, you have the spectacle of umps examining discolored hats, running their fingers through pitchers’ sweaty hair, and checking gloves, goggles, and anything else baseball players wear. The human mind has no limitations when it comes to getting around rules in order to win.

Now moving along to basketball. The Barometer had spent the day cleaning and sat down with husband and sons for some quality time as they enjoyed the final two minutes of a Suns-Clippers game. Thirty-five minutes later, we were still watching. The Barometer sounded her barbaric yawp, “This is not basketball. This is watching 10 grown men try to win by getting around the rules. They had a simple formula: ball in play, foul, free-throw, deliberately missed free-throw, ball in play, repeat.

There was no basketball. No skills on display. Indeed, the trick was to at least hit the rim on your free throw but don’t let it go in– the goal was to get the ball following the free throw. Then get fouled.

The NBA players were no different from the companies in business trying to maintain or improve their earnings. They aren’t doing business. They are gaming the system — finding ways around the rules. It’s not real. No skills. No benefits. Waste of time for the sake of the win.

Lordstown Motors Companies was supposed to be building electric trucks at a former GM plant in Ohio. However, the company, which went public in October 2020, appears to be yet another electric/alternative truck folly. You may remember that Nikola, the maker of a hydrogen-powered truck, admitted last December that it sales video showing one of its trucks rolling along quite quickly was actually just rolling down a hill, courtesy of gravity. Soon after its CEO disappeared and GM was left holding the keys to a nonworking truck and a bad investment.

Lordstown admitted earlier this month that it did not have the resources to begin producing trucks. When it issued its first financials there was a 23-cent-per-share loss. The CEO said, however, that his company had “pretty binding orders” for the truck. Three days later there was a clarification. Once the lawyers took over with a formal SEC filing the language was that its vehicle purchase agreements “do not commit the counterparts to purchase vehicles, but we believe that they provide us with a significant indicator of demand.” It all depends on the meaning of the term “order,” or more relevantly “nonbinding orders.” Two board members had already resigned over their disagreements with management on the definition of “orders.”

Let’s add to the excitement that with the nonbinding orders came the disclosure that several top executives at Lordstown unloaded their stock just prior to the public announcement of its earnings (or, more accurately, the lack thereof). As one expert phrased it, the stock trades reflect “weak internal controls.” However, internal controls are but the guard rails. What you have here is a company with letters of interest from truck purchasers for trucks that the company lacks the funds to produce.

This is a company in bad need of some truth, candor, transparency, orders, and trucks. So far, it looks like it is 0 for 5.

Portland, Oregon has had its share of newsworthy events over the past year. There were 56 homicides in Portland in 2020, the highest number in 26 years. Through April 6 of this year, there were 25 homicides, so Portland is on track to break another record. Total burglaries in 2019 were 4,190. For 2020, Portland finished the year with burglaries at 5,436. After nearly a year of protests, the Portland police took down the fencing around the Hatfield Federal Court Building. Anarchy reared its ugly head once again.

The police, businesspeople, and protestors are still arguing over the amount of property damage — somewhere between $2.3 million and $23 million. It depends on the actual number of Louis Vuitton bags the looters took from the downtown mall.

Contrast this data with some of the phrases in Portland’s ad, aimed at getting tourists back to Portland:

“Some of what you’ve heard about Portland is true. Some is not. What matters most is that we’re true to ourselves.” [That ought to get the tourists rolling in.]

“Anything can happen. We like it this way.” [It’s just that visitors are unclear on the meaning of “anything,” and whether it includes robbery and such.]

“We have some of the loudest voices on the West Coast. And, yes, passion pushes the volume all the way up. We’ve always been like this. We wouldn’t have it any other way.” [Note to Portland: Tourists are not into volume. They also prefer a tear-gas free downtown area.]

Some recruiting tips for The Portland Chamber of Commerce: Not everyone enjoys seeing a riot on vacation, no matter how much Portlandians do. They also prefer returning home alive.

There is something about third-party pharmacy benefit managers. Put them together with state attorneys general and you have a 100% chance of uncovering overpayments under medical plans for government and private business employees as well as for recipients of Medicare benefits. The pharmacy managers do a lot of managing, from negotiating prices with pharmaceuticals, to deciding on drug coverage, to formulas for reimbursement, and developing relationships with retail pharmacies. With all those layers of managing it becomes difficult to understand who is paying whom how much and how much the third-party manager is getting for its work.

Centene just agreed, without admitting fault or liability, to settle disputes with Ohio and Mississippi for $88 million and $55 million respectively. Despite admitting nothing, Centene indicated that the settlement related to its practices in 2017 and 2018 and those practices have now been halted. We did not do anything wrong, but, just in case, we’ve changed what we are doing. That last line seems to be a part of every settlement at both state and federal levels when it comes to regulatory oversight.

Some follow-up questions:

1. If it was not wrong, was it a gray area?
2. Were you operating in loophole territory?
3. Was there full disclosure to all involved about your practices, procedures, and payments?
4. Did other companies engage in the same practices?

Those four questions would go a long way in preventing the settlements for doing nothing wrong.

Alphabet, Inc. (Google parent) hired Kamau Bobb in 2018 as its “global lead of diversity strategy and research.” Ironically, research revealed that in 2007, Mr. Bobb wrote a post entitled, “If I Were a Jew.” Dr. Bobb wrote in his post that if he were a Jew he would “be concerned about my insatiable appetite for war and killing in defense of myself.” Dr. Bobb has been reassigned at Google. Google’s spokesperson assures us that Dr. Bobb will be nowhere near the diversity team. Good decision.

When will companies learn to check the online activities of senior officers before hiring? Here’s an idea — Google their names and see what pops up. Or ask Google Assistant. Even better: Ask Amazon to ask Alexa.