China

The Dangers of China - Critical Insight from @thereformedbroker

The following piece, written by Josh Brown, is one of those periodic posts that goes beyond deserving attention.  It's a critical warning for anyone currently doing or thinking about doing business with China.

It follows in its entirety.

The Reformed Broker is a blog about financial markets and the economy. Joshua Brown is a New York City-based investment advisor for high net worth individuals, charitable foundations, retirement plans and corporations.

We are under attack.

Chinese corporate criminals and their US-based enablers are committing Capital Genocide against American investors.  We're not talking about "a few bad apples" or "a handful of exceptions", we're talking about a full-blown epidemic.  Subterfuge and malicious avarice are simply the tools of the trade when many Chinese companies do business with outsiders.

This undeniable Red Collar Crime Wave is larger in scope and financial consequence than any other international criminal enterprise in the history of the world.  We are talking about hundreds of millions of dollars, possibly billions should the Yahoo - Alibaba revelation prove itself to be a harbinger of shocks to come.

At the low end of the spectrum, corrupt representatives of sketchy or even non-existent Chinese companies are conniving their way onto US exchanges via backdoor IPOs, reverse mergers and SPACs.  They are slithering through every exchange and regulatory loophole they can find to raise money and establish their fraudulent beachheads here.  The penalties for Chinese nationals fudging numbers on a local exchange could range from exile to imprisonment to disappearance.  The penalties they face for pulling that stuff here in the US?  I don't know, a letter in the mail?  "Don't ever do it again"?

Mainland Chinese fraudsters are untouchable, they can only be barred or banned from US exchanges once caught, and so they will get away with whatever they can as long as there are investors here who are stupid enough to capitalize them.  And so the ownership of one factory in China becomes the ownership of three for the purposes of a quarterly balance sheet calculation.  The ticker symbols will be cutesy and clever while the names of the companies will almost always include the word "China".  After all, let's not forget that the name of this game is the exploitation of Americans who "want to play the growth".

It has become an absolute free-for-all.

For a nation that was so economically backwards and pathetic that it could barely feed itself 15 years ago, China's executives have certainly come a long way.  They're employing every scam and dirty trick in the book against American corporations and investors while we say thank you and send even more opportunity and cash their way.

I've held my tongue for the last 9 months, watching one scam after another appear on our exchanges.  I've said nothing as these financial landmines have been detonated beneath the feet of whichever unfortunate shareholders happened to find themselves in the wrong place at the wrong time.  No longer.

We'll limit the scope of my rage here to corporate fraud.  For the purposes of this post I'll leave out the Chinese poisoning of America-bound toothpaste, pet food and toys at their manufacturing operations.  I'll also leave out the FoxConn factory at which all the Apple products are assembled, a workplace so abusive and abhorrent that the employees must take an oath that they won't kill themselves.

But no, let's not get distracted here, we should simply focus on the accounting chicanery and falsified filings with which Chinese companies are daily relieving US investors of their capital.

The reverse mergers are by far the most insidious manifestation of the contempt that Chinese companies have for our exchanges and rules.  Working with American law firms and shameless stock promoters, these companies have found a financial engineering solution that lets them steal on our shores.  They've been able to subvert the more highly scrutinized public offering process that would normally have weeded them out.  By "cleaning up" shell companies, which should not be trading or available to begin with, the disease gets a foothold first on the pink sheets and then onto the American Stock Exchange where the real grifting can begin.

White Collar Crime columnist Walter Pavlo has collected a slew of recent examples on his blog at Forbes, including:


  • China Electric Motor – Shareholders lawsuit filed claiming underwriters violated federal securities laws by issuing materially false and misleading information.
  • China Natural Gas – Class action lawsuit alleges directors and officers issued materially false and misleading statements.  CFO of company resigned in late 2010.
  • Duoyuan Printing – SEC investigating company for fraud, NYSE delisted April 4, 2011
  • China MediaExpress Holdings, Inc. – Deloitte quit as auditor because “no longer able to rely on the representations of management”.  CFO resigned. Stock trading halted March 11
  • China Agritech – Shareholder lawsuit pending.  Dismissed its auditor Ernst & Young.
  • China Sky One Medical – Under investigation by SEC.
  • Orient Paper, Inc. – Reauditing previous financials due to license issues with previous auditor (Davis Accounting Group).

The full list is actually quite larger, it includes some of the higher profile blow-ups you may remember with stocks like RINO International and China Green Agriculture - spectacular flame-outs complete with massive insider selling prior to the denouement.

Where are the regulators, you might ask?  They are finally getting involved.  The SEC's Mary Schapiro is aware of the epidemic and is now on the case...

From Barron's:

Since March 2011 alone, she noted, more than 24 China-based companies have disclosed auditor resignations, accounting problems or both – following the auditors' inability to confirm the amounts of cash or receivables shown on the companies' balance sheets. The SEC has recently suspended trading in three Chinese businesses that "reverse-merged" into U.S.-traded shell companies.

The smarter thing to do would be to halt the entire shell company process in its entirety right this minute until we can get the rules up to a standard that will protect investors outright from these foreign liars and thieves.  Capital formation can wait fifteen minutes while we get our act together and crack down on this disgusting shell syndicate.

An even more disturbing development of late is taking place in the large cap arena, in full view of the world's media and the global investor class.  With the success of Baidu and Sina, Chinese technology companies are now finding themselves as the Belles of the Ball.  In at least one case that we are aware of, they are also finding that they can easily mislead their Western partners and shareholders.

Here in the deep end of the pool, newly-minted billionaire Chinese executives are violating contract law, globally accepted corporate best practices and fiduciary responsibility to shareholders.  They are disclosing things when and as they choose.  They are "on the level" in their own government's eyes so long as they are playing fair with their fellow Chinese investors.  This isn't a brand new phenomenon but as the companies involved get bigger, the danger grows.

This week's still-unfolding fiasco involving Yahoo being tricked out of their Alipay subsidiary by Alibaba, a company in which they hold a 43% stake, is just the latest and most outrageous example of what we're dealing with.  Here's what Jacob S. Frenkel, a former SEC enforcement lawyer who is an expert in securities law matters and a partner at Shulman Rogers in Potomac, Maryland had to say (via iChinaStock):

"Yahoo! is a victim, plain and simple.  With all the negative attention that US-listed Chinese companies, this action by Alibaba only makes worse an already difficult situation.  It creates the unfortunate appearance that executives in China may totally disregard their contractual and fiduciary obligations to shareholders.  The important message to US partners and owners is to review the effectiveness and enforceability of contracts under both US and Chinese law."

Yahoo will attempt to sue, but they have lost the asset at the end of the day, an asset whose potential was a big part of the investment thesis for the company to begin with.  US shareholders were pummeled over something that took place in secret seven months ago, escaping everyone's notice.  If major shareholders like Yahoo and Japan's Softbank can be scammed in front of everyone, what chance have any of us got?

The Red Collar crime wave is beguiling American investors both large and small.  These crooks are laughing at our securities laws and manipulating their own.  None of us are immune:

Not the savviest and most seasoned asset managers - see Glickenhaus & Co watch $4 million evaporate as China Agritech blows up.  (Bloomberg)
Not Yahoo, a player in Asian web properties since the late 90's - listen as Alipay's Jack Ma regales us with his tale of how he bitch-slapped the "declining" web portal company.  (iChinaStock)
Not even the diligent Warren Buffett can sleep soundly with his Chinese investments - see how the car company he invested in there (BYD) is essentially a counterfeiter playing games with the rules of the Chinese court system to get away with it.  (Reuters)

Can American investors trade and hold Chinese stocks?  I suppose they can...but they can also practice juggling with live hand grenades and roaring chainsaws...just because you can do something, doesn't mean you should.

I've disagreed with almost everything Donald Trump has had to say during his part-Presidential run, part final humiliation speech circuit this spring.  But where Trump and I do find common ground is in our distaste with how the Chinese do business and the lack of regard they show our companies and investors from almost every perspective.

As long as Chinese corporate officers and executives are going to blow cigarette smoke in our faces as they take advantage both here and on their home turf, I'll gladly sit out.  Until I get the sense that they have an ounce of respect for our investors, I'll watch the pickpocketing from the sidelines and focus my capital and attention elsewhere.

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Google, China and Brand Management

Google is walking a fine line.

On the one hand, they wanted to stay in the China market.  And why not?  There's a lot of money to be made there.

But what about that other hand?  The "Do No Evil" part that led one of the Google founders to be unhappy with the fact that the company was in China in the first place given that the searches were being censored?

Well, according to the new deal, the searches aren't being censored.  It's just that the sites are.  Or may be.

That's not Google's problem.

But is that really the case?

In a BBC interview, DJ Collins, Google's Head of European Communications, on being asked about that fine line between censorship of the results and censorship of the sites, said, "That's a different issue from saying that Google search, itself, is filtered, which, of course, it isn't.  But the access to some of those websites may be blocked according to what sites are blocked at any one time.  But that's different from saying that Google search, itself, is filtered."

This is one very fine line that the company is walking - not just with the Chinese government but with the perception of the company and its ethics worldwide.

Google likes to present itself as a good corporate citizen.  Socially responsible.  Providing information that everybody needs so that they can be best informed, make the best decisions, be the best citizens.

Do No Evil.

But when they have to tap-dance their way around their own answers...They're not filtering or censoring. It's the other guys....then their ethos becomes open for question in other arenas as well.

In Ken Auletta's wonderful book, Googled, he talks about exactly this dance and how it played out within the company even as the company was exploring entering the China market.  And even more as it played out when the "filtering" (because, let's note that it's not being referred to as "censorship" any longer) began.

And what about that cyber-attack that initially led Google to get out of China and begin redirecting its searches through Hong Kong - an unfiltered market for search results?  What happened to all the commentary by the company on protecting the information of its users?

Let's face it, Google is a very competitive company and, even though the advertising within search is its bread and butter, it has gone and continues actively working to go far beyond that arena for its revenues.

It has taken on Apple with its phones.  Microsoft with its Google Apps suite.  And with its Twenty Percent Days for ongoing innovation, it's just a matter of time before it takes on whoever and whatever is next.

Google is playing a long game.  Doing the deal and getting the license back in China wasn't just about search.  After all, it's such a distant - and becoming evermore distant - Number Two to Baidu for search in China, that this is about long-term presence and access to markets.  Not search.  And certainly not censorship. 

So, they did their deal and got back in - and that's all well and good.  The company will soon be presenting its quarterly results and the word on the street is that they're going to be good.

That's great news for shareholders - in the short term.  Because if Google is seen to be playing fast and loose with its reputation as a socially conscious company by tacitly supporting censorship - under any name - it risks its brand equity in the long run with the rest of the people who aren't sure they can take it at its word any longer to do what they promise.

No evil.

BP and Corporate Responsibility: Avoiding Present and Future Tragedy.

What's going on in the Gulf right now is a tragedy.  There are few other ways to describe it.

It's a tragedy because of the human lives that were lost and the lifelong grief that the families and friends of those who died will endure.

It's a tragedy because of the devastating impact it is having - and will continue to have for years - on the environment into which the oil is spilling.  The death it brings and suffering it is and will continue to have on the animal, bird and plant life - due not only to the spill but to the actions being taken to address it - is incalculable in any currency.

It's a tragedy because of the livelihoods of those who live in all the areas impacted.  Generations of fishermen for food and sport, the associated industries - from hotels in the vicinity to manufacturers of parts for fishing boats that may never be needed again, the many and varied members of the supply chains that have supported the movement of the fresh food caught to the worldwide audiences who enjoyed them.  All and more will suffer for years to come.

And it is most of all a tragedy because it was avoidable.

We do not know the full facts, yet, of what led up to the blowout preventer's failure.  While that is and will be important, what's far more important is what the now consistent drip, drip, drip of information that is coming to light means for corporations and the governments who regulate them.

Each time Tony Hayward, BP's Chief Executive, makes another statement, the trust and belief in everything from business success to corporate R&D is eroded that bit further in the public's mind.  Globally.

Worse, deservedly.

As statements such as his financial breakdown to BP shareholders reporting the very small percentage of the cost of the Gulf Spill to date on the company's profits are made public to a much wider audience, the lack of care that is perceived for the human race and the planet becomes palpable in the public's mind.

BP, like Enron and others, become the name-brand entities that neither can nor should be trusted.  They become the public watchword for how corporations aren't simply uncaring.  They are destructive and dangerous.

From an organizational perspective, this has incredibly and increasingly large implications.

Those internal memoranda and reports as well as the witness testimony being provided in the early-stage hearings simply dig a deeper and deeper hole into which BP, Halliburton, TransOcean and Cameron are falling in the public's mind.  And as they should also in each and every corporation's mind.

Because those data show a continued focus on cost and time.  Not on safety and care.  The arguments and pressures that are reported - within and across the organizations involved - make a compelling case for profit.  Not safety.  The deals cut and pressures put to bear - even on regulatory agencies, which, on many more human levels, deserve distrust and contempt - show that speed was the thing.  The fastest speed to profits.

Back to the corporations, they made promises to regulators which those same companies involved now seem to be saying - and demonstrating - couldn't be kept.  Even whether the disaster-recovery plans that were put forward in case of an emergency were adequate or workable weren't known to be workable.

In effect, prior to drilling, 200 feet was the same as 5,000 feet.  Now that a disaster is in play, there's a really, really big difference between 200 feet and 5,000 feet.

Somehow that wasn't the case just a few months earlier.

But we have what we have - and it becomes a lesson to executives, if you're paying attention.

Pay attention - because on everything from a smaller to a same scale, this can happen to you.

First and foremost:  Never put profits before safety.

That means that, no matter what your organization does, you make sure that policies and procedures in place are designed to ensure the safety of your employees and of the end-users.  Then you make sure that those policies are enforced.  Always and consistently.

Think about it.  From Toyota having to recover its reputation as the highest quality automobile manufacturer to Chinese manufacturers of toys and toothpaste to BP and its now much-publicized "safety" record of deaths in their operations, more time, money and reputation (the three most valuable corporate currencies) is spent on the fix after the fact than would ever have to be spent if the problems had been addressed from the first - when they were identified.

As well, the fix isn't a fix in the eyes of the public.  Toyota will always have a question mark over its name now.  Chinese manufacturers are actively distrusted.  And BP is becoming known as a death-trap for employees and the planet.

That's not going to go away.  In fact, every time any industry in the same sector does something wrong, these examples - and more - will be brought up again and again.

Second:  Suspend disbelief and plan accordingly.

Ninety-seven percent (yes, that's 97%) of what happens in an organization is predictable.  It may not be what you want but you can predict it.

That means that there is only 3% that you can't imagine ever happening.

What that also means is that, because there have been oil spills and drilling disasters in the past, the Deepwater Horizon disaster was part of the 97%.  It was predictable.

Even the failure of the blowout preventer was predictable.  After all, they, too, had failed in the past.

As an executive - and with your executive and management team at all levels - you have to look at what is to determine what can be.  You may not like it, but it's predictable.  And that means that, sooner or later, it's going to happen.

The only 3% component of this disaster is, possibly, its extent.  Possibly not.  After all, BP knew what the oil reservoir was that it was drilling into.  Their scientists also knew the pressures and temperatures at which the drilling would be taking place.

All of that was known prior to any of the consequences that are now in play.  That means that the disaster recovery plans were knowingly inadequate too.  And that's a corporate decision.

Third:  Take the hit.

If your organization does something wrong - from a mistakenly filled order to creating a human and environmental disaster - own up to it.  Not just in pretty words - but, consistently, in your actions as well.

BP seemingly continues to try to game the system for its own and its shareholders' purposes.  From using a dispersant known to be illegal for use in the company's home country to requesting a specific judge to oversee all the future cases brought against the company to trying to settle the early and current cases out of court as quickly as possible, all it looks like is that - even while Hayward continues to say that it's BP's responsibility and it is taking all the actions it can to stop the leak - behind the scenes, all he's trying to do is do further damage to and cheat the people most impacted by his company's actions.

If, on the other hand, you take the hit and own up, customers know that when something goes wrong, you're on their side to fix it.  That has a value far beyond any immediate or mid-term gains - because rather than being remembered for what you did wrong, your organization will have the invaluable reputation for one that is committed to making things right.

Which brings me to the fourth lesson - and it is a personal one.

Think about your legacy.

Within and outside your organization - public or private sector - you're going to be remembered for what you do.  It doesn't matter whether it's wholly internal or splashed all over the online and other media.

Did you keep your word?  Were you fair?  Did you bring an integrity to everything within the organization?  Do the people whose lives you touched - within and without - think well of the organization you led because of your leadership?

Corporate responsibility sounds like a typical "blah-blah-blah."  It's not.  It's all about you, who you are and what you stand for.

CEOs, of course, have a responsibility to their shareholders.  But as a corporate leader, executives and managers at every level have a greater responsibility.  That's to the much broader defined population your organization and its products and services touches.

So, when you think corporate responsibility, think your responsibility and legacy.  Think about what your kids would think of you - knowing everything there is to know.  Then think about how you want them to think about you:  honest, trustworthy, thoughtful of others and others' needs.

There's no reason that can't be your corporate legacy.  It can.  But to get there, you have to actively and conscientiously lead your organization there - every step of the way.