Prescient ValueA Path Partners Newsletter
1st Quarter 2008In This Quarter's Issue:
IntroductionThis particular version of Prescient Value describes several important issues within the education realm as well as dealing with business ethics, Sarbanes-Oxley, fair value accounting, succession planning, the federal budget deficit and updated business valuation research. Thank you for taking time to read this material — I certainly enjoyed writing about these important subjects. Ethical Decision MakingRobert Prentice penned an outstanding article for the November / December 2007 issue of the Financial Analysts Journal entitled "Ethical Decision Making: More Needed Than Good Intentions." The article describes numerous cognitive biases we maintain which may predispose us toward unethical decision making when confronting difficult circumstances. Mr. Prentice suggests that the strong value associated with individualism within Western societies creates "the tendency to overemphasize character and underemphasize situational influences" when evaluating sources of unethical behavior and the "the circumstances in which we find ourselves often (not always) have more to do with the decisions we make and actions we take than do our basic character traits."1 Common cognitive biases which may enable unethical decision making include:2
Mr. Prentice advocates (for individual decision makers) a heightened sense of situational vulnerability to unethical decision making, improved anticipation of potential ethical problems, actively and expressly keeping ethics within decision making frames of reference, monitoring of rationalizations that tend to facilitate dishonest behavior and courageously acting (and leading) when unethical behavior is considered. Mr. Prentice's articles states, in one of the more powerful references to the psychological aspects of this issue, that: "I must warn you of a bias you likely possess that might shield you from drawing the right conclusions... Most of us construct self-enhancing, self-serving, egocentric biases that make us feel special — never ordinary, and certainly above average. Such cognitive biases serve a valuable function in boosting our self-esteem and protecting against life's hard knocks... Yet, these biases can be maladaptive as well by blinding us to our similarity to others and distancing us from the reality that people just like us behave badly in certain toxic situations... That means when you read about (the psychological evidence) you might well conclude that you would not do what the majority has done, that you would, of course, be the exception to the rule. That statistically unreasonable belief (since most of us share it) makes you even more vulnerable to situational forces precisely because you underestimate their power as you overestimate yours."3 Education and Economic ProsperityIn advance of completing a practicum teaching assignment in New Zealand in 2005, and in connection with research I conducted on that country and others visited during an extended international itinerary, I consulted the Central Intelligence Agency's Word Fact Book, an outstanding information source describing the histories, geographies, people, governments and economies of nations recognized by the United States. During the course of this research, I additionally opted to read the Fact Book's report on the U.S. and the economic section of that report read (in part) as follows: "The U.S. has the largest and most technologically powerful economy in the world, with a per capita GDP of $46,000. In this market-oriented economy, private individuals and business firms make most of the decisions, and the federal and state governments buy needed goods and services predominantly in the private marketplace. US business firms enjoy greater flexibility than their counterparts in Western Europe and Japan in decisions to expand capital plant, to lay off surplus workers, and to develop new products. At the same time, they face higher barriers to enter their rivals' home markets than foreign firms face entering US markets. US firms are at or near the forefront in technological advances, especially in computers and in medical, aerospace, and military equipment; their advantage has narrowed since the end of World War II. The onrush of technology largely explains the gradual development of a "two-tier labor market" in which those at the bottom lack the education and the professional/technical skills of those at the top and, more and more, fail to get comparable pay raises, health insurance coverage, and other benefits. Since 1975, practically all the gains in household income have gone to the top 20% of households."4 Since 1975, practically all the gains in household income have gone to the top 20% of households! I was reminded of this vexing economic, social and political issue when reading former Federal Reserve Chairman Alan Greenspan's The Age of Turbulence which dedicates a chapter to the related topics of education and income inequality. Chairman Greenspan suggests that the disconnect between the skills sets demanded from a global, knowledge-based economy vis-à-vis the educational outcomes produced by the U.S. elementary and secondary education systems has helped deprive individuals from the bottom to the middle rungs of our income latter from participating in the nation's economic prosperity. This recognition is generally shared among experts within the policy making community but what can we do about it? Mr. Greenspan believes that utilizing "different pay scales for high school teachers in different disciplines, enhancing elementary and secondary school sensitivity to market forces and removing teacher certification barriers" would improve the academic performance (and subsequent economic opportunities) for young American students.5 Although Mr. Greenspan's suggestions might serve to enhance our schools' instructional staff quality and flexibility, I believe fundamental reform is more likely to improve the performance of the U.S. public school system as a whole — see following section. Education ReformThe current structure within which many U.S. educators attempt to achieve outstanding outcomes for their students generally fails to sufficiently empower teachers. Well intended, idealistic and highly-capable educators too often become disillusioned and relatively ineffective, primarily, in my opinion, as a result an organizational design and behavioral flaw. The impressive Commission on the Skills of the American Workforce, sponsored by The National Center on Education and the Economy, indicated in its 2007 Tough Choices or Tough Times report that "we have built a bureaucracy in our schools in which, apart from the superintendent of schools, the people who have the responsibility do not have the power, and the people who have the power do not have the responsibility."6 As a result, the professionals residing at the important point of service delivery lack a sense of ownership in and impact upon organizational mission. The Commission on the Skills of the American Workforce recommends a revolutionary re-design of the American public education system. Many of the Commission's suggested institutional methods of operation would seem to parallel those utilized within successful private sector enterprises: "communicate clear goals, find ways to accurately measure progress, push decisions as to how to reach those goals as far down toward those responsible for rendering the service as possible, change the role of middle management from micromanaging to monitoring and supporting, hold empowered people on the front line accountable as gauged by agreed-upon measures, reward success and provide meaningful consequences for failure."7 This new institutional modus operandi would be enabled through dramatic changes in district and school governance, financing and management of public education. Among the ideas promoted by the Commission are:8
I did say "revolutionary" — the Commission aptly suggests such reform will take tremendous courage and leadership. The stakes are enormous and I hope, regardless of education policy makers' and practitioners' views of the Commission's specific recommendations, the report will engender news perspectives and initiatives toward achieving meaningful, systematic reform of the U.S. public education system. Interest Rate Swaps — Caveat Emptor"It's a form of institutional larceny under the guise of getting taxpayers a good deal."9 Public school districts facing difficult budgetary constraints are increasingly looking toward creative ways of generating funding and reducing future borrowing costs and money center banks and public finance advisors have just the product. An interest rate swap contract involves two parties (in this case a lending institution and public school district) that agree to exchange payments over a period of time that may last as long as 30 years. One party typically agrees to pay a fixed rate and the other pays a rate that varies relative to a benchmark index. These contracts are pitched to school districts as a means of both generating significant upfront cash for the district as well as reducing interest rate risk associated with existing and future bond issuances. The transactions are often sourced for banks through financial advisors who consult schools boards as to the financial merit and fairness of the transactions, in spite of the fact that they, the advisors, receive fee income from the bank in the event the deal is closed. Huh? Apparently, the magnitude and nature of fees charged for and the inherent complexity associated with these instruments are not always clearly disclosed to the school districts — what districts don't know may indeed hurt them. The value of interest rate swaps hinge on four primary factors: the length of the option expiration period, credit market expectations with respect to future interest rates, the relationship between a fixed rate and variable interest rates and the volatility of lending rates.10 Although the contracts are sold to districts under the notion of reducing future interest rate risk, a school district's obligation inherently represents an implied bet on the relative movements (spread) of short term and long term interest rates — for time frames extending as long as 30 years! If (when) interest rates trend in directions not especially well-considered, explained and understood when the swap contract was entered, the resulting payment liability can exacerbate the district's budgetary constraints the swap arrangement was intended to address. Such was the unfortunate instance involving a Pennsylvania school district that entered an interest rate swap in September of 2003 to hedge interest rate risk associated with a $38.7 million bond issued in 2001. In this case, interest rates had fallen in the two years after issuance of the bond and the district was prohibited from refinancing the bond (for 10 years) to take advantage of lower rates. Within that context, it may well have seemed reasonable to assume that future interest rates might well increase; hence, the district effectively bet upon and stood to benefit from a widening of interest rate spreads. This particular $2 million contract generated $785,000 for the district with the balance (60%) of the contract's revenues provided to the bank, bond insurer, financial advisor and lawyers. After interest rates spreads indeed narrowed over the ensuing 3 years of the swap contract period, the district was required to pay the bank $2.9 million to terminate the agreement. Interest rate swaps are highly-profitable and complex financial instruments sold in less than transparent capital markets. Although 40 states now permit government bodies explicit authority to enter such derivative contracts, these arrangements are not regulated by the Securities and Exchange Commission or Municipal Securities Rulemaking Board. Interest rate swaps should only be considered as a financing and hedging strategy for school districts following very serious exploration of current and potential contract costs. Federal Budget DeficitStimulus packages aside, when will fiscal discipline return to Washington? Alan Greenspan states in The Age of Turbulence (which I now habitually quote) that "not long ago I had the occasion to assess the change in fiscal status of the United States since January 2001, when the (Bush) administration took office. I compared the budget outlook through September 2006 under the then current policy (existing law and budget conventions) as estimated by the Congressional Budget Office, with the actual outcomes through 2006. Debt to the public outstanding projected for the end of September 2006 was $1.2 trillion. The actual outcome was $4.8 trillion. That is a rather large miss. To be sure, a significant part of the shortfall in receipts owed to the CBO's failure to judge adequately the looming shortfall in capital gains and other taxes related to the stock market decline. But by 2002, that was already known to the administration and the Congress — and they altered their policy approach very little. The rest of the shortfall owes to policy: tax cuts and spending increases. The costs of the Iraq war and antiterrorism measures do not (entirely) explain the gap. Appropriations for both totaled $120 billion in fiscal year 2006 (CBO estimate). This is a large sum, but in a $13 trillion economy, it readily absorbable. Federal outlays on national defense, which in fiscal 2000 hit a sixty-year low of 3% of Gross Domestic Product, jumped back to around 4% in 2004 and have since flattened out — they were 4.1% in 2006. But spending in the civilian sector, so-called nondefense discretionary outlays, has soared past the projections made in the surplus-rich days of the new millennium... The abuse of "earmarks" became extreme, as politicians exercised power to direct government spending to particular projects, leading to lobbying and corruption scandals in 2005. The Pork Barrel Reduction Act... observed that earmarks in congressional appropriations proliferated from 3,023 in 1996, at the end of Clinton's first term, to nearly 16,000 in 2005, the start of Bush's second term."18 Fair Value AccountingThe fair value standard promulgated by the Statement of Financial Accounting Standards (FAS) 157 takes effect for most companies in 2008. A primary impetus for issuance of FAS 157 is to improve financial reporting transparency for investors. This standard provides guidance for the valuation of tangible and intangible assets and requires assumptions regarding prices that would be received to sell assets vis-à-vis prices that would be paid to acquire assets. The Fair Value Hierarchy utilized by FAS 157 states that fair value determinations should include reference to prices in active markets for identical assets. Short of identifying "identical" assets, an analyst would rely upon "similar" asset prices or observable inputs other than quoted prices. In the absence of similar asset prices or observable inputs, one would lastly utilize unobservable inputs to determine the asset's fair value. Some early adopters of FAS 157 have experienced significantly increased earnings volatility as the price for greater financial reporting transparency. Early adopters include financial institutions owning the now very troublesome subprime-related asset back securities. As liquidity for these particular securities evaporated, financial institutions have increasingly relied upon valuation models and more subjective fair value determinations, apparently exacerbating the recognition of losses associated with their security positions. Hence, in the interest of improving financial reporting transparency, these financial institutions evidently suffer the double valuation whammy of additional write-offs and greater earnings variability. Sarbanes-Oxley Section 404The Institute of Management Accounting (IMA) actively supported the U.S. Chamber of Commerce Center for Capital Markets Competitiveness and the American Stock Exchange by co-sponsoring a November 8, 2007 report regarding Section 404 implementation costs for small businesses. On December 12, 2007, the Securities and Exchange Commission's (SEC) announced a one year delay with respect to implementation of Section 404(b) for non-accelerated filers — companies with market values less than $75 million. Section 404(b) is the Sarbanes-Oxley provision requiring an external audit of a company's internal controls over financial reporting. While supporting the SEC's proposal, the IMA noted several important issues:11
The aforementioned November 8, 2007 survey of some 5,000 accounting and finance professionals noted that 58% of the respondents believe that Section 404 will not help in the detection and prevention of fraud!12 Section 404 seems to represent an enormous regulatory initiative and business operational issue that is in fact presently resented within the small business community. How should small businesses seek to successfully confront this requirement? APQC Publications has produced a report entitled Leveraging SOX to Optimize Shareholder Value — a "best practices" guide to assist companies with successful design of SOX compliance systems. Although the dataset for this report consists of larger public companies, I believe useful insights can be gleaned from its contents for small businesses with respect to Section 404. The study's findings are summarized below:13
Succession PlanningOwners of small businesses are generally pre-occupied with running the day-to-day affairs of their companies and many entrepreneurs possess a natural aversion to the topics of business succession and estate planning. My suspicions concerning the apparent disconnect between owners' best interests and inactions, as it relates to succession planning, were confirmed upon reviewing some recent studies on the issue. PricewaterhouseCoopers published a study in November of 2007, entitled Making a Difference: a U.S. Perspective, which surveyed 89 family held companies with 250 or fewer employees. Although 1 in 4 anticipated an ownership change during the ensuing five years, only "half of the respondents said they had chosen a successor and 44% did not have in place a succession plan for key senior roles."14 "Sixty percent of the executives surveyed said that one or two family members would be named successors."15 A more extensive study sponsored by MassMutual Financial Group, Kennesaw State University College of Business and the Family Firm Institute surveyed 1,035 U.S. family-held companies across diverse industry and geographic spectra. This particular report suggests that "while they are performing and growing well, family businesses face some significant challenges. Perhaps first among these is the issue of succession."16 This study notes that:17
One cannot characterize the failure to properly plan for business succession and potential estate tax liabilities as benign neglect given the inherent management transition risks and potential costs associated with sudden changes in business ownership. Owners of family-held businesses should clearly develop and periodically re-evaluate succession plans well in advance of expected eventualities. Valuation ResearchOn August 29, 2007, Mercer Capital published the summary of a banking industry study of some 1,200 deals that compared purchase price multiples, (price/earnings and price/book ratios) received by sellers who retained financial advisors to manage their transactions versus those that took the for-sale by owner route. In describing the study's potential relevancy to other industries, the report notes that "the availability of information (given the extent of the regulated nature and public disclosure within the banking industry) allows business owners to have a reasonable idea of the value of a particular banking franchise and one would suppose that the need for a profession M&A intermediary would be mitigated by the increased knowledge of the parties involved in the transaction. The analysis clearly indicates that transaction advisors play a very significant role in helping owners maximize the value received for their banks, despite the increased level of information available. Thus, one can assume that the importance of a transaction advisor would be magnified in transactions in other industries, particularly those industries where both parties have less access to information."19 The Mercer study indicated that sellers retaining a financial advisor received 20% higher price/earnings and 15% higher price/book multiples than those who sold without the assistance of a transaction advisor.20 The report additionally if expectedly states that the multiple differences are "even more pronounced when the seller enters into negotiations without a transaction advisor and the buyer has engaged an advisor or has in-house M&A staff." Two additional studies summarized by Lawrence Levine in the Winter 2007 issue of Business Valuation Review deal with (1) differences in acquisition premiums paid for public companies as a function of acquirer ownership (public or private) and (2) the impact fairness opinions have upon acquisition premiums given the nature of the relationship the financial advisor maintains with parties involved in the transaction. The first study involved an analysis of 1,292 transactions which occurred during the 1990-2005 time frame where either private companies, private equity firms or public companies purchase 100% of a public company for cash. The differences in premiums between private and public bidders were sizeable:22
The second study evaluated the impact of fairness opinions upon purchase price premiums paid for 1,927 companies over the 1980 – 2004 time period — 60% of these transactions involved a fairness opinion on at least one side of the deal. The study examined how shareholders respond to the merger premium based on whether there is an independent or non-independent advisor providing the fairness opinion.23 A non-independent advisor in this study's context describes a financial advisor with an existing (pre-fairness opinion) role in the deal as well as a contingent fee that is earned upon closing of the transaction. Compared to deals without a fairness opinion, merger premiums, on average, were:24
When fairness opinions were provided to both acquirer and target in the transaction, average merger premiums, again relative to deals without opinions, were:
Qualified AppraiserMargaret Olsen notes in the Fall 2007 issue of ASA Professional that the IRS has significantly expanded its definition of "Qualified Appraiser" as it relates to the issue of determining the value of charitable contributions (IRS Publication 561). Ms. Olsen states that "if a donor chooses unwisely, and an appraiser is found to be unqualified, the appraisal that was submitted by the unqualified appraiser also becomes an unqualified appraisal. The donor could lose his or her entire charitable contribution deduction. Any questions regarding the qualifications of the appraiser may be raised on audit (after the tax report due date). Therefore, there is no second chance for the donor."25 A "Qualified Appraiser" must meet the following requirements:26
Footnotes 1 Robert A. Prentice, "Ethical Decision Making: More Needed Than Good Intentions", Financial Analysts Journal, (November / December 2007), 17. 2 Ibid, 18-24. 3 Ibid, 24. 4 Central Intelligence Agency, "The World Fact Book", Accessed March 6, 2008 from https://www.cia.gov/library/publications/ the-world-factbook/geos/us.html. 5 Alan Greenspan, The Age of Turbulence: Adventures in a New World, (New York: The Penguin Press, 2007), 404-406. 6 National Center on Education and the Economy, "Tough Choices or Tough Times: The Report of the New Commission on the Skills of the American Workforce", (San Francisco: Jossey-Bass, 2007), xx. 7 Ibid, XXVII. 8 Ibid, 68. 9 Martin Z. Braun and William Selway, "Hidden Swap Fees by JPMorgan, Morgan Stanley Hit School Boards", Accessed February 4, 2008 from http://www.bloomberg.com/apps/news?pid= newsarchive&sid=ay5LDbjbjy6c. 10 Ibid. 11 "IMA Supports SEC Proposal to Postpone Small Business Implementation of SOX; But Issues Remain", accessed on December 20, 2007 from http://www.imanet.org/newsletter/article.asp?NID=72&AID=884. 12 "U.S. Chamber of Commerce Releases Cost of SOX Survey Report; IMA Provides Research Contributions", accessed on November 20, 2007 from http://www.imanet.org/newsletter/article.asp?NID=69&AID=849. 13 APQC Publications, "Leveraging SOX to Optimize Shareholder Value", accessed on March 8, 2008 from http://www.apqc.org/portal/apqc/ksn/01_NGCC_Snapshot _ExSum.pdf?paf_gear_id=contentgearhome&paf_ dm=full&pageselect=contentitem&docid=143080. 14 PricewaterhouseCoopers, "Making a Difference: A U.S. Perspective — The PricewaterhouseCoopers Family Business Survey 2007/08", accessed on March 8, 2008 from http://www.ffi.org/images/misc/2007_PWC_ family_business_survey_0708.pdf, 23. 15 Ibid, 24. 16 Mass Mutual Financial Group / Kennesaw State University Coles College of Business / Family Firm Institute, "American Family Business Survey", accessed on March 8, 2008 from http://www.ffi.org/images/misc/2007_MM_familybusiness.pdf, 7. 17 Ibid, 7-8. 18 Alan Greenspan, The Age of Turbulence: Adventures in a New World, (New York: The Penguin Press, 2007), 242-244. 19 Mercer Capital, "Empirical Evidence Confirming the Importance of a Transaction Advisor", accessed on August 31, 2007 from http://www.bizval.com/index.cfm?action=page&id=481. 20 Ibid. 21 Ibid. 22 Lawrence Levine, "Why Do Private Acquirers Pay So Little Compared to Public Acquirers", Business Valuation Review — Valuation Research Notes, (Winter 2007), 137. 23 Lawrence Levine, "Fairness Opinions in Mergers and Acquisitions", Business Valuation Review — Valuation Research Notes, (Winter 2007), 139. 24 Ibid, 140. 25 Margaret Olsen, "Who Is a Qualified Appraiser, and Why Should We Care?", ASA Professional, (Fall 2007), 21. 26 Ibid. Bibliography APQC Publications. "Leveraging SOX to Optimize Shareholder Value". Accessed on March 8, 2008 from http://www.apqc.org/portal/apqc/ksn/01_NGCC_ Snapshot_ExSum.pdf?paf_gear_id= contentgearhome&paf_ dm=full&page select=contentitem&docid=143080.
Braun, Martin Z. and Selway, William. "Hidden Swap Fees by JPMorgan, Morgan Stanley Hit School Boards". Accessed February 4, 2008 from http://www.bloomberg.com/apps/
Central Intelligence Agency. "The World Fact Book". Accessed March 6, 2008. Available from https://www.cia.gov/library/publications/ Greenspan, Alan. The Age of Turbulence — Adventures in a New World. New York: The Penguin Press, 2007.
"IMA Supports SEC Proposal to Postpone Small Business Implementation of SOX; But Issues Remain". Accessed on December 20, 2007 from http://www.imanet.org/newsletter/article.asp? Lawrence Levine. "Fairness Opinions in Mergers and Acquisitions". Business Valuation Review — Valuation Research Notes. Volume 26, Issue 4 (Winter 2007), 139-140. Lawrence Levine. "Why Do Private Acquirers Pay So Little Compared to Public Acquirers". Business Valuation Review — Valuation Research Notes. Volume 26, Issue 4 (Winter 2007), 137-138.
Mass Mutual Financial Group, Kennesaw State University Coles College of Business and Family Firm Institute. "American Family Business Survey". Accessed on March 8, 2008 from http://www.ffi.org/images/misc/
Mercer Capital. "Empirical Evidence Confirming the Importance of a Transaction Advisor". Accessed on August 31, 2007 from http://www.bizval.com/index.cfm? National Center on Education and the Economy. "Tough Choices or Tough Times: The Report of the New Commission on the Skills of the American Workforce". San Francisco: Jossey-Bass, 2007. Olsen, Margaret. "Who Is a Qualified Appraiser, and Why Should We Care?". ASA Professional. (Fall 2007), 21. Prentice, Robert. "Ethical Decision Making: More Needed Than Good Intentions". Financial Analysts Journal. Volume 63, Issue 6 (November / December 2007), 17-30.
PricewaterhouseCoopers. "Making a Difference: A U.S. Perspective — The PricewaterhouseCoopers Family Business Survey 2007/08". Accessed on March 8, 2008 from http://www.ffi.org/images/misc/2007_PWC_
"U.S. Chamber of Commerce Releases Cost of SOX Survey Report; IMA Provides Research Contributions". Accessed on November 20, 2007 from http://www.imanet.org/newsletter/
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