TheCorporateCounsel.net

Yes, I’m angry too. I drafted a profanity-laced blog on Sunday, but held it back to calm down (you can get the profanity if you need it at “Daily Kos” – and the extremism at “Zero Hedge“). Even though I can understand why paying $165 million in guaranteed bonuses (plus another $239 million later) to wind down $2.7 trillion in risky derivatives (now wound down to 1.7 trillion) could make sense to a board (as Andrew Ross Sorkin argues), I’m still having trouble buying into the arguments made in this letter from AIG’s CEO Edward Liddy and AIG’s White Paper for these reasons:

1. Why Did the Government Wait So Long? – One maddening thing is the lost opportunity in dealing with these problems last Fall when the government started to shell out big bucks. The Obama Administration says it just learned about this bonus program, but ignorance is not an excuse when you own 80% of the company.

In any pre-bankruptcy workout, employees can be forced to make compensation concessions as a condition to the restructuring. The employees are given a reality check, based on the compensation they would receive if the company goes into Chapter 11. In the case of AIG, you and I were the lenders – but no one represented our interests to ensure the right people gave the right things up before the company was “saved.” Paulson, et al. screwed us from the start. As noted in this Washington Post column, the same negotiation tactics could be used today.

And what’s the response now that this fiasco has come to light? All sorts of “innovative” solutions are being promised from newly enlightened politicians (or some not so innovative: Geithner is talking about withholding $165 million from a $30 billion payment due to AIG now – as if that is a real solution). As one member told me: I’m from Iowa, so I understand the process of closing the barn door after the horse has bolted.

2. Avoiding a Lawsuit? – One of the primary reasons that the government – which controls just under 80% of AIG – allowed these bonuses to get paid was that it didn’t want to “risk a lawsuit” in paying out the bonuses. Risk a lawsuit? That was your worst case scenario in deciding not to challenge these bonuses? [Prof. Cunningham provides some examples of ways payment might have been avoided under the bonus plan; here is analysis from others.]

How many times in your life have people broken a contract to drive you to a better deal? This is “Business 101” stuff. Real business people realize that breaking contracts is an acceptable way to renegotiate terms – for starters, look at all the broken merger deals over the past year. The government is probably right to be wary of unilaterally abrogating employment contracts willy-nilly. But a little renegotiation could have gotten a lot of results here.

For example, I don’t understand why they didn’t offer to swap cash for equity (e.g., restricted stock that doesn’t get paid back until after AIG gets back on its feet.) That approach would recognize market realities and still provide a decent incentive for current employees. It’s done all the time by Silicon Valley companies that have fallen on hard times. I suppose a disgruntled employee could still file a wage claim, but it’s hard to see a court ruling in favor of a well-compensated employee that refused a reasonable settlement.

3. Feels Like Blackmail – One of AIG’s arguments is that “retention” bonuses were necessary to retain the employees of their Financial Products unit because they are the only ones who could understand AIG’s complicated mess (note when the bonus plan was created last year, the stated purpose was not retention!). It sure sounds like blackmail on the part of the quants who control AIG’s derivatives book. There have been a lot of layoffs on Wall Street lately – would hiring talented individuals to work for AIG really be so difficult?

My personal favorite is Liddy’s claim that these bonuses were necessary to prevent the competition from stealing these outstanding employees. Some reports say that some of these employees are indeed being courted because knowledge of counterparty strategies can be lucrative; others claim that the employees getting paid the biggest bonuses no longer have any relevance to AIG since that unit is no longer soliciting new business. I imagine both of these thoughts might be correct, but there are bigger issues at stake here (not to mention that a total of 52 bonus recipients are not even employed by AIG anymore, including one who received over $4 million).

4. Who’s In Charge Here? – I guess owning 80% doesn’t get you much when you’re the government – not even the courtesy of transparency when you repeatedly request it. Now under heavy fire, AIG has started to disclose counterparties that received some of the bailout money. I can’t imagine any other situation where a 80% owner appeared to have so little clout.

5. Some Will Be Connecting Dots – It’s already being reported that bonuses were paid out to some executives at some of the institutions who received money from AIG. Brace yourself as this story has “legs” and I imagine is just the first in what will be a long series of pieces about misuse of taxpayer money. The cycle will be the government rushing to bail someone out (sometimes against the recipient’s will!), abuse of the bailout money, Congressional outrage, repeat.

6. Can Everyone Stop Treating Us Like Children? – I’m so sick of the corporate executives and the government feeding us a bunch of bull. I’m having trouble trusting anyone. I imagine this is a widely-held belief. It doesn’t help when so many lies are thrown at us to explain the latest foul-up.

Executive Pay: Once Again, Where Do We Go From Here?

I sure hope the furor over these AIG bonuses is yet again a wake-up call for the pay apologists among us. As I recently wrote, it’s time for all board advisors – lawyers and consultants – to start providing responsible advice and get their head out of the sand. Times have changed and it’s not going back. The days of arguing that excessive pay is necessary to retain an executive who might jump ship are over. Excessive pay is never justifiable. It’s just excessive.

Unless – and until – boards and their advisors take charge of their own destiny and fix all that is broken, all the legislative and regulatory fixes in the world won’t stop them from finding loopholes and continuing the excesses. When boards recognize that the causes of these excesses are a relatively recent phenomenon (for starters, read this) – and that excessive pay arrangements aren’t some type of birthright for CEOs – it’s easy to go back two decades and recreate what was a more reasonable way of doing things in the executive compensation area.

A board with the proper mindset can employ the few simple tools we have identified to fix CEO pay and save themselves a lot of heartache easily. They just need the will to do so, along with advisors with the backbone to speak full truths.

I’m the kind of guy who likes to think in terms of T-shirts. For this AIG debacle, my idea of a cool T-shirt would look like this:

– Front – “AIG, I love you even more today than yesterday…”

– Back – “…Yesterday, you really pissed me off.”

The SEC Staff on M&A

Tune in tomorrow for this DealLawyers.com webcast – “The SEC Staff on M&A” – to hear all the latest from:

– Michele Anderson, Chief, SEC’s Office of Mergers & Acquisitions
– Dennis Garris, Partner, Alston & Bird LLP and former Chief, SEC’s Office of Mergers & Acquisitions
– Jim Moloney, Partner, Gibson Dunn & Crutcher LLP and former Special Counsel, SEC’s Office of Mergers & Acquisitions

And stay tuned for this DealLawyers.com webcast: “Deal Protection: The Latest Developments in an Economic Tsunami.”

Express Yourself Anonymously: An AIG Poll

Feel free to select more than one choice in this poll:

– Broc Romanek