50 Most Powerful Women 2008
Fortune’s annual list of America’s leading businesswomen launches in September. Do you think women have made impressive gains in corporate America, or do they have a long way to go? Are women paid fairly? Are they rewarded at work equally? Do women make better leaders? What are the biggest obstacles holding women back? What will the next generation of successful women look like?
Worst week ever!
It was a strange day on 50th St. yesterday. And for more prosaic reasons than you might think. For the last four years, my walk to the office from our subway stop has gone more or less like this: I stop at the crosswalk in front of the Lehman Brothers building. I marvel at the incredible weirdness of the giant screens on its exterior playing video of a Lehman logo floating across nature scenes. I cross, look up, and laugh about the line of young men’s backs in that oh-so-familiar pale Wall Street blue leaning on a window ledge a few floors up in some regular morning meeting. And I arrive at the doors of the old Time & Life building, happy on my funky writer’s proverbial high horse.
But yesterday, when I got to our block, the Lehman building’s screens all said Barclays. The mountains and sky tape had been replaced by a static cerulean background. And who would’ve guessed — I felt a little pang of sadness. The woman in front of me on the sidewalk stopped to take a picture of the new look, and I couldn’t help but notice that, against all sense and precedent, I was nostalgic for Lehman and that lame loop.
Whatever you think of what’s happened over the last 10 days or so, it sure has been a reality check. And while everyone’s been affected, I think we Yers have gotten it even more from all sides. There is, of course, the crisis itself, which underscores so much of the discussion we’ve had on The Gig concerning Yers’ skittishness about corporate America. (Remember “Job-hopping Gen Yers aren’t disloyal. They’re smart”? But well before things got into $700 billion bailout territory, the broader distrustful youth story was already shaping up, and each day seemed to bring an event more shocking than the last. First, there was the obvious hook — the 9/11 anniversary — something that’s been so formative for our cohort and whose impact doesn’t seem to have dimmed much. I’d scarcely started planning that post before news hit of David Foster Wallace’ssuicide, and while he clearly wasn’t a Yer, the voice of Xer disaffection was well loved by many of my friends, and his death seemed to make us all take a step back and reevaluate in a way that other losses haven’t.
All of which might have been worth discussing, until 10 seconds later, when the headlines about Lehman and Merrill Lynch got hysterical. By the time I headed out last Monday morning for a quick business trip to Southern California, I was cringing in fear every time I turned on the TV or got on the Web. And just in case the big picture was too far removed, there were all sorts of more personal reminders, like the cab driver on the way to JFK who told me about a young man he’d dropped off early that Monday — the kid had just gotten married on Sunday, was heading to Greece for his honeymoon Monday afternoon, and on the morning he should’ve been basking in the newlywed glow, he was heading to Lehman to pack up his office and trying not to think about what he’d be coming home to in a few weeks.
Who could blame us for being afraid? And let’s be honest, given recent events, obviously our wariness isn’t exactly unjustified. It used to be that going to a company like Lehman was the “stable” path, and just look where those folks are now. (Not to mention where they will be; as career management consultant Paul Bernard told CNNMoney, “Only 20% to 25% of Lehman employees will eventually land Wall Street jobs. There are just not that many jobs.”)
And while the big bailout may save the hour, all the current flailing just keeps reminding me of something many of you have heard over and over already — that we will be the first generation in recent American history to be economically worse off than our parents. Perhaps, in the past, I understood this intellectually, but it’s a reality now — and one so stark it sort of explains Yers’ collective neurosis. Whatever the course correction, however successful, it seems we — and that means everyone, but especially Yers — are in for it.
Because, in case you didn’t know already, we’re in all kinds of debt, our parents have no real savings, and by the time we have kids, well, a decent kindergarten could cost as much as college did for us — all points that led my friend and editor to write in an e-mail, “Boy, are you guys wimps!” Easy for him to say; he’s the boss, and old enough to tell stories about walking uphill both ways to school barefoot in the snow. So while, to him, I know even talking about the situation in which we find ourselves sounds like whining, I think that’s mostly because it’s such a debacle that any discussion would sound a bit whiny. And hey, when you consider what the previous generation’s mistakes could cost us in the long run, I think we’re entitled to some complaining.
There is an upside, though, and it too fits into the Yer philosophy — but on the optimistic, rebellious, save-the-world side. Roger Cohen touched on it last week in his New York Times column, “The King Is Dead”. ”When I taught a journalism course at Princeton a couple of years ago,” he writes, “I was captivated by the bright, curious minds in my class. But when I asked students what they wanted to do, the overwhelming answer was: ‘Oh, I guess I’ll end up in i-banking.’ It was not that they loved investment banking…it was the money and the fact everyone else was doing it.” Not so much anymore. And while I am going to miss the morning love affair Lehman and I had, if a small shift in the narrow thinking Cohen criticizes is what comes out of all this for us, I think I can live with that. Now we just have to start saving for (our parents’!) retirement.
Cloud of uncertainty over non-profit HMOs
This fall the U.S. Supreme Court will decide whether to hear a case of great interest to the $1 trillion non-profit healthcare industry: whether that sector, especially non-profit HMOs, will continue to qualify for tax-exempt status.
In 2002, the Internal Revenue Service stripped Vision Service Plan — a national HMO that reimburses for optometry services not covered by most medical plans — of the tax-exempt status it had enjoyed for 42 years, notwithstanding that there had been no change in the applicable laws or regulations and no change, VSP maintains, in its business model.
“This is, in essence, an attack on the non-profit HMO model,” says former independent counsel Ken Starr, who filed VSP’s petition seeking Supreme Court review of the case last month, and who says he expects the Court to rule on the petition in November.
Starr maintains that the case “far transcends VSP,” and is being “very closely watched” throughout the entire non-profit healthcare industry. Starr is now of counsel at his long-time law firm Kirkland & Ellis, as well as dean of the Pepperdine Law School.
Of course, it’s Starr’s job to hype the case — it’s one way to try to persuade the Supreme Court to hear it — but Thomas K. Hyatt, the co-author of the treatise The Law of Tax-Exempt Healthcare Organizations, confirms in an interview that VSP’s case has created significant “problems in the field,” and that it tees up important issues for “all nonprofits arranging for healthcare, which is the way most modern HMOs operate.” By “arranging for healthcare,” Hyatt means those HMOs that send enrollees to networks of participating healthcare providers, rather than requiring that they see staff doctors actually employed by the HMO itself. (Hyatt is a partner at the Baltimore-based Ober Kaler law firm.)
Historically, Hyatt explains, most non-profit HMOs have been eligible for tax-exempt status either under 501(c)(3) or 501(c)(4) of the Internal Revenue Code. Those that used their own staffs of doctors, like Kaiser-Permanente, could often qualify for (c)(3) status, which, unlike (c)(4) status, not only confers exemption from income tax but also provides that donations to the organization will be tax-deductible. Other HMO business models, however, like those that use contracting networks of doctors, could still usually qualify for 501(c)(4) tax exemption, which is what VSP had enjoyed since 1960. (Under the regulations, to qualify for 501(c)(4) status, an organization must be “primarily engaged in promoting … the common good and general welfare of the people of the community.” In the past, providing healthcare services was, itself, considered a service to the community.)
In 1986, Congress amended the law to strip providers of “commercial-type insurance” of their tax-exempt status, in a move that was targeted at many Blue Cross insurers, which were felt to be getting an unfair advantage over their for-profit competitors while operating, in practice, in almost identical ways. But that legislation contained a safe-harbor provision that was widely understood to preserve the tax-exempt status of most nonprofit HMOs. (The provision specifies that “commercial-type insurance” won’t include “incidental health insurance provided by a health maintenance organization of a kind customarily provided by such organizations.”)
VSP continued to enjoin its exemption for another 13 years, but in 1999, shortly after the company expanded from a regional to a national operation, the Internal Revenue Service opened an inquiry into its status. In 2002, without making clear whether the 1986 amendment played any role in its thinking, the IRS revoked VSP’s tax-exemption, effective Jan. 1, 2003, explaining that a nonprofit health care provider that limits its benefits to a class of subscribers (its enrollees) would no longer be eligible for tax exemption unless it also provided some unspecified amount of additional “community benefits.” (Since more than 40% of VSP’s enrollees were participants in Medicaid, Medicare, or comparable state-sponsored programs, and VSP was contributing millions of dollars worth of services each year to charities like Sight For Students, VSP claims that the IRS’s determination was vague and arbitrary.)
VSP began paying taxes in 2003, but it also filed suit that year to recover those taxes. In December 2005, U.S. District Judge Lawrence Karlton of Sacramento ruled for the IRS in an opinion that stressed that VSP was not an actual provider of healthcare services, but an “arranger” of such services. (While this fact had previously been seen as a factor disqualifying an organization from (c)(3) status, it had not been previously thought to disqualify an organization from (c)(4) status.)
Judge Karlton did not discuss the 1986 amendment or its safe harbor. Instead, he focused on the commercial manner in which VSP operated. (Under IRS regulations, an organization isn’t being operated primarily to promote social welfare if it is being operated “in a manner similar to organizations which are operated for profit.”) Judge Karlton emphasized, for instance, that the company earned $34.5 million in net income in 2003 and that the company’s top executives received bonuses drawn from that net income. He also noted the relatively high salaries of its top executives (the CEO had received $395,000 plus bonuses in 2003) and that they enjoyed perks like the use of a “luxury company car.”
VSP appealed to the U.S. Court of Appeals for the Ninth Circuit, which then affirmed in a terse, opaque, three-paragraph ruling that did not discuss the 1986 amendment, its safe harbor, or either issue Judge Karlton had focused upon. Instead, the three-judge panel ruled that VSP was not “primarily engaged in promoting . . . the common good and general welfare of the people of the community” because it was primarily organized to benefit its own “subscribers rather than the general welfare of the community.” The Ninth Circuit’s ruling was also “unpublished,” meaning that, notwithstanding all the attention nonprofit lawyers around the country had been giving the crucial case in hopes of receiving guidance to pass along to clients, lawyers were not supposed to treat the ruling as carrying precedential weight.
VSP’s Supreme Court counsel Starr filed its certiorari petition in August, and last week it received amicus brief support from, among others, the three charities with which it partners in its Sight For Students program: Prevent Blindness America, the National Association of School Nurses, and the National Council of La Raza. The government, represented by assistant to the Solicitor General Gregory G. Garre, is expected to file a response on Oct. 10.
At stake, Starr asserts, is whether the IRS — without having received any direction from Congress — will succeed unilaterally in “driving the healthcare system to a for-profit business model, even though it’s universally agreed that non-profit has been a very efficient and successful model.”
100 Fastest-Growing Companies
Tell us what you think about this year’s batch of Fast-growing companies. Would you buy their products, or their stocks? Or have you worked for any of these firms? Tell us what you think, and the best replies will be published here, and possibly in a future story on CNNMoney.com.
Tumult builds over alleged ‘Lose your home, lose your vote’ scheme
Not since the Reagan administration allegedly classified ketchup as a vegetable to save money on the federal school-lunch program, have the Democrats found such a potent symbol of Republican callousness. But Republicans insist that this latest purported gaffe is a complete fabrication.
As many blogs have reported, the Obama campaign and the Democratic National Committee have sued the Macomb County (Michigan) Republican Party, the Michigan Republican Party and Republican National Committee to prevent them from pursuing an outlandishly unseemly “voter suppression” tactic which Republican officials have already disavowed ever having contemplated: a plan to challenge voters’ residency qualifications if their homes have recently been foreclosed.
The complaint, filed in federal court in Detroit, is here.
The suit was triggered by this controversial article in the Michigan Messenger, an online political daily published by the nonprofit Center for Independent Media.
In the article, which came out September 10, writer Eartha Jane Melzer quoted James Carabelli, the chairman of the Republican Party of Macomb County, Michigan (a northeastern section of the Detroit Metropolitan area), as saying, “We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses.” The plan, according to the article, was to mount challenges to voters who’d lost their homes on the theory that they might no longer reside within the precincts where they were registered. (According to RealtyTrac, a site that monitors foreclosures nationwide, Detroit led the nation in foreclosures in 2007, with close to 72,616 filings, reflecting almost 5% of all households.)
Carabelli responded a few days later with this press release, asserting that “The story is not true. The Michigan Messenger made it up.” He also demanded a retraction.
The state Republican party chairman, Saulius Anuzis, condemned the story in the same release, saying: “What we have here is a liberal blog funded by a liberal billionaire pushing a fabricated story that supports a liberal agenda. Never in my 30 years in politics have I seen the mainstream media pick up such a completely false and utterly ludicrous story as this one and run with it with such glee.” (The Messenger describes itself as “As a coalition of long-time progressive bloggers, freelance writers and professional journalists,” and the Center for Independent Media is partly funded by George Soros’s Open Society Institute.)
The Messenger has stood by its story. Reporter Meltzer’s editor, Jefferson Morley, wrote here that Melzer’s “notes show that she asked [Carabelli] about plans to have election challengers at the polls on Election Day. As they spoke, she typed a question about Republican voter challengers: ‘How will they know if the addresses match? How will you know which addresses to check?’ Her notes show that Carabelli responded, ‘We will have a list of foreclosed homes and will make sure people aren’t voting from those addresses.’ Melzer’s notes then show she asked a follow-up question: ‘How will you know people are who they say they are?’ Carabelli responded, ‘I would rather not tell you all the things we are doing.’”
It is, of course, not unusual for Republican Party officials to organize “election integrity” or “ballot security” challenges in what they say are efforts to prevent voter fraud; Democratic Party officials routinely decry these efforts as voter intimidation and voter suppression, and they have from time to time sued to stop them — sometimes successfully. Melzer’s story quotes two additional Michigan Republican Party officials as confirming that the party is, indeed, “gearing up for a comprehensive voter challenge program” for the upcoming Presidential election, and nobody has disavowed that portion of the story.
During the last presidential election, the DNC sued to stop a Republican attempt to challenge the residency of 35,000 voters in Franklin County, Ohio (around Columbus), two weeks before the election. In that instance, party officials sent letters to voters, and if the letters were returned to sender the voter’s residency was challenged. A federal judge in Columbus enjoined the effort, finding that the “timing and manner” of the challenges likely violated the voters’ constitutional and statutory rights, and an appeals court affirmed.
In the lawsuit filed Tuesday, attorneys for Obama for America acknowledge that Macomb County Republicans now deny having ever planned to use foreclosure notices to mount voter challenges, but they characterize these protestations as “public relations maneuvers under pressure” which provide “little comfort when compared with the Defendant Republicans’ clear statements on the record of their plans and their long history of voter suppression tactics.”
Chris Taylor, a spokeperson for the Republican National Committee says, “The RNC would not, has not, will not use foreclosure lists as a basis of any challenge lists.” He continues, “The Democrats have hung quite a bit on this one quote in a liberal blog post that’s been challenged as inaccurate, and we need to know what else they have to support their claim.”
(Foreclosure proceedings, even if they force a homeowner to move, will not necessarily affect his or her voter registration, but the precise rules vary locally. According to a press release issued by the county clerk for Macomb County: “A registered voter who moves from one precinct to another within the same city or township may vote one last time in the precinct where registered. A registered voter who moves from one Michigan city or township to another can vote one last time in the precinct where registered if the move was made within 60 days of the election.”)
Lerach doing harder time; plus beautiful lawyers
For people looking for distractions from the fact that their 401k’s have recently vanished, here are a couple odds and ends.
Dan Levine at Cal Law’s Legal Pad (no affiliation to this site and, mea culpa, they were apparently using the Legal Pad name first) has this update on class-action impresario Bill Lerach’s rocky adjustment to life in the federal prison system. Lerach’s been transferred to a medium-security institution in Phoenix, Levine reports, after an incident at the minimum-security camp in Lompoc, Calif., in which he allegedly offered a guard the use of his San Diego Chargers tickets.
For a very unrelated curiosity, try this Web site called beautifullawyers.com, where you can buy a calendar displaying 12, physically attractive Massachusetts lawyers. (Should that be the 12?) They include both men and women, and the clothing is revealing only in a socioeconomic sense. Proceeds allegedly go to charity.
The “Beautiful Lawyers” logo includes, as the “i” in word ‘beautiful,’ a statuette of a statuesque woman holding something; I’m not sure, but it seems to be a hand-mirror, of the “Whose the fairest of them all?” variety. I’ve been badly scooped on this story, I should admit; Karen Donovan at Portfolio.com did this item on it three months ago.
Lerach doing harder time; plus beautiful lawyers
For people looking for distractions from the fact that their 401k’s have recently vanished, here are a couple odds and ends.
Dan Levine at Cal Law’s Legal Pad (no affiliation to this site and, mea culpa, they were apparently using the Legal Pad name first) has this update on class-action impresario Bill Lerach’s rocky adjustment to life in the federal prison system. Lerach’s been transferred to a medium-security institution in Phoenix, Levine reports, after an incident at the minimum-security camp in Lompoc, Calif., in which he allegedly offered a guard the use of his San Diego Chargers tickets.
For a very unrelated curiosity, try this Web site called beautifullawyers.com, where you can buy a calendar displaying 12, physically attractive Massachusetts lawyers. (Should that be the 12?) They include both men and women, and the clothing is revealing only in a socioeconomic sense. Proceeds allegedly go to charity.
The “Beautiful Lawyers” logo includes, as the “i” in word ‘beautiful,’ a statuette of a statuesque woman holding something; I’m not sure, but it seems to be a hand-mirror, of the “Whose the fairest of them all?” variety. I’ve been badly scooped on this story, I should admit; Karen Donovan at Portfolio.com did this item on it three months ago.
Lehman: stress test for bankruptcy laws
With this morning’s Chapter 11 filing by Lehman Brothers’ parent company (LEH), we’re about to find out whether the bankruptcy laws cushion the impact of a behemoth investment bank’s insolvency on our financial system — as intended — or if those laws, instead, inadvertently exacerbate the problem. The rules have never been tested as they’re about to be.
“I think it’s a really scary time right now,” says Ed Morrison, a professor and bankruptcy expert at Columbia Law School.
In essence, Morrison explains, bankruptcy laws have evolved since 1978 in ways that actually leave investment banks like Lehman Brothers less protected than most debtors would be from hordes of creditors “descending on [it] and tearing it apart,” as Morrison puts it.
But those laws have been written specifically for the purpose of limiting systemic harm from a collapse like Lehman’s, and averting financial meltdown. Whether they really work that way in practice is what no one really knows.
First, the basic facts: Lehman Brothers’ holding company has filed for Chapter 11 bankruptcy protection, but none of the U.S. subsidiaries have. As a practical matter, its brokerage-dealer subsidiaries, asset management unit, and investment management division are all supposed to continue operating as normal.
All U.S. divisions still remain under control of management, and the expectation is that Lehman will try to sell the most attractive operating divisions while liquidating the rest. (Individual investors who have accounts with Lehman’s broker-dealer subsidiaries are supposed to be protected, as their assets are not available to Lehman’s creditors, and their accounts are further protected by the federal Securities Investor Protection Corporation.)
Here’s what makes the bankruptcy of an investment bank unusual. An ordinary bankruptcy petitioner, like an airline or a steel mill, gets immediate protection from its biggest creditors by the operation of law: as soon as it files for bankruptcy, an “automatic stay” takes effect which prevents those creditors from going forward with lawsuits and seizing the debtor’s assets. Metaphorical runs on the bank are prevented, and management gets time to organize its affairs in a way that will, theoretically, maximize value for all creditors, and maybe even allow the company to reemerge in sound health.
With a financial institution, however, the automatic stay offers no protection against many of its most important creditors. In a trend that began in 1978 and was greatly expanded in amendments passed in 2005, most financial contracts — including securities contracts, swaps, repurchase agreements, commodities contracts, and forward trades — are unaffected by automatic stays.
Worse still, as soon as Lehman’s parent corporation goes into bankruptcy, that event (under the contractual language governing most of these) triggers default, allowing the counterparty — the bank or other institution that entered into the deal with Lehman — to immediately accelerate or cancel the contract and seize whatever collateral may cover it.
Why? The thinking, Morrison explains, was that if an investment bank like Lehman ever failed, all its counterparties (like, say, a Bank of America) could extricate themselves immediately from Lehman’s troubles rather than getting mired in a bankruptcy proceeding.
“They won’t be locked in and dragged down with Lehman,” Morrison says. The laws will — theoretically — minimize risk of market meltdown.
Now comes the downside potential. The risk is that lots of these commercial counterparties will choose to terminate their financial contracts with Lehman — say, for instance, credit default swaps — all at once, and then try to rehedge themselves all at once, causing the market to seize up.
“This was one of the big fears that led to the federal government decision to orchestrate a bailout of Long Term Capital Management in the 1990s,” he says.
The International Swaps and Derivatives Association (ISDA) held a special trading session yesterday — on a Sunday — in an effort to “mitigate counterparty credit risk” stemming from the events going on at Lehman, according to a press release the group issued. But it’s far from clear if these kinds of efforts will do the trick.
“The lesson of all this,” says Morrison, “is that once a major institution has hit major distress, there’s nothing bankruptcy law can do. It’s too late. What’s needed is either federal intervention, or federal oversight earlier in the process” to prevent the faulty decisions that led to insolvency.
Legal paper: Lerach in ad seg
I don’t usually do pure “aggregation” type referrals on this column/blog, but I’ll make an exception this morning. In the character-is-destiny department, people may not want to miss today’s update in The Recorder (a San Francisco-based daily affiliated with The American Lawyer) about erstwhile class-action impresario Bill Lerach, who is now, of course, imprisoned at the U.S. Penitentiary in Lompoc, California. The Recorder reports that Lerach was sent to administrative segregation (23-hour lockdown, also, I think, known as “the hole”) earlier this summer after allegedly offering San Diego Chargers tickets to a prison guard. The Recorder said Lerach’s lawyer, John Keker, was not available to comment.
Legal paper: Lerach in ad seg
I don’t usually do pure “aggregation” type referrals on this column/blog, but I’ll make an exception this morning. In the character-is-destiny department, people may not want to miss today’s update in The Recorder (a San Francisco-based daily affiliated with The American Lawyer) about erstwhile class-action impresario Bill Lerach, who is now, of course, imprisoned at the U.S. Penitentiary in Lompoc, California. The Recorder reports that Lerach was sent to administrative segregation (23-hour lockdown, also, I think, known as “the hole”) earlier this summer after allegedly offering San Diego Chargers tickets to a prison guard. The Recorder said Lerach’s lawyer, John Keker, was not available to comment.
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