Dumb money

The Online News Association just announced that Mark Cuban will be their keynoter this year. Yow. Now on the one hand, Cuban could be perfect, for he has been pushing back at reporters and making his interviews with them open, even over their wailing and whining. But on the other hand, Cuban is most decidedly imperfect, for his latest venture, Sharesleuth.com, raises no end of troubling ethical and journalistic, if not legal, questions about his media activities.

Mark Cuban has made his career and his fortune on dumb money. He sold his first company to CompuServe, a failure acquired by AOL, another failure. He sold his next company, Broadcast.com, to Yahoo, which promptly did nothing but kill it even as broadcasting came onto the internet, yet Cuban walked away with something in the billions, allowing him to have fun, buying a sports team and starring in a TV show, which was also a failure. He invested in another well-known company sold to AOL; return to Square One. Yet people still invite him to share his wisdom. That’s because he loves to be provocative and he’s good at that.

But now Cuban is making smaller killings from the dumb money of smaller players who’ve invested in bad companies. Now one could say that’s just the way the stock market works: smart wins, dumb loses. But Cuban has given himself an advantage: He started an apparently journalistic enterprise in Sharesleuth to find the bad companies . . . so he could short them first.

What’s wrong with that? That’s what a prospective student at CUNY asked and so I went to read the controversy at Sharesleuth and the defensiveness at Cuban’s blog and here’s what I come away with:

* Cuban says he is being transparent: He says he warned us that he would trade on the information Chris Carey, his editor at Sharesleuth, digs up. Except that he’s not transparent at all — not until after a story about a stock is released. He has a period of utter opaqueness when he knows a company is crap and you don’t — nya, nya, nya — and so he gets to trade on his information and take money not from the offending company but from the poor shlub on the other end of Cuban’s trade.

* Cuban tries to say that he is underwriting this journalism to do what journalism is supposed to do: help the poor shlub. Except he already took the shlub to the cleaners. Doesn’t wash.

* Cuban also has to be aware that his celebrity will have an impact here. He argues that he’s just sharing what he knows about a company after he took advantage of the information he paid to gather about it. Generous, eh? Except he has to know that a site he, Mark Cuban, underwrites and promotes — he was, after all, a TV star… for a few minutes — will have an influence on the market for that stock. Is that company insider information? No, it’s Cuban information. But he can move a stock and he acts on that knowledge before the rest of the market can.

* It becomes a bit of self-fulfilling prophecy, doesn’t it? Cuban and company find a company they think is suspect. Cuban and company investigate and find smelly fish. Cuban shorts the stock. Then his guy reports what’s what to the world. The market gets a whiff. Then the stock falls. Then Cuban profits. You have to trust Cuban and company not to use their power to manipulate. After what he does to little investors, do you trust him?

You see, it’s not just about transparency — and I like to toot the transparency horn at every opportunity. It’s about conflict of interest. Whom are you serving, Cuban? If you say you are committing acts of journalism, exposing bad companies and outdoing the business journalists you despise, then you are saying you’re serving the public and the public should be able to trust you to do that. But no, the public in this case is the aforementioned poor — now poorer — shlub. So you’re not doing journalism, you’re serving yourself. Well, that could be OK: You hire your private analyst to find turkeys to short and you short them. But then you use your public prominence to reveal what you now know and that all but assures that the stock will fall, making your short a good investment. I’d call that a virtuous circle except . . .

Is everything unfair in love, war, and Wall Street? Yes, but some things are less fair than others. And it’s hard to sit up on a journalistic high horse — to ridicule the rest of journalism — even as you take behind-the-scenes advantage of your knowledge and the impact of your prominence. This, of course, is exactly why news organizations have policies requiring either not owning a stock or revealing ownership in companies you cover or not trading on them when you write about them: so you can judge whether to trust them and so they cannot take advantage of moving the market for a stock. If a professional reporter did what Cuban did, he would be fired … and Cuban would probably write a blog post attacking him.

There has been much discussion of this online. See this excellent editorial in the Star-Telegram:

It’s too bad that Cuban couldn’t let his investment in Sharesleuth stand on its own. He had to use it as a tool in a side deal to make himself a few more bucks to add to the gigazillion that he already has.

In the process, he cast doubt on Sharesleuth’s efforts.

See Gary Weiss writing on his blog:

It’s a shame that an ethical rich guy– one with the public spirit Cuban lacks — hasn’t stepped into the breach and set up a genuine financial investigative reporting outlet to examine crummy stocks. But as a public service, not as a source of pocket money.

Of course, there is yet another alternative, which is that mainstream media outlets crank up their coverage of stock fraud.

Securities Litigation Watch, a blog, says — and others quoted here agree — that Cuban’s actions are not illegal but that Cuban…

…has found the previously unexploited Achilles’ Heel of the insider trading laws and fired an arrow deep into it. The result is that for the first time, a legal form of what most people would consider “insider trading” exists and can be replicated by anyone with (a) the resources to hire a skilled investigative journalist, (b) the ability to generate a readership on the Internet.

And see the comments on Sharesleuth itself: This poster tries to give analogies that explain why Cuban’s activity doesn’t seem right:

I see a huge contradiction in providing information on what you personally believe to be a scam (in escence, posting a “do not enter” sign) but then on the other hand potentially making a financial gain (shorting the company stock). Essentially, it seems, indirectly partaking in the named fraudulent operation and knowingly so. This is even magnified by the fact of Mr. Cuban shorting the shares PRIOR to the report that it appears he has direct input.

In the report D’Arnaud-Taylor and his wife are demonized for selling the company shares into the open market, and maybe rightly so. But how are the buyers of Mr. Cuban’s short sell any less a victim than the buyers of D’Arnaud-Taylor sells? If both are aware that the underlining business that the shares represent to be a perversion of truth are they not each participants? (though Mr. Cuban on lower level understandably so). Is not the instrument of the fraud the stock itself?

Another commenter identifying himself as a shareholder in the company that Sharesleuth pilloried — an aforementioned poor shlub — says:

On the outset, it appears that you have good intentions Mr. Mark Cuban. Your plan is to uncover the “dirt” on companies to save investors from losing out, correct?…So this might make you a “hero” to some people…and I might agree with that EXCEPT for the fact that you appear to be making a decent profit on all of this negative hype you are building up. In a sense, you are profiting off of the unsuspecting shareholders (like me), who have put their trust in the companies you are digging up “dirt” on.

The honorable thing to do would be to NOT trade on the companies that you write about, thus giving your readers a chance to exit…or if you do trade wait for 30 days after the article has been released.

If you happen to uncover true “dirt” about a company, and that company is truly an “evil” company, than the shareholders are victims, correct? So, in essence, what you are doing now is profiting off of victims before they have an opportunity to escape.

Another shareholder:

So this is suppose to “help” people avoid investing in poorly managed companies or just plain bad companies…unfortunately the average investor got the info too late. I was down over $1200 by the time I was “informed”. Mr. Cuban I appreciate your work, but a little heads up for the little guy would have been nice. I know $1200 may only be lunch for you, but it is a lot more than that for most people. I love the Mavs, I love you, but this hurts. That’s just $1200 less I have to spend on Mavs tickets this year.

You see, journalism is, in the end, about trust and credibility and this is what Cuban is doing to his. Mind you, Cuban is right to ridicule the trust and credibility of stock analysts and much financial journalism that just sucks up what those analysts and company flacks feed them. They, too, don’t protect the public. But just because they’re bad, does that mean you need to be? Two wrongs, etc.

Cuban is, of course, unrepentant. He goes off on a rant that, as near as I can tell, reasons that news organizations make profits so why shouldn’t he? He says:

Every media outlet has an agenda. Given that almost all are public entities, the primary agenda is Earnings Per Share. When was the last time you read the New York Times say they were going to proactively choose to lower their earnings this quarter and for the next several quarters so they can invest in doing a better job of reporting ? Or that they planned on expanding the number of pages dedicated to their journalistic endeavors at the expense of shareholder return ? Anyone ?

Well, actually, I’ve sat in public meetings with Times editors as they talk about the cost of maintaining a Baghdad bureau and that is not a financially motivated decision. I’ve watched papers add pages to cover big news — as an editor, I’ve done it myself — when those pages came with no advertising and thus only brought loss. I’ve sent reporters on trips to cover stories that would bring no revenue. Why do journalists do these things? To serve the public. Haughty but true.

And what this brings out is the equally haughty question: What is the nature and mission of journalism? Is it an effort to serve the public over oneself ; is that a key element in the definiton? That’s where the Cuban case would lead us, I think. Is journalism now about getting any information from any source with any agenda? Well, I’ve argued that we all do have agendas and the worst thing is for them to be hidden. Is journalism about trust and credibility? And can we trust and believe Cuban when he’s making money on the information he can afford to gather and disseminate?

I sure as hell hope there will be ample opportunity to discuss this and challenge Cuban at the Online News Association. Are they presenting him as some paragon of journalism? Some new kind of media mogul? Some opponent of journalism’s old ways? Or a circus act? I’m bringing popcorn.

If Cuban had just started a new journalistic endeavor to show the way and shame the business press into reporting and investigating — not to mention to create jobs for reporters — he might have been welcomed with open arms. I’ll bet that there are plenty of ripped-off shareholders out there who’d have gladly contributed to make this a success. And advertisers would want to talk to an audience of smart investors. But by turning this into a personal and shady profit center, by trying to play the bad boy in this arena as he does in the basketball arena, he harmed his endeavor, his reputation, and even the nascent movement in independent journalism. Just so he could make a few bucks. Now that’s what I call dumb money.

: LATER: Mark Cuban responds on his blog. He digs up every snarky thing I’ve said about him and that’s fine. My view of Cuban is encapsulated in what I said at the start of this post. He doesn’t really respond to the ethical question about reporting on the company from a position that can move the market for it while having an interest in that market. I would very much like to see him explore that more. He lists the stocks he has shorted and their status so we can judge whether he has had an influence. I do think that Sharesleuth is bigger — and, in so many ways, better — than a blog comment and so its influence will surely be different. Cuban says that trust is built with getting the facts right. Amen, brother, amen. It is also built, in this age of transparency, with both revealing and avoiding, when possible and when necessary, conflicts of interest. You see, I’m a big fan of Sharesleuth and Cuban starting it in every aspect except that conflict, which does undermine trust.

See the comments on his post and this one; lots of good discussion. And I’ll repeat that I hope there is this sort of discussion at ONA. There are a few vital debates here. One is about reporting on companies and protecting the public and how we find better ways to do that than relying on newspaper business writers who are good at nothing so much as retyping press releases and quoting analysts who are good at nothing so much as spitting up company lines. The other is about journalism and what expectations and standards the trusted will operate under, whether that journalism is performed by a big, old, professional institution or by a renegade upstart company or by individuals or networks of all of the above. I’m not sure what the answers are in either case but I think we need to explore them through these debates.

: LATER STILL: Mark Glaser writes a very good summary of the good, the bad, and the ugly of Cuban and Sharesleuth. See also Gary Weiss’ next post.