Who Owns the Private Prison Corporations?

Davey D has an interesting blog post about private prisons, incarceration, and the mass media. There’s numerous excellent bits of information throughout the piece linking the criminalization and mass incarceration of people of color with the complicity of the entertainment industry.

What’s really important about this post, what I appreciate about it, is that Davey is asking some key questions about the economics of a small part of the mass incarceration phenomenon; Who owns the private prison industry? What else do they control in the corporate economy? How much power do they have to influence government policy, and the activities of other corporations?

The question of who owns the private prison industry is quite complicated, however. Davey’s post claims that there is a direct link between the owners of the mass media industry and the private prisons, and that the owners are in fact coordinating their activities to increase incarceration rates. He goes on to imply that when private prisons make profits from locking human beings up, these profits also flow to the mass media companies. The evidence Davey presents for this claim is that the same “investors” who own the private prison companies also are the largest shareholders of the big media companies.

Here’s how Davey explains it:

“According to public analysis from Bloomberg, the largest holder in Corrections Corporation of America is Vanguard Group Incorporated. Interestingly enough, Vanguard also holds considerable stake in the media giants determining this country’s culture. In fact, Vanguard is the third largest holder in both Viacom and Time Warner. Vanguard is also the third largest holder in the GEO Group, whose correctional, detention and community reentry services boast 101 facilities, approximately 73,000 beds and 18,000 employees. Second nationally only to Corrections Corporation of America, GEO’s facilities are located not only in the United States but in the United Kingdom, Australia and South Africa.
You may be thinking, “Well, Vanguard is only the third largest holder in those media conglomerates, which is no guarantee that they’re calling any shots.” Well, the number-one holder of both Viacom and Time Warner is a company called Blackrock. Blackrock is the second largest holder in Corrections Corporation of America, second only to Vanguard, and the sixth largest holder in the GEO Group.
There are many other startling overlaps in private-prison/mass-media ownership, but two underlying facts become clear very quickly: The people who own the media are the same people who own private prisons, the EXACT same people, and using one to promote the other is (or “would be,” depending on your analysis) very lucrative.”

There’s problems with these claims, especially the notion that “the people who own the media are the same people who own private prisons, the EXACT same people[.]” I doubt this, and the evidence offered above certainly does not support it.

Figuring out who is calling the shots behind the private prison industry is important, but pointing at the Vanguard Group and Blackrock isn’t going to be a very productive exercise. Neither of these companies in fact “calls the shots” for any of the corporations they invest in, even though they routinely buy what are technically controlling stakes —more than 5% of a company’s outstanding shares— in publicly traded corporations.

Vanguard and Blackrock are institutional investors. They gather billions of dollars from customers including public and corporate pension funds, foundations, non-profits, as well as hundreds of thousands of individual customers who want to purchase IRAs and 401Ks. Out of the billions of dollars they take from their innumerable customers these companies create what are called indexes by buying equities, bonds, and other securities.

The investments of Vanguard and Blackrock are not targeted at particular companies, but instead are designed to replicate, or trend slightly above, the average rates of return across broad sectors of the market. To say that Vanguard or Blackrock happen to be the “the largest holder” of a company’s stock is not particularly relevant to the question of who controlst that company, or even who it is that benefits from the economic fortunes of that company.

Vanguard and Blackrock are the largest owners of probably thousands of large, medium, and small cap companies. Money managers like Blackrock and Vanguard do not exercise any control over their investments. The traders and analysts who work at Vanguard and Blackrock do not necessarily care about what a company does or how it makes its profits. They look at companies as bundles of rates and vectors on a computer screen, plots of data that indicate rates of return on capital invested at particular points in time. They compare these metrics to other metrics in the market, and they allocate vast pools of capital into and out of thousands of particular stocks based solely on the relational value of a stock to certain benchmarks. It’s pure quantitative extraction of income from global dispersed economic activity, and it occurs on a vast scale that picks from tens of thousands of corporate stocks, bonds, and other securities using criteria that are only about the trade-offs between risks and returns on the investment of capital.

Even if we did hypothesize that Vangaurd and Blackrock’s big stakes in private prison companies are relevant in terms of control, we’d have to figure out, who owns Vanguard and Blackrock? These are companies in and of themselves with stock, and certain owners who hold significant equity stakes. However, the ownership of the corporation entities known as Vaguard and Blackrock is separate from the claims made on the investments returns of the funds administered by each company. It’s these funds, distinct legal entities, that are invested in private prison companies, among many, many other sub-sectors of the economy.

For Corrections Corporation of America, there are at least four different Vanguard funds that own chunks of the company’s stock. But within the vast portfolios of these separate Vanguard funds, CCA is a mere tiny fraction of a percent of the fund’s total investments. For example, the Vanguard Windsor II Inv fund owns CCA stock. But CCA isn’t even among the top 25 companies that the Vanguard Windsor II Inv is invested in. The fund’s top company stock picks are JP Morgan, Pfizer, Phillip Morris, Conoco Phillips, IBM, and its total holdings include a huge number of other corporations. CCA is way down on the list, lost amid an index of equities meant to track a vast swath of the global economy.

Anyway, who owns the Vanguard Windsor II Inv fund, and the other Vanguard and Blackrock funds that in turn own CCA and GEO Group stock?

The answer is that hundreds of other institutions and hundreds of thousands of individuals (mostly wealthy persons in the top income brackets) own the Vanguard and Blackrock funds that are used to buy shares of companies like GEO and CCA. So saying Vanguard owns private prisons and media companies is only saying that virtually millions of people own tiny fractional stakes in these companies through their pensions, 401Ks, ETFs, mutual funds, and other money manager products that Vanguard and Blackrock sell.

To say that because Vanguard or Blackrock funds own both private prisons and media companies means that the same people control the prisons and mass media is just plain wrong. There may be other links, but it’s not here.

All that said, perhaps it should be relevant and scandalous that Vanguard and Blackrock include private prison companies in their index funds. That prison companies are simply thought of as mundane stocks that index funds should seek exposure to should be outrageous. It’s troubling that these money managers consider private prison corporations as simply a sector of the “market.” Perhaps pensioners (including many union members and public employees), mutual fund owners, and persons with 401Ks administered by these and other big money managers should object to the inclusion of private prison companies in their investment funds.

There’s certainly a long tradition of shareholder activism to force institutional money managers to divest from companies that do particularly heinous things. The San Francisco Board of Supervisors just voted to divest from fossil fuel companies, meaning the money management firms that place the city’s cash into stock indexes and bonds will now have to tweak their offerings to delete companies like Exxon and TransCanada. There should be a similar campaign around private prisons.

To figure out who really controls the private prison companies requires a different route of analysis than simply pointing at the large institutional investors.

Those interested in tracing ownership to actual persons who own large stakes in prison companies, and who exercise control over these companies, should browse the Securities and Exchange Commission filings for both CCA and GEO.

These documents will include filings of the company’s directors and executives who own considerable stock, and who by definition call the shots. They will also mention actual concentrated outside owners who exercise some control over the policies of the companies through proxy.

Finally, there are a few big investors in the private prison companies that deserve a lot of scrutiny along the lines Davey is advocating. It appears that some of the institutional investors with big stakes in GEO and CCA are private equity firms and more boutique focused money managers. Private equity firms and boutique investment houses also collect money from outside investors, like Vanguard and Blackrock, but their pools of capital are assembled from much smaller groups of individuals, typically under 100 persons. Private equity firms usually do get very involved in the way a company is run. If people want to know who are really the concentrated owners of, and beneficiaries of the private prison boom of the last decade or so, they should try to figure out who’s behind these private equity groups.

As for a link to the media, to me that remains an open question, but it’s productive that Davey is making these kinds of assertions and making some connections between the complicated mess of dots.

Steyer’s Oily Bucks

Obama’s ‘Green’ Billionaire Friend Made a Small Part of His Fortune Investing in Oil and Gas Companies

Tom Steyer speaking at the Democratic National Convention in 2012.

Hosting Obama during his visit to San Francisco last week was Tom Steyer, the former head of Farallon Capital Management. Steyer, who is a billionaire (probably the 344th wealthiest person in America if you trust the Forbes rankings), has been a liberal bankroller of the Democratic Party for many years now. More recently Steyer has been positioning himself to be policy maker for team Obama; Steyer recently was rumored to have been included on the short list for Energy Secretary. Various press clippings from the past couple years state that Steyer’s fundraising for Obama and the Democrats is now driven by his newly invigorated concern for environmental issues. Steyer is said to be very concerned with climate change, and the ecological impact of oil and gas.

Three years ago, while still head of Farallon Capital, Steyer jumped into politics in a big way by funding a campaign against California Proposition 23. Had it passed, that ballot initiative would have gutted the Global Warming Solutions Act of 2006, California’s greenhouse gas reduction plan. Prop 23 was supported by Valero, Tesoro, and Koch Industries, among other oil and gas interests. Steyer told a Forbes reporter he “got pissed” that no one was “stepping up” to fight back, so he dropped a couple million to advertise against the out of state oil lobby. In the end Steyer’s money helped. Prop 23 was defeated. Steyer retired from Farallon last year, and in a letter to his investors (mostly wealthy individuals, pension funds, and endowments) he said he would “focus on giving back,” through philanthropy and the Democratic Party. Steyer’s primary source of power through philanthropy and the Democrats is his money. His enormous personal fortune enables him to fund state or even national-level political campaigns, all by himself if need be.

Steyer’s money is an interesting subject. Farallon Capital, which Steyer founded back in 1986, and closely managed for several decades, minted a lot of money off oil and gas investments, among other environmentally destructive business ventures. Among the oil and gas companies that Steyer and Farallon financed and got rich from were Energy Partners, Ltd., Link Energy LLC, Halcon Resources Corporation, Devx Energy, Inc., and a gold mining company named Global Gold Corporation. In each case, Steyer’s team bought up large, or even controlling interests in the companies, or acquired corporate debt. Most of the companies were in financial straits when Farallon bought them. Farallon’s partners then used their position as the new owners of equity or debt extract value from the corporation as it restructured itself through asset sales and reorganization. In several cases the bankrupted company was turned around and rebuilt into a profitable oil and gas firm. In the process Steyer and Farallon ironically helped save and rebuild a few major oil and gas drillers, or helped sell-off oil and pipeline assets to bigger players in the energy industry.

A map of EPL’s “East Bay” oil leases off the shore of Louisiana, near a channel of the Mississippi River.

One of these investments was Energy Partners Ltd., a medium-sized New Orleans-based oil and gas drilling company operating in the Gulf of Mexico. In the early 2000s Energy Partners (EPL) was rapidly expanding. The company took on lots of debt to grow fast, but Hurricanes Gustav and Ike shut down some of the EPL’s operations, starving it of cash. A drop in oil and gas prices in 2008 drove the company over the edge.

Farallon Capital swooped in after the collapse of EPL’s stock price and de-listing from the New York Stock Exchange, purchasing over 2 million shares in the company in late 2009. Tom Steyer was listed as the “senior managing member” of the Farallon funds that held the stock, and was therefore classified as a “beneficial owner” of the company. EPL’s stock price eventually increased after the company reorganized itself through Chapter 11 Bankruptcy. Farallon sold some of its stock in EPL in 2010, netting a significant profit. Today EPL is pumping 17,000 barrels daily from oil from wells just offshore of Louisiana. The company operates in shallow waters, and its service ships traverse the networks of canals that have seriously damaged Louisiana’s wetlands, leading to coastal erosion and vulnerability to hurricane storm surge.

A map of EPL’s federal oil leases in the Gulf of Mexico. EPL is one of the largest oil drillers in the region.

Two of Farallon’s other oil and gas company investments include Link Energy (formerly EOTT), and Halcon Resources.

EOTT, a was a subsidiary of Enron that bought, transported, stored, and sold crude oil and natural gas, using an extensive 8,000-mile pipeline network, a fleet of 238 semi-trucks, and tanks capable of storing 9.9 million barrels in various locations across North America. The company also had natural gas facilities, a refinery, and other industrial holdings, including facilities in California.

Enron’s collapse in 2001 led EOTT to split off as an independent LLC, but the company, despite an attempt to reorganize itself in bankruptcy, never emerged in-tact. Farallon acquired $7.3 million in unsecured 11% Notes issued by EOTT leading up to the company’s bankruptcy, making Farallon one of the company’s largest creditors. This was a big gamble on Farallon’s part. Steyer’s team was assuming that either the reorganization, or liquidation of EOTT would prove highly profitable, and that the company’s notes and stock were being undervalued due to uncertainty around it’s bankruptcy. As part of EOTT’s reorganization, holders of the 11% Notes took a haircut of about 44 percent of their principle. In exchange they received LLC Units, essentially stock in the company. Farallon’s take was about 2.4 million in LLC Units.

EOTT changed its name to Link Energy in 2003 in an attempt to erase the taint of Enron from its reputation, but company’s reorganization attempts floundered. Throughout 2003 Link cleaved off parts of its operations and infrastructure in various sales in order to pay off liabilities, including debt owed to creditors like Farallon. Valero bought Link’s natural gas liquids operations for $20 million. Other sales provided cash, but ultimately Link sold its core assets to Plains All American for $273 million, effectively dissolving the company in an effort to pay off Farallon and a small group of other creditors and investors.

Screen shot image from Halcon Resources web site. The company drills for oil and gas in multiple states using hydraulic fracturing among other techniques.

Halcon Resources was once called Ram Energy Resources, Inc. Steyer and his colleagues at Farallon gambled on Ram’s bankruptcy in an investment strategy resembling the EOTT play. In November of 2005 Farallon scooped up Ram Energy Resources, Inc. shares as the company entered bankruptcy, paying about $5.50 per share. Multiple Farallon Funds were used to buy about 12.9% of the company. Once again Tom Steyer was listed as a “beneficial owner” and “managing member.” Today Farallon owns about 1.7 million shares of Halcon Resources, a $12.5 million stake. Halcon Resources today drills for oil and gas in North Dakota, Montana, east Texas, Ohio, Pennsylvania, utilizing, among other methods, hydraulic fracturing, or “fracking,” as it is commonly known. Halcon transports its oil and gas to refineries via Shell Oil and Sunoco pipelines that cross parts of the United States.

It’s a Banker’s World

LIBOR litigation to recoup damages after the biggest financial fraud in world history has been thrown out

A cartoon depiction of JP Morgan, the hyper-influential banker of the early 20th Century. Several of Morgan’s banks and bank holding companies merged to form today what is known as JP Morgan Chase, one of the banks at the center of the LIBOR fraud.

Sixteen banks at the core of the global financial system —including JP Morgan, Bank of America, and Citigroup— scored a major victory on Friday when a federal judge dismissed nearly all the charges brought against them by a group of plaintiffs that includes municipal governments, pension funds, bondholders, and other investors who lost billions of dollars as a result of LIBOR rigging. The ruling is a major setback, both legally, and financially, for those harmed by the LIBOR manipulation conspiracy. Among the most damaged are are thousands of local governments that were played like ATMs during the Financial Crisis by the banks. Banks used their power to set 3-Month and 1-Month LIBOR rates so as to extract potentially billions in interest rate swap payments from the public. Countless small investors lost equally huge sums of money as investments indexing LIBOR were rigged to pay out less. The lawsuit’s dismissal ensures that the banks will keep billions of dollars in ill-gotten gains. The ruling may also bolster the banks’ positions against ongoing investigations and settlements sought by government regulators in the US, Europe, and Japan.

Strangely, the judge’s order (available here) acknowledged the massive global fraud that caused financial damages to the public in favor a few wealthy institutions. However, Judge Naomi Reice Buchwald relied on technical legal arguments to throw out the core claims of the lawsuit. In other words, the ruling doesn’t deny that the crime occurred and that the Plaintiffs sustained serious damages, but still dismisses the claims.

“We recognize that it might be unexpected that we are dismissing a substantial portion of plaintiffs’ claims, given that several of the defendants here have already paid penalties to government regulatory agencies reaching into the billions of dollars,” concluded Judge Buchwald in her 161 page order. She justified this position, however:

“…these results are not as incongruous as they might seem.  Under the statutes invoked here, there are many requirements that private plaintiffs must satisfy, but which government agencies need not.  The reason for these differing requirements is that the focuses of public enforcement and private enforcement, even of the same statutes, are not identical.  The broad public interests behind the statutes invoked here, such as integrity of the markets and competition, are being addressed by ongoing governmental enforcement.”

Government regulators have already proven through their own investigations that LIBOR was rigged to enrich the banks at the expense of their customers and counterparties who entered into LIBOR-linked derivatives contracts, or purchased LIBOR-referencing securities. Beginning as early as 2005 Barclays, a member of the British Bankers Association, submitted false quotes to Thompson-Reuters, the company responsible for calculating and disseminating the different LIBOR rates each day. The false quotes were designed to skew LIBOR upward, or downward, by precise amounts, so as to benefit the positions of Barclays traders against their counterparties. In doing so Barclays violated securities laws and committed a fraud that harmed countless other market participants relying on LIBOR to value their financial deals.

To date Barclays, UBS, and the Royal Bank of Scotland have all paid fines for manipulating LIBOR rates. A Japanese subsidiary of UBS even pled guilty to criminal charges, but regulators targeted only the Japanese subsidiary so as to leave the Swiss holding bank UBS legally unscathed. The fines for these three banks totaled only $2.5 billion, probably much less than they gained by manipulating various LIBOR rates for more than a half decade. None of the banks have been criminally charged. Even so, Judge Buchwald said that authorities are adequately investigating and punishing the financial companies, and that civil litigation to recoup money and impose penalties does little to advance justice.

During the Financial Crisis beginning in late 2007, and through 2010, the banks manipulated 1 and 3-Month LIBOR rates downward in order to both give the impression that they were weathering the global liquidity crisis, and that investors should not withdraw their money or sell bank stock. (LIBOR is supposed to gauge the rate of interest at which a bank can secure a dollar loan from one of its peers, so lower rates appear to indicate a healthier bank balance sheet.) As credit markets froze up in 2007 and 2008, the banks hunted for cash to close out trades on losing positions and settle hefty credit default swap obligations, among other ballooning liabilities. The banks extracted bigger payments from their counterparties on swaps, and other derivatives contracts that use LIBOR to calculate interest rate payments, by further depressing LIBOR.

Much of this cash was squeezed from cities, counties, public schools, public hospitals, public utilities, ports, airports, and other agencies that purchased interest rate swaps to convert variable rate bond debt into fixed rates. The manipulation of LIBOR since 2007 likely impacted swaps hedging hundreds of billions in public debt, causing billions in inflated payments by local governments to the banks.

The City of Baltimore was a big purchaser of interest rate swaps used to hedge bond debt. Baltimore also purchased and held other LIBOR-linked derivatives as investments. Baltimore lost millions of dollars as a result of LIBOR manipulation, and filed its lawsuit against the banks in August of 2011. Other local governments soon joined Baltimore, creating a class action group of plaintiffs that potentially included hundreds or thousands of local governments across the United States.

Bondholders and other securities investors filed their own separate lawsuits alleging fraud and damages due to the bankers’ conspiracy. All of these cases were consolidated before Judge Naomi Reice Buchwald in the Southern District Court, District of New York in 2012.

The local governments united behind Baltimore —including most recently the California cities of Richmond and Riverside, and counties of San Diego and San Mateo, as well as the East Bay Municipal Utility District, all of which filed their own lawsuits early in 2013— sought to recoup damages from the banks by using US anti-trust, and anti-racketeering laws under the Sherman Act, Clayton Act, and the RICO Act. Judge Buchwald ruled, however, that the Plaintiffs cannot sue under these laws because they have not sustained anti-trust damages, among other reasons.

With respect to the anti-trust allegations, Judge Buchwald argued that LIBOR was never a “market” rate that banks competed among one another to set. Instead, Buchwald notes, rightly in fact, that LIBOR was a non-market endeavor that did not reflect an actual rate the banks borrowed money at, but a rate at which the banks claimed they could borrow money from one another. Because the banks were not in competition with one another to produce LIBOR, they cannot be said to have suppressed competition, or manipulated the market. The damages sustained by local governments as a result of LIBOR rigging cannot technically be said to have resulted from an anti-trust conspiracy, said Buchwald.

So even though the banks dishonestly rigged LIBOR, resulting in huge financial damages to countless counterparties and investors, under Buchwald’s reasoning the banks have not violated the letter of the Sherman Act and US anti-trust law. According to Buchwald:

“Regardless of whether defendants’ conduct constituted a violation of the antitrust laws, plaintiffs may not bring suit unless they have suffered an “antitrust injury.”  An antitrust injury is an injury that results from an anticompetitive aspect of defendants’ conduct.   Here, although plaintiffs have alleged that defendants conspired to suppress LIBOR over a nearly three-year-long period and that they were injured as a result, they have not alleged that their injury resulted from any harm to competition.  The process by which banks submit LIBOR quotes to the BBA is not itself competitive, and plaintiffs have not alleged that defendants’ conduct had an anticompetitive effect in any market in which defendants compete.  Because plaintiffs have not alleged an antitrust injury, their federal antitrust claim is dismissed. “

This of course will come as a surprise to close observers of the financial system; LIBOR became the underlying interest rate of reference for the global derivatives market precisely because it was assumed that it was an honest determination of the rate of interest, or price, which banks charge one another to secure dollar denominated loans. Indeed the motives of some of the banks to depress their individual LIBOR quotes between 2007 and 2010 indicates that each bank’s individual quote was compared to other banks to gauge the company’s health, making it a somewhat competitive measure of credit worthiness. Countless financial workers, from CEOs to floor traders, have assumed for years now that LIBOR was a market rate. Even Bloomberg News, the financial industry’s favorite online news and data source, lists LIBOR under its “market data” tab.

But even if LIBOR had taken on some pseudo-market characteristics, and even though it was believed to be an honest determination of lending rates, Judge Buchwald is correct in noting that LIBOR was never a mechanism of the “free markets” which anti-trust laws are designed to regulate. Instead, as I have pointed out elsewhere, LIBOR was always “a club of powerful banks inventing the price of money, and expecting that other banks, corporations, and even sovereign states would accept their word.” This raises a fundamental question that the LIBOR lawsuits have proven incapable of addressing. Because they are predicated on anti-trust laws, these lawsuits assume free markets in which some participants abused ill-gotten power to distort otherwise fair prices. The current financial system is not a “free market,” and bank rates are inherently political in nature.

The second law around which Baltimore and other local governments built their case was the Racketeering Influenced and Corrupt Organizations Act, better known as RICO. Here Judge Buchwald ruled that the Plaintiffs have no case against the banks under RICO, first because of a 1995 law that virtually exempts financial criminals from being subject to RICO law, and because of the global nature of the crime.

The Private Securities Litigation Reform Act (PSLRA) was written by the financial industry and passed after an intensive lobbying effort that included spending millions on the elections campaigns of both Republican and Democratic Senators and Representatives by the world’s biggest banks. Under the PSLRA, crimes by financial companies that would otherwise be subject to RICO, are instead exempted under the rationale that they are better dealt with under securities fraud law.

The PSLRA also made it more difficult for scammed governments and customers to sue powerful financial companies; securities fraud lawsuits can only be filed and advanced with strong evidence of wrongdoing before trial. RICO lawsuits, on the other hand, can be filed with less evidence, relying on the pre-trial discovery process to turn up more facts and build a stronger case. This informational asymmetry that greatly disempowers the public, and small fish in the financial markets, and favors the big banks, brokers, and traders, was precisely the point of the PSLRA, and even though President Clinton vetoed the law upon its passage in 1995, the Congress, in a rare show of bi-partisan cooperation, and swimming in financial industry cash and influence, overturned his veto.

As if this legal roadblock isn’t enough to kill the RICO claims, Judge Buchwald added that the global nature of the LIBOR fraud exempts the crime and the criminals from prosecution under RICO. “RICO applies only domestically, meaning that the alleged “enterprise” must be a domestic enterprise,” ruled Buchwald in her decision. “However, the enterprise alleged by plaintiffs is based in England,” where the British Bankers Association is based, and where Eurodollar securities are traded. So in this case the global nature of the financial system serves to put the banks beyond the reach of the US law.

Judge Buchwald relied on other technical aspects of federal and state laws to dismiss the LIBOR Plaintiffs’ claims, including the the statute of limitations under the Commodities Exchange Act. The CEA’s statute of limitations is two years from the point in time that the harmed parties become aware of the potential crime. Under a complicated chain of reasoning including the publication dates of various press reports and academic articles raising doubt’s about LIBOR’s assumed validity, Judge Buchwald dismissed any claims against the banks stretching back to manipulation of LIBOR prior to May 29, 2008, and barred most other possible claims related to LIBOR manipulation before April 15, 2009, leaving virtually only instances of LIBOR rigging after that date as crimes that the Plaintiffs can sue for damages over.

The Plaintiffs bringing the LIBOR lawsuits forward could not be reached before press time, but they still have the ability to appeal the decision if they so choose.