- Individual investors are at a disadvantage in the Herbalife battle.
- Pershing Square and Ackman's lobbying raise risks for longs, even if long thesis correct.
- An Icahn-led leveraged buyout raises risks for shorts, even if short thesis correct.
During a 1998 playoff game between the New York Knicks and Miami Heat, Larry Johnson of the Knicks and Alonzo Mourning of the Heat started a bench clearing brawl. For reasons unknown, the 5'9" 150-pound coach of the Knicks, Jeff Van Gundy, waded into the fight, fell on the floor, and clung to the 6'10" 240-pound Mourning's leg, producing one of the most memorable (and painful) NBA playoff moments of all time.
We view the situation with Herbalife (NYSE:HLF) as similar to that memorable 1998 playoff game -- with Bill Ackman and Carl Icahn playing the role of Johnson and Mourning, and individual investors taking on the role of the hapless Van Gundy. While Icahn and Ackman battle it out, individual investors are just clinging to Alonzo Mourning's proverbial legs and being painfully dragged across the floor.
There are plenty of articles on Seeking Alpha and elsewhere around the Web that argue for the short case and the long case, so there is no need to for me to publish my opinion on the stock. Instead, I want to examine the set of risks long and short investors are taking due to the feuding billionaires.
What If Icahn Is Correct?
Some investor might find Carl Icahn's arguments for Herbalife convincing, and decide to go long the stock. (I found John Hempton of Bronte Capital's series of posts on Herbalife the most compelling long thesis that I've read.)
Let's assume for a minute that they are 100% correct, that Herbalife is not a pyramid scheme. This would, on the surface, seem to be a riskless investment, except for one problem: Bill Ackman and Pershing Square.
In 2013, Bill Ackman spent $264,000 on lobbyists to press his case that Herbalife is a pyramid scheme. Also, since 2010, Bill Ackman has contributed $30,000 to New York AG Schneiderman's political campaign. This spending has given Ackman and Pershing Square representatives unprecedented access to lawmakers that regular investors don't enjoy.
Pershing Square representatives met with Securities and Exchange Commission officials in early 2013. Also, in early 2013, Ackman and the lobbyists he hired arranged meetings with congressional Representatives Linda Sanchez (D-CA), Loretta Sanchez (D-CA), and Peter King (R-NY), as well as Senator Ed Markey (D-MA). After these meetings, Linda Sanchez wrote to the FTC requesting that they investigate Herbalife. In January of this year, Ed Markey sent several letters to the SEC and FTC asking them to investigate the company.
Herbalife is currently being investigated by the FTC, SEC, The Department of Justice and the FBI, Illinois Attorney General's Office and the NY Attorney General's office. No one knows how many of the investigations were spurred on by the lobbying efforts of Ackman and Pershing Square, but I believe it would be naive to assume that Ackman's efforts had no effect.
The point of all of this is not to pass judgment on whether or not what Mr. Ackman is doing is correct or ethical. The amount of time and money Ackman and Pershing Square have spent on lobbying pales in comparison to what Herbalife and other MLM companies spend. The point is that Mr. Ackman has far more resources than individual investors to attempt to bring his thesis to fruition. In fact, it wouldn't be far-fetched to see a scenario where the lobbying efforts of Ackman and Pershing Square could bring down Herbalife, despite no major wrongdoing by the company. The government and regulators in the United States are awash in legal bribery, referred to as "campaign contributions."
What If Ackman Is Correct?
On the flip side, some investor may find Bill Ackman's series of voluminous presentations convincing, and decide to short the stock.
Again, let's assume that Bill Ackman is 100% correct, that Herbalife is a pyramid. With all the investigations underway, this would seem again be a riskless investment. The problem is Carl Icahn and others.
What if Icahn led a leveraged buyout of Herbalife?
The company generates tremendous cash flow. Over the past three fiscal years, the company generated $626M, $446M, and $420M in free cash flow, respectively. The company also has just $850M in long-term debt versus $973M in cash and equivalents. Already, Carl Icahn has floated the idea of an LBO; and Bill Stiritz, Herbalife's fourth-largest shareholder, has expressed interest in participating. Together, they own almost 23% of the company. In addition to having two representatives on the board of directors, Icahn was recently granted permission by Herbalife to add three more representatives. While there are certainly plenty of difficulties in lining up financing to take private a company under investigation by multiple judicial and regulatory agencies, stranger things have happened.
It's certainly possible for shorts to be correct and have the company taken private out from under them.
We continue to maintain that it is foolish for small investors to get into the middle of this bench clearing brawl between Wall Street titans.
You could research the company thoroughly and be 100% certain in your conviction, long or short, and still lose a significant amount of money.
There are thousands and thousands of other potential investments out there with much lower levels of risk. There is no reason Herbalife, long or short, needs to appear in your portfolio and no reason you need to end up as collateral damage in this battle of billionaires.