Goldman Sachs Raises Conflicts to a High Art: Jonathan Weil
Right after a Delaware state judge issued his ruling last week in a shareholder lawsuit contesting Kinder Morgan Inc.’s purchase of El Paso Corp. (EP), the public finger-wagging aimed at Goldman Sachs Group Inc. (GS) began.
Goldman, some pundits wrote, had emerged as the biggest loser of the bunch. The bank’s conflicts of interest in advising El Paso on the deal had been castigated by an esteemed jurist as breathtakingly over the top. Once again, Goldman had sullied its precious reputation. And so on, critics said.
While it’s always fun to fantasize about Goldman losing at anything, one gnawing question stands out: What exactly did the company lose? The answer is nothing, as far as I can tell. Actually, it won big.
Consider these facts: El Paso’s board knew that Goldman owned a 19 percent stake in Kinder Morgan worth about $4 billion when the companies’ buyout talks began last year. The directors knew Goldman controlled two seats on Kinder Morgan’s board. They were aware that Goldman had every incentive to maximize its own investment and fleece El Paso’s shareholders. Yet they turned to Goldman anyway for advice on responding to Kinder Morgan’s takeover overtures.
El Paso probably could have gotten a better price from Kinder Morgan had its representatives, including Goldman, been more faithful and less conflicted, Delaware Chancery Court Judge Leo Strine said. The difficult question he faced was whether to do anything about it. He decided he shouldn’t, concluding that any remedy he tried to fashion would do more harm than good.
He didn’t block the proposed $21.1 billion transaction between the two Houston-based pipeline operators. The sale will go through. Goldman, the world’s top-ranked takeover adviser based on deals announced last year, still gets its $20 million fee from El Paso. In all likelihood, nothing about this episode will stop anyone else from hiring Goldman in the future. Plus, Strine said it’s doubtful Goldman could be held liable for any damages, based on the facts known so far.
Maybe Goldman’s reputation did take a hit. Yet after so many scandals the past few years, including the company’s $550 million fraud-claim settlement with the Securities and Exchange Commission in 2010, you have to wonder if this new one matters.
Nobody was fooled last year when Goldman’s chairman and chief executive officer, Lloyd Blankfein, made a spectacle of unveiling a new set of fluffy business principles pledging to put clients’ interests first. It’s not the principle that counts in this business. It’s the money. And on this occasion, Goldman got a sweet deal.
Nothing was left to chance, it seems. Steve Daniel, the lead Goldman banker advising El Paso, personally owned $340,000 of stock in Kinder Morgan. This point wasn’t disclosed to El Paso, although it’s hard to imagine its directors would have cared much. They already knew he was horribly conflicted, because of his employer’s $4 billion stake in Kinder Morgan. What would their complaint have been? That he was really, really conflicted?
Not surprisingly, Goldman’s analyses of El Paso’s options pointed toward accepting Kinder Morgan’s offer. Goldman supposedly set up a “Chinese wall” to keep its bankers conflict-free. And a second bank, Morgan Stanley (MS), was brought in to advise El Paso. The judge said the wall wasn’t effective, though. (As if these things ever are.) Goldman made sure the terms were set so that Morgan Stanley got paid only if Kinder Morgan bought the company, Strine wrote.
A deal benefitting Kinder Morgan may have been what some of El Paso’s bosses wanted. As Strine explained, El Paso’s CEO and chairman, Douglas Foshee, didn’t tell his board that he and other El Paso managers wanted to buy back El Paso’s energy exploration-and-production business from Kinder Morgan for themselves, after the deal was negotiated.
Foshee’s incentive was to limit the sale price that El Paso got, not maximize it. “Not forcing Kinder Morgan to pay the highest price possible for El Paso was more optimal than exhausting its wallet, because that would tend to cause Kinder Morgan to demand a higher price for the E&P assets,” Strine wrote. The board had given Foshee sole responsibility for negotiating the company’s sale from the outset. As for Kinder Morgan, it drove a hard bargain, as it was entitled to do.
So what did Goldman do wrong? Its bankers seem to have behaved like sharks. Guess what? Investment bankers are sharks. Goldman’s reputation was reinforced, not damaged.
If El Paso’s shareholders dislike the deal, they can vote against it. The vast majority won’t. There is no competing bidder, because El Paso’s board didn’t seek one. What El Paso shareholders lost was the possibility that another company might have offered a higher premium than Kinder Morgan did. There’s no way to know if anybody would have.
While the conflicts here may have been extreme, managers and buyout advisers at big companies pull similar escapades all the time, skimming corporate resources for themselves at the expense of passive shareholders. (Foshee stands to receive about $90 million once the sale is completed.) There usually isn’t much outsiders can do about it, which is something everyone should understand before they buy stock in a public company.
As for the notion that Goldman lost? Come on. It was paid $20 million for advising a client in a deal where Goldman itself was on the other side. What’s amazing is that El Paso let Goldman pull this off.
(Jonathan Weil is a Bloomberg View columnist. The opinions expressed are his own.)
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