NYT : The Short Tenure and Abrupt Ouster of Banking’s Sole Black C.E.O.

The Short Tenure and Abrupt Ouster of Banking’s Sole Black C.E.O.
Tidjane Thiam made Credit Suisse profitable again. But the Swiss rejected him as an outsider, and a sudden scandal took him down.

Last November, Urs Rohner, the chairman of the board of Credit Suisse, had a party at a Zurich restaurant to celebrate his 60th birthday. Among the scores of friends, family and business associates who gathered, attendees say, there was a single Black guest: Tidjane Thiam, the bank’s chief executive.

The festivities had a Studio 54 theme, with 1970s costumes and hired entertainers. Mr. Thiam watched as a Black performer came onstage dressed as a janitor, and began to dance to music while sweeping the floor. Mr. Thiam excused himself and left the room. His partner and another couple at his table, including the chief executive of the British drug company GSK, followed.

Eventually they returned to the party, only to be astonished again. A group of Mr. Rohner’s friends took the stage to perform their own musical number, all wearing Afro wigs. (Mr. Rohner declined to comment on the events, which were described by three guests.)

For Mr. Thiam, now 58, the party was just one in a series of painful incidents that shaped his five years atop Credit Suisse, when he was the only Black chief executive in the top tier of banking. Some moments were shocking, others disturbing; most had to do with tensions around being Black in a predominantly white industry and an overwhelmingly white city.

A tall, reserved, bespectacled polyglot, Mr. Thiam did the job he was hired to do: He made Credit Suisse profitable again after a long decline. But he never had to stop fighting for acceptance and respect, both within the bank and in Switzerland generally. At a shareholders meeting, his background was denigrated as “third world.” A subordinate purchased the home next to his, which was taller and looked directly into Mr. Thiam’s windows. The Zurich press rode him for not appearing sufficiently Swiss.

Now the number of Black chief executives at the highest level of banking is back to zero. In February, Credit Suisse’s board forced Mr. Thiam’s resignation, after a deeply embarrassing surveillance scandal erupted on his watch. When Mr. Thiam’s No. 2 admitted he had ordered investigators to spy on employees, the chief executive found himself with few allies and no leverage to survive.

His ouster attracted remarkably little notice outside Zurich, coming as it did months before a global reckoning with systemic bias, and occurring 4,000 miles from Wall Street. But interviews with 11 people who worked closely with Mr. Thiam at Credit Suisse, and five other close contacts — including clients, friends, family and investors — suggest that race was an ever-present factor throughout his tenure, and that it helped create the conditions for his startlingly swift departure.

Whether it’s labeled racism, xenophobia or some other form of intolerance, what’s clear is that Mr. Thiam never stopped being seen in Switzerland as someone who didn’t belong.

Credit Suisse declined to comment.

After Mr. Thiam’s resignation, he gave a news conference at the bank’s headquarters. “Every second, I’ve done the best I could,” he said. “I am who I am. I cannot change who I am.” He added: “It’s the essence of injustice to hold against somebody what they are.”

‘The most important thing in life is not to die’
Tidjane Thiam (pronounced tee-JOHN tee-YAHM) was born in Ivory Coast to an elite family active in politics. One relative led the country’s successful bid for independence from France in 1960 and became its first president. Another became the prime minister of Senegal.

The youngest of seven, Mr. Thiam was raised Muslim. His mother, Marietou, could not write but parented with perfectionist standards. “Be gallant, respect the staff that worked for us — on this, she was ruthless — do not lie, be punctual, do not say bad words, show solidarity,” said Yamousso Thiam, Mr. Thiam’s youngest sister, in an interview.

Their father, Amadou, was a journalist, a cabinet minister and an ambassador to Morocco. When Mr. Thiam was an infant, Amadou was incarcerated for three years on charges of plotting against the Ivorian government. The allegations were later invalidated, and the Thiam children would long remember the injustice — as they did the lesson their father took from narrowly surviving a coup attempt in 1971, with a gunshot wound to the hand. “The most important thing in life,” Amadou would joke, “is not to die.”

When Mr. Thiam was 6, and conspicuously uninterested in school, one of his brothers asked the Ivorian president to intervene. He summoned Mr. Thiam and his parents and reamed them out. “I remember it as if it were yesterday,” Mr. Thiam recalled in a 2015 interview. “There was a kind of family court, where there was an indictment: ‘He must go to school. The era of illiterate African princes and lazy kings, it is over.’”

Mr. Thiam quickly excelled, and in 1984 he became the first Ivorian to graduate from Paris’s prestigious École Polytechnique. After earning a degree in engineering and a master’s in business, Mr. Thiam worked at the World Bank, then in the Paris office of McKinsey.

In 1994, Mr. Thiam returned to Ivory Coast to work in public service. A few years later, he was promoted to minister of planning and development — but when a military coup deposed the president, he refused a role in the new government, and, fearing for his life, he returned to Europe and the private sector.

He ran the European operations of Aviva, a British insurer, and in 2009 was named chief executive of the British financial services firm Prudential — the first Black person to run one of the London Stock Exchange’s hundred largest companies. During his tenure, Prudential’s profits doubled and its stock price tripled, and a BBC host described Mr. Thiam as having “soared through top-flight institutions with a heady cocktail of crystal-clear intellect, fizzing ambition, and a healthy dash of charm.”

Mr. Rohner, the chairman of Credit Suisse, approached Mr. Thiam about the possibility of running the bank in 2014. Mr. Thiam was skeptical, he later told Euromoney magazine: It was a daunting role, and he wasn’t sure the bank was serious about hiring him. (Earlier in his career, he’d told a headhunter that he wouldn’t travel for a job interview unless the prospective employer knew he was “Black, African, Francophone and 6 foot 4.”) He insisted on lengthy discussions with Mr. Rohner before agreeing to take the job.

“The chairman tells me we had 19 meetings,” Mr. Thiam said in the Euromoney interview, adding: “I actually said no twice.”

‘Sink down to the third world’
At the time, Credit Suisse was in a deep funk. Years after the financial crisis, it was still heavily dependent on costly trading strategies, and its wealth management unit trailed UBS, the bank’s archrival in Zurich. Investors were impatient with its languishing stock price. On the March 2015 day when Mr. Thiam’s hiring was announced, Credit Suisse shares rose 7 percent.

His restructuring plan involved thousand of layoffs and paring back sales and trading, making many employees nervous for their jobs. It was an executive he promoted, however, who gave Mr. Thiam one of his first unsettling experiences in Switzerland.

To bolster Credit Suisse’s private wealth management business, he had tapped Iqbal Khan, 39, who had been born in Pakistan but moved to Switzerland as a child. The two were discussing strategy one day late in 2015, according to people familiar with the incident, when Mr. Khan announced that he’d bought the house next door to Mr. Thiam’s in Herrliberg, a suburb with lofty prices and views of Lake Zurich. Mr. Thiam asked Mr. Khan if he was serious. Mr. Khan said yes.

Later, Mr. Thiam told friends and colleagues that the news disturbed him. Fiercely private, he was going through a divorce, and he was leery of a subordinate having a view of his low-slung property. As a C.E.O., he didn’t relish the idea of being literally looked down upon.

Mr. Thiam made an effort to embrace Zurich society. He visited Swiss business leaders, spoke on panels convened by Swiss media and attended an annual spring festival in traditional Swiss garb: a Napoleon-style hat and matching navy cloak. But before long, aspects of his lifestyle began to irritate the locals. With Credit Suisse making a show of cutting costs, the Swiss press began to catalog Mr. Thiam’s first-class air travel and stays in presidential suites. One column accused him of taking helicopters to events and traveling with an entourage, calling him “King Thiam.”

In a country nearly synonymous with wealth — the home of the Swiss bank account and six-figure wristwatches — such anti-elitism is a little difficult to parse. Expatriates who have long worked in Switzerland say the Swiss have a fine-grained aversion to public displays of wealth, and regard those who flaunt it as outsiders. One foreign billionaire in the country, who did not want to be named discussing the issue, said he had banned luxury cars from his company garage.

Others were more direct about labeling Mr. Thiam an outsider. At Credit Suisse’s annual investor meeting in 2016, a shareholder named Ingeborg Ginsberg, a 94-year-old Holocaust survivor, questioned Mr. Thiam’s background.

“The bank is called Suisse — Credit Suisse,” Ms. Ginsberg said in German. Referencing Brady Dougan, Mr. Thiam’s American predecessor, she added: “I asked him last year if he doesn’t have a conflict of interest. I ask the same question of Mr. Thiam, if he can understand me: Does he not have a conflict of interest? I heard him mention the third world — is that really what we want? That a good, solid, Swiss bank sinks to the level of the third world?”

On the dais, where Mr. Thiam sat next to Mr. Rohner, their shock was evident.

Mr. Rohner interrupted. “You should not make such accusations, without declaration, into the room,” he said, adding: “We do not always take foreigners, we always choose the best man for the job, and we have found that man.”

A feeling of: You cleaned up the mess; now leave

By 2018, Credit Suisse’s business had improved substantially. The bank was again solidly profitable, and the wealth division had overtaken UBS in some areas. Mr. Thiam had resolved legal issues that preceded his tenure, settling a major U.S. case for an amount less than Credit Suisse had expected. Euromoney named him banker of the year.

Mr. Thiam was by now well-known in Zurich, where pedestrians on the Bahnhofstrasse would sometimes shake his hand or ask for selfies. Much of the attention was innocuous, but people who worked with him at the time say the constant exposure wore him down.

In predominantly white Zurich, a city of just 400,000, his powerful role and his skin color made him stand out. Mr. Thiam stopped driving his Porsche Cayenne to work, fearing that any run-in with another motorist, even over a parking spot, would turn into a media incident. On the tram, his adult sons were often the only Black riders — and the first to be asked for their tickets. Merely by appearing at a local nightclub, they could trigger gossip. Mr. Thiam felt that he was under a microscope; when his sister planned a surprise visit, an overeager Zurich hotel worker noticed her booking and shared the details with Mr. Thiam’s office, ruining the occasion.

At another point, during a business trip from Zurich to Geneva, he was held up by a customs worker who demanded to see his passport, even after Mr. Thiam protested that he was traveling within Switzerland. He produced the document and was permitted to leave the airport, but instructed a staffer to lodge a formal complaint about the experience. (Each of these incidents was described by multiple people.)

Things were beginning to sour inside Credit Suisse, too. Despite an improved balance sheet, Credit Suisse’s shares were down, hurt by stock offerings Mr. Thiam had deemed necessary to strengthen capital reserves. He told associates he felt underappreciated by board members, some of whom faulted him for Credit Suisse’s lack of growth in China.

In August 2018, a local financial publication wrote that Mr. Thiam was “feted abroad, unloved in Switzerland,” adding: “Prone to imperious behavior and prickly to criticism, Thiam has lost grasp of the Swiss sense of proportionality.” News articles often drew belittling comments. One reader of an especially critical Zurich blog called him a “fruit salesman” and added, “Go home, fool!” Another wrote: “I hope he sends his money home. Then we can classify it as development aid.”

Mr. Thiam would often say that given his family’s brushes with military insurrections, he wasn’t bothered by bad press and corporate drama. But as the year wore on, Mr. Thiam confided to associates his fear that the board wanted him out. Their unspoken message, he said, was: You cleaned up the mess. Now leave. It’s a pattern known as the “glass cliff” — the tendency of institutions to install women and minorities as leaders only when there’s big trouble, and then shunt them aside.

Mr. Thiam was closer to the precipice than he knew. In early 2019, he hosted a holiday party at his home. Mr. Khan had by then moved in next door, and Mr. Thiam had planted trees to obstruct the view. At the party, Mr. Khan got into a heated discussion with Mr. Thiam’s partner about the landscaping, upsetting her, and the two men stepped downstairs for a private word. Mr. Khan quickly left the scene.

Neither executive will say exactly what transpired. But later that year, Mr. Khan shocked Zurich by decamping to UBS. Wealth management had been the most successful aspect of Mr. Thiam’s tenure, and now his star executive would be working for the bank’s biggest competitor.

Spy games
That September, Mr. Khan and his wife were driving to lunch at a Zurich restaurant when they noticed they were being followed. Mr. Khan parked and confronted the man, who turned out to be a detective from a Swiss firm called Investigo. An argument ensued, during which each party has since accused the other of becoming physically aggressive. Mr. Khan filed a police report, and both Credit Suisse and the canton opened investigations.

“Spygate,” as the Swiss media called it, was a sensation. At Credit Suisse, the chief operating officer, Pierre-Olivier Bouée, admitted to ordering the surveillance, saying he had suspected Mr. Khan of trying to poach employees. He resigned. Mr. Thiam, who denied any knowledge of the spy games, was cleared. But Mr. Bouée was not just his No. 2; he had followed Mr. Thiam to the bank from Prudential, and the chief executive’s name was deeply tarnished by association.

The incident was a debacle for all of Credit Suisse, an institution that was a source of great national pride. A contract worker who had been involved in hiring Investigo died by suicide. Mr. Rohner felt obliged to publicly apologize to the Khans and the Swiss public.

Soon, more accusations surfaced, including that Credit Suisse’s H.R. chief had also been surveilled. Late in December, the Swiss Financial Market Supervisory Authority — known as Finma — started an inquiry into Credit Suisse’s use of investigators to monitor employees.

The repercussions of the scandal progressed with remarkable speed. On Jan. 31, 2020, Bloomberg reported that Mr. Rohner was looking for a new chief executive.

Three large shareholders — two American, one British — publicly came to Mr. Thiam’s defense. David Herro, a top executive at Harris Associates, a Chicago fund, suggested that the opposition to Mr. Thiam was racially motivated. Appearing on Bloomberg Television, Mr. Herro attributed the strife to “envy from competitors — or perhaps something else, given that Mr. Thiam looks a little bit different than the typical Swiss banker. Either one of these two rationales behind these attacks against him, to me, are extremely distasteful.”

But Mr. Thiam had too little support in his corner. On Feb. 7, he resigned. A Swiss member of his executive team was named his successor.

As chief executive, Mr. Thiam was responsible for everything at Credit Suisse, and the surveillance activity was widely viewed as despicable. But it’s an open question whether a C.E.O. from a different background might have survived. Other bank leaders have dodged far greater scandals.

In 2012, Jamie Dimon, the chief executive of JPMorgan Chase, failed to rein in a trader, nicknamed the London Whale, who lost the bank more than $6 billion and triggered more than $1 billion in fines. Last week, in a different matter, the bank agreed to pay nearly $1 billion in fines for illegally manipulating the markets for precious metals and Treasury products. Mr. Dimon remains Wall Street’s longest-serving C.E.O.

Other chief executives have weathered comparable, or worse, scandals. James E. Staley, the head of Barclays, tried to unmask a whistle-blower and was close to the disgraced financier Jeffrey Epstein.Credit...Evan Agostini/Invision
In 2016, in a case with striking similarities to what transpired at Credit Suisse, the chief executive of Barclays tried to unmask a whistle-blower, at one point asking an internal security team to intervene. British regulators fined the C.E.O., James E. Staley, with little fanfare. Separately, in 2019, Mr. Staley was revealed to have had ties to Jeffrey Epstein, the financier accused of sex trafficking young girls, including a visit to Mr. Epstein while he was incarcerated. Mr. Staley is still at the top of Barclays.

Before he departed Credit Suisse, Mr. Thiam had a chance to present his final set of earnings results to the press. Toward the end of the question-and-answer session, a local reporter spoke up.

“The strategy was good,” the reporter said, but the style “did not speak to Swiss mentality. This is my question: Would it be different in England or another —”

“I am who I am,” Mr. Thiam interrupted. “The same way I was born with a right hand, I cannot change being right-handed.” He added, “If people don’t like right-handed people, then I’m in trouble. That’s all I can say, because I can’t become left-handed.”

Colleagues sitting near him swore they saw Mr. Thiam’s eyes glistening.

Mr. Thiam remained in Zurich, awaiting a formal interview with Finma. It was a time of anguish, say close associates, because he urgently wanted to visit his son, Bilal, who was suffering from cancer in a Los Angeles hospital. Late in April, he flew to Bilal’s bedside. He died in early May, at 24.

Since then, Mr. Thiam has been consulting on virus relief efforts in Africa, where he serves as special envoy of the African Union on Covid-19. He has also re-engaged with politics in Ivory Coast. In August, Mr. Thiam stoked rumors that he was considering a presidential bid with a video message commemorating the country’s 60th year of independence, in which he urged Ivorians to embrace a “reconciled and fraternal” spirit.

On Sept. 2, having concluded that Credit Suisse’s surveillance activities may have violated Swiss “supervisory law,” Finma announced that its inquiry had been escalated from an investigation to an enforcement matter. An agency spokesman said that the focus was on the bank itself, not individuals.

For his sister Yamousso, one question about the Swiss still lingers. “I would be curious to know,” she said, “if today they’d finally have the honesty to recognize that seeing a Black man at the top of one of their most prestigious companies was unbearable.”

Reuters : 'No' vote ahead in New Caledonia referendum on independence from Franc

'No' vote ahead in New Caledonia referendum on independence from France
PARIS (Reuters) - Voters on the South Pacific archipelago of New Caledonia were on course to reject breaking away from France after nearly 170 years of colonial rule in a referendum on Sunday, partial results showed.

FILE PHOTO: A French flag flutters in the sky over the Elysee Palace in Paris, France, December 10, 2018. REUTERS/Philippe Wojazer/File Photo
With votes from 249 out of 304 polling stations tallied, the partial results showed the “no” camp ahead with 54.8% support and expanding its lead as results came in from the capital, Noumea, traditionally a bastion of pro-Paris loyalty.
If the “no” vote is confirmed, it would be the second failed attempt by pro-independence supporters to gain full sovereignty in the past two years.
A surprise “yes” vote would deprive Paris of a foothold in a region where China is expanding its influence and dent the pride of a country whose former empire once spanned sub-Saharan Africa, Southeast Asia, the Caribbean and the Pacific Ocean

Tensions have long run deep between pro-independence indigenous Kanaks and descendants of colonial settlers who remain loyal to Paris.
More than 180,000 long-term residents of New Caledonia are registered to vote “yes” or “no” on the question: “Do you want New Caledonia to gain its full sovereignty and become independent?”
Sunday’s referendum was the second of up to three permitted under the terms of the 1998 Noumea Accord, an agreement enshrined in France’s constitution and which set out a 20-year path towards decolonisation.

Turnout was high - the partial results showed 86% of eligible voters had cast a ballot - after a stronger-than-expected independence vote in the 2018 referendum.
New Caledonia, an island chain some 1,200 km (750 miles) east of Australia and 20,000 km (12,500 miles) from Paris, enjoys a large degree of autonomy but depends heavily on France for matters such as defence and education.
Its economy is underpinned by annual French subsidies of some 1.3 billion euros ($1.5 billion) and nickel deposits that are estimated to represent 25% of the world’s total, and tourism.

The territory has, however, largely cut itself off from the outside world to shield itself from the coronavirus. It has registered only 27 cases of COVID-19.
If the “no vote” wins, a third referendum can be held within two years if a third of the local assembly votes in favour.

REuters : German police say suspicious device found on train near Cologne not ex

German police say suspicious device found on train near Cologne not explosive
BERLIN (Reuters) - Police in Germany said on Saturday a suspicious device found on a regional train overnight near the western city of Cologne was not explosive and did not pose a threat.
A statement said bomb specialists investigated the object, which contained nails and black powder, after it was discovered by a cleaner in a cardboard box hidden in one of the train’s compartments.

Bild newspaper had reported earlier that the device was a home-made bomb capable of causing serious injuries.
Federal police sniffer dogs confirmed the location and special forces x-rayed the box, it reported.

The newspaper cited investigators as saying it was still unclear whether it was a failed terrorist attack or an attempted blackmail threat.
Germany celebrated the 30th anniversary of its reunification on Saturday.

Business of Fashion : Chanel’s Sustainability Financing, Explained


WWD : EXCLUSIVE: Lancôme Acquires Organic Rose Domain in Grasse

EXCLUSIVE: Lancôme Acquires Organic Rose Domain in Grasse
The brand will use the flowers grown on the four-acre estate in its fragrances.

PARIS — Lancôme is getting back to its roots — literally and figuratively — with the acquisition of an estate growing roses and other aromatic plants in Grasse, France.
Called Domaine de la Rose by Lancôme, the four acres of organically farmed fields also include ancient terraces and a distillery. The brand will use plants from this land in its fragrances.
The move marks the first time Lancôme becomes a domain owner and rose producer. It’s also now a protector of the perfume-making tradition, as the Grasse region is a UNESCO classified intangible cultural heritage site and considered to be the birthplace of modern perfumery.
“The first time we visited this place there was something magic in it,” Françoise Lehmann, Lancôme global brand president, told WWD. “It’s a very old domain; a family has been cultivating it for five centuries.”


She said the purchase of the domain makes strategic sense for the brand.
“Lancôme has for a very long time been a perfumer, using roses in its fragrances,” said Lehmann. “It’s a strategic move, but it’s also a move from the heart, as has always been the case for Lancôme.”
Increasingly, luxury brands are acquiring entire chains of production to help ensure quality and sustainability, both in manufacturing and the surrounding environment.


The rose is Lancôme’s iconic symbol. Armand Petitjean, who founded the brand in 1935, was a rose aficionado. He owned a rose garden outside of Paris, in Ville d’Avray, where his wife cultivated the plants.
On the newly acquired domain, Lancôme will cultivate the Centifolia rose for use in its fragrances. Ultimately, the brand plans to use every element of the rose bush to create new active ingredients and no waste.
Olive, plum and fig trees also grow on the property, which Lancôme will continue to cultivate, as well as plants native to the region, including iris, jasmine, lavender, bitter orange, tuberose and osmanthus.
There will be ancient aromatic plants, too, such as immortelle, verbena and Madonna lily, to be used in the scents, plus beehives.
The Domaine de la Rose by Lancôme Courtesy of Bruno Vacherand-Denand/Lancôme
Lehmann said a goal is to make the new domain open to other stakeholders in order to share knowledge and savoir-faire.
Lancôme already sources roses from a five-acre field in Valensole, France, which are destined for the brand’s skin-care products.
Lancôme has also been sourcing Centifolia roses, jasmine and lavender from another field in Grasse for perfume-making.
Altogether, the three domains equal 10 acres.
“The interesting thing for us as a brand,” said Lehmann, “is to have this ecosystem of roses, where we have the roses [organically] cultivated in Valensole. Those rose extracts are put in our skin-care products, through biotech or green tech, and the Grasse flowers in our fragrances.”
Provence serves as an anchor for Lancôme, for both its skin-care and perfume products, she said, adding they are made with traditional practices as well as advanced science.
Lancôme, a L’Oréal-owned brand, is sold in 130 countries worldwide.

WWD : EXCLUSIVE: First Look at Givenchy by Matthew Williams

EXCLUSIVE: First Look at Givenchy by Matthew Williams
The silhouette suggests a streamlined, tailoring-driven approach to the storied French couture house.


The white, fringed organza coat has clean, angular lines and flecks of shine; the top is laser cut, and the pants are straight, ending in a long, stiffened cuff.
In a WWD exclusive, Matthew Williams, the new creative director of Givenchy, shared the first full women’s look from his debut spring 2021 collection, to be unveiled tonight in Paris.
The silhouette suggests a tailoring-driven approach to the storied French couture house, while reflecting the modernism associated with Williams’ 1017 Alyx 9SM brand and his obsession with cutting-edge craftsmanship.
The 425,000 people who follow the American designer on Instagram would have noticed him wearing intensely shredded jeans of late, foreshadowing the surface texture of his Givenchy top, the horizontal shreds of fil coupé jacquard mounted on organza.


A look from Givenchy’s spring 2021 collection designed by Matthew Williams. Dominique Maitre/WWD
It’s also clear Williams didn’t wipe the product slate clean. His first look is accessorized by a new version of Givenchy’s hit Antigona bag, with elongated straps and a more streamlined élan. It was first introduced a decade ago.
A key ringleader of the luxury streetwear scene, Williams joined Givenchy last June and became the French house’s seventh couturier. At the time, the designer vowed that Givenchy’s new era would be one “based on modernity and inclusivity.”
He is to unveil his first designs for men and women at 8 p.m. Paris time. While Givenchy is on the official calendar of Paris Fashion Week — and one of the most anticipated debuts of the season — Williams opted to forego the runway and simply release images of his collection. A creative film is to follow in the weeks to come.
While perhaps best known for his roller-coaster buckle and collaborations with Nike, Moncler and Dior, Williams, 34, is seen as a driven, versatile fashion talent with a sharp vision, strong cultural and artistic connections, and formidable technical chops.

FT : Neiman Marcus: how a creditor’s crusade against private equity power went w

Neiman Marcus: how a creditor’s crusade against private equity power went wrong
Dan Kamensky wanted to expose how lenders and bondholders get a raw deal in restructurings but could now face prosecution

When Neiman Marcus filed for bankruptcy in May it felt like an American tragedy. The closure of the 113-year-old luxury department store chain had been triggered by lockdowns to control the coronavirus pandemic, leaving its 14,000 workers on furlough. There was concern among creditors and lenders that a long-drawn out Chapter 11 process could lead to the retailer’s liquidation.

Yet, for one hedge fund manager the court-supervised process represented an opportunity. Dan Kamensky, the founder of a small hedge fund, Marble Ridge Capital, had spent the previous two years brawling with Neiman’s owners, Ares Management — a $165bn California asset manager — and the Canada Pension Plan Investment Board.

Mr Kamensky had no interest in taking over Neiman Marcus. Rather his grievance was over a complex debt restructuring in 2019 where he claimed that the chain store’s owners had improperly seized the company’s prized asset, online retailer MyTheresa, away from creditors.

Ares and CPPIB saw taking control of MyTheresa as a move that could enable Neiman’s shareholders and its creditors to salvage at least some value from an otherwise disastrous $6bn leveraged buyout. But the move, claimed Mr Kamensky, had cheated creditors. His campaign, however, had gained little traction. Now with Neiman in front of a federal bankruptcy judge he saw a fresh chance to make his argument in court.

The 47-year-old former lawyer had assembled a case not just focused on what he believed was the abuse of creditors by private equity firms. Mr Kamensky also wanted to shine the light on what he said were systemic problems, where top law firms and investment banks worked with buyout groups to crush lenders and bondholders who otherwise should have become the rightful owners of failed companies. 

By late July, a Houston bankruptcy court had aired his allegations that Ares and CPPIB had fraudulently transferred MyTheresa away from creditors. Two separate court-ordered investigations found at least “viable” claims of fraudulent transfers. And Mr Kamensky had helped wring out a $172m settlement for junior Neiman creditors including the likes of Estee Lauder and Chanel.

The victory was shortlived. At 6am on September 3, FBI agents arrested Mr Kamensky at his suburban New York home on suspicion of fraud, extortion and bribery after he was accused of pressuring a rival not to bid for assets won in the settlement so Marble Ridge could buy them at a cheaper price. Prior to the criminal allegations, Mr Kamensky admitted to Department of Justice investigators that by trying to influence a rival bidder he had made a “grave mistake”.

The arrest shocked Wall Street. And while his plight has elicited little sympathy, Mr Kamensky’s crusade over private equity aggression has struck a chord with many in the distressed debt market. Creditors like Marble Ridge for years had been complaining about how buyout firms with stakes in companies such as Toys R Us and J Crew had been pushing legal and ethical boundaries to avoid having their investments wiped out.

Mr Kamensky, maligned at once by the owners of Neiman Marcus and shunned by some fellow creditors, had been the rare hedge fund manager willing to expose the ugliness of the private equity/hedge fund wars. That has now been overshadowed by his own misbehaviour. 

“There used to be a sense that private equity firms needed to take care of the lenders that funded their LBOs,” says Jared Ellias, a former bankruptcy lawyer who is a professor at the University of California, Hastings. “Now, they don't seem to care at all and they have no qualms about burning their lenders really badly.”

The $6bn LBO
Anthony Ressler made his name as a junk bond banker at Drexel Burnham Lambert in the 1980s. After Drexel’s bankruptcy he and Leon Black — his brother in-law — joined forces to form Apollo Global Management. In 1997, Mr Ressler departed Apollo to form his own investment company named after the Greek god of war, Ares, a sibling of Apollo.

In 2013, Ares announced, in partnership with CPPIB, its acquisition of Neiman Marcus for $6bn. It was one of the biggest leveraged buyouts since the financial crisis. Yet the two investment groups had put in less than $1.5bn combined of the Neiman Marcus purchase price and by 2017, the retailer was struggling under the weight of nearly $5bn of buyout debt with sales and profit in steady decline.

By 2018 it wanted to refinance its debts. But by September of that year the gap between the owners and creditors — Neiman was asking them to accept big losses to the face value of their holdings — was so large that the talks collapsed. Bankruptcy seemed inevitable. But that would have wiped out Ares and CPPIB. Instead the duo looked for an alternative. In 2014 Neiman had bought a promising German ecommerce retailer, MyTheresa.com, for $200m. It was a hedge against the declining physical retail sales at its 42 stores.

MyTheresa was almost doubling revenue every two years and by 2019 it had an estimated valuation of at least $500m. Almost two years earlier in March 2017 while MyTheresa was prospering, Neiman and its advisers had made a seemingly esoteric move. Taking advantage of bond and loan documents that all sides agree had been loosely written, Neiman designated the online business as a so-called “unrestricted subsidiary”, ending any oversight creditors had over MyTheresa. It was an unremarkable move, the significance of which only became apparent in September 2018 with the collapse of the refinancing talks.

With $3bn of debt falling due in 2020 Ares and CPPIB were facing a Neiman bankruptcy. At this stage, private equity groups often walk away, accept their losses, and hand over the keys of an overleveraged company to creditors. But in an era of covenant-lite and covenant free debt — where companies are able to avoid defaults — Ares had another option. With MyTheresa now an unrestricted subsidiary, the unit was the bargaining chip that Neiman needed to keep its investment alive. Neiman, in September 2018, shifted MyTheresa into a unit where creditors no longer had a claim on it: it was now the sole property of Ares and CPPIB.

After announcing the transfer, the two owners called back the creditor factions and told them that Neiman would now like to resume refinancing talks. Over the next five months, the sides clawed their way to a deal that pushed out Neiman’s most imminent debt maturity to 2022. In the debt exchange, existing lenders would swap into new loans at higher interest rates and receive some cash for their existing holdings. Unsecured bondholders would swap into secured notes. New bonds would be sold to raise fresh cash. And crucially, Ares and CPPIB would hand back the first $450m in value of MyTheresa to those bondholders.

Privately many of the Neiman creditors were furious. Yet, virtually all of them got on board with the deal. There was only one major holdout: Mr Kamensky.

Restructuring resistance
In September 2018, Mr Kamensky wrote a public letter blasting Neiman Marcus for snatching MyTheresa even as other creditors were trying to cut a deal. He wrote that the purpose of the transfer was to “strip an important and valuable asset away from creditors of the company and to gift that asset to Ares and CPPIB”. He later filed a lawsuit in Texas against Neiman Marcus, accusing its private equity owners of executing an “intentional fraudulent transfer” of MyTheresa. 

Sceptics, including some fellow creditors, believed Mr Kamensky was showboating to raise his own profile and that of his hedge fund when a compromise deal was possible.

Having begun his career as a restructuring lawyer at Sidley Austin, Mr Kamensky then made his name as a distressed debt investor at hedge fund Paulson & Co. He was part of a team that invested in Caesars Entertainment, where creditors secured a $6bn settlement pursuing fraudulent transfer claims against the casino chain’s private equity owners.

By the time the bankruptcy proceedings had started Ares and CPPIB had struck a deal to hand over the retail chain to its senior lenders such as Pimco and Davidson Kempner, leaving junior creditors to receive just cents on the dollar. But Chapter 11 allowed all stakeholders to have a voice, even bit-part players like Marble Ridge which owned just $60m in Neiman debt.

In court documents, Mr Kamensky, alleged a broad conspiracy around the MyTheresa transfer, accusing law firm Kirkland & Ellis and investment bank Lazard of giving improper cover to Neiman. The two firms were hired as restructuring advisers by the retailer in 2017 and helped design the MyTheresa transfer and subsequent refinancing. Neither firm responded to a request for comment. But in court documents, Neiman insisted the MyTheresa transactions had been crafted properly, with the help of “leading financial advisers” and “world class law firms”.

Mr Kamensky wrote in a court paper that “Kirkland and Lazard are not in a position and cannot be expected to impartially investigate, analyse and potentially challenge transactions that they themselves designed, implemented and subsequently took steps to insulate, all for the exclusive benefit of the LBO sponsors [Ares and CPPIB].”

At a court hearing in Houston in late May, Marble Ridge argued for an independent investigation into the MyTheresa transaction. But few expected anything to derail an efficient bankruptcy as Neiman Marcus was racing to avoid a liquidation. And Mr Kamensky did not have the full backing of other creditors.

Marc Beilinson, a Neiman independent director, then testified. He sought to reassure the court that an investigation he was conducting into MyTheresa would look into Mr Kamensky’s claims. But he stumbled horribly when Judge David Jones asked him to explain his job as an independent director.

Judge Jones later said in court that “what he [Beilinson] gave me was a line of bull. And I don’t appreciate it . . . I expect transparency, I expect forthrightness, and I got neither today from him . . . I do not want to see a fiduciary to this estate ever appear in front of me again unprepared, uneducated and borderline incompetent. Never.”

Mr Kamensky had criticised the governance of Neiman Marcus, accusing directors of being well-paid stooges for Ares and CPPIB. The testimony of Mr Beilinson — who said in court that he had served as a director at around 20 different companies over his career including several that were distressed or in bankruptcy — seemed to vindicate some of that criticism.

His inability to explain his role shone an uncomfortable light on directors in private equity-owned businesses who are typically recruited by law firms. Almost all are retired lawyers, bankers, investors or executives looking for a lucrative but often untaxing job. They are often seen by critics, as reliable rubber-stamps for private equity firms.

After the Beilinson testimony a court ordered investigation conducted by a committee of unsecured creditors — including Mr Kamensky — concluded in July that Neiman Marcus was deeply insolvent at the time of the transfer of ownership of MyTheresa. It said Ares and CPPIB had “pilfered at least hundreds of millions of dollars of value” in the MyTheresa transaction.

The insolvency finding carried a disturbing implication. If correct, it would mean that the company’s directors — including independents — had a broader fiduciary duty to creditors in addition to just shareholders at the time of the transfer. This raised the question of whether they should have blocked the no-value MyTheresa transfer. Lazard and Kirkland & Ellis had helped shape Neiman’s view, according to the report, that it was solvent in 2018 — even as its debt was trading for 62 cents on the dollar.

Kamensky overplays his hand
Ares dismissed the creditors’ committee report as a biased, pre-determined hit job. But after Mr Beilinson quit, Scott Vogel, the other independent director and a veteran distressed debt investor, conducted his own inquiry. He wrote to the court in late July that the reorganised Neiman company holds “viable claims based in constructive fraudulent conveyance because the company was likely insolvent at the time of the [MyTheresa] distribution”.

Mr Kamensky’s doggedness, once dismissed as futile, had paid off. In exchange for being released from further legal liability and ending the dispute, Ares and CPPIB agreed to give back $172m to unsecured creditors, mostly in MyTheresa preferred stock.

Realising that many of the other junior creditors would be uninterested in taking MyTheresa equity and waiting years for Neiman to sell it, Mr Kamensky believed he could wring some extra profit from the opportunity he had created. So he offered to buy out other creditors for 20 cents on the dollar.

After discovering that the investment bank Jefferies was also considering a bid — one higher than his — for the MyTheresa shares, Mr Kamensky called the investment bank threatening to stop doing business with Jefferies, where he was a client, if they got in his way. Having spent nearly $4m fighting Neiman Marcus, he explained, that he was determined to enjoy the spoils. In chat messages sent through Bloomberg terminals, Mr Kamensky used intimidating language — “DO NOT SEND IN A BID” read one of them, according to an investigation published by the Department of Justice. Jefferies later reported Mr Kamensky’s actions to other creditors.

“I am sorry to see the ugly turn of events,” says Sara Tirschwell, a longtime distressed debt investor who had once planned to go into business with Mr Kamensky. “But happy that Dan finally exposed the bad faith schemes that private equity sponsors use to keep assets out of reach from creditors”.

Ares insists that the MyTheresa transaction was above board and was designed to maximise value for all stakeholders in Neiman Marcus. The firm has pointed out that it had never taken any fees or dividends out of the retail business or missed a principal or interest payment to creditors. And in the 2019 refinancing transaction, Ares had invested another $100m that now has been mostly lost — further evidence, its supporters argue, that it believed the company was solvent and acted in good faith.

Neiman Marcus exited Chapter 11 in late September at just a $2bn valuation. MyTheresa remains a separate company. Marble Ridge is in the process of dissolving its operations. And while the $172m for unsecured creditors remains in a trust, Mr Kamensky — whose campaign wrung the payment out of Neiman Marcus — is trying to avoid jail.

WSJ : Facebook Says Government Breakup of Instagram, WhatsApp Would Be ‘Complete

Facebook Says Government Breakup of Instagram, WhatsApp Would Be ‘Complete Nonstarter’
Social giant prepares defense against antitrust scrutiny from federal enforcers

A government effort to break up Facebook Inc. FB -2.51% from Instagram and WhatsApp would defy established law, cost billions of dollars and harm consumers, according to a paper company lawyers have prepared in the wake of rising antitrust legal threats.

The 14-page document, produced by lawyers at Sidley Austin LLP and reviewed by The Wall Street Journal, offers a preview of the social-media giant’s defense as federal antitrust enforcers and members of Congress continue to pursue investigations into Facebook’s power and past competitive behavior. Probes of other technology companies such as Alphabet Inc.’s Google, Amazon.com Inc. and Apple Inc. are also ongoing.

The House Antitrust Subcommittee this month is expected to release the findings of its investigation into Facebook and other companies.

The legal document, while light on legal citations and technical language, offers a window into how Facebook may defend itself if it is sued on antitrust grounds and reflects its lawyers’ sense that any attempts to force a divestiture of WhatsApp or Instagram would be fought in both the public square and the courtroom.

Facebook’s acquisitions of Instagram in 2012 and WhatsApp in 2014 were examined by the Federal Trade Commission, which closed its reviews without issuing an objection. The company made big investments to boost growth on those platforms and they now share numerous operations that are integrated. In the paper, Facebook says unwinding the deals would be nearly impossible to achieve, forcing the company to spend billions of dollars maintaining separate systems, weakening security and harming users’ experience.

“A ‘breakup’ of Facebook is thus a complete nonstarter,” the paper declares.

Facebook’s contention that past government inaction on the acquisitions should limit current action is “surprisingly weak,” said Tim Wu, a Columbia University law professor. A government antitrust case against the company would likely rely on the argument that Facebook made serial acquisitions to reduce competition, a question that wasn’t considered when the Federal Trade Commission originally chose not to oppose the Instagram and WhatsApp deals, he said.

“There’s no way a decision on one merger would be preclusive,” he said, noting that the FTC’s reviews of both acquisitions had reserved the right to revisit the deals at a later time.

Facebook’s claim regarding the difficulty of a potential breakup would also be unlikely to carry legal weight. “There is no ‘it’s too hard’ defense,” Mr. Wu said.

The Journal reported last month that the FTC was preparing to file a potential complaint against Facebook before year’s end, part of a broader wave of government probes targeting Facebook, Apple, Amazon and Google. Against a backdrop of concerns about Facebook’s impact on politics, privacy and the regulation of speech, the company’s critics have argued that key Facebook acquisitions—including Instagram and WhatsApp—illegally reduced competition in social media.

Facebook declined to discuss the information in the memo. The FTC didn’t immediately respond to a request for comment.

This summer, the antitrust subcommittee published 2012 emails in which Facebook Chief Executive Mark Zuckerberg cited the difficulty of competing with Instagram as a rationale for buying the photo-based social media company, which at the time had 30 million users but only 13 employees.

“There are network effects around social products and a finite number of different social mechanics to invent,” Mr. Zuckerberg wrote in an email. “Once someone wins at a specific mechanic, it’s difficult for others to supplant them without doing something different.”

In another message Mr. Zuckerberg acknowledged that a rationale for buying Instagram would be to “neutralize a competitor,” before backtracking in a later email.

While the emails were new to Congress and the public, they weren’t a surprise to antitrust enforcers that had cleared the merger, Facebook noted.

“The FTC reviewed those documents along with the rest of a massive investigatory record, and it interviewed the companies’ senior executives, including both CEOs,” Facebook’s paper says. The commission “voted 5-0 to let the companies close their deal.”

For the government to revisit the Instagram acquisition or Facebook’s 2014 WhatsApp acquisition years later—after the company had invested heavily to make the deals successful—would “send a disquieting message to the business community,” the paper says.