July 13, 2002
The Aloha Petroleum Deal

I haven't seen the details of the Aloha Petroleum deal set out anywhere in a comprehensible way. So I might as well do it here:

In 1989 the managers and directors of Harken Energy Corporation were presiding over a company that was losing a lot of money that year. The SEC-cleaned accounting statements would eventually report that Harken lost $12.6 million that year.

Anxious to report better numbers, the managers of Harken came up with a plan. Harken would sell 80% of its chain of Hawaiian gas stations--Aloha Petroleum--to a group of investors that included Harken's chairman Alan Quasha and another of its directors. Harken would loan the buyers $11 million and the buyers would kick in an additional $1 million up front for a total sale "price" of $12 million. Since Harken had carried Aloha on its books as worth $5.1 million, this "sale" would produce an immediate $7.9 million profit--$12 million in the sale "price" minus the $4.1 million valuation of 80% of Aloha. For Harken, this was enough to turn a bad loss for the year into a modest loss.

The net effect on Harken's balance sheet? Beforehand, Harken had had Aloha Petroleum as an asset carried as worth $5.1 million. Afterwards, Harken had on its balance sheet:

  • 20% of Aloha Petroleum, carried as worth $1.0 million.
  • $1 million extra in cash contributed by the insider purchasers of the 80% of Aloha.
  • An $11 million loan owed to Harken by the insider Aloha purchasers.

So what's the problem? Beforehand, Harken had one asset carried as worth $5.1 million. Afterwards, Harken had three assets whose value summed to $13 million. That's a gain of $7.9 million, right?... Urrr... Wrong.

The problem was the terms of the $11 million loan. It was not collateralized by or subject to recourse through anything other than Aloha. If Aloha were to make a ton of money, then the insider Aloha purchasers would pay the interest and repay the $11 million principal to Harken. If Aloha did not make a ton of money, then the insider Aloha purchasers would default on the loan, and at some point in the future Harken would have to book the loss from the default.

This was what the SEC objected to: that Harken was booking $7.9 million in current profits--less than the $11 million in financing that it was committing to the deal--when what Harken was really doing was transforming 80% of its ownership stake in Aloha from "equity" into "debt". When you looked beneath the surface of the transaction there was no change in the underlying economics: before the sale, Harken got cash from its equity stake in Aloha if and only if Aloha made the money; after the sale, Harken got cash from the debt it was owed by Aloha's insider purchasers if and only if Aloha made the money. Harken had made no significant change in its underlying businesses and profit potential as an economic organization, and yet was trying to claim that something, somehow had added $8 million in value--in current profits--to the company.

Needless to say, the SEC was not a happy camper about this.

And, needless to say, George W. Bush was lying when he claimed that "There was an honest difference of opinion. . . . sometimes things aren't exactly black-and-white when it comes to accounting procedures." I can't find an accountant (save for Harken's accountant, Arthur Anderson) who thinks that the SEC was not black-and-white correct when it demanded that Harken remove the "profit" from the Aloha sale. There was a "difference of opinion," yes. But it is disingenuous to call the Harken side of it "honest".


The Insider Game

July 12, 2002
By PAUL KRUGMAN

The current crisis in American capitalism... is about the way the game has been rigged on behalf of insiders. And the Bush administration is full of such insiders.... Everything Mr. Bush has said and done lately shows that he doesn't get it. Asked about the Aloha Petroleum deal at his former company Harken Energy %uFFD1 in which big profits were recorded on a sale that was paid for by the company itself, a transaction that obviously had no meaning except as a way to inflate reported earnings %uFFD1 he responded, "There was an honest difference of opinion. . . . sometimes things aren't exactly black-and-white when it comes to accounting procedures."



July 12, 2002

The Insider Game

By PAUL KRUGMAN

The current crisis in American capitalism isn't just about the specific details — about tricky accounting, stock options, loans to executives, and so on. It's about the way the game has been rigged on behalf of insiders.

And the Bush administration is full of such insiders. That's why President Bush cannot get away with merely rhetorical opposition to executive wrongdoers. To give the most extreme example (so far), how can we take his moralizing seriously when Thomas White — whose division of Enron generated $500 million in phony profits, and who sold $12 million in stock just before the company collapsed — is still secretary of the Army?

Yet everything Mr. Bush has said and done lately shows that he doesn't get it. Asked about the Aloha Petroleum deal at his former company Harken Energy — in which big profits were recorded on a sale that was paid for by the company itself, a transaction that obviously had no meaning except as a way to inflate reported earnings — he responded, "There was an honest difference of opinion. . . . sometimes things aren't exactly black-and-white when it comes to accounting procedures."

And he still opposes both reforms that would reduce the incentives for corporate scams, such as requiring companies to count executive stock options against profits, and reforms that would make it harder to carry out such scams, such as not allowing accountants to take consulting fees from the same firms they audit.

The closest thing to a substantive proposal in Mr. Bush's tough-talking, nearly content-free speech on Tuesday was his call for extra punishment for executives convicted of fraud. But that's an empty threat. In reality, top executives rarely get charged with crimes; not a single indictment has yet been brought in the Enron affair, and even "Chainsaw Al" Dunlap, a serial book-cooker, faces only a civil suit. And they almost never get convicted. Accounting issues are technical enough to confuse many juries; expensive lawyers make the most of that confusion; and if all else fails, big-name executives have friends in high places who protect them.

In this as in so much of the corporate governance issue, the current wave of scandal is prefigured by President Bush's own history.

An aside: Some pundits have tried to dismiss questions about Mr. Bush's business career as unfair — it was long ago, and hence irrelevant. Yet many of these same pundits thought it was perfectly appropriate to spend seven years and $70 million investigating a failed land deal that was even further in Bill Clinton's past. And if they want something more recent, how about reporting on the story of Mr. Bush's extraordinarily lucrative investment in the Texas Rangers, which became so profitable because of a highly incestuous web of public policy and private deals? As in the case of Harken, no hard work is necessary; Joe Conason laid it all out in Harper's almost two years ago.

But the Harken story still has more to teach us, because the S.E.C. investigation into Mr. Bush's stock sale is a perfect illustration of why his tough talk won't scare well-connected malefactors.

Mr. Bush claims that he was "vetted" by the S.E.C. In fact, the agency's investigation was peculiarly perfunctory. It somehow decided that Mr. Bush's perfectly timed stock sale did not reflect inside information without interviewing him, or any other members of Harken's board. Maybe top officials at the S.E.C. felt they already knew enough about Mr. Bush: his father, the president, had appointed a good friend as S.E.C. chairman. And the general counsel, who would normally make decisions about legal action, had previously been George W. Bush's personal lawyer — he negotiated the purchase of the Texas Rangers. I am not making this up.

Most corporate wrongdoers won't be quite as well connected as the young Mr. Bush; but like him, they will expect, and probably receive, kid-glove treatment. In an interesting parallel, today's S.E.C., which claims to be investigating the highly questionable accounting at Halliburton that turned a loss into a reported profit, has yet to interview the C.E.O. at the time — Dick Cheney.

The bottom line is that in the last week any hopes you might have had that Mr. Bush would make a break from his past and champion desperately needed corporate reform have been dashed. Mr. Bush is not a real reformer; he just plays one on TV.


LA Times | July 12, 2002 | As a Board Member, Bush OKd a Deal Like Enron's

By WARREN VIETH, TIMES STAFF WRITER

WASHINGTON -- In early 1989, George W. Bush and his fellow board members at Harken Energy Corp. were presiding over a company that was headed south in a hurry. The Dallas-based oil firm had lost millions of dollars placing bad bets on commodity futures. Debt was piling up; red ink was beginning to flow.

Harken's executives came up with a novel plan to ease the pain. They would sell a small chain of Hawaiian gas stations called Aloha Petroleum to a group of investors that included Harken's chairman and one of its directors. The buyers would pay $1 million up front, but the accountants would record an immediate $7.9-million profit, enough to erase most of Harken's losses for the year.

They made a point of seeking the approval of directors who were not participants in the investor group. Bush, a member of the board's audit committee, signed off on the deal, according to Harken documents. So did the company's outside auditor, Arthur Andersen & Co. But the government challenged and ultimately overturned the accounting method used by Harken to post a gain on the sale. Aloha was sold a second time, and the new buyer extracted big concessions from the company. The initial profit recorded on the sale morphed into a big loss. In the midst of all the maneuvering, Bush sold most of his Harken stock in June 1990.

Based on a review of publicly released Securities and Exchange Commission filings, meeting minutes, memos and correspondence from that period, there is no evidence that Bush, or any of the other directors, raised objections or expressed concern about the Aloha deal.

Experts on corporate governance say that as an independent director and one of only three members of the audit committee, Bush was in a position to exercise an important oversight role but apparently failed to do so.

An audit committee's primary responsibility is to ensure that the company's outside auditors conduct a thorough examination of the financial records without interference from officers and employees.

The White House on Thursday declined to comment on the SEC documents pertaining to Bush's actions as a director.

As the president tries to respond to the wave of accounting scandals sweeping corporate America, the events of 12 and 13 years ago have come back to haunt him.

The Aloha sale was so similar to what Enron Corp. did to hide its losses that Harken could have served as a model for the now-disgraced company, one accounting expert said.

"The people at Enron could have gone to school on this thing," said Alfred King, former managing director of the Institute of Management Accountants, vice chairman of Milwaukee-based Valuation Research Corp. and former advisor to the Financial Accounting Standards Board.

"They sold to themselves and recorded a profit," King said. "That's exactly what Enron did on a number of those off-balance-sheet transactions. On this one transaction at least, it's almost identical."

Bush rejects the comparison to Enron, a far larger Texas energy firm that cooked its books on a scale never before seen. He insists his actions at Harken were thoroughly investigated by the Securities and Exchange Commission.

"In the corporate world, sometimes things aren't exactly black and white when it comes to accounting procedures," Bush said when asked in general about Aloha at a news conference this week.

It's up to the SEC, Bush said, "to determine whether or not the decision by the auditors was the appropriate decision. And they did look, and they decided that the earnings ought to be restated, and the company did so immediately."

Bush's father was vice president in 1986 when Bush's previous company was purchased by Harken and he became a member of the board. Bush's sale of his Harken stock in 1990 was an issue in his 1994 gubernatorial campaign and 2000 presidential bid.

But Harken's sale of Aloha received little public attention until Enron's spectacular collapse and parallels were noted between the Aloha deal and Enron's practice of inflating its earnings and shoring up its balance sheet by hiding massive amounts of debt in partnerships consisting of company insiders.

The magnitude of Enron's collapse is many times greater than Harken's financial travails. Moreover, Enron's top officers are facing criminal charges for their actions. Although the SEC required Harken to revise its financial results for 1989, it did not refer the case to its enforcement division for prosecution.

"If the division of corporate finance had believed the purpose of the [Aloha] transaction was to generate a phantom profit, there is little question that it would have made a referral," said Jacob S. Frenkel, a former SEC enforcement attorney who heads the white-collar crime group at the Gambrell & Russell law firm in Washington.

Still, accounting experts, security law specialists and political analysts say there is enough similarity between events at Harken and Enron to keep Bush on the defensive about his own actions a decade ago and undermine his credibility as a corporate reformer.

Indeed, Bush would not have been allowed to serve on Harken's audit committee if the reform proposals he outlined this week had been in effect then. The president says audit panel membership should be limited to outside directors. Besides sitting on Harken's board, Bush had a consulting contract with the company. According to accounting experts, that qualifies him as a corporate insider.

"Hiding losses in partnerships, playing games with accounting, not reporting forthrightly transactions as a potential inside trader--it's all eerily reminiscent of Enron," said Charles Lewis, executive director of the Center for Public Integrity, a Washington research group. "This is not a corporate executive who laid awake at night worrying about complying with federal laws, from all appearances," said Lewis, who has been critical of the Bush administration.

Another transaction at Harken would have violated Bush's reform proposals as well: On Thursday, the White House confirmed that Harken made two loans to Bush while he served on the board of directors, a practice that Bush now wants publicly held companies to prohibit.

The loans, totaling $180,375, were made in 1986 and 1988 at a below-market interest rate to enable Bush to purchase Harken stock under an incentive plan for board members. They were later converted into stock options that Bush never exercised, the White House said.

Suspicions about the Aloha Petroleum deal have been fueled by the fact that most of the principals refuse to talk.

Of the seven Harken directors who served on the board with Bush, five declined to discuss the deal or did not return calls seeking comment. Executives at Aloha, now a privately held company, also declined to comment. So did past and present officials at Harken, Arthur Andersen and the SEC.

Former director Talat M. Othman, who chaired the three-member audit committee, said he did not recall the details of the Aloha sale or the company's reasons for arranging it. "I'm not sure that our motivation was to create instant profits," said Othman, a Palestinian who represented Saudi investors who owned 13% of Harken's stock. "It was a normal part of the business to be buying and selling."

The third audit committee member, E. Stuart Watson, also said he didn't remember much about Aloha. "I don't know about that Hawaiian outfit because I was getting off the board about that time," Watson said.

Aloha dispensed gasoline at 40 or so service stations, convenience stores and mini-marts on Oahu and Hawaii. The little chain traced its history to J. Paul Getty, who installed the island's first gas pumps.

Harken acquired Aloha in 1986 when it bought a multi-state gas retailer called E-Z Serve. When it announced its plan to sell 80% of Aloha in 1989, it said Hawaii was too far away from its other gasoline markets and required too much management attention.

But the new owners looked an awful lot like the old owners. The buyers were an investor group controlled by the family of Harken Chairman Alan G. Quasha. The sales price was $12 million, of which $11 million would come in the form of a loan from Harken, with no payments due for several years. Although the company received only $1 million, it recorded a $7.9-million profit on the sale.

Harken reported a net loss of $3.3 million for that year. It was bad news for shareholders, but it could have been much worse. Harken's commodity trading losses had reached $16.6 million by year's end. Without the Aloha profit, the 1989 shortfall would have been a real shocker.

The Aloha transaction raised eyebrows at the SEC, which spent several months reviewing the relationship between Harken and the buyer group and the accounting procedures that produced the big profit.

In the end, the agency forced Harken to restate its earnings for 1989. The $3.3-million loss ballooned to $12.6 million.

In the meantime, Aloha had changed hands a second time. Quasha's investor group sold the chain to a firm headed by David Halbert, a business associate of Harken President Mikel D. Faulkner and a friend of Bush.

Once again, it was not a clean break. When Harken sold Aloha to Quasha's group, it had agreed to retain liability for any environmental problems associated with the chain.

In early 1990, it discovered that the commitment would cost it dearly. Aloha's new owner had 20 gas outlets tested and found that 11 had leaky underground tanks requiring expensive repairs. There were 21 sites still awaiting tests.

Meanwhile, Harken was experiencing a severe cash flow crisis and needed to raise money fast. Acknowledging in internal memos that it was negotiating from weakness, the company agreed to forgive $7.2 million of the money it was owed by Halbert for the Aloha purchase and related transactions in exchange for accelerated payments of the remaining debt.

King, the accounting expert, said the initial sale to the insider group and the subsequent concessions to the second buyer no doubt contributed to the SEC's conclusion that Harken had no business booking a profit.

"When it came time to have a third party put up real cash, they didn't get anywhere near what they were hoping for," he said. "That suggests they did not have a true sale at the nominal price."

Bush's audit committee colleagues, Othman and Watson, said they consider it unfair to hold the president responsible for a deal that was conceived and carried out by Harken's corporate executives.

"He was one of several directors," said Othman, president of Grove Financial, a Chicago-area investment firm. "Any sale or purchase of that nature doesn't hinge on one director's responsibility or one director's opinion. It's the consensus of the board."

Watson said he thinks Democrats in Congress are fanning the flames of the Aloha controversy in an effort to hurt Bush politically.

"George wasn't running that company," Watson said. "And by golly, I was with him for about four years on the board, and I liked him. I thought he was a straight shooter then, and I still think so."

Posted by DeLong at July 13, 2002 10:18 AM | Trackback

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"that Harken lost $12.6 billion that year. "

I think that should be "million", no?

Posted by: Nick on July 13, 2002 12:04 PM

It was nice to see that laid out in clear language. I read a second hand account elsewhere that said that under the terms of the deal Harken had undertaken to guarantee any environmental problems at Alohoa and agreed to indemnify the insider investors for any claims that may arise against them from their ownerhip of Aloha, which makes it look even less like a "sale" to a third party. Do you know if that is true?

Posted by: pj on July 13, 2002 05:04 PM

As a businessman, the thing that jumps out at me is that Harken immediately improved cash flow by $ 1 million, with the opportunity for another $11 million. All that for selling an asset carried at $5 million.

I can see how that would make sense to a company in such a volatile industry. Now all we need to know is why Harken stock went up to $8 a little over a year later.

Posted by: Patrick R. Sullivan on July 14, 2002 08:07 AM

Say, rather, that for $1 million in cash they gave away the upside on Aloha (by turning their equity into debt), kept the downside (non-recourse), and reported this deal as an $8 million profit.

No wonder the SEC was unhappy.


Brad DeLong

Posted by: Brad DeLong on July 14, 2002 09:02 AM


Ouch. We don't like non-recourse seller financing. But your source for this info was not Krugman's article. Links and smoking guns, please?

Regards,

Posted by: Tom Maguire on July 14, 2002 07:08 PM

Yes, please. This is a very nice, clear lay-out of the deal (clarity being Bush's nemesis).

Posted by: Barry on July 15, 2002 05:44 AM

"Say, rather, that for $1 million in cash they gave away the upside on Aloha (by turning their equity into debt), kept the downside (non-recourse), and reported this deal as an $8 million profit."

Which is not an answer to the question of why Harken ended up trading at $8 a year later. That fact, suggests to me that this deal worked out to Harken's advantage. Do you information to the contrary?

But, "gave away"! Didn't they get $12 million in exchange?

BTW, we're forgetting about tax law in this. IIRC, after the Tax Reform Act of 1986 these installment sales had to be all booked in the year of the sale. Which is another reason to make the deal in a year of operating losses, the profit on the Aloha sale was offset by those losses. So, the tax savings made it even more profitable.

And wouldn't Aloha revert to Harken if the purchasers defaulted on the contract? All in all, this strikes me as a garden variety business transaction. Perhaps the professor's business experience tells him otherwise?

Posted by: Patrick R. Sullivan on July 15, 2002 06:49 AM

I think the LA Times has this story on 7/12, but I haven't registered to find out. The WaPo has something on 7/13, but doesn't mention non-recourse financing. Links provided by me? Whose blog is this, anyway?

As to true-sale accounting, I've seen people stuggle to stucture deals that qualify. A fine line, and how close Aloha was to the line, I don't know. The accountants blessed it initially, and this was in an era when some firms still had credibility. Didn't they?

Krugman's assertion that this sale lacked any economic significance doesn't stand up. Prof DeLong seems to characterize it as a covered call write (without saying so), and The Other Sullivan points out possible tax advantages.

Aloha,

Posted by: Tom Maguire on July 15, 2002 07:37 AM

It is important not to conflate two different questions about Aloha. One is: Was it a fair transaction? The other, quite different question, is: How much profit, if any, should Harken have recorded?

But if the answer to the first question is yes, that is, if it was a fair transaction, then it should be clear even to Arthur Anderson that Harken made nowhere near $7.9 million on the deal. If it was a giveaway to the buyers then the profit could have been close to the reported sum. It all depends on what the actual market value of Aloha was.

There are two ways to look at the deal in option terms:

1. The buyers paid $1 million, not $12 million, for a call option on Aloha with a strike price of $11 million.

2. The buyers paid $12 million, and got Aloha PLUS a put option on Aloha with a strike price of $11 million. In other words, they could effectively sell Aloha back to Harken for $11 million by defaulting on the note.

Neither of these characterizations is totally accurate, because of loan payment terms, etc., but they're close. From either perspective, this might have been a fair deal. I don't have enough information to know. But I do have enough to say that the accounting overstated Harken's profit, if the deal was fair.

Consider the first interpretation. The price of a call option plus its strike price must be greater than the value of the underlying asset. So Aloha could not have been worth $12 million if this was a fair deal.

Similarly, under the put scenario, the buyers got Aloha plus something else of value - the put option - for $12 million, so Aloha by itself was not worth $12 million.

All this is really just common sense made complicated. If $12 million was a fair price then there was no need for the non-recourse provision which translates into all those options.

However one records this, and I'm far from sure what the right entries are, there is no excuse for claiming a $7.9 million profit unless it was such a sweetheart deal, i.e. Aloha was worth so much more than $12 million, that the call was sure to be exercised, or the put was worthless.

Posted by: Bernard Yomtov on July 15, 2002 08:05 PM
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