Corporate Malfeasance Pokes the Eye of Libertarians

NEW YORK (TheStreet) -- Chesapeake Energy Corp. (CHK) broke into the headlines over the weekend with more of the kind of great news that puts that company in a category all its own -- almost all its own -- amid the landscape of Corporate America.

A Reuters probe found that under the brilliant leadership of its CEO, Aubrey McClendon, Chesapeake plotted with its top competitor, Canada's Encana Corp., to avoid bidding against each other, thereby suppressing the prices of land they wished to lease.

Even without this alleged bid-rigging scheme -- reminiscent of the kind of games the Mafia used to play in the New York construction industry -- Chesapeake Energy would be one hell of a company. It is one of the leading practitioners of the earth-defiling horror known as hydrofracking, in which toxic chemicals are injected into the bedrock, from whence they have been known to poison groundwater and play havoc with the environment.

The entire fracking business has been likened to a giant Ponzi scheme, so it's far from clear if the rural vastness of the Marcellus Shale region, the current target of the frackers' greed, is the only one to be ravished by the frackers. Investors in fracking companies like Chesapeake may well join the long list of victims. As a kind of icing on the cake, McClendon, when not pouring money into far-right causes, was taking $1.3 billion in loans from a company that did business with Chesapeake, and stepped down as chairman of the company (though not as CEO) after that was revealed.

It's not clear yet if President Obama's Justice Department, which has been timid in its prosecution of corporate crime, will go after that sweetheart or anyone else at Chesapeake. But to free-market purists the retribution has already set in. In the wake of the Reuters article on the bidding scheme, which ran Monday morning, Chesapeake Energy shares immediately plummeted 8.5%, and continued their decline on Tuesday.

The market, in other words, reacted as the market is supposed to do in such situations, and cut into the overall market capitalization of Chesapeake by a little over $1 billion. To which one can only add, as counterpoint, a hearty "big deal."

The recent travails of Chesapeake Energy and an unrelated but, in its own way, equally hideous company, Green Mountain Coffee Roasters ( GMCR), are the best examples I can find of how the market is simply not equipped to deal with corporate malfeasance, libertarian orthodoxy notwithstanding.

Green Mountain Coffee Roasters and Chesapeake don't seem to have much in common. But each has exhibited a collective character flaw that no billion-dollar market cap penalties can even begin to correct. They are the kind of companies for which regulation -- and perhaps law enforcement -- is the only answer.

Green Mountain has a loyal shareholder base, so as to put it squarely in the category of a cult stock. And that's where the problem lies. Its shareholders are so loyal that they are like teenagers in their first fling at puppy love, liable to be badly hurt. Over the past year, the company's stock has declined from a high of about 110 to its current price of about 20, a market cap decline of a hair under $14 billion.

This is a coffee company, remember, not a fracker. It's not engaged in bid-rigging. It isn't poisoning wells. I even know people who like its coffee, though I personally can't stand the stuff. What makes Green Mountain such a basket case is not just that the company issued a dismal prediction of product demand, which caused its stock to plummet 40% on one day last spring. That's not "disappointment" -- it's a massacre.

Behind the share price massacre, critics of the company contend, are persistent red flags of fraud. Hedge fund manager David Einhorn has been all over Green Mountain for months. And long before he went on the case, there was blogger Sam Antar, who masterminded the Crazy Eddie scandal and has since made a career of rooting out corporate crime. He has been breathing down Green Mountain's neck on a number of issues, and is especially troubled by the company's inventory turnover numbers. Scheming on inventories was an Antar family specialty at Crazy Eddie, and what he saw in the inventories reminded him of the bad old days. The numbers, he feels, just don't make sense.

As at Chesapeake, there is the stench of conflict of interest at the highest levels of the company. Green Mountain's board removed founder Robert Stiller as chairman, and took action against another board member, after they were found to have violated the company's trading policies. Sam has plenty of questions about the way that was handled, and contends that securities laws may have been violated.

According to the libertarian-Ron-Paul-Ayn-Rand worldview, the $14 billion shareholder penalty should be punishment enough, just as the market's recent pummeling of Chesapeake is yet another example of the "market speaking." The Republicans in Congress may pay lip service to pursuing corporate crime, but have been fiercely slashing regulatory budgets.

Another way of looking at it is that we have, at the very least, the appearance of misconduct at both these companies without the realistic prospect of punishment of the actual perpetrators -- the culpable corporate executives who actually rigged the bids or, in the case of Green Mountain, engaged in any accounting chicanery. That hardly enhances investor confidence at a time when it's most sorely needed, especially when widely publicized companies like Chesapeake and cult stocks like Green Mountain are involved.

Since corporate executives have been pretty much immune from prosecution under the Obama administration, the only ones to suffer are the people who bought the shares of these two companies. They genuinely believed that hydrofracking was a great thing and that Chesapeake played by the rules. They believed that consumers would flock to buy Green Mountain coffee when they could get better beans at a zillion coffee roasters around the country.

Sure, the shareholders of these two companies should be punished. They took their chances, and they lost. But there needs to be accountability in the executive suite, just as there was, briefly, in the wake of the Enron scandal 10 years ago. Unfortunately, the only choice that voters have in November is between a president who has a proven record of doing a poor job in pursuing corporate malfeasance, and a Republican candidate in Mitt Romney who is likely to be even worse.

Gary Weiss's most recent book is AYN RAND NATION: The Hidden Struggle for America's Soul, published by St. Martin's Press.

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