5 Dumbest Things on Wall Street This Week: May 10

5. Monster's Gall

Fine, Dennis Herrera. We won't accuse you of playing tit for tat with Monster Beverage ( MNST), but that still doesn't make this whole legal game any less childish.

The San Francisco city attorney announced Monday his lawsuit against the energy-drink maker, accusing Monster of marketing its high-caffeine energy drinks to minors despite established health risks. Herrera's move comes a mere week after Monster sued him for demanding the company cut back its caffeine levels and change its ad-campaign. Monster, which Herrera called the "industry's worst offender" when it comes to targeting pre-teens, saw its shares sink over 2% Monday on the news. The stock tumbled another 6% on Wednesday afternoon after Monster missed the Street's Q1 earnings estimate by 9 cents.

"Our lawsuit is not a reaction to their lawsuit," said Herrera. "We were proceeding on this path in the event that we would be unable to come to a resolution."

To which Monster's legal team replied: Hey! No fair you icky attorney! We sued you first! No tag-backs or sue-backs allowed!

OK. They didn't really say that, yet they may as well have, considering the way this whole juvenile drama has unfolded since 14-year-old Anais Fournier died of "cardiac arrhythmia due to caffeine toxicity" after drinking two 710 milliliter cans of Monster Energy drink, in December 2011. The tragic case threw the spotlight onto the energy-drink industry, and by the summer of 2012 it became a cause celebre for slobbering politicians from New York to California seeking a seemingly soft target.

Hey, can you blame the pols for piling on? When the American Academy of Pediatrics and the American Heart Association are on your side, you would think that Monster would fall quicker than Baghdad!

Unbelievably, however, that wasn't the case! Even while being painted as a Frankenstein, Monster refused to be scared off by the pitchfork-wielding politicians. Monster vigorously defended itself in the Fournier case, saying she had a pre-existing heart condition and also repeated its claims that its cans clearly state the required safety warnings.

Most shocking was the Corona, Calif.-based company's decision last week to raise the stakes by launching a preemptive strike against Herrera in the form of a lawsuit. Monster says Herrera's effort poses "undue burdens on interstate commerce" and violates it's constitutionally protected right to "commercial speech." The lawsuit also contends that Herrera is more "motivated by publicity rather than science."

Of course he is you morons! He's a politician! That's what they do. More than that though, he's also the guy holding screen shots from your Web site listing an 11-year-old as a "Monster Army Major" and a 6-year-old as a "Reserve."

Sorry, Monster. That's not science, that's just stupidity. Not to mention the smoking gun in Herrera's case against you.

Or, to continue with the playground-speak: Herrera is rubber and you are glue. So shut your mouths and play nice, because whatever you say bounces off him and sticks to you!

4. Dimon's Double Duty

Before we start talking about JPMorgan's ( JPM) corporate governance crisis, it's worth stating for the record that Dick Fuld held both the titles of CEO and chairman of the board at Lehman Brothers.

Dick Fuld's job as CEO was to manage Lehman Brothers. The board's job was to protect Lehman's shareholders by making sure Dick Fuld was doing his job. Unfortunately, Lehman's board members -- motley, ignorant and negligent crew they were -- relied on Fuld for their direction instead of the reverse.

Lehman, we needn't remind everybody yet still will, declared bankruptcy in September 2008, taking down the entire global economy with it.

All right, folks. With all those wonderful memories firmly returned to mind, the floor is open for those burning to make the case that Jamie Dimon should exit the bank's May 21st shareholder meeting holding both titles.

Step right up. We're waiting.

Talk all you want about how Dimon is unlike Fuld in that Jamie steered his bank away from the financial crisis as opposed to into it. We won't dispute it.

Feel free to restate the fact that the company still earned $21.7 billion last year even after the $6.2 billion "London Whale" hit. We concede that point too.

We'll also grant Jamie-backers that Berkshire Hathaway ( BRK-B) CEO Warren Buffett believes he should continue to hold the dual role of chairman and CEO. The so-called Oracle of Omaha said at his shareholder meeting this past weekend that he's "100% for Jamie."

All three pro-Jamie arguments -- and we're sure there are a ton more -- are very convincing indeed. And for the record, while we agree with the recent recommendations of proxy advisory firms Glass Lewis and ISS Proxy Advisor Services that Dimon relinquish his chairman role, those decisions really don't factor too much into our thinking.

You see, those firms have their own agenda. They want the best possible outcome for JPMorgan and its shareholders.

We, on the other hand, are worried about the worst case scenario at the 'Too Big to Fail' bank and its impact on everybody else. And no matter how brilliant or compelling an argument one can make on Jamie's behalf, we have a stronger one to rebut it.

Put simply: We won't be Fuld again.

3. Buffett Draws a Blank

Dedicated Dumbest readers are well aware that every now and then we highlight an article written by one of TheStreet's intrepid beat reporters. Hey, why not leverage off our co-workers efforts? These folks are among the most righteous ink-stained wretches in the business and can only make us look better.

That said, those same long-time fans have probably also noticed that we here at the Lab rarely focus on columns penned by TheStreet's founder Jim Cramer. Not that we don't appreciate what he has to say of course. Not in the least! It's just that -- as you can surely understand -- Jim speaks quite well for himself.

This past Saturday, however, Cramer posted a column titled "Buffett's Lame Excuse" on TheStreet's RealMoney site that grabbed our interest so much that we've decided to break our unwritten rule and feature it in our weekly countdown. Cramer's beef with Buffett is over the billionaire's statement at last weekend's Berkshire Hathaway shareholder meeting that "Now we have lots of money and no ideas."

To which the Mad Money-man replies, much to our approval: "Give me a break."

"I find his constant 'we are loaded and looking for ideas' commentary somewhat boilerplate at this moment and, yes, a tad lame. Because he has all the ideas he wants; he just chooses to pass on a lot of good ones," opines Cramer while offering all due respect to Buffett's track record.

"Let me explain," continues Cramer. "Buffett did not see the housing crisis coming. He didn't see the downturn. He bought housing-related stocks before it. He didn't double down at the bottom. He didn't dodge the decline. He just kind of sat there with the 'we have lots of money and no ideas' attitude the whole way."

"A simple 'we had lots of money and we didn't see the top or the bottom of the housing crisis' would have suited me," says Cramer.

Us too, Jim. For a guy nicknamed the 'Oracle of Omaha', Buffett sure didn't see the credit tsunami coming. And considering he was a major holder of Moody's ( MCO) and Wells Fargo ( WFC) at the time, he certainly had a better view into the burgeoning bond bubble than the rest of us mere mortals.

Instead, he just stood there, clutching his cash like Moliere's Miser and watched the tidal wave wash everybody else away. And then, once he made sure he was the last man with cash standing, he played lender of last resort to a pair of the progenitors of the whole damn thing, Goldman Sachs ( GS) and GE ( GE).

American hero? We don't think so. Who did he save other than Lloyd Blankfein's skin? More like Omaha loan shark, but that's just us.

Look. He can do whatever he wants with his money. We're not begrudging Buffett that. We just think all those not-so-poor souls who trekked out to Delphi, sorry, Omaha, to worship at the Oracle's altar deserve an answer as to why the guy with the elephant gun didn't reach for it when the target couldn't have been huger.

With all due respect to RealMoney's Doug Kass, who did his darnedest to beat Buffett on his home court, Cramer posits the question we really want answered when he asks why Buffett bought Lubrizol -- a shady transaction if we ever saw one -- as opposed to the rest of USG ( USG) at the bottom, or some other decimated housing-related stocks.

"He is the best there has ever been, but even the best that has ever been should have to say that he wasn't the best on this amazing downturn and rebound. Sure he got those great distressed deals that gave him amazing income. But in the end, the world was his oyster, and he just didn't seem to care for oysters at the time," concludes Cramer.

More than that, Jim.

He completely clammed up.

2. 3 Cheers for Charney

Take a deep breath Dumbest fans. We're going to give Dov his due.

We've been pretty rough on American Apparel ( APP) CEO Dov Charney in columns past and in most cases deservedly so. We won't revisit the exact episodes, but long time readers are well aware of Charney's penchant for saying and doing ridiculous things, including being a party to a slew of sexual harassment lawsuits.

What can we do? That's just Charney being Charney.

That said, in the wake of last month's supremely stupid Bangladesh garment factory collapse which killed more than 800 workers, we'd feel remiss if we didn't highlight some of the sensible things Dov said this week on the company's Web site.

Self-promotional, yes. This is Dov we're talking about. But sensible nonetheless.

"The apparel industry's relentless and blind pursuit of the lowest possible wages cannot be sustained over time, ethically or fiscally," wrote Charney, highlighting American Apparel's decision to produce all its garments domestically, despite the higher labor costs. "As labor and transportation costs increase worldwide, exploitation will not only be morally offensive and dated, it will not even be financially viable."

Employees at American Apparel's downtown Los Angeles garment factory earn an average of $12 an hour plus medical other benefits, according to Charney. Of course, many of those workers are here illegally. The U.S. Immigration and Customs Enforcement Agency found three years ago that nearly one-third of the company's workers may not have had proper documentation for U.S. employment.

Nevertheless, workers at the fateful Bangladesh sweatshop made the national minimum wage of approximately $38 per month while toiling in monstrously unsafe conditions.

As much as we like our goods cheap, and a much as we try not to dwell on the unappetizing origins of the products we buy, we can't approve that in good conscience.

Let's face it. Dov's doing it right. Or at least he's trying to.

It hasn't helped his bottom line much. American Apparel stock is barely $2 bucks a share, down 75% over the past five years. And with over 13% of the shares sold short, a lot of traders are betting the heavily indebted firm will file for bankruptcy.

Still, against all odds, Dov's doing it right. And that's not dumb at all.

1. Fusion-io Confusion

Will somebody please clear up all the confusion at Fusion-io ( FIO)? We can't get no relief!

The solid state memory drive maker informed investors Wednesday that two of its founders -- CEO David Flynn and CMO Rick White -- were jumping ship to start another venture. Shares of the company, which employs NAND flash technology in its products and counts Facebook and Apple among its key customers, lost 19% on the unexpected departures, finishing the day at $14.60. The company went public in June 2011 and traded as high as $41.69 in November 2011.

Director Shane Robison will succeed Flynn, effective immediately, in the company's corner office. And despite their abrupt exits, Flynn and White will both remain members of the board and will serve in advisory roles to the company for the next 12 months.

In a statement on the company's Web site, Scott Sandell, lead independent director of the Fusion-io Board, said, "What the hell just happened? I turn my back for a second and these jokers are gone quicker than the last beer in the cooler!"

All right, all right. We're kidding. He didn't say that. In all honesty, Sandell took the high road and thanked the pair for their "important role in taking the company public and developing a strong framework from which Fusion-io can grow to the next level."

More important than Sandell's platitudes was the company's announcement that the changes had nothing to do with the "integrity" of the company's financial statements or accounting practices. It also reaffirmed the financial outlook it provided last month for its fiscal fourth quarter.

Unfortunately, none of those reassurances were enough to sway Wall Street's pencil pushers who ran from the company almost as fast as its founders. Analysts at both Sterne Agee and Craig-Hallum cut their ratings on the stock from buy to hold due to the turmoil at the top.

Meanwhile, ABR Investment Strategy's Brad Gastworth hung onto his "Secular Short" rating on Fusion-io shares. Gastworth told Barron's that he wasn't surprised to see a short term shellacking of the stock in reaction to the management change. Furthermore, he believes "there are structural issues facing Fusion-IO longer term" as well as "an onslaught of new competition coming in the second half of 2013 and into 2014."

Upon further thought, maybe that clears up all the confusion.

Flynn and White saw trouble ahead at the flash technology provider and were off in a flash!

-- Written by Gregg Greenberg in New York City.

Disclosure: TheStreet's editorial policy prohibits staff editors and reporters from holding positions in any individual stocks.

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