(Image: Zen Buddha Silence by Marilyn Barbone.)
March 25, 2018
In 1991, when Bill Gates met Warren Buffett, Gates asked him to recommend his favorite business book. Buffett immediately replied, “It’s Business Adventures, by John Brooks. I’ll send you my copy.” Gates wrote in 2014:
Today, more than two decades after Warren lent it to me—and more than four decades after it was first published—Business Adventures remains the best business book I’ve ever read. John Brooks is still my favorite business writer.
It’s certainly true that many of the particulars of business have changed. But the fundamentals have not. Brooks’s deeper insights about business are just as relevant today as they were back then. In terms of its longevity, Business Adventures stands alongside Benjamin Graham’s The Intelligent Investor, the 1949 book that Warren says is the best book on investing that he has ever read.
I’ve had the enormous pleasure of reading Business Adventures twice. John Brooks is quite simply a terrific business writer.
Each chapter of the book is a separate business adventure. Outline:
- The Fluctuation
- The Fate of the Edsel
- A Reasonable Amount of Time
- Xerox Xerox Xerox Xerox
- Making the Customers Whole
- The Impacted Philosophers
- The Last Great Corner
- A Second Sort of Life
- Stockholder Season
- One Free Bite
Brooks recounts J.P. Morgan’s famous answer when an acquaintance asked him what the stock market would do: “It will fluctuate.” Brooks then writes:
Apart from the economic advantages and disadvantages of stock exchanges – the advantage that they provide a free flow of capital to finance industrial expansion, for instance, and the disadvantage that they provide an all too convenient way for the unlucky, the imprudent, and the gullible to lose their money – their development has created a whole pattern of social behavior, complete with customs, language, and predictable responses to given events.
Brooks explains that the pattern emerged fully at the first important stock exchange in 1611 in Amsterdam. Brooks mentions that Joseph de la Vega published, in 1688, a book about the first Dutch stock traders. The book was aptly titled, Confusion of Confusions.
And the pattern persists on the New York Stock Exchange. (Brooks was writing in the 1960’s, but many of his descriptions still apply.) Brooks adds that a few Dutchmen haggling in the rain might seem to be rather far from the millions of participants in the 1960’s. However:
The first stock exchange was, inadvertently, a laboratory in which new human reactions were revealed. By the same token, the New York Stock Exchange is also a sociological test tube, forever contributing to the human species’ self-understanding.
On Monday, May 28, 1962, the Dow Jones Average dropped 34.95 points, or more than it had dropped on any day since October 28, 1929. The volume was the seventh-largest ever. Then on Tuesday, May 29, after most stocks opened down, the market reversed itself and surged upward with a large gain of 27.03. The trading volume on Tuesday was the highest ever except for October 29, 1929. Then on Thursday, May 31, after a holiday on Wednesday, the Dow rose 9.40 points on the fifth-greatest volume ever.
The crisis ran its course in three days, but needless to say, the post-mortems took longer. One of de la Vega’s observations about the Amsterdam traders was that they were ‘very clever in inventing reasons’ for a sudden rise or fall in stock prices, and the Wall Street pundits certainly needed all the cleverness they could muster to explain why, in the middle of an excellent business year, the market had suddenly taken its second-worst nose dive ever up to that moment.
Many rated President Kennedy’s April crackdown on the steel industry’s planned price increase as one of the most likely causes. Beyond that, there were comparisons to 1929. However, there were more differences than similarities, writes Brooks. For one thing, margin requirements were far higher in 1962 than in 1929. Nonetheless, the weekend before the May 1962 crash, many securities dealers were occupied sending out margin calls.
In 1929, it was not uncommon for people to have only 10% equity, with 90% of the stock position based on borrowed money. (The early Amsterdam exchange was similar.) Since the crash in 1929, margin requirements had been raised to 50% equity (leaving 50% borrowed).
Brooks says the stock market had been falling for most of 1962 up until crash. But apparently the news before the May crash was good. Not that news has any necessary relationship with stock movements, although most financial reporting services seem to assume otherwise. After a mixed opening – some stocks up, some down – on Monday, May 28, volume spiked as selling became predominant. Volume kept going up thereafter as the selling continued. Brooks:
Evidence that people are selling stocks at a time when they ought to be eating lunch is always regarded as a serious matter.
One problem in this crash was that the tape – which records the prices of stock trades – got delayed by 55 minutes due to the huge volume. Some brokerage firms tried to devise their own systems to deal with this issue. For instance, Merrill Lynch floor brokers – if they had time – would shout the results of trades into a floorside telephone connected to a “squawk box” in the firm’s head office.
All that summer, and even into the following year, security analysts and other experts cranked out their explanations of what had happened, and so great were the logic, solemnity, and detail of these diagnoses that they lost only a little of their force through the fact that hardly any of the authors had had the slightest idea what was going to happen before the crisis occurred.
Brooks then points out that an unprecedented 56.8 percent of the total volume in the crash had been individual investors. Somewhat surprisingly, mutual funds were a stabilizing factor. During the Monday sell-off, mutual funds bought more than they sold. And as stocks surged on Thursday, mutual funds sold more than they bought. Brooks concludes:
In the last analysis, the cause of the 1962 crisis remains unfathomable; what is known is that it occurred, and that something like it could occur again.
THE FATE OF THE EDSEL
1955 was the year of the automobile, writes Brooks. American auto makers sold over 7 million cars, a million more than in any previous year. Ford Motor Company decided that year to make a new car in the medium-price range of $2,400 to $4,000. Brooks continues:
[Ford] went ahead and designed it more or less in comformity with the fashion of the day, which was for cars that were long, wide, low, lavishly decorated with chrome, liberally supplied with gadgets… Two years later, in September, 1957, Ford put its new car, the Edsel, on the market, to the accompaniment of more fanfare than had attended the arrival of any new car since the same company’s Model A, brought out thirty years earlier. The total amount spent on the Edsel before the first specimen went on sale was announced as a quarter of a billion dollars; its launching… was more costly than any other consumer product in history. As a starter toward getting its investment back, Ford counted on selling at least 200,000 Edsels the first year.
There may be an aborigine somewhere in a remote rainforest who hasn’t yet heard that things failed to turn out that way… on November 19, 1959, having lost, according to some outside estimates, around $350 million on the Edsel, the Ford Company permanently discontinued its production.
How could this have happened? How could a company so mightily endowed with money, experience, and, presumably, brains have been guilty of such a monumental mistake?
Many claimed that Ford had paid too much attention to public-opinion polls and the motivational research it conducted. But Brooks adds that some non-scientific elements also played a roll. In particular, after a massive effort to come up with possible names for the car, science was ignored at the last minute and the Edsel was named for the father of the company’s president. Brooks:
As for the design, it was arrived at without even a pretense of consulting the polls, and by the method that has been standard for years in the designing of automobiles – that of simply pooling the hunches of sundry company committees.
The idea for the Edsel started years earlier. The company noticed that owners of cars would trade up to the medium-priced car as soon as they could. The problem was that Ford owners were not trading up to the Mercury, Ford’s medium-priced car, but to the medium-priced cars of its rivals, General Motors and Chrysler.
Late in 1952, a group called the Forward Product Planning Committee gave much of the detailed work to the Lincoln-Mercury Division, run by Richard Krafve (pronounced “Kraffy”). In 1954, after two years’ work, the Forward Product Planning Committee submitted to the executive committee a six-volume report. In brief, the report predicted that there would be seventy million cars in the U.S. by 1965, and more than 40 percent of all cars sold would be in the medium-price range. Brooks:
On the other hand, the Ford bosses were well aware of the enormous risks connected with putting a new car on the market. They knew, for example, that of the 2,900 American makes that had been introduced since the beginning of the automobile age… only about twenty were still around.
But Ford executives felt optimistic. They set up another agency, the Special Products Division, again with Krafve in charge. The new car was referred to as the “E”-Car among Ford designers and workers. “E” for Experimental. Roy A. Brown was in charge of the E-car’s design. Brown stated that they sought to make a car that was unique as compared to the other nineteen cars on the road at the time.
Brooks observes that Krafve later calculated that he and his associates would make at least four thousand decisions in designing the E-Car. He thought that if they got every decision right, they could create the perfectly designed car. Krafve admitted later, however, that there wasn’t really enough time for perfection. They would make modifications, and then modifications of those modifications. Then time would run out and they had to settle on the most recent modifications.
One of the most persuasive and frequently cited explanations of the Edsel’s failure is that it was a victim of the time lag between the decision to produce it and the act of putting it on the market. It was easy to see a few years later, when smaller and less powerful cars, euphemistically called “compacts,” had become so popular as to turn the old automobile status-ladder upside down, that the Edsel was a giant step in the wrong direction, but it far from easy to see that in fat, tail-finny 1955.
As part of the marketing effort, the Special Products Division tapped David Wallace, director of planning for market research. Wallace:
‘We concluded that cars are a means to a sort of dream fulfillment. There’s some irrational factor in people that makes them want one kind of car rather than another – something that has nothing to do with the mechanism at all but with the car’s personality, as the customer imagines it. What we wanted to do, naturally, was to give the E-Car the personality that would make the greatest number of people want it.’
Wallace’s group decided to get interviews of 1,600 car buyers. The conclusion, in a nutshell, was that the E-Car could be “the smart car for the younger executive or professional family on its way up.”
As for the name of the car, Krafve had suggested to the members of the Ford family that the new car be named the Edsel Ford – the name of their father. The three Ford brothers replied that their father probably wouldn’t want the car named after him. Therefore, they suggested that the Special Products Division look for another name.
The Special Products Division conducted a large research project regarding the best name for the E-Car. At one point, Wallace interviewed the poet Marianne Moore about a possible name. A bit later, the Special Products Division contacted Foote, Cone & Belding, an advertising agency, to help with finding a name.
The advertising agency produced 18,000 names, which they then carefully pruned to 6,000. Wallace told them that was still way too many names from which to pick. So Foote, Cone & Belding did an all-out three-day session to cut the list down to 10 names. They divided into two groups for this task. By chance, when each group produced its list of 10 names, 4 of the names were the same: Corsair, Citation, Pacer, and Ranger.
Wallace thought that Corsair was clearly the best name. However, the Ford executive committee had a meeting at a time when all three Ford brothers were away. Executive vice-president Ernest R. Breech, chairman of the board, led the meeting. When Breech saw the final list of 10 names, he said he didn’t like any of them.
So Breech and the others were shown another list of names that hadn’t quite made the top 10. The Edsel had been kept on this second list – despite the three Ford brothers being against it – for some reason, perhaps because it was the originally suggested name. When the group came to the name “Edsel,” Breech firmly said, “Let’s call it that.” Breech added that since there were going to be four models of the E-Car, the four favorite names – Corsair, Citation, Pacer, and Ranger – could still be used as sub-names.
Brooks writes that Foote, Cone & Belding presumably didn’t react well to the chosen name, “Edsel,” after their exhaustive research to come up with the best possible names. But the Special Products Division had an even worse reaction. However, there were a few, including Krafve, would didn’t object to the name.
Krafve was named Vice-President of the Ford Motor Company and General Manager, Edsel Division. Meanwhile, Edsels were being road-tested. Brown and other designers were already working on the subsequent year’s model. A new set of retail dealers was already being put together. Foote, Cone & Belding was hard at work on strategies for advertising and selling Edsels. In fact, Fairfax M. Cone himself was leading this effort.
Cone decided to use Wallace’s idea of “the smart car for the younger executive or professional family on its way up.” But Cone amended it to: “the smart car for the younger middle-income family or professional family on its way up.” Cone was apparently quite confident, since he described his advertising ideas for the Edsel to some reporters. Brooks notes with amusement:
Like a chess master that has no doubt that he will win, he could afford to explicate the brilliance of his moves even as he made them.
Normally, a large manufacturer launches a new car through dealers already handling some of its other makes. But Krafve got permission to go all-out on the Edsel. He could contact dealers for other car manufacturers and even dealers for other divisions of Ford. Krafve set a goal of signing up 1,200 dealers – who had good sales records – by September 4, 1957.
Brooks remarks that Krafve had set a high goal, since a dealer’s decision to sell a new car is major. Dealers typically have one hundred thousand dollars – more than 8x that in 2018 dollars – invested in their dealerships.
J. C. (Larry) Doyle, second to Krafve, led the Edsel sales effort. Doyle had been with Ford for 40 years. Brooks records that Doyle was somewhat of a maverick in his field. He was kind and considerate, and he didn’t put much stock in the psychological studies of car buyers. But he knew how to sell cars, which is why he was called on for the Edsel campaign.
Doyle put Edsels into a few dealerships, but kept them hidden from view. Then he went about recruiting top dealers. Many dealers were curious about what the Edsel looked like. But Doyle’s group would only show dealers the car if they listened to a one-hour pitch. This approach worked. It seems that quite a few dealers were so convinced by the pitch that they signed up without even looking at the car in any detail.
C. Gayle Warnock, director of public relations at Ford, was in charge of keeping public interest in the Edsel – which was already high – as strong as possible. Warnock told Krafve that public interest might be too strong, to the extent that people would be disappointed when they discovered that the Edsel was a car. Brooks:
It was agreed that the safest way to tread the tightrope between overplaying and underplaying the Edsel would be to say nothing about the car as a whole but to reveal its individual charms a little at a time – a sort of automotive strip tease…
That summer, too, was a time of speechmaking by an Edsel foursome consisting of Krafve, Doyle, J. Emmet Judge, who was Edsel’s director of merchandise and product planning, and Robert F. G. Copeland, its assistant general sales manager for advertising, sales promotion, and training. Ranging separately up and down and across the nation, the four orators moved around so fast and so tirelessly, that Warnock, lest he lost track of them, took to indicating their whereabouts with colored pins on a map in his office. ‘Let’s see, Krafve goes from Atlanta to New Orleans, Doyle from Council Bluffs to Salt Lake City,’ Warnock would muse of a morning in Dearborn, sipping his second cup of coffee and then getting up to yank the pins out and jab them in again.
Needless to say, this was by far the largest advertising campaign ever conducted by Ford. This included a three-day press preview, with 250 reporters from all over the country. On one afternoon, the press were taken to the track to see stunt drivers in Edsels doing all kinds of tricks. Brooks quotes the Foote, Cone man:
‘You looked over this green Michigan hill, and there were those glorious Edsels, performing gloriously in unison. It was beautiful. It was like the Rockettes. It was exciting. Morale was high.’
Brooks then writes about the advertising on September 3 – “E-Day-minus-one”:
The tone for Edsel Day’s blizzard of publicity was set by an ad, published in newspapers all over the country, in which the Edsel shared the spotlight with the Ford Company’s President Ford and Chairman Breech. In the ad, Ford looked like a dignified young father, Breech like a dignified gentleman holding a full house against a possible straight, the Edsel just looked like an Edsel. The accompanying text declared that the decision to produce the car had been ‘based on what we knew, guessed, felt, believed, suspected – about you,’ and added, ‘YOU are the reason behind the Edsel.’ The tone was calm and confident. There did not seem to be much room for doubt about the reality of that full house.
The interior of the Edsel, as predicted by Krafve, had an almost absurd number of push-buttons.
The two larger models – the Corsair and the Citation – were 219 inches long, two inches longer than the biggest of the Oldsmobiles. And they were 80 inches wide, “or about as wide as passenger cars ever get,” notes Brooks. Each had 345 horsepower, making it more powerful than any other American car at the time of launching.
Brooks records that the car received mixed press after it was launched. In January, 1958, Consumer Reports wrote:
The Edsel has no important basic advantage over other brands. The car is almost entirely conventional in construction…
Three months later, Consumer Reports wrote:
[The Edsel] is more uselessly overpowered… more gadget bedecked, more hung with expensive accessories than any other car in its price class.
This report gave the Corsair and the Citation the bottom position in its competitive ratings.
Brooks says there were several factors in the downfall of the Edsel. It wasn’t just that the design fell short, nor was it simply that the company relied too much on psychological research. For one, many of the early Edsels suffered from a surprising variety of imperfections. It turned out that only about half the early Edsels functioned properly.
For the first ten days of October, nine of which were business days, there were only 2,751 deliveries – an average of just over three hundred cars a day. In order to sell the 200,000 cars per year that would make the Edsel operation profitable the Ford Motor Company would have to move an average of between six and seven hundred each business day – a good many more than three hundred a day. On the night of Sunday, October 13th, Ford put on a mammoth television spectacular for Edsel, pre-empting the time ordinarily allotted to the Ed Sullivan show, but though the program cost $400,000 and starred Bing Crosby and Frank Sinatra, it failed to cause any sharp spurt in sales. Now it was obvious that things were not going well at all.
Among the former executives of the Edsel Division, opinions differ as to the exact moment when the portents of doom became unmistakable… The obvious sacrificial victim was Brown, whose stock had gone through the roof at the time of the regally accoladed debut of his design, in August, 1955. Now, without having done anything further, for either better or worse, the poor fellow became the company scapegoat…
Ford re-committed to selling the Edsel in virtually every way that it could. Sales eventually increased, but not nearly enough. Ultimately, the company had to stop production. The net loss for Ford was roughly $350 million.
Krafve rejects that the Edsel failed due to a poor choice of the name. He maintains that it was a mistake of timing. Had they produced the car two years earlier, when medium-sized cars were still highly popular, the Edsel would have been a success. Brown agrees with Krafve that it was a mistake of timing.
Doyle says it was a buyers’ strike. He claims not to understand at all why the American public suddenly switched its taste from medium-sized cars to smaller-sized cars.
Wallace argued that the Russian launch of the sputnik had caused many Americans to start viewing Detroit products as bad, especially medium-priced cars.
Brooks concludes by noting that Ford did not get hurt by this setback, nor did the majority of people associated with the Edsel. In 1958, net income per share dropped from $5.40 to $2.12, and Ford stock dropped from a 1957 high of $60 to a low of $40. However, by 1959, net income per-share jumped to $8.24 and the stock hit $90.
The Ford executives associated with the Edsel advanced in their careers, for the most part. Moreover, writes Brooks:
The subsequent euphoria of these former Edsel men did not stem entirely from the fact of their economic survival; they appear to have been enriched spiritually. They are inclined to speak of their Edsel experience – except for those still with Ford, who are inclined to speak of it as little as possible – with the verve and garrulity of old comrades-in-arms hashing over their most thrilling campaign.
A REASONABLE AMOUNT OF TIME
Most nineteenth-century American fortunes were enlarged by, if they were not actually founded on, the practice of insider trading…
Not until 1934 did Congress pass the Securities Exchange Act, which forbids insider trading. Later, a 1942 rule 10B-5 held that no stock trader could “make any untrue statement of a material fact or… omit to state a material fact.” However, observes Brooks, this rule had basically been overlooked for the subsequent couple of decades. It was argued that insiders needed the incentive of being able to profit in order to bring forth their best efforts. Further, some authorities said that insider trading helped the markets function more smoothly. Finally, it was held that most stock traders “possess and conceal information of one sort or another.”
In short, the S.E.C. seemed to be refraining from doing anything regarding insider trading. But this changed when a civil complaint was made against Texas Gulf Sulphur Company. The case was tried in the United States District Court in Foley Square May 9 to June 21, 1966. The presiding judge was Dudley J. Bonsal, says Brooks, who remarked at one point, “I guess we all agree that we are plowing new ground here to some extent.”
In March 1959, Texas Gulf, a New York-based company and the world’s leader producer of sulphur, began conducting aerial surveys over a vast area of eastern Canada. They weren’t looking for sulphur or gold, but for sulphides – sulphur in combination with other useful minerals such as zinc and copper. Texas Gulf wanted to diversify its production.
These surveys took place over two years. Many areas of interest were noted. The company concluded that several hundred areas were most promising, including a segment called Kidd-55, which was fifteen miles north of Timmins, Ontario, an old gold-mining town several hundred miles northwest of Toronto.
The first challenge was to get title to do exploratory drilling on Kidd-55. It wasn’t until June, 1963, that Texas Gulf was able to begin exploring on the northeast quarter of Kidd-55. After Texas Gulf engineer, Richard H. Clayton, completed a ground electromagnetic survey and was convinced the area had potential, the company decided to drill. Drilling began on November 8. Brooks writes:
The man in charge of the drilling crew was a young Texas Gulf geologist named Kenneth Darke, a cigar smoker with a rakish gleam in his eye, who looked a good deal more like the traditional notion of a mining prospector than that of the organization man that he was.
A cylindrical sample an inch and a quarter in diameter was brought out of the earth. Darke studied it critically inch by inch using only his eyes and his knowledge. On November 10, Darke telephoned his immediate superior, Walter Holyk, chief geologist of Texas Gulf, to report the findings at that point.
The same night, Holyk called his superior, Richard D. Mollison, a vice president of Texas Gulf. Mollison then called his superior, Charles F. Fogarty, executive vice president and the No. 2 man at the company. Further reports were made the next day. Soon Holyk, Mollison, and Fogarty decided to travel to Kidd-55 to take a look for themselves.
By November 12, Holyk was on site helping Darke examine samples. Holyk was a Canadian in his forties with a doctorate in geology from MIT. The weather had turned bad. Also, much of the stuff came up covered in dirt and grease, and had to be washed with gasoline. Nonetheless, Holyk arrived at an initial estimate of the core’s content. There seemed to be average copper content of 1.15% and average zinc content of 8.64%. If true and if it was not just in one narrow area, this appeared to be a huge discovery. Brooks:
Getting title would take time if it were possible at all, but meanwhile there were several steps that the company could and did take. The drill rig was moved away from the site of the test hole. Cut saplings were stuck in the ground around the hole, to restore the appearance of the place to a semblance of its natural state. A second test hole was drilled, as ostentatiously as possible, some distance away, at a place where a barren core was expected – and found. All of these camouflage measures, which were in conformity with long-established practice among miners who suspect that they have made a strike, were supplemented by an order from Texas Gulf’s president, Claude O. Stephens, that no one outside the actual exploration group, even within the company, should be told what had been found. Late in November, the core was shipped off, in sections, to the Union Assay Office in Salt Lake City for scientific analysis of its contents. And meanwhile, of course, Texas Gulf began discreetly putting out feelers for the purchase of the rest of Kidd-55.
And meanwhile other measures, which may or may not have been related to the events of north of Timmins, were being taken. On November 12th, Fogarty bought three hundred shares of Texas Gulf stock; on the 15th he added seven hundred more shares, on November 19th five hundred more, and on November 26th two hundred more. Clayton bought two hundred on the 15th, Mollison one hundred on the same day; and Mrs. Holyk bought fifty on the 29th and one hundred more on December 10th. But these purchases, as things turned out, were only the harbingers of a period of apparently intense affection for Texas Gulf stock among certain of its officers and employees, and even some of their friends.
The results of the sample test confirmed Holyk’s estimates. Also found were 3.94 ounces of silver per ton. In late December, while in the Washington, D.C. area, Darke recommended Texas Gulf stock to a girl he knew there and her mother. They later became known as “tippees,” while a few people they later told naturally became “sub-tippees.” Between December 30 and February 17, Darke’s tippees and sub-tippees purchased 2,100 shares of Texas Gulf stock and also bought calls on another 1,500 shares.
In the first three months of 1964, Darke bought 300 shares of Texas Gulf stock, purchased calls on 3,000 more shares, and added several more persons to his burgeoning list of tippees. Holyk and his wife bought a large number of calls on Texas Gulf stock. They’d hardly heard of calls before, but calls “were getting to be quite the rage in Texas Gulf circles.”
Finally in the spring, Texas Gulf had the drilling rights it needed and was ready to proceed. Brooks:
After a final burst of purchases by Darke, his tippees, and his sub-tippees on March 30th and 31st (among them all, six hundred shares and calls on 5,100 more shares for the two days), drilling was resumed in the still-frozen muskeg at Kidd-55, with Holyk and Darke both on the site this time.
While the crew stayed on site, the geologists almost daily made the fifteen-mile trek to Simmins. With seven-foot snowdrifts, the trip took three and a half to four hours.
At some stage – later a matter of dispute – Texas Gulf realized that it had a workable mine of large proportions. Vice President Mollison arrived on site for a day. Brooks:
But before going he issued instructions for the drilling of a mill test hole, which would produce a relatively large core that could be used to determine the amenability of the mineral material to routine mill processing. Normally, a mill test hole is not drilled until a workable mine is believed to exist. And so it may have been in this case; two S.E.C. mining experts were to insist later, against contrary opinions of experts for the defense, that by the time Mollison gave his order, Texas Gulf had information on the basis of which it could have calculated that the ore reserves at Kidd-55 had a gross assay value of at least two hundred million dollars.
The famous Canadian mining grapevine was humming by now, and in retrospect the wonder is that it had been relatively quiet for so long.
On April 10, President Stephens had become concerned enough to ask a senior member of the board – Thomas S. Lamont of Morgan fame – whether Texas Gulf should issue a statement. Lamont told him he could wait until the reports were published in U.S. papers, but then he should issue a statement.
The following day, April 11, the reports poured forth in the U.S. papers. The Herald Tribune called it “the biggest ore strike since gold was discovered more than 60 years ago in Canada.” Stephens instructed Fogarty to begin preparing a statement to be issued on Monday, April 13. Meanwhile, the estimated value of the mine seemed to be increasing by the hour as more and more copper and zinc ore was brought to the surface. Brooks writes:
However, Fogarty did not communicate with Timmins after Friday night, so the statement that he and his colleagues issued to the press on Sunday afternoon was not based on the most up-to-the-minute information. Whether because of that or for some other reason, the statement did not convey the idea that Texas Gulf thought it had a new Comstock Lode. Characterizing the published reports as exaggerated and unreliable, it admitted that recent drilling on ‘one property near Timmins’ had led to ‘preliminary indications that more drilling would be required for proper evaluation of the prospect;’ went on to say that ‘the drilling done to date has not been conclusive;’ and then, putting the same thought in what can hardly be called another way, added that ‘the work done to date has not been sufficient to reach definitive conclusions.’
The wording of this press release was sufficient to put a damper on any expectations that may have arisen due to the newspaper stories the previous Friday. Texas Gulf stock had gone from around $17 the previous November to around $30 just before the stories. On Monday, the stock went to $32, but then came back down and even dipped below $29 in the subsequent two days.
Meanwhile, at Kidd-55, Mollison, Holyk, and Darke talked with a visiting reporter who had been shown around the place. Brooks:
The things they told the reporter make it clear, in retrospect, that whatever the drafters of the release may have believed on Sunday, the men at Kidd-55 knew on Monday that they had a mine and a big one. However, the world was not to know it, or at least not from that source, until Thursday morning, when the next issue of the Miner would appear in subscribers’ mail and on newstands.
Mollison and Holyk flew to Montreal Tuesday evening for the annual convention of the Canadian Institute of Mining and Metallurgy. They had arranged for that Wednesday, in the company of the Minister of Mines of the Province of Ontario and his deputy, to attend the convention. En route, they briefed the minister on Kidd-55. The minister decided he wanted to make an announcement as soon as possible. Mollison helped the minister draft the statement.
According to the copy Mollison kept, the announcement stated that “the information now in hand… gives the company confidence to allow me to announce that Texas Gulf Sulphur has a mineable body of zinc, copper, and silver ore of substantial dimensions that will be developed and brought to production as soon as possible.” Mollison and Holyk believed that the minister would make the announcement that evening. But for some reason, the minister didn’t.
Texas Gulf was to have a board of directors meeting that Thursday. Since better and better news had been coming in from Kidd-55, the company officers decided they should write a new press release, to be issued after the Thursday morning board meeting. This statement was based on the very latest information and it read, in part, “Texas Gulf Sulphur Company has made a major strike of zinc, copper, and silver in the Timmins area… Seven drill holes are now essentially complete and indicate an ore body of at least 800 feet in length, 300 feet in width, and having a vertical depth of more than 800 feet. This is a major discovery. The preliminary data indicate a reserve of more than 25 million tons of ore.”
The statement also noted that “considerably more data has been accumulated,” in order to explain the difference between this statement and the previous one. Indeed, the value of the ore was not the two hundred million dollars alleged to have been estimable a week earlier, but many times that.
The same day, engineer Clayton and company secretary Crawford bought 200 and 300 shares, respectively. The next morning, Crawford doubled his order.
The directors’ meeting ended at ten o’clock. Then 22 reporters entered the room. President Stephens read the new press release. Most reporters rushed out before he was finished to report the news.
The actions of two Texas Gulf directors, Coates and Lamont, during the next half hour were later to lead to the most controversial part of the S.E.C.’s complaint. As Brooks writes, the essence of the controversy was timing. The Texas Gulf news was released by the Dow Jones News Service, the well-known spot-news for investors. In fact, a piece of news is considered to be public the moment it crosses “the broad tape.”
The morning of April 16, 1964, a Dow Jones reporter was among those who attended the Texas Gulf press conference. He left early and called in the news around 10:10 or 10:15, according to his recollection. Normally, a news item this important would be printed on the Dow Jones machines two or three minutes after being phoned in. But for reasons unknown, the Texas Gulf story did not appear on the tape until 10:54. This delay was left unexplained during the trial based on irrelevance, says Brooks.
Coates, the Texan, around the end of the press conference, called his son-in-law, H. Fred Haemisegger, a stockbroker in Houston. Coates told Haemisegger about the Texas Gulf discovery, also saying that he waited to call until “after the public announcement” because he was “too old to get in trouble with the S.E.C.” Coates next placed an order for 2,000 shares of Texas Gulf stock for four family trusts. He was a trustee, but not a beneficiary. The stock had opened at $30. Haemisegger, by acting quickly, was able to buy a bit over $31.
Lamont hung around the press conference area for 20 minutes or so. He recounts that he “listened to chatter” and “slapped people on the back.” Then at 10:39 or 10:40, he called a friend at Morgan Guaranty Trust Company – Longstreet Hinton, the bank’s executive vice president and head of its trust department. Hinton had asked Lamont earlier in the week if he knew anything about the rumors of an ore discovery made by Texas Gulf. Lamont had said no then.
But during this phone call, Lamont told Hinton that he had some news now. Hinton asked whether it was good. Lamont replied either “pretty good” or “very good.” (Brooks notes that they mean the same thing in this context.) Hinton immediately called the bank’s trading department, got a quote on Texas Gulf, and placed an order for 3,000 shares for the account of the Nassau Hospital, of which he was treasurer. Hinton never bothered to look at the tape – despite being advised to do so by Lamont – because Hinton felt he already had the information he needed. (Lamont didn’t know about the inexplicable forty minute delay before the Texas Gulf news appeared on the tape.)
Then Hinton went to the office of the Morgan Guaranty officer in charge of pension trusts. Hinton recommended buying Texas Gulf. In less than half an hour, the bank had ordered 7,000 shares for its pension fund and profit-sharing account.
An hour after that – at 12:33 – Lamont purchased 3,000 shares for himself and his family, paying $34 1/2 for them. The stock closed above $36. It hit a high of over $58 later that month. Brooks:
…and by the end of 1966, when commercial production of ore was at last underway at Kidd-55 and the enormous new mine was expected to account for one-tenth of Canada’s total annual production of copper and one-quarter of its total annual production of zinc, the stock was selling at over 100. Anyone who had bought Texas Gulf between November 12th, 1963 and the morning (or even the lunch hour) of April 16th, 1964 had therefore at least tripled his money.
Brooks then introduces the trial:
Perhaps the most arresting aspect of the Texas Gulf trial – apart from the fact that a trial was taking place at all – was the vividness and variety of the defendants who came before Judge Bonsal, ranging as they did from a hot-eyed mining prospector like Clayton (a genuine Welchman with a degree in mining from the University of Cardiff) through vigorous and harried corporate nabobs like Fogarty and Stephens to a Texas wheeler-dealer like Coates and a polished Brahmin of finance like Lamont.
Darke did not appear at the trial, claiming his Canadian nationality. Brooks continues:
The S.E.C., after its counsel, Frank E. Kennamer Jr. had announced his intention to “drag to light and pillory the misconduct of these defendants,” asked the court to issue a permanent injunction forbidding Fogarty, Mollison, Clayton, Holyk, Darke, Crawford, and several other corporate insiders who had bought stock or calls between November 8th, 1963 and April 15th, 1964, from ever again “engaging in any act… which operates or would operate as a fraud or deceit upon any person in connection with purchase or sale of securities”; further – and here it was breaking entirely new ground – it prayed that the court order the defendants to make restitution to the persons they had allegedly defrauded by buying stock or calls from them on the basis of inside information. The S.E.C. also charged that the pessimistic April 12th press release was deliberately deceptive, and asked that because of it Texas Gulf be enjoined from “making any untrue statement of material fact or omitting to state a material fact.” Apart from any question of loss of corporate face, the nub of the matter here lay in the fact that such a judgment, if granted, might well open the way for legal action against the company by any stockholder who had sold his Texas Gulf stock to anybody in the interim between the first press release and the second one, and since the shares that had changed hands during that period had run into the millions, it was a nub indeed.
Regarding the November purchases, the defense argued that a workable mine was far from a sure thing based only on the first drill hole. Some even argued that the hole could have turned out to be a liability rather than an asset for Texas Gulf, based on what was known then. The people who bought stock or calls during the winter claimed that the hole had little or nothing to do with their decision. They stated that they thought Texas Gulf was a good investment in general. Clayton said his sudden appearance as a large investor was because he had just married a well-to-do wife. Brooks:
The S.E.C. countered with its own parade of experts, maintaining that the nature of the first core had been such as to make the existence of a rich mine an overwhelming probability, and that therefore those privy to the facts about it had possessed a material fact.
The S.E.C. also made much of the fact that Fogarty based the initial press release on information that was two days old. The defense countered that the company had been in a sensitive position. If it had issued an optimistic report that later turned out to be false, it could well be accused of fraud for that.
Judge Bonsal concluded that the definition of materiality must be conservative. He therefore decided that up until April 9th, when three converging drill holes positively established the three-dimensionality of the ore deposit, material information had not been in hand. Therefore, the decisions of insiders to buy stock before that date, even if based on initial drilling results, were legal “educated guesses.”
Case was thus dismissed against all educated guessers who had bought stock or calls, or recommended others do so, before the evening of April 9th. Brooks:
With Clayton and Crawford, who had been so injudicious as to buy or order stock on April 15th, it was another matter. The judge found no evidence that they had intended to deceive or defraud anyone, but they had made their purchases with the full knowledge that a great mine had been found and that it would be announced the next day – in short, with material private information in hand. Therefore they were found to have violated Rule 10B-5, and in due time would presumably be enjoined from doing such a thing again and made to offer restitution to the persons they bought their April 15th shares from – assuming, of course, that such persons can be found…
On the matter of the April 12th press release, the judge found that it was not false or misleading.
Still to be settled was the matter of Coates and Lamont making their purchases. The question was when it can be said that the information has officially been made public. This was the most important issue and would likely set a legal precedent.
The S.E.C. argued that the actions of Coates and Lamont were illegal because they occurred before the ore strike news had crossed the Dow Jones broad tape. The S.E.C. argued, furthermore, that even if Coates and Lamont had acted after the “official” announcement, it still would be illegal unless enough time had passed so that those who hadn’t attended the press conference, or even those who hadn’t seen the initial news cross the broad tape, had enough time to absorb the information.
Defense argued first that Coates and Lamont had every reason to believe that the news was already out, since Stephens said it had been released by the Ontario Minister of Mines the previous evening. So Coates and Lamont acted in good faith. Second, counsel argued that for all practical purposes, the news was out, via osmosis and The Northern Miner. Brokerage offices and the Stock Exchange had been buzzing all morning. Lamont’s lawyers also argued that Lamont had merely told Hinton to look at the tape, not to buy any stock. Defense argued that the S.E.C. was asking the court to write new rules and then apply them retroactively, while the plaintiff was merely asking that an old rule 10B-5, be applied broadly.
As for Lamont’s waiting for two hours, until 12:33, before buying stock for himself, the S.E.C. took issue, as Brooks records:
‘It is the Commission’s position that even after corporate information has been published in the news media, insiders, are still under a duty to refrain from securities transactions until there had elapsed a reasonable amount of time in which the securities industry, the shareholders, and the investing public can evaluate the development and make informed investment decisions… Insiders must wait at least until the information is likely to have reached the average investor who follows the market and he has had some opportunity to consider it.’
In the Texas Gulf case, the S.E.C. argued that one hour and thirty-nine minutes was not “a reasonable amount of time.” What, then, is “a reasonable amount of time,” the S.E.C. was asked? The S.E.C.’s counsel, Kennamer, said it “would vary from case to case.” Kennamer added that it would be “a nearly impossible task to formulate a rigid set of rules that would apply in all situations of this sort.”
Brooks sums it up with a hint of irony:
Therefore, in the S.E.C.’s canon, the only way an insider could find out whether he had waited long enough before buying his company’s stock was by being hauled into court and seeing what the judge would decide.
Judge Bonsal rejected this argument by the S.E.C. Moreover, he took a narrower view that, based on legal precedent, the key moment was when the press release was read. The judge admitted that a better rule might be formulated according to which insiders had to wait at least some amount time after the initial press release so that other investors could absorb it. However, he didn’t think he should write such a rule. Nor should this matter be left up to the judge on a case-by-base basis. Thus, the complaints against Coates and Lamont were dismissed.
The S.E.C. appealed all the dismissals. Brooks concludes:
…in August, 1968, the U.S. Court of Appeals for the Second Circuit handed down a decision which flatly reversed Judge Bonsal’s findings on just about every score except the findings against Crawford and Clayton, which were affirmed. The Appeals Court found that the original November drill hole had provided material evidence of a valuable ore deposit, and that therefore Fogarty, Mollison, Darke, Holyk, and all other insiders who had bought Texas Gulf stock or calls on it during the winter were guilty of violations of the law; that the gloomy April 12th press release had been ambiguous and perhaps misleading; and that Coates had improperly and illegally jumped the gun in placing his orders right after the April 16th press conference. Only Lamont – the charges against whom had been dropped following his death shortly after the lower court decision – and a Texas Gulf office manager, John Murray, remained exonerated.
XEROX XEROX XEROX XEROX
There was no economical and practical way of making copies until after 1950. Brooks writes that the 1950’s were the pioneering years for mechanized office copying. Although people were starting to show a compulsion to make copies, the early copying machines suffered from a number of problems. Brooks:
…What was needed for the compulsion to flower into a mania was a technological breakthrough, and the breakthrough came at the turn of the decade with the advent of a machine that worked on a new principle, known as xerography, and was able to make dry, good-quality, permanent copies on ordinary paper with a minimum of trouble. The effect was immediate. Largely as a result of xerography, the estimated number of copies (as opposed to duplicates) made annually in the United States sprang from some twenty million in the mid-fifties to nine and a half billion in 1964, and to fourteen billion in 1966 – not to mention billions more in Europe, Asia, and Latin America. More than that, the attitude of educators towards printed textbooks and of business people toward written communication underwent a discernable change; avant-garde philosophers took to hailing xerography as a revolution comparable in importance to the invention of the wheel; and coin-operated copy machines began turning up in candy stores and beauty parlors…
The company responsible for the great breakthrough and the one on whose machines the majority of these billions of copies were made was of course, the Xerox Corporation, of Rochester, New York. As a result, it became the most spectacular big-business success of the nineteen-sixties. In 1959, the year the company – then called Haloid Xerox, Inc. – introduced its first automatic xerographic office copier, its sales were thirty-three million dollars. In 1961, they were sixty-six million, in 1963 a hundred and seventy-six million, and in 1966 over half a billion.
The company was extremely profitable. It ranked two hundred and seventy-first in Fortune’s ranking in 1967. However, in 1966 the company ranked sixty-third in net profits and probably ninth in the ratio of profits to sales and fifteenth in terms of market value. Brooks continues:
…Indeed, the enthusiasm the investing public showed for Xerox made its shares the stock market Golconda of the sixties. Anyone who bought its stock toward the end of 1959 and held on to it until early 1967 would have found his holding worth about sixty-six times its original price, and anyone who was really fore-sighted and bought Haloid in 1955 would have seen his original investment grow – one might almost say miraculously – a hundred and eighty times. Not surprisingly, a covey of “Xerox millionaires” sprang up – several hundred of them all told, most of whom either lived in the Rochester area or had come from there.
The Haloid company was started in Rochester in 1906. It manufactured photographic papers. It survived OK. But after the Second World War, due to an increase in competition and labor costs, the company was looking for new products.
More than a decade earlier, in 1938, an obscure thirty-two year-old inventor, Chester F. Carlson, was spending his spare time trying to invent an office copying machine. Carlson had a degree in physics from the California Institute of Technology. Carlson had hired Otto Kornei, a German refugee physicist, to help him. Their initial copying machine was unwieldy and produced much smoke and stench. Brooks:
The process, which Carlson called electrophotography, had – and has – five basic steps: sensitizing a photoconductive surface to light by giving it an electrostatic charge (for example, by rubbing it with fur); exposing this surface to a written page to form an electrostatic image; developing the latest image by dusting the surface with a powder that will adhere only to the charged areas; transferring the image to some sort of paper; and fixing the image by the application of heat.
Although each individual step was already used in other technologies, this particular combination of steps was new. Carlson carefully patented the process and began trying to sell it. Over the ensuing five years, Carlson tried to sell the rights to every important office-equipment company in the country. He was turned down every time. In 1944, Carlson finally convinced Battelle Memorial Institute to conduct further development work on the process in exchange for three-quarters of any future royalties.
In 1946, various people at Haloid, including Joseph C. Wilson – who was about to become president – had noticed the work that Battelle was doing. Wilson asked a friend of his, Sol M. Linowitz, a smart, public-spirited lawyer just back from service in the Navy, to research the work at Battelle as a “one-shot” job. The result was an agreement giving Haloid the rights to the Carlson process in exchange for royalties for Battelle and Carlson.
At one point in the research and development process, the Haloid people got so discouraged that they considered selling most of their xerography rights to International Business Machines. The research process became quite costly. But Haloid committed itself to seeing it through. It took full title of the Carlson process and assumed the full cost of development in exchange for shares in Haloid (for Battelle and Carlson). Brooks:
…The cost was staggering. Between 1947 and 1960, Haloid spent about seventy-five million dollars [over $800 million in 2018 dollars] on research in xerography, or about twice what it earned from its regular operations during that period; the balance was raised through borrowing and through the wholesale issuance of common stock to anyone who was kind, reckless, or prescient enough to take it. The University of Rochester, partly out of interest in a struggling local industry, bought an enormous quantity for its endowment fund at a price that subsequently, because of stock splits, amounted to fifty cents a share. ‘Please don’t be mad at us if we have to sell our Haloid stock in a couple of years to cut our losses on it,’ a university official nervously warned Wilson. Wilson promised not to be mad. Meanwhile, he and other executives of the company took most of their pay in the form of stock, and some of them went as far as to put up their savings and the mortgages on their houses to help the cause along.
In 1961, the company changed its name to Xerox Corporation. One unusual aspect to the story is that Xerox became rather public-minded. Brooks quotes Wilson:
‘To set high goals, to have almost unattainable aspirations, to imbue people with the belief that they can be achieved – these are as important as the balance sheet, perhaps more so.’
This rhetoric is not uncommon. But Xerox followed through by donating one and a half percent of its profits to educational and charitable institutions in 1965-1966. In 1966, Xerox committed itself to the “one-per-cent program,” also called the Cleveland Plan, according to which the company gives one percent of its pre-tax income annually to educational institutions, apart from any other charitable activities.
Furthermore, President Wilson said in 1964, “The corporation cannot refuse to take a stand on public issues of major concern.” As Brooks observes, this is “heresy” for a business because it could alienate customers or potential customers. Xerox’s chief stand was in favor of the United Nations. Brooks:
Early in 1964, the company decided to spend four million dollars – a year’s advertising budget – on underwriting a series of network-television programs dealing with the U.N., the programs to be unaccompanied by commercials or any other identification of Xerox apart from a statement at the beginning and end of each that Xerox had paid for it.
Xerox was inundated with letters opposing the company’s support of the U.N. Many said that the U.N. charter had been written by American Communists and that the U.N. was an instrument for depriving Americans of their Constitutional rights. Although only a few of these letters came from the John Birch Society, it turned out later that most of the letters were part of a meticulously planned Birch campaign. Xerox officers and directors were not intimidated. The U.N. series appeared in 1965 and was widely praised.
Furthermore, Xerox consistently committed itself to informing the users of its copiers of their legal responsibilities. It took this stand despite their commercial interest.
Brooks visited Xerox in order to talk with some of its people. First he spoke with Dr. Dessauer, a German-born engineer who had been in charge of the company’s research and engineering since 1938. It was Dessauer who first brought Carlson’s invention to the attention of Joseph Wilson. Brooks noticed a greeting card from fellow employees calling Dessauer the “Wizard.”
Dr. Dessauer told Brooks about the old days. Dessauer said money was the main problem. Many team members gambled heavily on the xerox project. Dessauer himself mortgaged his house. Early on, team members would often say the damn thing would never work. Even if it did work, the marketing people said there was only a market for a few thousand of the machines.
Next Brooks spoke with Dr. Harold E. Clark, who had been a professor of physics before coming to Haloid in 1949. Dr. Clark was in charge of the xerography-development program under Dr. Dessauer. Dr. Clark told Brooks that Chet Carlson’s invention was amazing. Also, no one else invented something similar at the same time, unlike the many simultaneous discoveries in scientific history. The only problem, said Dr. Clark, was that it wasn’t a good product.
The main trouble was that Carlson’s photoconductive surface, which was coated with sulphur, lost its qualities after it had made a few copies and became useless. Acting on a hunch unsupported by scientific theory, the Battelle researchers tried adding to the sulphur a small quantity of selenium, a non-metallic element previously used chiefly in electrical resistors and as a coloring material to redden glass. The selenium-and-sulphur surface worked a little better than the all-sulphur one, so the Battelle men tried adding a little more selenium. More improvement. They gradually kept increasing the percentage until they had a surface consisting entirely of selenium – no sulphur. That one worked best of all, and thus it was found, backhandedly, that selenium and selenium alone could make xerography practical.
Dr. Clark went on to tell Brooks that they basically patented one of the elements, of which there are not many more than one hundred. What is more, they still don’t understand how it works. There are no memory effects – no traces of previous copies are left on the selenium drum. A selenium-coated drum in the lab can last a million processes, or theoretically an infinite number. They don’t understand why. Dr. Clark concluded that they combined “Yankee tinkering and scientific inquiry.”
Brooks spoke with Linowitz, who only had a few minutes because he had just been appointed U.S. Ambassador to the Organization of American States. Linowitz told him:
…the qualities that made for the company’s success were idealism, tenacity, the courage to take risks, and enthusiasm.
Joseph Wilson told Brooks that his second major had been English literature. He thought he would be a teacher or work in administration at a university. Somehow he ended up at Harvard Business School, where he was a top student. After that, he joined Haloid, the family business, something he’d never planned on doing.
Regarding the company’s support of the U.N., Wilson explained that world cooperation was the company’s business, because without it there would be no world and thus no business. He went on to explain that elections were not the company’s business. But university education, civil rights, and employment of African-Americans were their business, to name just a few examples. So far, at least, Wilson said there hadn’t been a conflict between their civic duties and good business. But if such a conflict arose, he hoped that the company would honor its civic responsibilities.
MAKING THE CUSTOMERS WHOLE
On November 19th, 1963, the Stock Exchange became aware that two of its member firms – J. R. Williston & Beane, Inc., and Ira Haupt & Co. – were in serious financial trouble. This later became a crisis that was made worse by the assassination of JFK on November 22, 1963. Brooks:
It was the sudden souring of a speculation that these two firms (along with various brokers not members of the Stock Exchange) had become involved in on behalf of a single customer – the Allied Crude Vegetable Oil & Refining Co., of Bayonne, New Jersey. The speculation was in contracts to buy vast quantities of cotton-seed oil and soybean oil for future delivery.
Brooks then writes:
On the two previous business days – Friday the fifteenth and Monday the eighteenth – the prices had dropped an average of a little less than a cent and a half per pound, and as a result Haupt had demanded that Allied put up about fifteen million dollars in cash to keep the account seaworthy. Allied had declined to do this, so Haupt – like any broker when a customer operating on credit has defaulted – was faced with the necessity of selling out the Allied contracts to get back what it could of its advances. The suicidal extent of the risk that Haupt had undertaken is further indicated by the fact that while the firm’s capital in early November had amounted to only about eight million dollars, it had borrowed enough money to supply a single customer – Allied – with some thirty-seven million dollars to finance the oil speculations. Worse still, as things turned out it had accepted as collateral for some of these advances enormous amounts of actual cottonseed oil and soybean oil from Allied’s inventory, the presence of which in tanks at Bayonne was attested to by warehouse receipts stating the precise amount and kind of oil on hand. Haupt had borrowed the money it supplied Allied from various banks, passing along most of the warehouse receipts to the banks as collateral. All this would have been well and good if it had not developed later that many of the warehouse receipts were forged, that much of the oil they attested to was not, and probably never had been, in Bayonne, and that Allied’s President, Anthony De Angelis (who was later sent to jail on a whole parcel of charges), had apparently pulled off the biggest commercial fraud since that of Ivar Kreuger, the match king.
What began to emerge as the main issue was that Haupt had about twenty thousand individual stock-market customers, who had never heard of Allied or commodity trading. Williston & Beane had nine thousand individual customers. All these accounts were frozen when the two firms were suspended by the Stock Exchange. (Fortunately, the customers of Williston & Beane were made whole fairly rapidly.)
The Stock Exchange met with its member firms. They decided to make the customers of Haupt whole. G. Keith Funston, President of the Stock Exchange, urged the member firms to take over the matter. The firms replied that the Stock Exchange should do it. Funston replied, “If we do, you’ll have to repay us the amount we pay out.” So it was agreed that the payment would come out of the Exchange’s treasury, to be repaid later by the member firms.
Funston next led the negotiations with Haupt’s creditor banks. Their unanimous support was essential. Chief among the creditors were four local banks – Chase Manhattan, Morgan Guaranty Trust, First National City, and Manufacturers Hanover Trust. Funston proposed that the Exchange would put up the money to make the Haupt customers whole – about seven and a half million dollars. In return, for every dollar the Exchange put up, the banks would agree to defer collection on two dollars. So the banks would defer collection on about fifteen million.
The banks agreed to this on the condition that the Exchange’s claim to get back any of its contribution would come after the banks’ claims for their loans. Funston and his associates at the Exchange agreed to that. After more negotiating, there was a broad agreement on the general plan.
Early on Saturday, the Exchange’s board met and learned from Funston what was proposed. Almost immediately, several governors rose to state that it was a matter of principle. And so the board agreed with the plan. Later, Funston and his associates decided to put the Exchange’s chief examiner in charge of the liquidation of Haupt in order to ensure that its twenty thousand individual customers were made whole as soon as the Exchange had put up the cash. (The amount of cash would be at least seven and a half million, but possibly as high as twelve million.)
Fortunately, the American banks eventually all agreed to the final plan put forth by the Exchange. Brooks notes that the banks were “marvels of cooperation.” But agreement was still needed from the British banks. Initially, Funston was going to make the trip to England, but he couldn’t be spared.
Several other governors quickly volunteered to go, and one of them, Gustave L. Levy, was eventually selected, on the ground that his firm, Goldman, Sachs & Co., had had a long and close association with Kleinwort, Benson, one of the British banks, and that Levy himself was on excellent terms with some of the Kleinwort, Benson partners.
The British banks were very unhappy. But since their loans to Allied were unsecured, they didn’t have any room to negotiate. Still, they asked for time to think the matter over. This gave Levy an opportunity to meet with this Kleinwort, Benson friends. Brooks:
The circumstances of the reunion were obviously less than happy, but Levy says that his friends took a realistic view of their situation and, with heroic objectivity, actually helped their fellow-Britons to see the American side of the question.
The market was closed Monday for JFK’s funeral. Funston was still waiting for the call from Levy. After finally getting agreement from all the British banks, Levy placed the call to Funston.
Funston felt at this point that the final agreement had been wrapped up, since all he needed was the signatures of the fifteen Haupt general partners. The meeting with the Haupt partners ended up taking far longer than expected. Brooks:
One startling event broke the even tenor of this gloomy meeting… someone noticed an unfamiliar and strikingly youthful face in the crowd and asked its owner to identify himself. The unhesitating reply was, ‘I’m Russell Watson, a reporter for the Wall Street Journal.’ There was a short, stunned silence, in recognition of the fact that an untimely leak might still disturb the delicate balance of money and emotion that made up the agreement. Watson himself, who was twenty-four and had been on the Journal for a year, has since explained how he got into the meeting, and under what circumstances he left it. ‘I was new on the Stock Exchange beat then,’ he said afterward. ‘Earlier in the day, there had been word that Funston would probably hold a press conference sometime that evening, so I went over to the Exchange. At the main entrance, I asked a guard where Mr. Funston’s conference was. The guard said it was on the sixth floor, and ushered me into an elevator. I suppose he thought I was a banker, a Haupt partner, or a lawyer. On the sixth floor, people were milling around everywhere. I just walked off the elevator and into the office where the meeting was – nobody stopped me. I didn’t understand much of what was going on. I got the feeling that whatever was at stake, there was general agreement but still a lot of haggling over details to be done. I didn’t recognize anybody there but Funston. I stood around quietly for about five minutes before anybody noticed me, and then everybody said, pretty much at once, “Good God, get out of here!” They didn’t exactly kick me out, but I saw it was time to go.’
At fifteen minutes past midnight, finally all the parties signed an agreement.
As soon as the banks opened on Tuesday, the Exchange deposited seven and a half million dollars in an account on which the Haupt liquidator – James P. Mahony – could draw. The stock market had its greatest one-day rise in history. A week later, by December 2, $1,750,000 had been paid out to Haupt customers. By December 12, it was $5,400,000. And by Christmas, it was $6,700,000. By March 11, the pay-out had reached nine and a half million dollars and all the Haupt customers had been made whole.
- Note: $9.5 million in 1963 would be approximately $76 million dollars today (in 2018), due to inflation.
Brooks describes the reaction:
In Washington, President Johnson interrupted his first business day in office to telephone Funston and congratulate him. The chairman of the S.E.C., William L. Cary, who was not ordinarily given to throwing bouquets at the Stock Exchange, said in December that it had furnished ‘a dramatic, impressive demonstration of its strength and concern for the public interest.’
Brooks later records:
Oddly, almost no one seems to have expressed gratitude to the British and American banks, which recouped something like half of their losses. It may be that people simply don’t thank banks, except in television commercials.
THE IMPACTED PHILOSOPHERS
Brooks opens this chapter by observing that communication is one of the biggest problems in American industry. (Remember he was writing in the 1960’s). Brooks:
This preoccupation with the difficulty of getting a thought out of one head and into another is something the industrialists share with a substantial number of intellectuals and creative writers, more and more of whom seemed inclined to regard communication, or the lack of it, as one of the greatest problems not just of industry, but of humanity.
Brooks then adds:
What has puzzled me is how and why, when foundations sponsor one study of communication after another, individuals and organizations fail so consistently to express themselves understandably, or how and why their listeners fail to grasp what they hear.
A few years ago, I acquired a two-volume publication of the United States Government Printing Office entitled Hearings Before the Subcommittee on Antitrust and Monopoly of the Committee on the Judiciary, United States Senate, Eighty-Seventh Congress, First Session, Pursuant to S. Res. 52, and after a fairly diligent perusal of its 1,459 pages I thought I could begin to see what the industrialists are talking about.
The hearings were conducted in April, May, and June of 1961 under the chairmanship of Senator Estes Kefauver of Tennessee. They concerned price-fixing and bid-rigging in conspiracies in the electrical-manufacturing industry. Brooks:
…Senator Kefauver felt that the whole matter needed a good airing. The transcript shows that it got one, and what the airing revealed – at least within the biggest company involved – was a breakdown in intramural communication so drastic as to make the building of the tower of Babel seem a triumph of organizational rapport.
Brooks explains a bit later:
The violations, the government alleged, were committed in connection with the sale of large and expensive pieces of apparatus of a variety that is required chiefly by public and private electric-utility companies (power transformers, switchgear assemblies, and turbine-generator units, among many others), and were the outcome of a series of meetings attended by executives of the supposedly competing companies – beginning at least as early as 1956 and continuing into 1959 – at which noncompetitive price levels were agreed upon, nominally sealed bids on individual contracts were rigged in advance, and each company was allocated a certain percentage of the available business.
Brooks explains that in an average year at the time of the conspiracies, about $1.75 billion – $14 billion in 2018 dollars – was spent on the sorts of machines in question, with nearly a quarter of that local, state, and federal government spending. Brooks gives a specific example, a 500,000-kilowatt turbine-generator, which sold for about $16 million (nearly $130 million in 2018 dollars), but was often discounted by 25 percent. If the companies wanted to, they could effectively charge $4 million extra (nearly $32 million extra in 2018 dollars). Any such additional costs as a result of price-fixing would, in the case of government purchases, ultimately fall on the taxpayer.
To top it all off, there was a prevalent suspicion of hypocrisy in the very highest places. Neither the chairman of the board nor the president of General Electric, the largest of the corporate defendants, had been caught on the government’s dragnet, and the same was true of Westinghouse Electric, the second-largest; these four ultimate bosses let it be known that they had been entirely ignorant of what had been going on within their commands right up to the time the first testimony on the subject was given to the Justice Department. Many people, however, were not satisfied by these disclaimers, and, instead, took the position that the defendant executives were men in the middle, who had broken the law only in response either to actual orders or to a corporate climate favoring price-fixing, and who were now being allowed to suffer for the sins of their superiors. Among the unsatisfied was Judge Ganey himself, who said at the time of the sentencing, ‘One would be most naive indeed to believe that these violations of the law, so long persisted in, affecting so large a segment of the industry, and, finally, involving so many millions upon millions of dollars, were facts unknown to those responsible for the conduct of the corporation… I am convinced that in the great number of these defendants’ cases, they were torn between conscience and approved corporate policy, with the rewarding objectives of promotion, comfortable security, and large salaries.’
General Electric got most of the attention. It was, after all, by far the largest of those companies involved. General Electric penalized employees who admitted participation in the conspiracy. Some saw this as good behavior, while others thought it was G.E. trying to save higher-ups by making a few sacrifices.
G.E. maintained that top executives didn’t know. Judge Ganey thought otherwise. But Brooks realized it couldn’t be determined:
…For, as the testimony shows, the clear waters of moral responsibility at G.E. became hopelessly muddied by a struggle to communicate – a struggle so confused that in some cases, it would appear, if one of the big bosses at G.E. had ordered a subordinate to break the law, the message would somehow have been garbled in its reception, and if the subordinate had informed the boss that he was holding conspiratorial meetings with competitors, the boss might well have been under the impression that the subordinate was gossiping idly about lawn parties or pinochle lessons.
G.E., for at least eight years, has had a rule, Directive Policy 20.5, which explicitly forbids price-fixing, bid-rigging, and similar anticompetitive practices. The company regularly reissued 20.5 to new executives and asked them to sign their names to it.
The problem was that many, including those who signed, didn’t take 20.5 seriously. They thought it was just a legal device. They believed that meeting illegally with competitors was the accepted and standard practice. They concluded that if a superior told them to comply with 20.5, he was actually ordering him to violate it. Brooks:
Illogical as it might seem, this last assumption becomes comprehensible in light of the fact that, for a time, when some executives orally conveyed, or reconveyed, the order, they were apparently in the habit of accompanying it with an unmistakable wink.
Brooks gives an example of just such a meeting of sales managers in May 1948. Robert Paxton, an upper-level G.E. executive who later became the company’s president, addressed the group and gave the usual warnings about antitrust violations. William S. Ginn, a salesman under Paxton, interjected, “We didn’t see you wink.” Paxton replied, “There was no wink. We mean it, and these are the orders.”
Senator Kefauver asked Paxton how long he had known about such winks. Paxton said that in 1935, he saw his boss do it following an order. Paxton recounts that he became incensed. Since then, he had earned a reputation as an antiwink man.
In any case, Paxton’s seemingly unambiguous order in 1948 failed to get through to Ginn, who promptly began pricing-fixing with competitors. When asked about it thirteen years later, Ginn – having recently gotten out of jail and having lost his $135,000 a year job at G.E. – said he had gotten a contrary order from two other superiors, Henry V. B. Erben and Francis Fairman. Brooks:
Erben and Fairman, Ginn said, had been more articulate, persuasive, and forceful in issuing their order than Paxton had been in issuing his; Fairman, especially, Ginn stressed, had proved to be ‘a great communicator, a great philosopher, and, frankly, a great believer in stability of prices.’ Both Erben and Fairman had dismissed Paxton as naive, Ginn testified, and, in further summary of how he had been led astray, he said that ‘the people who were advocating the Devil were able to sell me better than the philosophers that were selling me the Lord.’
Unfortunately, Erben and Fairman had passed away before the hearing. So we don’t have their testimonies. Ginn consistently described Paxton as a philosopher-salesman on the side of the Lord.
In November, 1954, Ginn was made general manager of the transformer division. Ralph J. Cordiner, chairman of the board at G.E. since 1949, called Ginn down to New York to order him to comply strictly with Directive 20.5. Brooks:
Cordiner communicated this idea so successfully that it was clear enough to Ginn at the moment, but it remained so only as long as it took him, after leaving the chairman, to walk to Erben’s office.
Erben, Ginn’s direct superior, countermanded Cordiner’s order.
Erben’s extraordinary communicative prowess carried the day, and Ginn continued to meet with competitors.
At the end of 1954, Paxton took over Erben’s job and was thus Ginn’s direct superior. Ginn kept meeting with competitors, but he didn’t tell Paxton about it, knowing his opposition to the practice.
In January 1957, Ginn became general manager of G.E.’s turbine-generator division. Cordiner called him down again to instruct him to follow 20.5. This time, however, Ginn got the message. Why? “Because my air cover was gone,” Ginn explained to the Subcommittee. Brooks:
If Erben, who had not been Ginn’s boss since late in 1954, had been the source of his air cover, Ginn must have been without its protection for over two years, but, presumably, in the excitement of the price war he had failed to notice its absence.
In any case, Ginn apparently had reformed. Ginn circulated copies of 20.5 among all his division managers. He then instructed them not to even socialize with competitors.
It appears that Ginn had not been able to impart much of his shining new philosophy to others, and that at the root of his difficulty lay that old jinx, the problem of communicating.
Brooks quotes Ginn:
‘I have got to admit that I made a communication error. I didn’t sell this thing to the boys well enough… The price is so important in the complete running of a business that, philosophically, we have got to sell people not only just the fact that it is against the law, but… that it shouldn’t be done for many, many reasons. But it has got to be a philosophical approach and a communication approach…’
Frank E. Stehlik was general manager of the low-voltage-switchgear department from May, 1956 to February, 1960. Stehlik not only heard 20.5 directly from his superiors in oral and written communications. But, in addition, Stehlik was open to a more visceral type of communication he called “impacts.” Brooks explains:
Apparently, when something happened within the company that made an impression on him, he would consult an internal sort of metaphysical voltmeter to ascertain the force of the jolt he had received, and, from the reading he got, would attempt to gauge the true drift of company policy.
In 1956, 1957, and for most of 1958, Stehlik believed that company policy clearly required compliance with 20.5. But in the fall of 1958, Stehlik’s immediate superior, George E. Burens, told him that Paxton had told him (Burens) to have lunch with a competitor. Paxton later testified that he categorically told Burens not to discuss prices. But Stehlik got a different impression.
In Stehlik’s mind, this fact made an “impact.” He felt that company policy was now in favor of disobeying 20.5. So, late in 1958, when Burens told him to begin having price meetings with a competitor, he was not at all surprised. Stehlik complied.
Brooks next describes the communication problem from the point of view of superiors. Raymond W. Smith was general manager of G.E.’s transformer division, while Arthur F. Vinson was vice-president in charge G.E.’s apparatus group. Vinson ended up becoming Smith’s immediate boss.
Smith testified that Cordiner gave him the usual order on 20.5. But late in 1957, price competition for transformers was so intense that Smith decided on his own to start meeting with competitors to see if prices could be stabilized. Smith thought company policy and industry practice both supported his actions.
When Vinson became Smith’s boss, Smith felt he should let him know what he was doing. So on several occasions, Smith told Vinson, “I had a meeting with the clan this morning.”
Vinson, in his testimony, said he didn’t even recall Smith use the phrase, “meeting of the clan.” Vinson only recalled that Smith would say things like, “Well, I am going to take this new plan on transformers and show it to the boys.” Vinson testified that he thought Smith meant the G.E. district salespeople and the company’s customers. Vinson claimed to be shocked when he learned that Smith was referring to price-fixing meetings with competitors.
But Smith was sure that his communication had gotten through to Vinson. “I never got the impression that he misunderstood me,” Smith testified.
Senator Kefauver asked Vinson if he was so naive as to not know to whom “the boys” referred. Vinson replied, “I don’t think it is too naive. We have a lot of boys… I may be naive, but I am certainly telling the truth, and in this kind of thing I am sure I am naive.”
Kefauver pressed Vinson, asking how he could have become vice-president at $200,000 a year if he were naive. Vinson: “I think I could well get there by being naive in this area. It might help.”
Was Vinson really saying to Kefauver what he seemed to be saying – that naivete about antitrust violations might be a help to a man in getting and holding a $200,000-a-year job at General Electric? It seems unlikely. And yet what else could he have meant?
Vinson was also implicated in another part of the case. Four switchgear executives – Burens, Stehlik, Clarence E. Burke, and H. Frank Hentschel – testified before the grand jury (and later before the Subcommittee) that in mid-1958, Vinson had lunch with them in Dining Room B of G.E.’s switchgear works in Philadelphia, and that Vinson told them to hold price meetings with competitors.
This led the four switchgear executives to hold a series of meetings with competitors. But Vinson told prosecutors that the lunch never took place and that he had had no knowledge at all of the conspiracy until the case broke. Regarding the lunch, Burens, Stehlik, Burke, and Hentschel all had lie-detector tests, given by the F.B.I., and passed them.
Vinson refused to take a lie-detector test, at first explaining that he was acting on advice of counsel and against his personal inclination, and later, after hearing how the four other men had fared, arguing that if the machine had not pronounced them liars, it couldn’t be any good.
It was shown that there were only eight days in mid-1958 when Burens, Stehlik, Burke, and Hentschel all had been together at the Philadelphia plant and could have had lunch together. Vinson produced expense accounts showing that he had been elsewhere on each of those eight days. So the Justice Department dropped the case against Vinson.
The upper level of G.E. “came through unscathed.” Chairman Cordiner and President Paxton did seem to be clearly against price-fixing, and unaware of all the price-fixing that had been occurring. Paxton, during his testimony, said that he learned from his boss, Gerard Swope, that the ultimate goal of business was to produce more goods for people at lower cost. Paxton claimed to be deeply impacted by this philosophy, explaining why he was always strongly against price-fixing.
Philosophy seems to have reached a high point at G.E., and communication a low one. If executives could just learn to understand one another, most of the witnesses said or implied, the problem of antitrust violations would be solved. But perhaps the problem is cultural as well as technical, and has something to do with a loss of personal identity that comes with working in a huge organization. The cartoonist Jules Feiffer, contemplating the communication problem in a nonindustrial context, has said, ‘Actually, the breakdown is between the person and himself. If you’re not able to communicate successfully between yourself and yourself, how are you supposed to make it with the strangers outside?’ Suppose, purely as a hypothesis, that the owner of a company who orders his subordinates to obey the antitrust laws has such poor communication with himself that he does not really know whether he wants the order to be complied with or not. If his order is disobeyed, the resulting price-fixing may benefit his company’s coffers; if it is obeyed, then he has done the right thing. In the first instance, he is not personally implicated in any wrongdoing, while in the second he is positively involved in right doing. What, after all, can he lose? It is perhaps reasonable to suppose that such an executive will communicate his uncertainty more forcefully than his order.
THE LAST GREAT CORNER
Piggly Wiggly Stores – a chain of retail self-service markets mostly in the South and West, and headquartered in Memphis – was first listed on the New York Stock Exchange in June, 1922. Clarence Saunders was the head of Piggly Wiggly. Brooks describes Saunders:
…a plump, neat, handsome man of forty-one who was already something of a legend in his home town, chiefly because of a house he was putting up there for himself. Called the Pink Palace, it was an enormous structure faced with pink Georgia marble and built around an awe-inspiring white-marble Roman atrium, and, according to Saunders, it would stand for a thousand years. Unfinished though it was, the Pink Palace was like nothing Memphis had ever seen before. Its grounds were to include a private golf course, since Saunders liked to do his golfing in seclusion.
The game of Corner – for in its heyday it was a game, a high-stakes gambling game, pure and simple, embodying a good many of the characteristics of poker – was one phase of the endless Wall Street contest between bulls, who want the price of a stock to go up, and bears, who want it to go down. When a game of Corner was underway, the bulls’ basic method of operation was, of course, to buy stock, and the bears’ was to sell it.
Since most bears didn’t own the stock, they would have to conduct a short sale. This means they borrow stock from a broker and sell it. But they must buy the stock back later in order to return it to the broker. If they buy the stock back at a lower price, then the difference between where they initially sold the stock short, and where they later buy it back, represents their profit. If, however, they buy the stock back at a higher price, then they suffer a loss.
There are two related risks that the short seller (the bear) faces. First, the short seller initially borrows the stock from the broker in order to sell it. If the broker is forced to demand the stock back from the short seller – either because the “floating supply” needs to be replenished, or because the short seller has insufficient equity (due to the stock price moving to high) – then the short seller can be forced to take a loss. Second, technically there is no limit to how much the short seller can lose because there is no limit to how high a stock can go.
The danger of potentially unlimited losses for a short seller can be exacerbated in a Corner. That’s because the bulls in a Corner can buy up so much of the stock that there is very little supply of it left. As the stock price skyrockets and the supply of stock shrinks, the short seller can be forced to buy the stock back – most likely from the bulls – at an extremely high price. This is precisely what the bulls are trying to accomplish in a Corner.
On the other hand, if the bulls end up owning most of the publicly available stock, and if the bears can ride out the Corner, then to whom can the bulls sell their stock? If there are virtually no buyers, then the bulls have no chance of selling most of their holding. In this case, the bulls can get stuck with a mountain of stock they can’t sell. The achievable value of this mountain can even approach zero in some extreme cases.
Brooks explains that true Corners could not happen after the new securities legislation in the 1930’s. Thus, Saunders was the last intentional player of the game.
Saunders was born to a poor family in Amherst County, Virginia, in 1881. He started out working for practically nothing for a local grocer. He then worked for a wholesale grocer in Clarksville, Tennessee, and then for another one in Memphis. Next, he organized a retail food chain, which he sold. Then he was a wholesale grocer before launching the retail self-service food chain he named Piggly Wiggly Stores.
By the fall of 1922, there were over 1,200 Piggly Wiggly Stores. 650 of these were owned outright by Saunders’ Piggly Wiggly Stores, Inc. The rest were owned independently, but still paid royalties to the parent company. For the first time, customers were allowed to go down any aisle and pick out whatever they wanted to buy. Then they paid on their way out of the store. Saunders didn’t know it, but he had invented the supermarket.
In November, 1922, several small companies operating Piggly Wiggly Stores in New York, New Jersey, and Connecticut went bankrupt. These were independently owned, having nothing to do with Piggly Wiggly Stores, Inc. Nonetheless, several stock-market operators saw what they believed was a golden opportunity for a bear raid. Brooks:
If individual Piggly Wiggly stores were failing, they reasoned, then rumors could be spread that would lead the uninformed public to believe that the parent firm was failing, too. To further this belief, they began briskly selling Piggly Wiggly short, in order to force the price down. The stock yielded readily to their pressure, and within a few weeks its price, which earlier in the year had hovered around fifty dollars a share, dropped to below forty.
Saunders promptly announced to the press that he was going to “beat the Wall Street professionals at their own game” through a buying campaign. At that point, Saunders had no experience at all with owning stock, Piggly Wiggly being the only stock he had ever owned. Moreover, there is no reason to think Saunders was going for a Corner at this juncture. He merely wanted to support his stock on behalf of himself and other stockholders.
Saunders borrowed $10 million dollars – about $140 million in 2018 dollars – from bankers in Memphis, Nashville, New Orleans, Chattanooga, and St. Louis. Brooks:
Legend has it that he stuffed his ten million-plus, in bills of large denomination, into a suitcase, boarded a train for New York, and, his pockets bulging with currency that wouldn’t fit in the suitcase, marched on Wall Street, ready to do battle.
Saunders later denied this, saying he conducted his campaign from Memphis. Brooks continues:
Wherever he was at the time, he did round up a corp of some twenty brokers, among them Jesse L. Livermore, who served as his chief of staff. Livermore, one of the most celebrated American speculators of this century, was then forty-five years old but was still occasionally, and derisively, referred to by the nickname he had earned a couple of decades earlier – the Boy Plunger of Wall Street. Since Saunders regarded Wall Streeters in general and speculators in particular as parasitic scoundrels intent only on battering down his stock, it seemed likely that his decision to make an ally of Livermore was a reluctant one, arrived at simply with the idea of getting the enemy chieftain into his own camp.
Within a week, Saunders had bought 105,000 shares – more than half of the 200,000 shares outstanding. By January 1923, the stock hit $60 a share, its highest level ever. Reports came from Chicago that the stock was cornered. The bears couldn’t find any available supply in order to cover their short positions by buying the stock back. The New York Stock Exchange immediately denied the rumor, saying ample amounts of Piggly Wiggly stock were still available.
Saunders then made a surprising but exceedingly crafty move. The stock was pushing $70, but Saunders ran advertisements offering to sell it for $55. Brooks explains:
One of the great hazards in Corner was always that even though a player might defeat his opponents, he would discover that he had won a Pyrrhic victory. Once the short sellers had been squeezed dry, that is, the cornerer might find that the reams of stock he had accumulated in the process were a dead weight around his neck; by pushing it all back into the market in one shove, he would drive its price down close to zero. And if, like Saunders, he had had to borrow heavily to get into the game in the first place, his creditors could be expected to close in on him and perhaps not only divest him of his gains but drive him into bankruptcy. Saunders apparently anticipated this hazard almost as soon as a corner was in sight, and accordingly made plans to unload some of his stock before winning instead of afterward. His problem was to keep the stock he sold from going right back into the floating supply, thus breaking his corner; and his solution was to sell his fifty-five-dollar shares on the installment plan.
Crucially, the buyers on the installment plan wouldn’t receive the certificates of ownership until they had paid their final installment. This meant they couldn’t sell their shares back into the floating supply until they had finished making all their installment payments.
By Monday, March 19, Saunders owned nearly all of the 200,000 shares of Piggly Wiggly stock. Livermore had already bowed out of the affair on March 12 because he was concerned about Saunders’ financial position. Nonetheless, Saunders asked Livermore to spring the bear trap. Livermore wouldn’t do it. So Saunders himself had to do it.
On Tuesday, March 20, Saunders called for delivery all of his Piggly Wiggly stock. By the rules of the Exchange, stock so called for had to be delivered by 2:15 the following afternoon. There were a few shares around owned in small amounts by private investors. Short sellers were frantically trying to find these folks. But on the whole, there were basically no shares available outside of what Saunders himself owned.
This meant that Piggly Wiggly shares had become very illiquid – there were hardly any shares trading. A nightmare, it seemed, for short sellers. Some short sellers bought at $90, some at $100, some at $110. Eventually the stock reached $124. But then a rumor reached the floor that the governors of the Exchange were considering a suspension of trading in Piggly Wiggly, as well as an extension of the deadline for short sellers. Piggly Wiggly stock fell to $82.
The Governing Committee of the Exchange did, in fact, made such an announcement. They claimed that they didn’t want to see a repeat of the Northern Pacific panic. However, many wondered whether the Exchange was just helping the short sellers, among whom were some members of the Exchange.
Saunders still hadn’t grasped the fundamental problem he now faced. He still seemed to have several million in profits. But only if he could actually sell his shares.
Next, the Stock Exchange announced a permanent suspension of trading in Piggly Wiggly stock and a full five day extension for short sellers to return their borrowed shares. Short sellers had until 2:15 the following Monday.
Meanwhile, Piggly Wiggly Stores, Inc., released its annual financial statement, which revealed that sales, profits, and assets had all sharply increased from the previous year. But everyone ignored the real value of the company. All that mattered at this point was the game.
The extension allowed short sellers the time to find shareholders in a variety of locations around the country. These shareholders were of course happy to dig out their stock certificates and sell them for $100 a share. In this way, the short sellers were able to completely cover their short positions by Friday evening. And instead of paying Saunders cash for some of his shares, the short sellers gave him more shares to settle their debt, which is the last thing Saunders wanted just then. (A few short sellers had to pay Saunders directly.)
The upshot was that all the short sellers were in the clear, whereas Saunders was stuck owning nearly every single share of Piggly Wiggly stock. Saunders, who had already started complaining loudly, repeated his charge that Wall Street had changed its own rule in order to let “a bunch of welchers” off the hook.
In response, the Stock Exchange issued a statement explaining its actions:
‘The enforcement simultaneously of all contracts for the return of stock would have forced the stock to any price that might be fixed by Mr. Saunders, and competitive bidding for the insufficient supply might have brought about conditions illustrated by other corners, notably the Northern Pacific corner in 1901.’
Furthermore, the Stock Exchange pointed out that its own rules allowed it to suspend trading in a stock, as well as to extend the deadline for the return of borrowed shares.
It is true that the Exchange had the right to suspend trading in a stock. But it is unclear, to say the least, about whether the Exchange had any right to postpone the deadline for the delivery of borrowed shares. In fact, two years after Saunders’ corner, in June, 1925, the Exchange felt bound to amend its constitution with an article stating that “whenever in the opinion of the Governing Committee a corner has been created in a security listed on the Exchange… the Governing Committee may postpone the time for deliveries on Exchange contracts therein.”
A SECOND SORT OF LIFE
According to Brooks, other than FDR himself, perhaps no one typified the New Deal better than David Eli Lilienthal. On a personal level, Wall Streeters found Lilienthal a reasonable fellow. But through his association with Tennessee Valley Authority from 1933 to 1946, Lilienthal “wore horns.” T.V.A. was a government-owned electric-power concern that was far larger than any private power corporation. As such, T.V.A. was widely viewed on Wall Street as the embodiment of “galloping Socialism.”
In 1946, Lilienthal became the first chairman of the United States Atomic Energy Commission, which he held until February, 1950.
Brooks was curious what Lilienthal had been up to since 1950, so he did some investigating. He found that Lilienthal was co-founder and chairman of Development & Resources Corporation. D. & R. helps governments set up programs similar to the T.V.A. Brooks also found that as of June, 1960, Lilienthal was a director and major shareholder of Minerals & Chemicals Corporation of America.
Lastly, Brooks discovered Lilienthal had published his third book in 1953, “Big Business: A New Era.” In the book, he argues that:
- the productive superiority of the United States depends on big business;
- we have adequate safeguards against abuses by big business;
- big businesses tend to promote small businesses, not destroy them;
- and big business promotes individualism, rather than harms it, by reducing poverty, disease, and physical insecurity.
Lilienthal later agreed with his family that he hadn’t spent enough time on the book, although its main points were correct. Also, he stressed that he had conceived of the book before he ever decided to transition from government to business.
In 1957, Lilienthal and his wife Helen Lamb Lilienthal had settled in a house in Princeton. It was a few years later, at this house, that Brooks went to interview Lilienthal. Brooks was curious to hear about how Lilienthal thought about his civic career as compared to his business career.
Lilienthal had started out as a lawyer in Chicago and he done quite well. But he didn’t want to practice the law. Then – in 1950 – his public career over, he was offered various professorship positions at Harvard. He didn’t want to be a professor. Then various law firms and businesses approached Lilienthal. He still had no interest in practicing law. He also rejected the business offers he received.
In May, 1950, Lilienthal took a job as a part-time consultant for Lazard Freres & Co., whose senior partner, Andre Meyer, he had met through Albert Lasker, a mutual friend. Through Lazard Freres and Meyer, Lilienthal became a consultant and then an executive of a small company, the Minerals Separation North American Corporation. Lazard Freres had a large interest in the concern.
The company was in trouble, and Meyer thought Lilienthal was the man to solve the case. Through a series of mergers, acquisitions, etc., the firm went through several name changes ending, in 1960, with the name, Minerals & Chemicals Philipp Corporation. Meanwhile, annual sales for the company went from $750,000 in 1952 to more than $274,000,000 in 1960. (In 2018 dollars, this would be a move from $6,750,000 to $2,466,000,000.) Brooks writes:
For Lilienthal, the acceptance of Meyer’s commission to look into the company’s affairs was the beginning of a four-year immersion in the day-to-day problems of managing a business; the experience, he said decisively, turned out to be one of his life’s richest, and by no means only in the literal sense of that word.
Minerals Separation North American, founded in 1916 as an offshoot from a British company, was a patent firm. It held patents on processes used to refine copper ore and other nonferrous minerals. In 1952, Lilienthal became the president of the company. In order to gain another source of revenue, Lilienthal arranged a merger between Minerals Separation and Attapulgus Clay Company, a producer of a rare clay used in purifying petroleum products and also a manufacturer of various household products.
The merger took place in December, 1952, thanks in part to Lilienthal’s work to gain agreement from the Attapulgus people. The profits and stock price of the new company went up from there. Lilienthal managed some of the day-to-day business. And he helped with new mergers. One in 1954, with Edgar Brothers, a leading producer of kaolin for paper coating. Two more in 1955, with limestone firms in Ohio and Virginia. Brooks notes that the company’s net profits quintupled between 1952 and 1955.
Lilienthal received stock options along the way. Because the stock went up a great deal, he exercised his options and by August, 1955, Lilienthal had 40,000 shares. Soon the stock hit $40 and was paying a $0.50 annual dividend. Lilienthal’s financial worries were over.
Brooks asked Lilienthal how all of this felt. Lilienthal:
‘I wanted an entrepreneurial experience. I found a great appeal in the idea of taking a small and quite crippled company and trying to make something of it. Building. That kind of building, I thought, is the central thing in American free enterprise, and something I’d missed in all my government work. I wanted to try my hand at it. Now, about how it felt. Well, it felt plenty exciting. It was full of intellectual stimulation, and a lot of my old ideas changed. I conceived a great new respect for financiers – men like Andre Meyer. There’s a correctness about them, a certain high sense of honor, that I’d never had any conception of. I found that business life is full of creative, original minds – along with the usual number of second-guessers, of course. Furthermore, I found it seductive. In fact, I was in danger of becoming a slave… I found that the things you read – for instance, that acquiring money for its own sake can become an addiction if you’re not careful – are literally true. Certain good friends helped keep me on track… Oh, I had my problems. I questioned myself at every step. It was exhausting.’
A friend of Lilienthal’s told Brooks that Lilienthal had a marvelous ability to immerse himself totally in the work. The work may not always be important. But Lilienthal becomes so immersed, it’s as if the work becomes important simply because he’s doing it.
On the matter of money, Lilienthal said it doesn’t make much difference as long as you have enough. Money was something he never really thought about.
Next Brooks describes Lilienthal’s experience at Development & Resources Corporation. The situation became ideal for Lilienthal because it combined helping the world directly with the possibility of also earning a profit.
In the spring of 1955, Lilienthal and Meyer had several conversations. Lilienthal told Meyer that he knew dozens of foreign dignitaries and technical personnel who had visited T.V.A. and shown strong interest. Many of them told Lilienthal that at least some of their own countries would be interested in starting similar programs.
The idea for D. & R. was to accomplish very specific projects and, incidentally, to make a profit. Meyer liked the idea – although he expected no profit – so they went forward, with Lazard Freres owning half the firm. The executive appointments for D.& R. included important alumni from T.V.A., people with deep experience and knowledge in management, engineering, dams, electric power, and related areas.
In September, 1955, Lilienthal was at a World Bank meeting in Istanbul and he ended up speaking with Abolhassan Ebtehaj, head of a 7-year development plan in Iran. Iran had considerable capital with which to pay for development projects, thanks to royalties from its nationalized oil industry. Moreover, what Iran badly needed was technical and professional guidance. Lilienthal and a colleague later visited Iran as guests of the Shah to see what could be done about Khuzistan.
Lilienthal didn’t know anything about the region at first. But he learned that Khuzistan was in the middle of the Old Testament Elamite kingdom and later of the Persian Empire. The ruins of Persepolis are close by. The ruins of Susa, where King Darius had a winter palace, are at the center of Khuzistan. Brooks quotes Lilienthal (in the 1960’s):
Nowadays, Khuzistan is one of the world’s richest oil fields – the famous Abadan refinery is at its southern tip – but the inhabitants, two and a half million of them, haven’t benefited from that. The rivers have flowed unused, the fabulously rich soil has lain fallow, and all but a tiny fraction of the people have continued to live in desperate poverty.
D. & R. signed a 5-year agreement with the Iranian government. Once the project got going, there were 700 people working on it – 100 Americans, 300 Iranians, and 300 others (mostly Europeans). In addition, 4,700 Iranian-laborers were on the various sites. The entire project called for 14 dams on 5 different rivers. After D. & R. completed its first 5-year contract, they signed a year-and-a-half extension including an option for an additional 5 years.
While the Iranian project was proceeding, D. & R. was also busy lining up and carrying out its programs for Italy, Colombia, Ghana, the Ivory Coast, and Puerto Rico, as well as programs for private business groups in Chile and the Philippines. A job that D. & R. had just taken on from the United States Army Corps of Engineers excited Lilienthal enormously – an investigation of the economic impact of power from a proposed dam on the Alaskan sector of the Yukon, which he described as ‘the river with the greatest hydroelectric potential remaining on this continent.’ Meanwhile, Lazard Freres maintained its financial interest in the firm and now very happily collected its share of a substantial annual profit, and Lilienthal happily took to teasing Meyer about his former skepticism as to D. & R. financial prospects.
Lilienthal wrote in his journal about the extreme poverty in Ahwaz, Khuzistan:
…visiting villages and going into mud ‘homes’ quite unbelievable – and unforgettable forever and ever. As the Biblical oath has it: Let my right hand wither if I ever forget how some of the most attractive of my fellow human beings live – are living tonight, only a few kilometres from here, where we visited them this afternoon…
And yet I am as sure as I am writing these notes that the Ghebli area, of only 45,000 acres, swallowed in the vastness of Khuzistan, will become as well known as, say, the community of Tupelo… became, or New Harmony or Salt Lake City when it was founded by a handful of dedicated men in a pass of the great Rockies.
The owners of public businesses in the United States are the stockholders. But many stockholders don’t pay much attention to company affairs when things are going well. Also, many stockholders own small numbers of shares, making it not seem worthwhile to exercise their rights as owners of the corporations. Furthermore, many stockholders don’t understand or follow business, notes Brooks.
Brooks decided to attend several annual meetings in the spring of 1966.
What particularly commended the 1966 season to me was that it promised to be a particularly lively one. Various reports of a new “hard-line approach” by company managements to stockholders had appeared in the press. (I was charmed by the notion of a candidate for office announcing his new hard-line approach to voters right before an election.)
Brooks first attended the A. T. & T. annual meeting in Detroit. Chairman Kappel came on stage, followed by eighteen directors who sat behind him, and he called the meeting to order. Brooks:
From my reading and from annual meetings that I’d attended in past years, I knew that the meetings of the biggest companies are usually marked by the presence of so-called professional stockholders… and that the most celebrated members of this breed were Mrs. Wilma Soss, of New York, who heads an organization of women stockholders and votes the proxies of its members as well as her own shares, and Lewis D. Gilbert, also of New York, who represents his own holdings and those of his family – a considerable total.
Brooks learned that, apart from prepared comments by management, many big-company meetings are actually a dialogue between the chairman and a few professional stockholders. So professional stockholders can come to represent, in a way, many other shareholders who might otherwise not be represented, whether because they own few shares, don’t follow business, or other reasons.
Brooks notes that occasionally some professional stockholders get boorish, silly, on insulting. But not Mrs. Soss or Mr. Gilbert:
Mrs. Soss, a former public-relations woman who has been a tireless professional stockholder since 1947, is usually a good many cuts above this level. True, she is not beyond playing to the gallery by wearing bizarre costumes to meetings; she tries, with occasional success, to taunt recalcitrant chairmen into throwing her out; she is often scolding and occasionally abusive; and nobody could accuse her of being unduly concise. I confess that her customary tone and manner set my teeth on edge, but I can’t help recognizing that, because she does her homework, she usually has a point. Mr. Gilbert, who has been at it since 1933 and is the dean of them all, almost invariably has a point, and by comparison with his colleagues he is the soul of brevity and punctilio as well as of dedication and diligence.
At the A. T. & T. meeting, after the management-sponsored slate of directors had been duly nominated, Mrs. Soss got up to make a nomination of her own, Dr. Frances Arkin, a psychoanalyst. Mrs. Soss said A. T. & T. ought to have a woman on its board and, moreover, she thought some of the company’s executives would have benefited from periodic psychiatric examinations. (Brooks comments that things were put back into balance at another annual meeting when the chairman suggested that some of the firm’s stockholders should see a psychiatrist.) The nomination of Dr. Arkin was seconded by Mr. Gilbert, but only after Mrs. Soss nudged him forcefully in the ribs.
A professional stockholder named Evelyn Y. Davis complained about the meeting not being in New York, as it usually is. Brooks observed that Davis was the youngest and perhaps the best-looking, but “not the best-informed or the most temperate, serious-minded, or worldly-wise.” Davis’ complaint was met with boos from the largely local crowd in Detroit.
After a couple of hours, Mr. Kappel was getting testy. Soon thereafter, Mrs. Soss was complaining that while the business affiliations of the nominees for director were listed in the pamphlet handed out at the meeting, this information hadn’t been included in the material mailed to stockholders, contrary to custom. Mrs. Soss wanted to know why. Mrs. Soss adopted a scolding tone and Mr. Kappel an icy one, says Brooks. “I can’t hear you,” Mrs. Soss said at one point. “Well, if you’d just listen instead of talking…”, Mr. Kappel replied. Then Mrs. Soss said something (Brooks couldn’t hear it precisely) that successfully baited the chairman, who got upset and had the microphone in front of Mrs. Soss turned off. Mrs. Soss marched towards the platform and was directly facing Mr. Kappel. Mr. Kappel said he wasn’t going to throw her out of the meeting as she wanted. Mrs. Soss later returned to her seat and a measure of calm was restored.
Later, Brooks attended the annual meeting of Chas. Pfizer & Co., which was run by the chairman, John E. McKeen. After the company announced record highs on all of its operational metrics, and predicted more of the same going forward, “the most intransigent professional stockholder would have been hard put to it to mount much of a rebellion at this particular meeting,” observes Brooks.
John Gilbert, brother of Lewis Gilbert, may have been the only professional stockholder present. (Lewis Gilbert and Mrs. Davis were at the U.S. Steel meeting in Cleveland that day.)
John Gilbert is the sort of professional stockholder the Pfizer management deserves, or would like to think it does. With an easygoing manner and a habit of punctuating his words with self-deprecating little laughs, he is the most ingratiating gadly imaginable (or was on this occasion; I’m told he isn’t always), and as he ran through what seemed to be the standard Gilbert-family repertoire of questions – on the reliability of the firms’s auditors, the salaries of its officers, the fees of its directors – he seemed almost apologetic that duty called on him to commit the indelicacy of asking such things.
The annual meeting of Communications Satellite Corporation had elements of farce, recounts Brooks. (Brooks refers to Comsat as a “glamorous space-age communications company.”) Mrs. Davis, Mrs. Soss, and Lewis Gilbert were in attendance. The chairman of Comsat, who ran the meeting, was James McCormack, a West Point graduate, former Rhodes Scholar, and retired Air Force General.
Mrs. Soss made a speech which was inaudible because her microphone wasn’t working. Next, Mrs. Davis rose to complain that there was a special door to the meeting for “distinguished guests.” Mrs. Davis viewed this as undemocratic. Mr. McCormack responded, “We apologize, and when you go out, please go by any door you want.” But Mrs. Davis went on speaking. Brooks:
And now the mood of farce was heightened when it became clear that the Soss-Gilbert faction had decided to abandon all efforts to keep ranks closed with Mrs. Davis. Near the height of her oration, Mr. Gilbert, looking as outraged as a boy whose ball game is being spoiled by a player who doesn’t know the rules or care about the game, got up and began shouting, ‘Point of order! Point of order!’ But Mr. McCormack spurned this offer of parliamentary help; he ruled Mr. Gilbert’s point of order out of order, and bade Mrs. Davis proceed. I had no trouble deducing why he did this. There were unmistakable signs that he, unlike any other corporate chairman I had seen in action, was enjoying every minute of the goings on. Through most of the meeting, and especially when the professional stockholders had the floor, Mr. McCormack wore the dreamy smile of a wholly bemused spectator.
Mrs. Davis’ speech increased in volume and content, and she started making specific accusations against individual Comsat directors. Three security guards appeared on the scene and marched to a location near Mrs. Davis, who then suddenly ended her speech and sat down.
Once, when Mr. Gilbert said something that Mrs. Davis didn’t like and Mrs. Davis, without waiting to be recognized, began shouting her objection across the room, Mr. McCormack gave a short irrepressible giggle. That single falsetto syllable, magnificently amplified by the chairman’s microphone, was the motif of the Comsat meeting.
ONE FREE BITE
Brooks writes about Donald W. Wohlgemuth, a scientist for B. F. Goodrich Company in Akron, Ohio.
…he was the manager of Goodrich’s department of space-suit engineering, and over the past years, in the process of working his way up to that position, he had had a considerable part in the designing and construction of the suits worn by our Mercury astronauts on their orbital and suborbital flights.
Some time later, the International Latex Corporation, one of Goodrich’s three main competitors in the space-suit field, contacted Wohlgemuth.
…Latex had recently been awarded a subcontract, amounting to some three-quarters of a million dollars, to do research and development on space suits for the Apollo, or man-on-the-moon, project. As a matter of fact, Latex had won this contract in competition with Goodrich, among others, and was thus for the moment the hottest company in the space-suit field.
Moreover, Wohlgemuth was not particularly happy at Goodrich for a number of reasons. His salary was below average. His request for air-conditioning had been turned down.
Latex was located in Dover, Delaware. Wohlgemuth went there to meet with company representatives. He was given a tour of the company’s space-suit-development facilities. Overall, he was given “a real red-carpet treatment,” as he later desribed. Eventually he was offered the position of manager of engineering for the Industrial Products Division, which included space-suit development, at an annual salary of $13,700 (over $109,000 in 2018 dollars) – solidly above his current salary. Wohlgemuth accepted the offer.
The next morning, Wohlgemuth informed his boss at Goodrich, Carl Effler, who was not happy. The morning after that, Wohlgemuth told Wayne Galloway – with whom he had worked closely – of his decision.
Galloway replied that in making the move Wohlgemuth would be taking to Latex certain things that did not belong to him – specifically, knowledge of the processes that Goodrich used in making space suits.
Galloway got upset with Wohlgemuth. Later Effler called Wohlgemuth to his office and told him he should leave the Goodrich offices as soon as possible. Then Galloway called him and told him the legal department wanted to see him.
While he was not bound to Goodrich by the kind of contract, common in American industry, in which an employee agrees not to do similar work for any competing company for a stated period of time, he had, on his return from the Army, signed a routine paper agreeing ‘to keep confidential all information, records, and documents of the company of which I may have knowledge because of my employment’ – something Wohlgemuth had entirely forgotten until the Goodrich lawyer reminded him. Even if he had not made that agreement, the lawyer told him now, he would be prevented from going to work on space suits for Latex by established principles of trade-secrets law. Moreover, if he persisted in his plan, Goodrich might sue him.
To make matters worse, Effler told Wohlgemuth that if he stayed at Goodrich, this incident could not be forgotten and might well impact his future. Wohlgemuth then informed Latex that he would be unable to accept their offer.
That evening, Wohlgemuth’s dentist put him in touch with a lawyer. Wohlgemuth talked with the lawyer, who consulted another lawyer. They told Wohlgemuth that Goodrich was probably bluffing and wouldn’t sue him if he went to work for Latex.
The next morning – Thursday – officials of Latex called him back to assure him that their firm would bear his legal expenses in the event of a lawsuit, and, furthermore, would indemnify him against any salary losses.
Wohlgemuth decided to work for Latex, after all, and left the offices of Goodrich late that day, taking with him no documents.
The next day, R. G. Jeter, general counsel of Goodrich, called Emerson P. Barrett, director of industrial relations for Latex. Jeter outlined Goodrich’s concern for its trade secrets. Barrett replied that Latex was not interested in Goodrich trade secrets, but was only interested in Wohlgemuth’s “general professional abilities.”
That evening, at a farewell dinner given by forty or so friends, Wohlgemuth was called outside. The deputy sheriff of Summit County handed him two papers.
One was a summons to appear in the Court of Common Pleas on a date a week or so off. The other was a copy of a petition that had been filed in the same court that day by Goodrich, praying that Wohlgemuth be permanently enjoined from, among other things, disclosing to any unauthorized person any trade secrets belonging to Goodrich, and ‘performing any work for any corporation… other than plaintiff, relating to the design, manufacture and/or sale of high-altitude pressure suits, space suits and/or similar protective garments.’
For a variety of reasons, says Brooks, the trial attracted much attention.
On one side was the danger that discoveries made in the course of corporate research might become unprotectable – a situation that would eventually lead to the drying up of private research funds. On the other side was the danger that thousands of scientists might, through their very ability and ingenuity, find themselves permanently locked in a deplorable, and possibly unconstitutional, kind of intellectual servitude – they would be barred from changing jobs because they knew too much.
Judge Frank H. Harvey presided over the trial, which took place in Akron from November 26 to December 12. The seriousness with which Goodrich took this case is illustrated by the fact that Jeter himself, who hadn’t tried a case in 10 years, headed Goodrich’s legal team. The chief defense counsel was Richard A. Chenoweth, of Buckingham, Doolittle & Burroughs – an Akron law firm retained by Latex.
From the outset, the two sides recognized that if Goodrich was to prevail, it had to prove, first, that it possessed trade secrets; second, that Wohlgemuth also possessed them, and that a substantial peril of disclosure existed; and, third, that it would suffer irreparable injury if injunctive relief was not granted.
Goodrich attorneys tried to establish that Goodrich had a good number of space-suit secrets. Wohlgemuth, upon cross-examination from his counsel, sought to show that none of these processes were secrets at all. Both companies brought their space suits into the courtroom. Goodrich wanted to show what it had achieved through research. The Latex space suit was meant to show that Latex was already far ahead of Goodrich in space-suit development, and so wouldn’t have any interest in Goodrich secrets.
On the second point, that Wohlgemuth possessed Goodrich secrets, there wasn’t much debate. But Wohlgemuth’s lawyers did argue that he had taken no papers with him and that he was unlikely to remember the details of complex scientific processes, even if he wanted to.
On the third point, seeking injunctive relief to prevent irreparable injury, Jeter argued that Goodrich was the clear pioneer in space suits. It made the first full-pressure flying suit in 1934. Since then, it has invested huge amounts in space suit research and development. Jeter characterized Latex as a newcomer intent on profiting from Goodrich’s years of research by hiring Wohlgemuth.
Furthermore, even if Wohlgemuth and Latex had the best of intentions, Wohlgemuth would inevitably give away trade secrets. But good intentions hadn’t been demonstrated, since Latex deliberately sought Wohlgemuth, who in turn justified his decision in part on the increase in salary. The defense disagreed that trade secrets would be revealed or that anyone had bad intentions. The defense also got a statement in court from Wohlgemuth in which he pledged not to reveal any trade secrets of B. F. Goodrich Company.
Judge Harvey reserved the decision for a later date. Meanwhile, the lawyers for each side fought one another in briefs intended to sway Judge Harvey. Brooks:
…it became increasingly clear that the essence of the case was quite simple. For all practical purposes, there was no controversy over facts. What remained in controversy was the answer to two questions: First, should a man be formally restrained from revealing trade secrets when he has not yet committed any such act, and when it is not clear that he intends to? And, secondly, should a man be prevented from taking a job simply because the job presents him with unique temptations to break the law?
The defense referred to “Trade Secrets,” written by Ridsdale Ellis and published in 1953, which stated that usually it is not until there is evidence that the employee has not lived up to the contract, written or implied, that the former employer can take action. “Every dog has one free bite.”
On February 20, 1963, Judge Harvey delivered his decision in a 9-page essay. Goodrich did have trade secrets. And Wohlgemuth could give these secrets to Latex. Furthermore, there’s no doubt Latex was seeking to get Wohlgemuth for his specialized knowledge in space suits, which would be valuable for the Apollo contract. There’s no doubt, wrote the judge, that Wohlgemuth would be able to disclose confidential information.
However, the judge said, in keeping with the one-free-bite principle, an injunction against disclosure of trade secrets cannot be issued before such disclosure has occurred unless there is clear and substantial evidence of evil intent on the part of the defendant. In the view of the court, Wohlgemuth did not have evil intent in this case, therefore the injunction was denied.
On appeal, Judge Arthur W. Doyle partially reversed the decision. Judge Doyle granted an injunction against Wohlgemuth from disclosing to Latex any trade secrets of Goodrich. On the other hand, Wohlgemuth had the right to take a job in a competitive industry, and he could use his knowledge and experience – other than trade secrets – for the benefit of his employer. Wohlgemuth was therefore free to work on space suits for Latex, provided he didn’t reveal any trade secrets of Goodrich.
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