When the Pulitzer Board this week awarded its gold medal
for public service to The Wall Street Journal for its "creative and comprehensive probe" into backdated stock
options, it recognized one of the most remarkable newspaper
stories of recent years.
But the citation, when it noted that the inquiry "triggered
investigations, the ouster of top officials, and widespread
change in corporate America," understated the novelty
of what had been achieved. (It was simply repeating the boilerplate
criteria for which the public service prize is given every
year.)
It's not that the backdating scandal was so great. Compared
to the grandiloquent fraud of the various famous cases of
the tech boom -- Enron, WorldCom, HealthSouth, Tyco, etc.
-- it wasn't epic. This year's student loan scandal, with
university officials around the country accepting kickbacks
from various banks, has its own piquant style. Rather, the
self-serving dishonesty at the heart of the backdating business
was so banal, the WSJ's
ingenuity at determining its extent so great, and the defense
of the practice so surprising, that the exposé ranks
as one of the most illuminating explorations of everyday morality
in decades.
In fact, as the WSJ
reported, the story itself began with an alarm raised by a
finance professor, the government already had begun its investigation
before the newspaper wrote its first word, and the nature
of the changes in corporate America is far from clear.
Instead, with nearly two dozen major stories over 18 months,
the series accomplished something more subtle and far-reaching
than getting a bunch of executives charged and/or fired. It amounted to nothing less than an audit of a key US business
practice (and its apologetics) in a time of war. Facilitating
its inquiry, and making it uniquely powerful, was a tool altogether
new to newspaper investigation -- a statistical technique
designed to measure the improbability of coincidence, in this
case, the issue of an option to buy company shares on the
best of all possible dates. Yet underpinning the story was
the oldest of newspaperly virtues -- a confident and well-informed
recognition of a breach of trust.
Thus did the series shed new light on some of the most controversial
issues of the present day -- not the least by calling forth
scorn from the WSJ's
own editorial page, and, especially from one of its star columnists,
Holman W. Jenkins, Jr., who, as the story unfolded on the
front pages of the paper, routinely derided it as a "molehill"
and a "witch-hunt."
Here is the bare-bones background necessary to understand
what will happen next, in this highly revealing internecine
clash.
The first back-dating story in the WSJ, the one that set the stage for all the rest, appeared
on November 11, 2005. It carried the byline of Mark Maremont,
a veteran investigative reporter who made his reputation in
Texas during the savings and loan crisis of the late 1980s:
"Authorities Probe Improper Backdating of Options/ Practice
Allows Executives to Bolster Their Stock Gains/ A Highly Beneficial
Pattern."
"Federal regulators and academics, scrutinizing a broad
pattern of well-timed stock option grants, are exploring the
extent to which companies improperly backdated grants to provide
insiders an extra pay windfall," began Maremont.
It was in 2004 that the SEC began investigating the practice
of backdating, he reported, taking pains to explain the circumstances
in which the technique first attracted attention:
Maremont then described how Erik Lie, a professor of finance
at the University of Iowa's business school, had found, in
an extensive study of the stock market boom, a pattern of
stocks falling sharply just before the dates on which options
were granted, then rising sharply afterwards, even after overall
market gains were taken into effect.
In a second study, this one joint with the University of
Indiana's Randall Herron, Iowa's Lie found that the effect
all but disappeared after August 2002, after the Sarbanes-Oxley
corporate-reform statute required corporations to report their
options grants within two days of making them, rather than
within the weeks or even months that had previously been allowed,
thereby eliminating the possibility of backdating grants and
offering up one of those "natural experiments" for
which economics researchers live.
Some academic experts doubted that the practice of backdating
could have been very widespread, Maremont reported. He quoted David Aboody, of UCLA's business
school, saying that he would be "shocked" if the
practice turned out to be a common one.
To produce the large aggregate effects that Iowa's Lie had
found, Aboody said, hundreds of companies would have to be
engaged in what amounted to "criminal activity."
That would require "systematic stupidity in the corporate
world, which I find hard to believe." "I'm assuming they have lawyers," he said.
Maremont's story was scrupulously clear, but, had his scoop
been the end of it, the matter would have been quickly forgotten.
What came next was an act of considerable moral imagination
on the part of the WSJ's editors and their reporters, calling into play all
the forensic powers at their disposal to establish what had
been happening. The statistical findings of finance professors
were an indication of corruption. Successful prosecutions
were plenty concrete, but they were anything but statistical
in their approach to the problem. (Maremont had reported the
first of these, of Mercury Interactive Corp., in his initial
story.)
Could the broad facts of the back-dating matter be established
by newspaper methods? That is, could they be set out sufficiently
forcefully before the general public, with clear explanations,
sharp measurements and striking examples of particular companies,
so that their significance could be fully assessed? That is
what the editors decided to find out.
Maremont, 48, headed a small investigative team based in
Boston; he and reporter James Bandler, 40, set out on an investigation
parallel and, in certain ways, complementary to that of the
federal authorities, designed to uncover the historical facts
of the matter. As often happens with such borderland explorations,
the reporters immediately found themselves in need of an intermediary
language. Before long, they brought in Charles Forelle, a
27-year-old WSJ reporter
with a degree from Yale in applied math, to oversee the preparation
by consultants of a special algorithm with which to gauge
the likelihood that particular grants were simply the result
of good timing. They
were joined, too, by reporter Steve Stecklow, 53, who in due
course would contribute a pair of memorable stories to the
series.
Thus, after four months of hard work, Bandler and Forelle
published "The Perfect Payday," on March 18, 2006.
The sub-head stated: "Some CEOs reap millions by landing
options when they are most valuable. Luck -- or something else?" The story
itself related the saga of several companies in which boards
of directors granted top executives their options on remarkably
propitious dates. The odds of one such favorable grant were
found to be 300 billion to one, compared to 146 million to
one that a particular $1 ticket might win the Powerball lottery.
The effect, at least on the various communities that took
corporate governance seriously -- the legal, accounting and
regulatory professions -- was electric.
There followed many more stories, built out in something
of the fashion of trench warfare. In May, Forelle and Bandler
identified five more companies that seemed to have engaged
in back-dating, and, in another story, reported that the practice
seemed to have been employed in compensating ex-CEO Richard
Scrushy of HealthSouth Corp., who remained under legal siege
on various fronts despite his acquittal on criminal charges
last year. In June, Forelle and Maremont implicated Monster
Worldwide Inc. in the practice, and Forelle and Bandler explained
that Microsoft had routinely set option prices at monthly
lows throughout the '90s.
In July, in "The 9/11 Factor," Forelle, Bandler
and Maremont reported that corporate boards of 186 companies
-- including 91 firms that didn't regularly grant options
-- had handed out more than twice as many options in the waning
days of September 2001 as in any comparable period in the
two years before -- taking advantage of the 14 percent drop
in the market in the days after 9/11 in order to insure that
the awards would be especially valuable.
And so on, and on, until by the end of the year the
WSJ had run 17 highly
variegated stories about the backdating scandal. (The stories themselves and a video interview
with their authors can be found here.)
All the while, criticism of the story mounted, too, mainly
in the person of Holman W. Jenkins, Jr., a famously contrary
columnist on the WSJ editorial page. For example, he wrote in June, "Another
business scandal, this one over options 'back-dating,' reveals
that some CEOs are 'in it' for the money. Tsk Tsk." Concerns
with tax, disclosure and accounting treatments of the suspect
options -- that is, with representing the truth -- he dismissed
in July as "goody-goody."
Throughout, Jenkins sought to turn the story into a seminar
on options theory, attacking news accounts for charges that
the reporters didn't really intend to make, bringing to bear
the considerable ingenuity of the options community to justify
paying executives whatever the traffic would bear, citing
the rival New York Times as providing "refreshing correctives" to
"presumptions that continue to linger in certain media
accounts...." "Why such canards persist in the coverage
is itself a bit of a mystery," he wrote last month, "but
editors have their reasons."
An editorial in October, "Backdating to the Future,"
summed up the rump view of the story this way: "The practice
has now been suspected or detected at so many companies --
115 at last count -- that its alleged perfidy is being diluted
by its ubiquity. Are all the CEOs, CFOs and general counsels at all of these
companies greedy and corrupt?
Seems unlikely." Instead it was rapidly changing
government regulation that was to blame. "While there's
no excuse for false reporting to shareholders, the worst reaction
to this mini-scandal would be for Congress to overreact."
Already, the law had been changed by the Sarbanes-Oxley statute.
"...[B]efore the dudgeon gets too high, let's bear in
mind that this problem is already in the past."
This is, of course, the argument for expedience and immateriality
that was immortalized by Christopher Marlowe in the following
exchange in his 1591 play, The Jew of Malta:
Friar Barnadine: "Thou hast committed--"
Barabas: "Fornication-- but that
was in another country;
And besides,
the wench is dead."
The Barabas defense is as hollow today as it was when Marlowe
made fun of it more than four hundred years ago. The basic
problem with backdating is fabrication, not fornication. It
has to do, not with fleecing shareholders, but with misleading
them. Deceptive practice is the issue, not some purely economic
crime. When Jenkins wrote, "embroiled are not just a
few bad apples... but Apple, Pixar, Microsoft [and] Juniper
Network" -- he was missing the point altogether. Companies
that backdate options without acknowledging it are
bad apples in the context of the story.
(It should be said that it is not unexpected that good newspapers
should harbor such strong differences of opinion within their
ranks. And Jenkins is right nearly as often as he is wrong,
often within the space of the same column. You have to marvel
at a paper with the courage to routinely permit publication
of views as fundamentally conflicting as these, in the expectation
that the truth eventually will out.)
The good news is that the habit of casual deception apparently
hadn't become all that widespread in corporate America. With the scandal apparently having pretty
well run its course, the 150 companies caught up in it so
far represent less than a tenth of the 1,800 "leading
companies" in the Standard & Poor ExecuComp data-base
to which the WSJ turned
for its survey of post-9/11 practices. It is far less than
the 29 percent of all listed companies that finance professor
Lie estimated must be backdating in order to account for his
data. The bad news is that among those that engaged in the
practice were a handful of highly respected companies, lawyers
and accounting firms, many of whom, like the editorial page
of The Wall Street Journal, apparently still don't think they did
anything wrong.
In the end, WSJ managing
editor Paul Steiger put it this way: "I believe one of
our highest callings as a news organization is to unearth
the ills of business so that society can fix them. The exposure
of the pernicious disease of options backdating was a particularly
dramatic example of just that." So what exactly is it
that you can expect to happen next? You can expect the editorial
page sooner or later to attack the prize, the first ever won
by the Journal in the Pulitzer's pre-eminent public-service category.