Bone at the Top

Occasionally, company leaders just do the darndest things. Things like short-term decisions that wind up wrecking a company’s reputation long-term. Things that must make the company’s efforts to build a culture of ethics internally, just seem to its employees like so much window dressing. These bone-headed decisions set a “tone at the top” you don’t want. Call them cases of a “Bone At the Top.”

I came across two of them in the news this past week.

The first is a confession from the companies that sell re-filled propane gas containers for your backyard grill, that they have been putting less gas than they used to in the same sized gas canisters. As KYW-TV (Philadelphia) reporter Jim Donovan reported:

In the past you would take your empty tank and pay to exchange it for a full one.  But starting last summer, two big propane tank exchange companies, Blue Rhino and Amerigas decided that instead of raising prices they would put less propane in the same-sized tank. “The fact of the matter, those tanks weren’t full, they were partially full,” says Attorney Eric Gibbs, adding, “so consumers didn’t realize that they were getting 15 pounds instead of 17 or 18 pounds.”

This is worse than shrinking a 50 cent candy bar — you can see that. Now, I checked today at my neighborhood Lowes, and there was a sticker on the cage of Blue Rhino tanks saying they contained 15 lbs. of propane — but for that message to hit home I would have to (1) go to the cage and look at it (when to do the exchange you instead just walk into the store), and (2) remember that when I last got a tank, months ago, it had 17 lbs in it. But I don’t do either of those things. I hand them my old, empty Blue Rhino gas tank and some money and they hand me a different tank that feels heavier. It’s supposed to be an exchange, not a down-grade.

So maybe next time I’ll take my Blue Rhino canister over to my local farm-goods store, where I keep the tank and I watch them pump it full of propane. I get what I bargained for, and Blue Rhino gets its recurring-revenue business model severed. Short-term win becomes long-term loss. This may be more evidence, as I have mused before, that short-term executive thinking is unethical. It is certainly evidence that sometimes, the most ethical and transparent thing to do is just raise your prices.

It’s also possible that, as my family’s official Griller of Meat, I take this BBQ Propane thing a little too personally.

The second case is even more of a head-shaker.

It’s now been revealed that the National Arbitration Forum (the NAF) — one of the largest alternative-dispute resolution forums — is owned in large part by an investment fund that also owns a massive nationwide debt collection agency. I’m guessing the fund leaders thought they were making a nice, pure vertical play into the consumer debt collection sector: the ability to profit by being both the “prosecutor” and the “judge.” Now NAF has been on the receiving end of some awful press (like this and this and this) and a lawsuit filed by the Minnesota Attorney General (the Journal has a link to the complaint). The AG alleges as follows:

The consumer also does not know—and the Forum hides from the public—that the Forum is financially affiliated with a New York hedge fund group that owns one of the country’s major debt collection enterprises.  Beginning in 2006 and through 2007, Accretive, LLC (a family of New York hedge funds under the control of an investment manager named  J. Michael Cline and his associates), engineered two transactions.  In the first transaction, Accretive formed several private equity funds under the name “Agora” (meaning “Forum” in Greek), which in turn invested $42 million in the National Arbitration Forum and obtained governance rights in it.  In the second transaction, three of the country’s largest debt collection law firms (Mann Bracken of Georgia, Wolpoff & Abramson of the District of Columbia, and Eskanos & Adler of California) merged into one large national law firm called Mann Bracken, LLP.  Accretive then formed and funded (partly using federal money from the U.S. Small Business Administration) a debt collection agency called Axiant, LLC, which acquired the assets and collections operations of Mann Bracken.

Through these transactions, the Accretive hedge fund group simultaneously took control of one of the country’s largest debt collectors and became affiliated with the Forum, the country’s largest debt collection arbitration company.  In 2006, the Forum processed 214,000 consumer debt collection arbitration claims, of which 125,000—or nearly 60 percent—were filed by the law firms listed above.

Catch that? The NAF bills itself as a neutral forum, but it allegedly got 60% of its consumer debt collection cases from its sister companies.

The Minnesota AG filed her suit on Tuesday, July 14.  Less than a week later, on July 20, the NAF settled, and agreed that it would never, ever again handle a consumer arbitration. Said the AG, “The company will permanently stop administering arbitrations involving consumer debt, including credit cards, consumer loans, telecommunications, utilities, health care, and consumer leases.”

A broad, long term defeat, arising from what someone thought was a clever win. Ouch.

Want to know why the government is so hot right now on regs and statutes that impose mandatory disclosure or mandatory self-reporting of allegations? Consider this: at the heart of both of these instances of a “bone at the top” was the failure to fully publicize some key fact, to speak publicly about “the whole truth.”

But also consider the compliance teams at these companies, and their affiliates, who in the face of this news have to continue to tell their teams to reveal all possible conflicts of interest and play by all the rules. Problem: A Bone at the Top drowns out Tone at the Top every time.