Monday, March 26, 2012

How smart companies avoid getting burned by wild dollar swings


June 16, 2011: 5:00 AM ET With all the recent turmoil in the global economy, you'd think the chief of any multinational would be reaching for the Pepcid AC right about now. Think again.

By Becky Quick, contributor
FORTUNE -- Currency markets get all riled up about the Greek debt default rumors -- and then rebound! There are concerns about economic declines from Great Britain to Malaysia. Then there's the chaos in commodities, which are priced in dollars -- and the real or imagined impact on money that companies make overseas. With all that turmoil, you might think the chief of any multinational company would be reaching for the Pepcid AC right about now. How the heck do you run a business with all that going on?
But what's surprising is that execs like Doug Oberhelman, the chief executive of Caterpillar (CAT), aren't fazed. "I'm old," jokes the youthful 58-year-old chieftain. In other words: He's seen it all. (He came in, after all, around when the gold standard was abandoned in 1971.) Oberhelman is calm, in large part, because Caterpillar is now a very different company, better prepared to weather currency storms. In the 1970s most of Caterpillar's production was based in the U.S.  It had just two plants in all of Asia. Today it has about 20 plants in Asia, a dozen in China alone. Almost all that production is sold where it is made, which means currency swings don't matter nearly as much to Cat's bottom line. Of course, that also means Cat doesn't ride high when the dollar is weak. "When I joined Cat, with the dollar weak like this, we would have just printed money around here," says Oberhelman.
It's a theme that's been replicated across corporate America, especially for companies that do business overseas. These businesses have moved their manufacturing plants closer to where they sell their goods, a natural hedge against wild swings in price. They are using innovative measures to reduce their reliance on any one particular commodity to keep from getting hamstrung by a sudden increase in price. And they are buckling down and following long-term game plans instead of reacting to every tick in the commodity markets.
Take PepsiCo (PEP), which spends a whopping $18 billion a year on commodities. Commodity prices have become much more volatile over the past five years, so that's why Hugh Johnston stepped up plans to centralize Pepsi's commodity purchases since taking over as the company's chief financial officer some 15 months ago. Under his playbook, roughly 80% of the company's commodity purchases are hedged, on average, for just nine months out. Those purchases are determined by headquarters a year in advance, and local managers can't deviate from those plans without specific authority from Johnston. It means Pepsi may not be able to take advantage of drops in commodity prices—but it doesn't get stung by short-term jumps. And it gives Johnston the ability to forecast what his costs will be for the bulk of the year. "To try to outthink the markets is too difficult, and it's really not the business we're in," he says.
One of the most innovative companies, Procter & Gamble (PG), is relying on good old-fashioned engineering and science to ease its reliance on some commodity markets. In fact, P&G has so much faith in its ability to innovate that it doesn't bother buying short-term hedging contracts on commodities. "The hedge is only good as long as the instrument lasts," says Jon Moeller, P&G's CFO, adding that those derivatives instruments aren't cheap to purchase either. "So if you're not dealing with it on an operational level, you're not dealing with the problem."
Instead, P&G tries to either eliminate materials from its goods—think condensed Tide detergent that comes in smaller packages—or it plays with chemistry to find substitutes for ingredients that face huge price upswings. Example: new packaging for its Pantene hair products that uses biodegradable cornstarch instead of petrochemical resins. "We can trade off without the consumer being able to notice," says Bob ­McDonald, P&G's CEO.
And all those adjustments add up. "Last year we had $2 billion in incremental commodity costs, and we saved our way out of about half of that—$1 billion—so it's the kind of stuff you have to do," says McDonald. And with savings like that, it's exactly the kind of stuff investors will applaud.

There's always a bull market somewhere


June 16, 2011: 1:03 PM ET
chart_ws_stock_healthcareselectsectorspdr.top.pngThe broader market has pulled back on economic fears about the United States and Europe. But drug stocks and utilities have held up relatively well.
NEW YORK (CNNMoney) -- With the overall market riding a six-week losing streak that looks like it will extend to seven, it's tempting to say that the bull market is over. But there's always a bull market somewhere.
As investors grow increasingly nervous about the slowing economy in the United States and the reemergence of debt fears in Greece and the rest of Europe, it looks like a so-called "flight to quality" may be finally taking hold.
paul_lamonica_morning_buzz2.jpg
Consider that over the past few weeks, investors have once again flocked back to U.S. Treasuries. It's amazing to think that U.S. bonds can still be considered attractive.
At the end of the month, the Federal Reserve is set to end the $600 billion bond buying bonanza (yay alliteration!) known as QE2. QE3 is no guarantee yet. And the debt ceiling limit is rapidly approaching as well.
But the 10 Year yield is back below 3% as investors buy bonds. (Rates and prices move in opposite directions.) The 2 Year Treasury is now yielding a piddling 0.24% -- a record low.
Guy LeBas, chief fixed income strategist with Janney Montgomery Scott in Philadelphia, said that you have put the fiscal challenges in the U.S. in context. Yes, the U.S. is in trouble. But Treasuries are still a "safe haven" when you look at the alternatives.
"Let me ask you this. Would you rather own a U.S. Treasury or a Hellenic Republic Greek bond?" he said. "While the U.S has problems, they are much smaller than those facing Europe."
That line of reasoning is probably why the dollar has strengthened against the euro as of late. Even though Uncle Sam's economy is stinky, it's even stinkier across the pond.

Is the U.S. like Greece?

On the stock side of the coin, so-called defensive companies like consumer staples firms, health care and utilities have held up much better than the broader market.
The S&P 500 (SPX) is down 7% since the market began to slump in late April. But the Health Care Select SPDR ETF (XLV) is off just 1%. Some prominent health care stocks, including Johnson & Johnson (JNJ, Fortune 500), biotech leader Amgen (AMGN, Fortune 500) and pharma giant Eli Lilly (LLY, Fortune 500), are actually up in the past seven weeks.
The Dow Jones Utilities Average (DJU) is also down just 1% in the midst of the market malaise. The fact that health care and utilities have held their ground shouldn't be that big of a surprise.
With bond rates and yields on saving accounts so low, any investor craving a steady dose of income can do much better with a drug stock or electric company.
"Money market balances remain relatively high. But there are still great dividends in utilities and health care stocks," said Dan Greenshields, president of Seattle-based ShareBuilder, the investing subsidiary of online bank ING Direct.
Merck (MRK, Fortune 500), for example, pays a dividend that yields 4.3%. And Duke Energy (DUK, Fortune 500), which will become the nation's largest utility after its merger with Progress Energy (PGN, Fortune 500), yields 5.3%.
While all 30 Dow stocks fell on Wednesday, McDonald's (MCD, Fortune 500) was the smallest loser, down just 0.3%. And rivals Wendy's (WEN) and Yum Brands (YUM, Fortune 500) both rose as the market tanked. Ditto for McDonald's spin-off Chipotle Mexican Grill (CMG).
It makes sense if you believe that fast food chains may be considered less economically sensitive since they are a relatively cheap (if not always healthy) way to eat out.
But investors may not have to focus solely on less cyclical companies. There are plenty of large firms that are generating strong profits and trade at attractive valuations.
On days like Wednesday, when the market slides, it is often a great time to buy more of those types of firms, said Eric Schoenstein, co-manager of the Jensen Portfolio (JENSX) in Lake Oswego, Ore. For example, he said his firm recently bought a stake in sporting goods and apparel giant Nike (NKE, Fortune 500).
And some of his fund's top holdings are in riskier areas like tech and finance, such as software developer Adobe (ADBE) and money manager T. Rowe Price (TROW).
"Economic growth in the U.S. and Europe may be anemic," he said. "But there are companies out there still reporting growing sales. That is a good sign."
The opinions expressed in this commentary are solely those of Paul R. La Monica. Other than Time Warner, the parent of CNNMoney, and Abbott Laboratories, La Monica does not own positions in any individual stock

Market volatility and China on traders' minds


June 16, 2011: 1:10 PM ET
Pandora MediaThe lack of post-IPO enthusiasm for Internet radio company Pandora has been a popular topic among investors on StockTwits. Click the chart for more data on Pandora.
NEW YORK (CNNMoney) -- Talk about the S&P 500 potentially going negative for 2011 was among the top-trending topics on StockTwits on Thursday, a day after the S&P 500 fell about 1.7%..
The S&P 500 was less than 10 points of its 200-day moving average on Thursday -- a key technical marker for any index -- before bouncing off those levels.
Traders speculated if Thursday's gains may be a sign there might be some short-term buyer support in the market. The S&P would be negative for the year if it falls below 1,257.64 and its 200-day moving average is roughly near that level at 1,256.81.
StockTwits users also focused on Goldman Sachs upgrading the Chinese online video site Youku.com to a "conviction buy." The upgrade comes after Youku (YOKU), Renren (RENN) and other China Internet stocks have struggled in the past six months.
Pandora's (P) initial public offering also continues to be popular topic among traders, particularly after the stock has struggled since debuted a day ago. Pandora shares briefly fell below $16 a share, the company's original offering price.

China: Why U.S. investors should steer clear

Here are some of the highlights of Thursday's conversation on StockTwits.
DougKass: today impt day. if market can rally off awful philly fed we have probably made a trading low. that's my bet.
Tiny: I don't think we get a good bounce until at least the 200 day moving average is tested $SPY.
momomiester $YOKU goldman put them on the conviction list. That could solidify the bigger Chinese stocks in general. They all are crushed.
JoeSaluzzi Maybe black t-shirt guy from $P should do some more interviews on tv to try to get his stock price back over its IPO price. To top of page

Report: U.S. bracing for possible downgrade from S&P; Update: “Expecting and preparing”; Update: S&P bungles numbers? Update: Calculations off by trillions


posted at 4:59 pm on August 5, 2011 by Allahpundit
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Just a headline right now at CNBC, but stand by. Business Insider heard a rumor about this before lunch but discounted it when they couldn’t substantiate it with analysts. There must be something to it, though; it’s unthinkable that CNBC would toss this grenade without something very solid to support the story. Needless to say, the fact that news is breaking within an hour after the market closed suggests that they held it back to avoid a panic and to let investors digest it over the weekend.

A downgrade, not a default, was always the real worry during the debt-ceiling saga. Moody’s and Fitch reaffirmed the U.S. as AAA (albeit with a negative outlook) a few days ago but S&P was conspicuously silent. Negotiators on the Hill believed early on that the debt package had to reduce the deficit by $4 trillion to avoid a downgrade, but S&P’s president told a congressional committee on July 27 that it wasn’t true and that some alternate plans would be acceptable.

Updates are coming. While we wait for details, read this NYT piece from last weekend speculating that the economic fallout from a downgrade would actually be modest since, after all, treasuries are still comparatively safer than any other investment. The fact that Moody’s and Fitch disagree with S&P will soften the blow too. And frankly, if there’s anything that can force the Super Committee and Congress to get serious about entitlement reform, this may be it. Or am I just putting lipstick on a very smelly pig? We’ll know soon!

Update: A government source tells Tapper they’re “expecting and preparing” for a downgrade to either AA+ or AA. Unbelievable. Here’s the spin:

Officials reasons given will be the political confusion surrounding the process of raising the debt ceiling, and lack of confidence that the political system will be able to agree to more deficit reduction. A source says Republicans saying that they refuse to accept any tax increases as part of a larger deal will be part of the reason cited.

Of course, of course. Any rather large elephants in the room missing from that litany of excuses? Here’s a hint: It rhymes with “shmentitlements.”

Update: CNBC says the downgrade could come as early as this evening. In spite of everything, I’ve never really believed that America is in decline because, well, America simply doesn’t decline. Tonight I believe it.

Update: Lots of tough talk this week from Democrats about the Super Committee, with Reid hinting that they might walk away if Republicans don’t appoint anyone willing to agree to tax hikes and Pelosi promising much harder hardball during the next round of negotiations. Let’s see what they say now.

Update: Karl from the Greenroom e-mails to remind me that S&P’s track record is a bit of a joke given that they failed to see the subprime crisis coming. True enough. Last week Zachary Karabell at the Daily Beast wondered why anyone cares what S&P thinks:

To those who say that it’s unfair to blame the messenger—and that on the whole, these agencies are simply calling it as they see it and drawing attention to real risks—there is the pesky fact that they have a legacy of either being chronically late (the mortgage crisis) or then too eager to downgrade (overreaction to the mortgage crisis). And even if they were as good as they could be, they are still simply three companies with a few hundred unelected people making calls that drive the entire global financial system.

There is one last glaring question: should these agencies even be rating a sovereign entity such as the United States? The dollar is now a global currency of commerce, and U.S. Treasuries are a form of safe-haven currency. It’s not as if the world is unaware of the economic issues of the U.S. The Chinese don’t need Moody’s to tell them about the risks of holding a trillion dollars of U.S. bonds. Shouldn’t the “creditworthiness” of the United States, or the viability of a European debt plan for Greece, be left to the determination of investors large and small worldwide along with the governments of those countries and their electorates? The success or failure of their plans will be evident soon enough, and subject to the thumbs up or down of the people, without the ratings agencies piling on or offering a view.

Mark Steyn has the counterargument to that:

Nobody in Greece, Portugal, Spain, or Ireland is talking about “out years” and exciting plans for spending cuts in 2020. They’re getting on with it now — and they’re still being downgraded.

By contrast, both U.S. political parties are playing croquet on the lawn in August 1914 — and the ratings agencies are stringing along with them. Whatever the comparisons of debt-to-GDP ratios between Greece, Ireland, and the U.S., the actual hard dollar amount involved here is of an entirely different order. The Boehner plan tells us that real fiscal discipline is impossible within the U.S. political system. At some point, the ratings guys have to call them on it — or render their system meaningless.

Right. What’s ominous about the S&P downgrade isn’t that it comes out of left field, haphazardly, but that it doesn’t. Given the long-term outlook for U.S. sovereign debt even after this week’s deal, why wouldn’t they downgrade us? Why wouldn’t anyone else? What have you seen over the past year that makes you think America’s political class is remotely equal to the task of dealing with this problem before we have a Greece on our hands?

Update: Tapper updates his post with quotes from another government official who says they’re not sure when — or even if — the downgrade will come.

Update: It goes without saying that between the downgrade and polling showing 60+% support for tax increases on the rich, the GOP will be under intense pressure during the Super Committee phase to add some new revenue to the package. That doesn’t necessarily mean tax hikes; it does necessarily mean tax reform, which might involve lower rates but many fewer loopholes. Krauthammer floats a few ideas about that today, starting with getting rid of the mortgage interest deduction.

Update: Greg Pollowitz of NRO notes that, if the downgrade happens, the U.S. will technically be a greater credit risk than Britain, Germany, and France. Given the debt contagion spreading in Europe first from Greece and now Italy and Spain, does anyone seriously believe that’s true?

Update: No idea yet if this is the truth or White House spin, but if S&P actually botched its analysis on a matter as explosive and closely watched as this, then whatever’s left of their credibility is gone for good:

A third official says that S&P made a “serious mistake” in its analysis, “based on flawed math and assumptions,” so the Obama administration is pushing back. But even though “S&P has acknowledged its numbers are wrong, it’s unclear what they’re going to do.,” the official said.

S&P refused to comment.

Update: You’ve got to be kidding: “S+P was set to downgrade. Obama admin. said their analysis off by ‘trillions’. Now S+P revising figures. Downgrade still poss.”

Update: Still waiting for S&P’s side of this, but if the White House was lying in accusing them of a trillion-dollar error, you’d expect vehement pushback. Instead, silence.

Standard & Poor’s told the U.S. government Friday afternoon that it was preparing to downgrade the U.S.’s triple-A credit rating but U.S. officials notified the S&P that they had made a mathematical error that was off by “trillions,” an administration source told CNBC.

Apparently the error was in the calculation of the U.S. debt-to-GDP ratio over time and was based on a misreading of what the correct congressional baseline was…

An S&P spokesman declined to comment on any possible plans for a downgrade or statement later Friday.

If it’s true, they’ll never recover. They’ve barely recovered from the subprime mess as it is. Then again, it could be that their math is fine and the White House is simply challenging them on a conceptual point, much like how Dems and the GOP argued this week over what tax baseline is appropriate for the Super Committee. In that case it wouldn’t be a math error, it’d be an accounting dispute.

A question from Megan McArdle, though: Who leaked this report? She wonders if the White House might have done it “just to get people yelling at the GOP,” but if that were true, why is the White House pressing so hard to get S&P change its numbers? It’s hard to yell at the GOP when the math is wrong.

Update: The Journal describes it as a “mathematical error” and claims S&P copped to it privately:

After two hours of analysis, Treasury officials discovered that S&P officials had miscalculated future deficit projections by close to $2 trillion. It immediately notified the company of the mistakes.

S&P officials later called administration officials back to say they agreed about the mistakes, though they didn’t say whether it would affect the rating. White House officials remained waiting Friday evening to see what the company would do…

A downgrade by S&P could serve as a psychological haymaker for an American economic recovery that can’t find much traction. It could lead to the prompt downgrades of numerous companies and states, driving up their costs of borrowing. Policymakers are also feeling anxious about the hidden icebergs that the move could suddenly reveal.

Imagine if this had happened during trading hours.

Report: U.S. bracing for possible downgrade from S&P; Update: “Expecting and preparing”; Update: S&P bungles numbers? Update: Calculations off by trillions


posted at 4:59 pm on August 5, 2011 by Allahpundit
printer-friendly

Just a headline right now at CNBC, but stand by. Business Insider heard a rumor about this before lunch but discounted it when they couldn’t substantiate it with analysts. There must be something to it, though; it’s unthinkable that CNBC would toss this grenade without something very solid to support the story. Needless to say, the fact that news is breaking within an hour after the market closed suggests that they held it back to avoid a panic and to let investors digest it over the weekend.

A downgrade, not a default, was always the real worry during the debt-ceiling saga. Moody’s and Fitch reaffirmed the U.S. as AAA (albeit with a negative outlook) a few days ago but S&P was conspicuously silent. Negotiators on the Hill believed early on that the debt package had to reduce the deficit by $4 trillion to avoid a downgrade, but S&P’s president told a congressional committee on July 27 that it wasn’t true and that some alternate plans would be acceptable.

Updates are coming. While we wait for details, read this NYT piece from last weekend speculating that the economic fallout from a downgrade would actually be modest since, after all, treasuries are still comparatively safer than any other investment. The fact that Moody’s and Fitch disagree with S&P will soften the blow too. And frankly, if there’s anything that can force the Super Committee and Congress to get serious about entitlement reform, this may be it. Or am I just putting lipstick on a very smelly pig? We’ll know soon!

Update: A government source tells Tapper they’re “expecting and preparing” for a downgrade to either AA+ or AA. Unbelievable. Here’s the spin:

    Officials reasons given will be the political confusion surrounding the process of raising the debt ceiling, and lack of confidence that the political system will be able to agree to more deficit reduction. A source says Republicans saying that they refuse to accept any tax increases as part of a larger deal will be part of the reason cited.

Of course, of course. Any rather large elephants in the room missing from that litany of excuses? Here’s a hint: It rhymes with “shmentitlements.”

Update: CNBC says the downgrade could come as early as this evening. In spite of everything, I’ve never really believed that America is in decline because, well, America simply doesn’t decline. Tonight I believe it.

Update: Lots of tough talk this week from Democrats about the Super Committee, with Reid hinting that they might walk away if Republicans don’t appoint anyone willing to agree to tax hikes and Pelosi promising much harder hardball during the next round of negotiations. Let’s see what they say now.

Update: Karl from the Greenroom e-mails to remind me that S&P’s track record is a bit of a joke given that they failed to see the subprime crisis coming. True enough. Last week Zachary Karabell at the Daily Beast wondered why anyone cares what S&P thinks:

    To those who say that it’s unfair to blame the messenger—and that on the whole, these agencies are simply calling it as they see it and drawing attention to real risks—there is the pesky fact that they have a legacy of either being chronically late (the mortgage crisis) or then too eager to downgrade (overreaction to the mortgage crisis). And even if they were as good as they could be, they are still simply three companies with a few hundred unelected people making calls that drive the entire global financial system.

    There is one last glaring question: should these agencies even be rating a sovereign entity such as the United States? The dollar is now a global currency of commerce, and U.S. Treasuries are a form of safe-haven currency. It’s not as if the world is unaware of the economic issues of the U.S. The Chinese don’t need Moody’s to tell them about the risks of holding a trillion dollars of U.S. bonds. Shouldn’t the “creditworthiness” of the United States, or the viability of a European debt plan for Greece, be left to the determination of investors large and small worldwide along with the governments of those countries and their electorates? The success or failure of their plans will be evident soon enough, and subject to the thumbs up or down of the people, without the ratings agencies piling on or offering a view.

Mark Steyn has the counterargument to that:

    Nobody in Greece, Portugal, Spain, or Ireland is talking about “out years” and exciting plans for spending cuts in 2020. They’re getting on with it now — and they’re still being downgraded.

    By contrast, both U.S. political parties are playing croquet on the lawn in August 1914 — and the ratings agencies are stringing along with them. Whatever the comparisons of debt-to-GDP ratios between Greece, Ireland, and the U.S., the actual hard dollar amount involved here is of an entirely different order. The Boehner plan tells us that real fiscal discipline is impossible within the U.S. political system. At some point, the ratings guys have to call them on it — or render their system meaningless.

Right. What’s ominous about the S&P downgrade isn’t that it comes out of left field, haphazardly, but that it doesn’t. Given the long-term outlook for U.S. sovereign debt even after this week’s deal, why wouldn’t they downgrade us? Why wouldn’t anyone else? What have you seen over the past year that makes you think America’s political class is remotely equal to the task of dealing with this problem before we have a Greece on our hands?

Update: Tapper updates his post with quotes from another government official who says they’re not sure when — or even if — the downgrade will come.

Update: It goes without saying that between the downgrade and polling showing 60+% support for tax increases on the rich, the GOP will be under intense pressure during the Super Committee phase to add some new revenue to the package. That doesn’t necessarily mean tax hikes; it does necessarily mean tax reform, which might involve lower rates but many fewer loopholes. Krauthammer floats a few ideas about that today, starting with getting rid of the mortgage interest deduction.

Update: Greg Pollowitz of NRO notes that, if the downgrade happens, the U.S. will technically be a greater credit risk than Britain, Germany, and France. Given the debt contagion spreading in Europe first from Greece and now Italy and Spain, does anyone seriously believe that’s true?

Update: No idea yet if this is the truth or White House spin, but if S&P actually botched its analysis on a matter as explosive and closely watched as this, then whatever’s left of their credibility is gone for good:

    A third official says that S&P made a “serious mistake” in its analysis, “based on flawed math and assumptions,” so the Obama administration is pushing back. But even though “S&P has acknowledged its numbers are wrong, it’s unclear what they’re going to do.,” the official said.

    S&P refused to comment.

Update: You’ve got to be kidding: “S+P was set to downgrade. Obama admin. said their analysis off by ‘trillions’. Now S+P revising figures. Downgrade still poss.”

Update: Still waiting for S&P’s side of this, but if the White House was lying in accusing them of a trillion-dollar error, you’d expect vehement pushback. Instead, silence.

    Standard & Poor’s told the U.S. government Friday afternoon that it was preparing to downgrade the U.S.’s triple-A credit rating but U.S. officials notified the S&P that they had made a mathematical error that was off by “trillions,” an administration source told CNBC.

    Apparently the error was in the calculation of the U.S. debt-to-GDP ratio over time and was based on a misreading of what the correct congressional baseline was…

    An S&P spokesman declined to comment on any possible plans for a downgrade or statement later Friday.

If it’s true, they’ll never recover. They’ve barely recovered from the subprime mess as it is. Then again, it could be that their math is fine and the White House is simply challenging them on a conceptual point, much like how Dems and the GOP argued this week over what tax baseline is appropriate for the Super Committee. In that case it wouldn’t be a math error, it’d be an accounting dispute.

A question from Megan McArdle, though: Who leaked this report? She wonders if the White House might have done it “just to get people yelling at the GOP,” but if that were true, why is the White House pressing so hard to get S&P change its numbers? It’s hard to yell at the GOP when the math is wrong.

Update: The Journal describes it as a “mathematical error” and claims S&P copped to it privately:

    After two hours of analysis, Treasury officials discovered that S&P officials had miscalculated future deficit projections by close to $2 trillion. It immediately notified the company of the mistakes.

    S&P officials later called administration officials back to say they agreed about the mistakes, though they didn’t say whether it would affect the rating. White House officials remained waiting Friday evening to see what the company would do…

    A downgrade by S&P could serve as a psychological haymaker for an American economic recovery that can’t find much traction. It could lead to the prompt downgrades of numerous companies and states, driving up their costs of borrowing. Policymakers are also feeling anxious about the hidden icebergs that the move could suddenly reveal.

Imagine if this had happened during trading hours.

Palin knocks it out of the park


posted at 10:05 am on August 9, 2011 by J.E. Dyer
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Few people in the public eye have said anything useful about the recent unpleasantness with the national debt and the national credit rating.  The president hasn’t.  The vice president hasn’t.  Surprisingly few of the declared Republican candidates have.  The MSM haven’t.  They’re busy trying to make the expression “Tea Party downgrade” go viral.

Indeed, at this hour of reckoning, with the Dow plunging and markets in turmoil around the world, the MSM have achieved another playground-taunt triumph with the silly Newsweek cover featuring an unflattering photo of Michelle Bachmann.  These people seem to have no sense of proportion, no judgment, no recognition that things have become serious and the time for sophomoric media jabs is past.

Who cares how they can make Bachmann look on a magazine cover?  The tabloids demonstrate several times a year that they can make the world’s most beautiful women look like something from the back of the refrigerator, if they photograph them in bad light with a telephoto lens.  The Bachmann cover is the equivalent of a slam-book entry, about as intelligent as holding your nose and chanting “You smell!” at a classmate.  Ridicule is the cheapest thing there is – and in politics, it’s usually deployed to shift the focus from a needed debate to specious topics and emotion.  I’d call it a reversion to high school, but it would be an insult even to middle-schoolers to pin it on their age group.

Meanwhile, Marco Rubio and Paul Ryan have had good, inspiring, on-target things to say about the US fiscal crisis.  Michelle Bachmann has had good things to say.  John Bolton had an important piece making the case that national security is inextricably linked with fiscal security, a much-needed point in the context of the recent debate.

But Sarah Palin came through today with a Facebook post that strikes the right tone and is at once simple, direct, and comprehensive.  It doesn’t rail at past mistakes, nor does it come across as a raised-voice, you’ve-got-to-get-this-people communication.  Palin takes it for granted – with refreshing common sense – that we are in a crisis, its features are obvious, and the task now is to deal with it, not continue to argue whether it’s really a crisis or how big it is or whose name we can pin on it.

She makes no bones about the significance of the problem we face.  I am particularly impressed with her point that if we don’t square ourselves away, the specter hangs over us of IMF staffers showing up on our doorstep with China and France and Germany arrayed behind them, ready to throw folders on a desk and start telling us how much we can spend on cable TV and incidentals each month.  Whether things would really play out for the US as they are playing out for Greece and Ireland is a valid question, but Palin is quite correct that the pitched confrontation is on the horizon now, as it was not six weeks ago – and she has the courage to face that possibility head-on.  It’s not pleasant to mention it, but it’s the right thing to do.

The last third of Palin’s post is devoted to laying out what we need to do.  Grow the economy by releasing the regulatory clamps on it, starting with the energy sector.  Cut spending and reform entitlements.  She doesn’t pretend the latter would be easy, but she faces head-on the fact that it is inescapably necessary.  I urge you to read her post for the discussion of particulars.  It is material and convincing without being in the weeds.

The piece is positive and encouraging for its forthrightness.  There is nothing “clever” to be done in this situation; it’s all straightforward.  The US federal government has to cut spending and let the economy grow, even if that means breaking the stranglehold of unions on the public trough and overruling advocacy groups and government bureaucrats who don’t want the economy to grow.  Pretending that the federal budget is too complex to be governed by the ordinary rules of accounting – or that the US is too special to be limited by the ordinary definition of fiscal solvency – is a dodge, not a sign of insight or expertise.

Palin focuses like any good executive on the big picture.  We have to cut spending and get government out of the economy’s way so it can start pumping out revenues again.  These things are increasingly obvious to everyone, and moreover, they constitute a plan.  Talking ourselves into corners about other, tangential things isn’t even interesting any more.  It feels so wrong that it’s hard to watch anyone’s news program at the moment: no one seems to be talking about what matters.

What is interesting is how few in our national political life have put the case together, as Palin has, without temporizing or bloviating.  I haven’t heard anyone else do what she does with this post.  She acknowledges the actual, enormous scope of the problem, envisions a solution, and outlines what to do to achieve it, with encouragement that it can be done.  It is sad and a little frightening that so many Americans have become unable to see this for what it is:  leadership.  Almost everyone else is focused more narrowly, on one aspect of the problem or another, and a good few commentators don’t seem to even have the vocabulary or the mental infrastructure to address the problem itself; they can only express opinions about the impossibility of the politics surrounding it.

It is the opposite of stupid to recognize the problem’s stark and simple outlines when all around you are swinging blindfolded at piñatas.  We spend too much, and we suppress economic growth and revenues with regulation.  Palin articulates that clearly.  Her ability to reach out directly through social media, and put her case in her terms, is a net positive for our current political climate.  She remains one of the best reasons to not let the MSM dictate our ideas and preferences to us.

J.E. Dyer’s articles have appeared at The Green Room, Commentary’s “contentions,” Patheos, The Weekly Standard online, and her own blog, The Optimistic Conservative.

This post was promoted from GreenRoom to HotAir.com.
To see the comments on the original post, look here.

London rioter: “We’re just showing the rich people that we can do what we want”

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Two clips to usher in night four of Droogfest 2011. The common thread is that in both cases you’re watching rampaging cretins behave in a quasi-civilized manner. In the first, two giggly girls chat calmly with the BBC about the “mad fun” they’re having; in the second, rioters handle a wounded boy gingerly … before proceeding to rob him. Maybe we can let the lot of them off easy with a modified version of the Ludovico technique.

If you missed it in Headlines this morning, read Brendan O’Neill’s essay on the riots as a byproduct of welfare-state decay. At the Corner, Iain Murray elaborates:

    Another left-wing friend of mine in the UK has another interesting theory — that the particular targeting of electronics and clothes shops represents an explosion of consumerism. Stay with me, because I think he has a point and I’d like to explain why. Much of the British underclass has had easy access to credit over the past decade or so — and why not, when they are on a secure income stream of state benefits — and they have spent this for the most part on TVs, video games, and “chav” fashion. That easy credit — which I should emphasize was encouraged by the loose monetary policy of Gordon Brown and Tony Blair — has now dried up, so they are looking to take for free what they previously got for nominal sums. There is more evidence for that conclusion in this BBC recording of two girls saying that the riots were about taking what they wanted, for free…

    I think what we are seeing in Britain is a conflation of two liberal dreams — that of the 1960s, in which parenting and tradition went out the window, and that of the 2000s, in which self-help was replaced by easy credit, benefits, and an all-mighty “health and safety” bureaucracy — together with the unfinished nature of the Thatcher revolution. Mrs. T enabled economic Thatcherism but was unable to finish the project of what I termed social Thatcherism, whereby a free society recognized the importance of what once were called manners.

    The result is a feral underclass without any understanding of tradition from right or left.

O’Neill ends by laying into British cops for their paralysis, a ubiquitous critique in stories about the riots after three days of window-smashing. There are a lot of reasons for that. The police have in fact held back, only now considering water cannons and plastic bullets after millions in damage. The prime minister and the mayor of London were both on vacation when the riots began and Scotland Yard’s leadership recently resigned over the phone-hacking scandal, so for several days there’s been no one in charge. The Home Secretary, who was also on vacation, is prone to saying moronic things like, “The way we police in Britain is not through use of water cannon, the way we police in Britain is through consent of communities,” even as young degenerates ransack local communities without their consent. And of course it’s comforting in a moment of chaos to focus on the failings of the police, who are, unlike the rioters (oops, I mean “protesters”), accountable to the public. Build a better force and in theory you ensure this can’t happen again. In theory:

    Business owners accused police of adopting a softly-softly approach which left their shops and businesses vulnerable to attack by baying mobs.

    While police were criticised in some quarters for being far too slow to get to riot scenes, officers were accused by shopkeepers in Hackney of standing just yards away from looters as windows were smashed and armfuls of goods were scooped up…

    Firearms units trained to use the rubber bullets are braced in case they are needed. It would be the first time ever the baton rounds have been used in British disturbances.

    Mr Kavanagh said Scotland Yard was ‘not going to throw 180 years of policing with the community away’ as the prospect of using the ammunition for the first time at a British disturbance was raised.

Imagine how bad things could get if they did that. There might be riots.

There are many ways to measure the awfulness of what’s happening but chew on these two while you watch. According to residents in Birmingham, looters are literally stealing the clothes off of people’s backs, stopping them and forcing them to strip. The Daily Mail has a too-bad-to-check photo via Twitter. Beyond that, in the Middle East and elsewhere, there’s gloating going on both by authoritarian governments, who are mocking the Brits for not liquidating all of their troublemakers on the spot, and by the victims of those authoritarian governments, who are mocking the rioters for turning their “protests” into a pretext to steal DVD players. All of which is to say, this is a complete fiasco by any yardstick.

Onto the videos. I’ve included a third (audio) clip below as a little bonus; yes, that is indeed Hulk Hogan’s voice you’re hearing. Click the image to watch.




AT&T customers try to block merger with T-Mobile


Talk about a David and Goliath story. The New York-based law firm of Bursor & Fisher is working with some AT&T customers in the hopes of blocking AT&T's proposed $39 billion acquisition of T-Mobile.
AT&T to buy T-Mobile

The firm is working on behalf of a small group of AT&T customers to demand arbitration from the company, which is the second largest wireless phone company in the U.S. and one of the biggest political contributors in the country. In its arbitration filings, Bursor & Fisher alleges that the deal between AT&T and T-Mobile would violate the Clayton Antitrust Act and harm competition in the wireless market. The firm has already signed up 11 AT&T customers, and it's soliciting more on its Web site: FightTheMerger.com. It filed the first arbitration demand Thursday in a 236-page document.

The main argument in the arbitration request is that the merger will lead to higher prices and diminished service, which would harm consumers. The customers are asking that the merger be blocked or at the very least that certain requirements be put on the merger, such as AT&T divesting some wireless spectrum and stopping its practice of entering into exclusive contracts with handset makers.

The Department of Justice and the Federal Communications Commission are already reviewing the merger. It's expected to take the agencies a year to complete their evaluation of the merger. The Justice Department in particular will be looking at potential antitrust claims while the FCC's main obligation is to ensure that the merger will serve the public interest, since the wireless licenses that AT&T and T-Mobile hold are regulated by the FCC. The FCC said this week that it has stopped the clock on its review as it obtains additional information from AT&T.

Scott Bursor, a partner at Bursor & Fisher, said his firm expects to file hundreds of these cases. While arbitration is typically used to dispute individual complaints, such as an erroneous charge on a bill, Bursor said he thinks the process can also be used for antitrust disputes, since class-action lawsuits are not available to AT&T customers.

"The law gives private parties the opportunity to sue in antitrust cases," Bursor said. "So we are using this arbitration process to help consumers, who are barred from filing class-action suits."

In its contracts, AT&T prohibits customers from suing the company directly or as part of a class-action lawsuit. A U.S. Supreme court decision in April upheld this practice. Instead, consumers must use an arbitration process. But consumers are also prohibited from filing arbitration as a group or class and instead must file claims individually, which is why Bursor has said the company will file hundreds of these claims.

And because each arbitration request is assigned to a separate judge, each case will be evaluated independently, which in theory could increase the chances of a beneficial outcome for the customers filing the complaint.

AT&T said in a statement that the arbitration process is not intended to hear class-action cases, such as the ones Bursor plans to file.

"The claims made by the Bursor & Fisher Law Firm are completely without merit," the company's statement said. "An arbitrator has no authority to block the merger or affect the merger process in any way. Our arbitration provision allows customers to resolve their individual disputes with AT&T in a prompt and consumer-friendly manner."

Bursor's firm has worked with wireless customers in the past on class-action suits over early-termination fees. His firm also sued AT&T over mobile-handset exclusivity. Michael Aschenbrener of Aschenbrener Law in Chicago, who has also brought class-action suits against wireless companies in the past, said that using the arbitration process to air antitrust complaints is unusual. So it's difficult to say if it will be effective. But he said at the very least it might get these consumers' concerns heard.

"Arbitration is a new approach in this context but necessary in light of recent anticonsumer Supreme Court precedent," he said. "Whether these consumers will be successful remains to be seen, but this demonstrates that consumers want to be heard and will be heard--no matter how much the courts and big businesses try to silence them."

These AT&T consumers involved in the arbitration are not the only ones opposed to AT&T's plan to buy T-Mobile. Sprint Nextel has also expressed its opposition. And this week, Senator Herb Kohl, who heads up a subcommittee on antitrust matters, asked regulators to block the deal.

Some states are also taking a closer look at the merger. California's Public Utility Commission is examining it. New York Attorney General Eric Schneiderman announced in March that his office would "undertake a thorough review of AT&T's acquisition of T-Mobile" and analyze the merger for "potential anticompetitive effects on consumers and businesses."

Meanwhile, AT&T has also garnered support from a number of groups. There are already governors in 26 states that have signed on to support the merger. And 76 members of Congress have also expressed their support for the merger.

AT&T said earlier this week during its earnings call that it is confident it will get the approval for the merger. And the company said it expects the deal to close in the first quarter of next year.

DOJ takes swipe at EFF over encryption passphrases


The U.S. Department of Justice took a thinly veiled swipe at an online civil liberties group that's arguing a Colorado woman can't be forced to decrypt her laptop for police inspection.

In a legal brief filed yesterday in what is likely to be a precedent-setting case, the Justice Department claimed that the Electronic Frontier Foundation had previously agreed that being forced to type in your passphrase was legal and did not violate Americans' rights to self-incrimination.

Prosecutors are hoping to convince a federal judge to order Ramona Fricosu, accused of running a mortgage scam, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home. Fricosu has been charged with bank fraud, wire fraud, and money laundering as part of an alleged attempt to use falsified court documents to illegally gain title to homes near Colorado Springs.
EFF staff attorney Hanni Fakhoury

EFF staff attorney Hanni Fakhoury
(Credit: EFF)

EFF's Know Your Rights guide, prosecutors said, warns the public that "a grand jury or judge may still order you to disclose your data in an unencrypted format under certain circumstances."

The upshot, they said, is that "EFF's 'Know Your Rights' publication correctly states that a judge may properly order the production of unencrypted data consistent with the Fifth Amendment." (The Fifth Amendment broadly protects Americans' right to remain silent--see CNET's Q&A with defense attorney Phil Dubois.)

EFF staff attorney Hanni Fakhoury, a former public defender in San Diego, wrote the guide. Fakhoury told CNET today that the Justice Department isn't exactly describing his work fairly:

    This (the guide) is simply stating the obvious: whether the Fifth Amendment privilege against self-incrimination applies is fact-dependent. EFF believes that under the facts presented in the Fricosu case, the privilege applies and prevents the government's attempt to force Ms. Fricosu to decrypt the laptop. Under a different set of facts, the outcome might be different; something that's true in most areas of the law.

    This is obviously a situation in which the government is trying to do something it has rarely tried to do before, so the courts are just starting to consider it. That is why EFF got involved in the first place, to assist the court by providing it with what we think the law should be. I'm flattered the government believes the guide I wrote is legal precedent, and I look forward to the day when that's actually the case.

The Justice Department also argues that Fricosu's Fifth Amendment rights are effectively nullified because the government obtained the laptop through a search warrant, not a grand jury subpoena.

"Evidence obtained through search warrants does not implicate the self-incrimination clause because search warrants do not compel individuals to make statements..." prosecutors said. "The applied-for order would use as the source of evidence only material seized with a warrant; it would not make use of any compelled statements."

Prosecutors have stressed that they don't actually require the passphrase itself, meaning Fricosu would be permitted to type it in and unlock the files without anyone looking over her shoulder. They say they're not demanding "the password to the drive, either orally or in written form," and that they know the laptop is hers because of a legally intercepted phone call she made to someone in prison.

Competing legal analogies: What's a PGP passphrase like?
The question of whether criminal defendants can be legally compelled to cough up their encryption passphrase remains an unsettled one, with law review articles for at least the last 15 years arguing the merits of either side of the issue. A U.S. Justice Department attorney wrote an article in 1996, for instance, titled "Compelled Production of Plaintext and Keys."

Much of the debate has been over which of two analogies comes closest to the truth. Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

On the other side are civil libertarians citing other Supreme Court cases that conclude Americans can't be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that such protection extends to the contents of a defendant's minds, so why shouldn't a passphrase be shielded as well?

While the U.S. Supreme Court has not confronted the topic, a handful of lower courts have.

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That's "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).

A year earlier, a Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted.

Update 3:15 p.m. PT: I've heard back from Phil Dubois, Fricosu's criminal defense attorney. Dubois' position remains, he said in an e-mail message:

    That to force my client (assuming that she has the ability) to decrypt the hard drive would be an unreasonable and therefore unconstitutional search and so a Fourth Amendment violation; and

    That to force her to decrypt the drive would not be the same as compelling her to surrender the key to a safe, the new technology making that analogy inapposite, but would instead be compelling her to use the content of her mind to perform an affirmative act to assist the government to prosecute her, which raises the Fifth Amendment problem.

Microsoft sued over Kinect for patent infringement


A Bay Village, Ohio, company has sued Microsoft for allegedly infringing on its patents with the rapidly selling Kinect motion-sensing video game controller.

Microsoft's Kinect for Xbox 360
(Credit: CNET)

Impulse Technology filed the suit in federal court in Delaware, accusing Microsoft and several game makers--including Electronic Arts, Ubisoft, and THQ--of violating patents related to, among other things, tracking and assessing movement skills in multidimensional space. The suit was filed on July 1, but was only recently written about by the Web site Law360.

Impulse claims that the Kinect violates seven patents, issued from 2001 to last year. In its suit, the company said it notified Microsoft in March about the patents. The suit does not mention if Microsoft replied to the notification. And Impulse's attorney did not return a call.

Microsoft declined to address the specific charges, but said it works hard to make sure its products don't violate patent holders' rights.

"While we can't comment about this specific case, Microsoft invests heavily in protecting our intellectual property rights and has hundreds of pending and issued patents covering Kinect," Kevin Kutz, director of public affairs at Microsoft, said in a statement.