THE BLOG
09/21/2016 09:58 am ET Updated Sep 22, 2017

Hedge Fund Manager Bill Ackman Masquerades as Good Samaritan

To paraphrase from the New Testament (Matthew 9: 24): "[I]t is easier for a camel to go through the eye of a needle, than for someone who is [a hedge fund manager] to enter the Kingdom of God."

Hedge fund managers are not trained in divinity school. They pray to the Golden Calf. When they pontificate that their motivation is charity, check your pocketbook.

Consider anti-hero Bill Ackman, billionaire hedge fund manager and founder of Pershing Square Management. Swimming in opulence, he would seem an inauspicious candidate for entering the Kingdom of God. One option would be to donate his wealth to the medical charity "Medecins Sans Frontieres,"and to live the remainder of his life like Saint Francis of Assisi. Another would be to donate his riches to Elon Musk to relieve taxpayers from the burden of subsidizing his entrepreneurial capers.

As of yet, Mr. Ackman has chosen neither. Instead, he apparently thinks he might be smuggled into heaven if he could be disguised as Charity to conceal his Avarice. That may explain his otherwise inexplicable Captain Ahab-like vendetta to destroy Herbalife, and to pledge donating the profits earned in its destruction to charity--perhaps his own charity modeled on the notorious Donald J. Trump Foundation.

Mr. Ackman has sold short $1 billion worth of Herbalife stock. In order to reap profits from the gamble, he has publicly maligned Herbalife's business model, and covertly schemed to plunge its stock price to zero. Among other things, in 2014, an ABC news report accused Ackman of "paying a 'whistleblower' as much as $3.6 million over 10 years if he could help provide damaging information about the company to the government."

Herbalife, however, is not Moby Dick. Neither does it make cigarettes and profit by poisoning your lungs; nor sell alcohol and profit by cirrhosis of the liver or delirium tremens; nor own or manage casinos and profit by tearing families asunder and gratifying vice.

Herbalife is a 35-year-old, 8,000-employee nutrition company that sells 5,300 products in 91 countries. They include weight-loss powders, vitamins, performance sports drinks, and a skin-care line. Its flagship attraction is a meal-replacement shake powder made from soy protein isolate, called Formula 1. Its sales more than double those of the combined sales of its three leading competitors--Ensure, Kellogg's K 0.03, and Slim Fast. Herbalife makes 25 flavors of shakes, and markets non-GMO, gluten-free and low glycemic versions.

Mr. Ackman may have skated over the line in selling Herbalife stock short while concealing from the public material information that could influence the stock price to collapse from the public. Rule 10b-5 of the Securities and Exchange Commission prohibits, among other things, "the employment of "any device, scheme, or artifice to defraud," the omission "to state a material fact" necessary to make other statements not misleading, or engagement "in any...course of business which would operate as a fraud or deceit against any person" in connection with the purchase or sale of a security.

In conjunction with short-selling Herbalife stock, Mr. Ackman omitted to disclose to the public a multiplicity of endeavors he intended and did initiate to influence government to close or cripple the company and make its stock worthless. He hired lobbyists to alert community groups to alleged dangers of Herbalife, and to finance their efforts to unearth putative victims and channel them to government regulators. He created websites, placed ads, posted notices, and set up 1-800 numbers in search of Herbalife detractors. He tracked down former Herbalife employees and distributors hoping to find whistleblowers. He solicited nonprofits, concerned citizens, and political officials--including three Members of the U.S. House of Representatives, one U.S. Senator, and seven state attorneys general--to complain about Herbalife to the Federal Trade Commission.

These undisclosed facts would have been material in the minds of ordinary investors in deciding whether to buy or sell Herbalife stock.

In sum, Mr. Ackman might find himself at the end of a Rule 10b-5 investigation by the Securities and Exchange Commission. Perhaps if he had spent more time with the New Testament and less time as a billionaire hedge fund manager, he would have paid heed to Jesus' sermon (John 7: 53-8:11): "He that is without sin among you, let him cast the first stone."