The More Things Change

Reading excellent accounts of two of our more notorious scandals du jourMadoff and Stanford – called to mind Yellow Kid Weil and his “Get Rich Quick Bank.”

Yellow Kid Weil was a con man, famous for saying he promised something for nothing and delivered nothing for something. As detailed in his fascinating book Con Man: The Autobiography, around 1900 Weil and a partner took out a series of ads in newspapers across the country that simply said: “A Little Story of a Big Success – How $100 Makes $1,000.”

To the many that responded, Weil sent a brochure explaining that because he and his partner owned many race horses, they had an insider’s betting edge:

The brochure further explained how we, as the owners of the most consistent winners, were in better position than anybody else to know just when these horses would win and what the odds would be. We proposed that the investor send us a hundred dollars to open an account. We would place bets for him on sure winners, using all or any part of his money.…

In those days $100 was a lot of money and we hardly expected to find so many who had that much with which to speculate. But soon our mail was overwhelming. Remittances for $100 poured in. We had to take more space and enlarge our quarters.

Dangling the promise of inside tips to take betting money was a standard con at the time, one that Weil himself seems to have done quite a bit. This con was different. What set it apart from the rest was what he did with all the money that rolled in:

Here is the way we worked. We would put Mr. Smith (who had an account of $100 with us) down on a ten dollar bet on a horse that had won. As soon as we knew the horse had won, we mailed the report to Mr. Smith….

We kept Mr. Smith’s account for a month. At the end of the month, we sent him a remittance for $125, with this explanation:

“We are returning your original investment plus the earnings. We regret that the volume of our business makes it impossible to handle such small accounts.”

We did the same thing to every account. Our letters only whetted the investor’s appetite. If he had more money, he immediately wrote in to ask how much he would have to invest to have us handle his account. We replied that we could handle nothing under $500. The response to this was so great that we soon raised the minimum to $1,000. We had a few inquiries about taking larger investments — $5,000 or more.…

Actually what we were doing was paying dividends on old accounts from the monies we received from new accounts — borrowing from Peter to pay Paul.

Weil claims this con netted an annual income of $480,000 before its inevitable crash.

Years ago when I first read Yellow Kid my two recurring thoughts were (1) he’s exaggerating (he is a con man, after all), and (2) if he isn’t exaggerating, people in the old days were much more naive than people today.

Reading Yellow Kid now, I have to admit my initial assessments were most likely unfair to Yellow Kid and to people in the old days.

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Kafka Esq.

Franz Kafka earned his living as a corporate lawyer, toiling away in-house at the Workmen’s Accident Insurance Institute, a large Czech insurer. An academic press recently published a collection of documents he wrote on the job, described by a reviewer as including:

a panegyric welcoming … the new director of the Institute; long sections of annual reports of the Institute; polemical memoranda concerning such matters as the scope of compulsory insurance for building trades, the fixing of insurance premiums, and the inclusion of private automobiles in the category of enterprises that require insurance; his well-known paper on preventing accidents in the use of wood-planing machinery; memoranda in a couple of interminable contested cases; the jubilee report for the twenty-fifth anniversary of the Institute; and appeals for the creation of a public psychiatric hospital in wartime Bohemia and aid to disabled veterans.

I’m a fan of Kafka’s fiction, and I’m a corporate lawyer, but even I can’t muster up any enthusiasm for reading his office papers. Not even his “well-known paper on preventing accidents in the use of wood-planing machinery.” It all seems deadly dull.

Then again, I am the guy who thought the world would be interested in the use of “as amended” in statutory citations and the proper pronunciation of “comptroller,” so who am I to turn up my nose?

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Sound and Fury

As a bookish type, my first encounter with a new word is usually by reading it instead of hearing it. I am therefore prone to mispronunciations.

So the other day when discussing bank regulation I wasn’t too surprised to learn that I’d mispronounced yet another word: apparently the “mp” in “Comptroller” is pronounced as an “n,” the word sounding exactly the same as “controller.”

While I normally accept my mispronunciations with equanimity, shrugging them off as the price one must pay for being more fluent in writing than speaking, two things about this mistake bothered me.

First, this mistake made me sound particularly stupid when I wanted to sound particularly smart. It is hard to convince others you know anything about banking regulation when you can’t even pronounce the title of one of our principal banking regulators.

It didn’t help that Garner’s Dictionary of Modern Legal Usage, which I consulted in the vain hope that it would justify my miscue, instead twisted the knife with: “To pronounce the -p- has traditionally been considered semiliterate.” If anything, my problem is probably due more to my being over-literate, but I take it as an insult either way.

Second, the word “comptroller” shouldn’t even exist, as it results from a misguided attempt in the 15th century to respell English words more closely to their Latin antecedents. “Controller” was respelled “comptroller” because it was thought that “controller” descended from the root “compt” (to count). In fact, it didn’t. So there was no need for this word to ever have been spelled in a way that would one day make me sound stupid.

As Garner observes: “Thus the respelling should never have been. But we are several centuries too late in correcting it.”

Or are we?

As we survey the wreckage of our financial regulatory system, deciding which agencies to keep and which to discard, we should carefully consider the fact that one of our banking regulators sports a misspelled title that has a tendency to make well-meaning but bookish types sound stupid. As if that weren’t sufficient grounds for its elimination, the title is also misleading, for the agency purports to control the currency when everyone knows that is something it hasn’t done since the Federal Reserve Act passed in 1913.

By my compt, that’s three strikes. You know what that means.

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As Amended

When you refer to the Securities Act of 1933, do you write “Securities Act of 1933, as amended?”

If so, what do you accomplish by appending “as amended?”

When you use the words “as amended,” do you mean as it has been amended from 1933 through today? If so, why do you use indefinite words like “as amended” when you mean something like “as amended to date” or “as in effect as of the date hereof” instead?

Or, when you use the words “as amended,” do you mean as it has been amended and may be further amended in the future? If so, why not use “as now or hereafter in effect, or any successor thereto” instead?

Either way, when you see a citation to the “Securities Act of 1933″ without the words “as amended,” is it your position that the citation refers only to the statute as it existed in 1933?

And how do you interpret Section 1 of the Securities Act of 1933, which tells us that the short title of the Securities Act of 1933 is the “Securities Act of 1933″ (no reference to “as amended”)?

It’s been nearly 5 years since I first posted this on Corp Law Blog, and I’m still wondering.

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A Modest Counterproposal

The SEC recently proposed restricting short sales through a reinstated uptick rule and/or circuit breakers (PDF). One commenter (PDF) had a better idea:

Rather than tinkering with ad hoc half-measures, the SEC should be proposing the only practical, efficient and final solution to market volatility: a ban on stock selling altogether.

The commenter supports his proposal with six “time-honored truths” including “The SEC’s Job Is To Stay Out Of The Market When It’s Rising And Step In To Appropriately Alter The Rules When It’s Falling.”

A classic.

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