DealBook: Einhorn Sues Apple Over Plan to Discard Preferred Stock

11:41 a.m. | Updated

The hedge fund magnate David Einhorn has long been known as a fervent fan of Apple. But he is making an unusually public stand to oppose a move by the company: a lawsuit.

His hedge fund, Greenlight Capital, sued Apple on Thursday in an effort to block a move that would eliminate preferred shares. In a letter to fellow stockholders, Mr. Einhorn said the move to amend the company’s charter would unnecessarily limit the technology giant’s ability to create value for shareholders and called on them for support.

“This is an unprecedented action to curtail the company’s options,” he wrote in the letter. “We are not aware of any other company that has ever voluntarily taken this step.”

The stated goal of the legal action is technical, based on an accusation that Apple is violating securities rules by bundling several shareholder initiatives in one proposal. But underneath it lies deeper dissatisfaction with the company.

Activists have taken on increasingly bigger targets in recent years, including the likes of Hess and Procter & Gamble. But no one has dared to take on the onetime darling of the hedge fund community.

The opposition by Mr. Einhorn is the latest sign of investor anger with a company whose stock price in recent years had been almost unearthly in its gains. That growth attracted Greenlight, which now holds 1.3 million shares – a stake of more than $590 million – and a wide array of hedge funds that hitched their investment performance to Apple’s rising star.

Over the last several months, however, shares in Apple have tumbled, leaving many with a sour taste in their mouths. In a letter to Greenlight investors last month, Mr. Einhorn joked that some of his fund’s stumbles were because “our apple was bruised.”

On Thursday, however, he took a more adversarial tone.

Mr. Einhorn praised Apple as “a phenomenal company filled with talented people creating iconic products that consumers around the world love.” But he expressed deep dissatisfaction over how Apple was managing its finances, complaining that the company’s enormous $137 billion cash hoard was shortchanging shareholders.

It appears that the move by Apple to eliminate preferred shares in its charter is the final straw. Mr. Einhorn said he had called upon the company to issue existing shareholders a perpetual preferred stock that would pay out a dividend. In one suggested outcome, the company would initially distribute $50 billion carrying a 4 percent annual dividend, and then issue more over time.

Mr. Einhorn said he had raised the issue with Apple executives several times, only to be rejected.

As Apple’s share price has fallen – it is down more than 26 percent over the last six months – Mr. Einhorn has said shareholders are owed more.

“The recent, severe underperformance of Apple’s shares, which are down approximately 35 percent from their peak valuation, underscores the need for the company to apply the same level of creativity used to develop revolutionary technology for its consumers to unlock the value of its strong balance sheet for its shareholders,” he wrote in the letter.

On CNBC, Mr. Einhorn likened Apple, whose near-collapse in 1997 profoundly scarred the company, to his his grandmother, who survived the Great Depression. Both have adopted tendencies to amass far more cash than they need, instead of putting it to more productive investments.

Apple is like “someone who’s gone through traumas,” the hedge fund magnate said. “They sometimes feel they can never have cash.”

Mr. Einhorn also protested that Apple was tying the preferred stock proposal to two other initiatives he supported: allowing for simple majority voting for directors and establishing a par value for common stock.

Shares in Apple were up slightly in early morning trading on Thursday, at $457.57. That remains well below its 52-week high of $705.07.

David Einhorn's Lawsuit Against Apple by

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Boy Scouts postpone decision on admitting gays

A decision on whether the Boy Scouts of America will keep its policy that excludes gay members and leaders will not be voted on until the organization's annual meeting in May.

By Michael Muskal and Molly Hennessy-Fiske

February 6, 2013, 9:18 a.m.

IRVING, Texas -- The Boy Scouts of America decided Wednesday to put off a decision on whether to lift a national ban of gay members and leaders, saying the issue of sexual orientation was too complex and needed more time for study.

The decision to wait came after the organization recently announced that it would consider changing its policies and might allow local chapters to decide whether to admit gays as Scouts and leaders.

“After careful consideration and extensive dialog within the Scouting family, along with comments from those outside the organization, the volunteer officers of the Boy Scouts of America's National Executive Board concluded that due to the complexity of this issue, the organization needs time for a more deliberate review of its membership policy,” Deron Smith, the BSA director of public relations, said in a statement.

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“To that end, the executive board directed its committees to further engage representatives of Scouting’s membership and listen to their perspectives and concerns. This will assist the officers’ work on a resolution on membership standards,” he stated.

The approximately 1,400 voting members of the national council will take action on the resolution at the national meeting in May in Grapevine, Texas, he said.

It was the Scouts that put the issue back on the agenda for the current executive board meeting, held in its headquarters in Irving. But the move also came amid declining membership, questions by corporate sponsors and public pressure from activists who oppose the current national ban.

“Today the Boy Scouts of America have chosen to remain irrelevant by delaying the vote,” said James Dale, who was expelled from the Scouts in 1990 for being openly gay. “For over 23 years, since I was expelled from the Scouts, I have held out hope that the Boy Scouts would end their discriminatory policy. With each passing day the Scouts will continue to lose members, sponsors and funding. No parent or child should associate with an organization that sends a toxic message telling children they are immoral if they are gay.”

GLAAD, the nation's lesbian, gay, bisexual and transgender advocacy group, condemned the decision to wait.

“An organization that serves youth and chooses to intentionally hurt dedicated young people and hard-working parents not only flies in the face of American principles, but the principles of being a Boy Scout,” GLAAD President Herndon Graddick stated.

“The Boy Scouts of America is choosing to ignore the cries of millions, including religious institutions, current Scouting families, and corporate sponsors, but these cries will not be silenced. We're living in a culture where hurting young gay people because of who they are is unpopular and discriminatory. They had the chance to end the pain this ban has caused to young people and parents; they chose to extend the pain.”

Those seeking to keep the ban were also vocal. A majority of the Boy Scout organizations are sponsored by local churches, many of which have religious objections to homosexuals.

About 100 people gathered outside Boy Scouts headquarters in suburban Dallas carrying signs that said “Save our boys from homosexual acts;” “God votes no gays” and “Don't invite sin into the camp.”

Texas Values, a conservative group that organized a prayer vigil this week in support of keeping gays out of the Scouts, said the Scouts organization was right to delay a decision.

“It's a temporary victory,” Jonathan Saenz said of Wednesday's vote. “Good for them -- they're obviously listening. We are encouraged and we're glad they're going to delay the decision. When you deal with such fundamental principles, it's not something you want to tinker with overnight.”

Robert Davis, 48, of Benbrook, Texas, wore his Longhorn Council Scouting uniform and brought his two sons to the protest Wednesday.

“I think it's a good sign,” he said of the organization’s vote. “The Boy Scouts of America is one of the last moral high grounds in this country. I hate to see it die.”

Among politicians, both President Obama and Texas Gov. Rick Perry have been part of the debate.

“My attitude is that gays and lesbians should have access and opportunity the same way everybody else does in every institution and walk of life,” said Obama, who as U.S. president is the honorary president of BSA, in a Sunday interview with CBS.

Perry, the author of the book “On My Honor: Why the American Values of the Boy Scouts Are Worth Fighting For,” said in a speech Saturday that “to have popular culture impact 100 years of their standards is inappropriate.”

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Twitter Locks Kids Out of Its Vine Video App

Twitter now requires people to certify they are at least 17 years old before running the Apple version of the company’s video app Vine. Twitter says the iOS app is for adults because it contains ”frequent/intense sexual content or nudity,” among other things, signaling that Vine will continue to traffic in risqué content.

People flipped out last week when a Twitter staffer accidentally selected a pornographic Vine video as an “Editor’s Pick,” thus recommending it to all the service’s users. Twitter apologized for the mistake, but that doesn’t mean that adult content was banished from Vine. Indeed, there is nothing in Vine’s Terms of Service that prohibits sexually explicit videos. Vine even includes a mechanism that hides videos marked as inappropriate, requiring a second click to view them.

Apple reportedly pushed Twitter to put the age restriction in place, presumably because Vine can hypothetically be used to view porn, even though it’s not expressly designed for such content. The iOS version of Google’s Chrome web browser, which can (conceivably!) also be used to view porn, is similarly restricted to adults only, as are other iOS web browsers. Of course, like an “R” rating on a movie, a 17+ restriction on an app does not dampen its appeal to teenagers. This move could actually make Vine more common in high schools rather than less, if, that is, Twitter can convince teens to take any time away from SnapChat.

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Dick Morris dropped by Fox News

LOS ANGELES (TheWrap.com) – Dick Morris will no longer be serving as a contributor at Fox News, a spokesperson for the network told TheWrap.

Morris’ contract had recently expired, and Fox will not be renewing it, the spokesperson said.

Morris, a former adviser to President Bill Clinton who later turned into a harsh critic for the Clintons, had been a longtime contributor to Fox, but has not appeared on the cable network in recent months.

But while Morris may no longer be a presence on Fox News’ airwaves, he isn’t disappearing from television news – at least not immediately.

Morris announced on his website Tuesday that he will appear on Wednesday’s edition of CNN’s “Piers Morgan Tonight.”

“You read it right! I will be a guest on The Piers Morgan Show on CNN, yes CNN, this Wednesday night at 9 PM EST,” Morris wrote. “I’ll spell out what the Republican Party must do to win national elections again and will discuss how House Speaker Boehner has become Obama’s captive. Tune in!”

Morris’ exit at Fox News comes less than two weeks after news broke that former vice presidential candidate Sarah Palin, who had been a contributor for the cable news network since January 2010, had parted ways with the network. That departure came following reports that Fox News chairman and CEO Roger Ailes was so angry about Palin announcing her plans for the 2012 presidential election on a rival outlet that he wanted to bench her.

In recent months, Fox News has added former “The Man Show” co-host Adam Carolla and former congressman and presidential candidate Dennis Kucinich, who’s known for his liberal views, to its roster of contributors. The network has also re-upped Karl Rove, the former senior adviser to George W. Bush, through the 2016 presidential election.

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Trade Group Lawsuit Challenges Olive Oil Labeling

The North American Olive Oil Association, a trade group that represents the olive oil business in the United States and Canada, is suing Kangadis Food, saying that it falsely labeled its Capatriti brand as olive oil when the product is a fat from leftover olive skins and pits.

That fat, known as olive pomace oil or olive residue oil, is extracted using high heat and chemical solvents including hexane. “Olive pomace oil is not allowed in any grade of olive oil under any standard anywhere in the world,” said Eryn Balch, executive vice president of the association. In addition, she said, “The cost of producing oil that way is a fraction of what it costs to produce authentic olive oil.”

Themis Kangadis, an executive with the company, said he had not heard of the lawsuit and would ask the company’s lawyers to look into it. “I had no idea,” Mr. Kangadis said.

The lawsuit seeks to prevent Kangadis, which is based in Hauppage, N.Y., and operates under the name The Gourmet Factory, from selling any pomace product that is not so labeled and to notify retailers and other buyers of pomace products that they were buying an adulterated product. The suit was filed Wednesday in the United States District Court for the Southern District of New York.

Ms. Balch said Capatriti’s pricing was one-third to one-half the price of competitive brands, so the association hired an independent contractor to buy nine tins of Capratiti “100% Pure Olive Oil” product from three lots. Identifying materials were removed from the samples, and they were shipped to a lab in Spain that is certified by the International Olive Council, an organization based in Spain that sets the standards for olive oil purity and quality.

“When the results came back, they clearly confirmed that none of the samples were olive oil,” Ms. Balch said. “Instead, they were some type of pomace oil and pomace oil and seed oils.”

Dan Flynn, executive director of the Olive Center at the University of California, Davis, said he was not surprised to hear of the lawsuit. “There have been too many reports that the grading and labeling of olive oil are a big problem,” Mr. Flynn said.

Other studies by the center on olive oils sold in supermarkets and used in the food service industry have found that many failed to meet the standards of the grade listed on their labels.

In 1982, the Food and Drug Administration defined “virgin olive oil” as a term that may be used on labels only for oil from the first “pressing” of olives and fit for consumption without further processing. “Oil extracted from olive pomace and pits by chemical means and refined to make it edible must be labeled either ‘refined olive residue oil’ or ‘refined extracted olive residue oil,’ according to the agency’s regulations.

More recently, the Agriculture Department has published voluntary guidelines for grading olive oil. New York State has more stringent laws than the federal government, stating that any compound or blended olive oil be labeled as such and include the percentage of olive oil that is in the total.

Diluting olive oils with seed and other oils has been a persistent problem, attracting growing consumer complaints, as has the grading of extra virgin olive oil.

“Information about hazelnut, walnut and other seed oils being in olive oils has been misrepresented in the press,” she said. “Most of what has been talked about lately is not about authenticity, it’s about labeling within a grade, whether something is really extra virgin or not.”

In the complaint against Capatriti, the association said that because of the differences in the way olive oil and pomace were produced, the presence of pomace in a single tin meant that all tins in the same lot contained pomace. Capatriti bottles and cans are labeled “Extra Virgin Olive Oil,” “100% Pure Olive Oil” and “Light Olive Oil,” and its Web site says it is “proud to introduce” a new line of “All Natural Blended Olive Oil.”

“This is a very, very clear-cut case of false advertising,” said Timothy J. Treanor, a lawyer at Sidley Austin who is representing the association. “This is not a case where there is room for argument about degrees of truthfulness. Here, 100 percent olive oil is what it states on the tin and by any standard, that’s not true.”

The association contends that Kangadis had to have known about the adulteration of its products because of a complaint it filed after the Connecticut General Assembly in 2008 adopted the criteria set by the International Olive Council for assessing olive oil quality and set penalties for companies that sell olive oils cut with hazelnut, soy or peanut oils.

Kangadis tried to stop the Connecticut Department of Consumer Protection from enforcing the state’s law on olive oil, saying the company’s “reputation and business relationships have already been harmed by adoption of the state olive oil standards.”

This article has been revised to reflect the following correction:

Correction: February 6, 2013

An earlier version of this article incorrectly spelled the surname of a laywer at Sidley Austin representing the North American Olive Oil Association. He is Timothy J. Treanor.

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Obama urges short-term solution to prevent steep budget cuts

WASHINGTON – President Obama on Tuesday called on Congress to come up with short-term spending cuts and revenue increases that would stave off more drastic cuts set to take effect in March.

In a brief appearance in the White House briefing room, Obama asked lawmakers to come up with a quick fix that would postpone the automatic cuts and their "devastating" effects on the economy.

The economy is in recovery, Obama said, but that won’t continue if there are “self-inflicted wounds” caused by elected officials. 

The economy shouldn’t be at risk “just because folks in Washington couldn’t come together to eliminate a few special-interest tax loopholes or government programs that we agreed need some reform,” he said.

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The president said he still wants to deal with deficits over the longer term, but that he doesn’t want to see workers laid off and critical programs lapse while Congress works its way to a more broad-based budget solution.

When the automatic cuts were first devised in 2011, the $1.2-trillion in so-called sequester cuts were intentionally designed to be severe. Lawmakers on all sides believed they would force Congress to come up with a better alternative for deficit reduction.

But the deadline is drawing close and the sides are nowhere near a permanent solution. Democrats want to exchange the pending across-the-board cuts for tax revenue generated in part by ending tax breaks for oil and gas companies.

Republicans, meanwhile, see the looming sequester as one of their best chances to exact steep spending cuts. They want to steer away from reductions at the Pentagon and toward Medicare, food stamps and other domestic programs.

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Sen. Mitch McConnell of Kentucky, the Republican minority leader, calls the Democrats' ideas “gimmicks.” House Speaker John A. Boehner (R-Ohio) argues that the public doesn’t support the idea of raising taxes in place of cutting spending.

“The president’s sequester should be replaced with spending cuts and reforms that will start us on the path to balancing the budget in 10 years,” Boehner said.

Speaking to reporters, Obama said he believes “modest reforms” in social insurance programs would eventually have to be paired with tax reform.

For the moment, he said, it appears a full budget “may not be finished” before the automatic cuts kick in. Congress can’t let that happen, he said.

QUIZ: Test your knowledge about the debt limit

“If Congress can’t act immediately on a bigger package,” he said, “they should at least pass a smaller package of spending cuts and tax reforms that would delay the economically damaging effects of the sequester for a few more months.”

After that, he said, the two sides can work together to replace cuts with a “smarter solution.”

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Instagram Finally Feeds the Web, But We're Still Hungry

Instagram launched a web-based interface on Tuesday that largely mirrors its mobile app, allowing users to log in from a browser to view and interact with photos from people in your feed. It’s a big move from the company that grew to prominence as a mobile-only social network.

Although Instagram had previously launched web profiles for its users and did give people the ability to interact with others’ photos on the web, it had not offered a way to log in and browse your network’s photo stream in the same way you can within the app. As of today it offers that same experience on the web.

While the ability to interact and view a feed from the desktop is great, it’s also a bit puzzlingly put together. The linear experience of vertical photos presented one at a time doesn’t work nearly as well on the web as it does mobile. It means there’s a lot of wasted space on either side of the image. Meanwhile, for a single image, the photos themselves are quite small. It would be great to see them either blown up, or tiled, to make better use of the desktop screen.

Mat Honan is a senior writer for Wired's Gadget Lab and the co-founder of the Knight-Batten award-winning Longshot magazine.

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Kristen Wiig joins “Anchorman” sequel

LOS ANGELES (TheWrap.com) – Kristen Wiig will contribute to the lunacy in “Anchorman: The Legend Continues.”

Director Adam McKay announced on Facebook that the “Bridesmaids” star had joined the cast of the follow-up to the 2004 hit.

“Kristen Wiig is officially on board for Anchorman 2,” McKay wrote. “Couldn’t be more excited.”

TheWrap first reported that Wiig was eyeing the project in December. McKay did not say what role she would play in the film, but sources told TheWrap at the time that she would play the love interest of Brick Tamland, the dim-witted weatherman played by Steve Carell in the first movie.

Will Ferrell, Christina Applegate and Paul Rudd are all reprising their roles in the sequel, with Judd Apatow once again producing the picture.

“Anchorman: The Legend Continues” will hit theaters on December 20, 2013.

The “Saturday Night Live” vet, who earned an Oscar nomination for Best Screenplay for 2012′s breakout hit “Bridesmaids,” will star opposite Ben Stiller in the remake of “The Secret Life of Walter Mitty” and will lend her voice to “Despicable Me 2.”

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SciTimes Update: Recent Developments in Science and Health News

Red Bull Stratos/European Pressphoto Agency

Felix Baumgartner of Austria jumps from 24 miles up in Roswell, New Mexico.

Tuesday in science, sharks with an image problem, good teeth get more dates, dog geniuses and remembering your dreams. Check out these headlines and other science news from around the Web.

Supersonic Skydiver: Skydiver Felix Baumgartner was faster than he or anyone else thought during his record-setting jump last October from 24 miles up. The Austrian parachutist known as “Fearless Felix” reached 843.6 mph, reports The Associated Press.

Stress Through Generations: For the first time, genes chemically silenced by stress during life have been shown to remain silenced in eggs and sperm in mice, possibly allowing the effect of stress to be passed down to the next generation, reports The Washington Post.

Man Bites Shark: A new study refutes the shark’s reputation as a bloodthirsty stalker of humans, reports Reuters. There’s no basis for believing that sharks have a taste for human flesh, the study argues. Human swimmers, often dressed in black wet suits and looking like seals, are instead mistaken for sharks’ usual prey.

What Singles Want: Good teeth, grammar and humor are important to singles, a new USA Today survey reports.

The Farmer’s Workout: Farmers -- the people counted on to feed the nation -- are facing weight gains of their own, reports Gannett News.

Yes, They Do Windows: The Wall Street Journal reports on window-washing robots.

Staying In: To keep patients out of the hospital, health care providers are bringing back revamped versions of a time-honored practice: the house call.

Spill Your Secrets: Teenagers who share their secrets in confidence with parents and friends have fewer headaches and depressed moods and are more confident in social situations than those who keep secrets to themselves, according to a report in The Journal of Adolescence.

Drilling on Mars: NASA’s Curiosity rover, the S.U.V.-sized robot exploring Mars, is getting ready to spin its drill bit for the first time, reports The Christian Science Monitor.

Couch Potatoes: Men who watch a lot of television have lower sperm counts than those who don’t watch any, reports ScienceNews.org.

Dream a Little Dream: Anyone who has ever awoken feeling amazed by their night’s dream only to forget its contents by the time they reach the shower will understand the difficulties of studying such an ephemeral state of mind, reports New Scientist.

Smart Dogs: Scientific American explores the science of dog intelligence.

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Weak Earnings Report for Zynga, but Stock Rises

SAN FRANCISCO — In the 14 months since Zynga sold shares to the public, the online game developer has been on a monumental losing streak. Games have been killed, crucial employees have fled and players have sought excitement elsewhere.

Any hopes that Zynga’s luck has substantially improved were dashed Tuesday when the company reported its fourth-quarter earnings. They were expected to be weak and they generally were, if not nearly as bad as some feared.

Revenue was $311 million, flat with the year before. Daily users of the games were down 6 percent from the third quarter, a clear measure of flagging interest. More casual users dropped as well.

Earnings per share were a penny, better than the 3-cent loss that analysts had been expecting on an adjusted basis. And Zynga’s cash hoard of $1.65 billion was untouched.

For the full year, revenue was $1.28 billion, up 12 percent from 2011. Not exactly what you would expect from a growth company.

Yet the company’s shares immediately rose in after-hours trading by 7 percent.In regular trading they were also up 7 percent to $2.73, largely on the basis of an analyst upgrade from Merrill Lynch. Many online stock sites, by contrast, have been portraying the company as going the way of Pets.com or MySpace. “Zynga’s Earnings May Reveal Its Impending Demise” read the headline at one of them.

Michael Pachter, a managing director of Wedbush Securities, is a Zynga optimist, of a sort. He wrote in an e-mail message before the earnings were released that he had “100 percent confidence” the company could pull off a turnaround but “zero confidence that they will.”

Zynga’s diminishing fortunes illustrate how quickly the prospect of Internet companies can wax and wane — a development compounded by the shift to smartphones. And it has a crucial test coming up: Can it successfully move its most popular games, starting with the Farmville franchise, from PCs to mobile devices?

The bigger issue for Zynga, which pioneered the concept of social gaming and is still the biggest developer, is whether its once-hot hand was merely being in the right place at the right time, a condition also known as dumb luck. Zynga hitched its rise to Facebook, which gave the developer preferential treatment. Games like Farmville and Mafia Wars boomed as the social network expanded its reach.

Only a small sliver of players ever bought the virtual goods that constituted Zynga’s main source of revenue, but that was a problem for the future. For a time in early 2011, Zynga’s initial public offering was touted as being as big as $20 billion. In the end, it was about half that, which was still a major achievement for a company less than five years old.

Almost immediately after the offering, a little over a year ago, the disappointments began. Zynga spent $180 million last March to buy the Internet craze Draw Something, abandoning its usual practice of just cloning hits. Draw Something had about 15 million daily users. Before the ink on the purchase was dry, nearly a third of them had departed for a newer craze. Zynga wrote over half the purchase price, but since Draw Something’s audience has continued to dwindle, the miscalculation was even worse.

More recently, critics have been pointing to the rise of King.com’s games, including Candy Crush, which makes the latest version of Farmville look as complicated as advanced physics.

“Who thought crushing candy would have been popular?” said Brian Blau, a Gartner analyst.

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