Yves Smith over at the Naked Capitalism blog asks a poignant -- and pertinent -- question: did Lehman, or someone connected to Lehman, violate SEC disclosure laws by leaking an internal memo covering details of alleged deleveraging at this week's favorite short-sale target, Lehman Bros? Here at HW, we covered a leak from CNBC's Charlie Gasparaino that suggested Lehman was selling off assets as part of a strategy to delever its balance sheet -- news that has become contested by coverage at the New York Times and the WSJ as well. (Lehman also apparently engaged in some buyback activity yesterday, too, but that's another story). Yves' question is pointed and clear enough:
Now to the tactics, which stink to high heaven. Why, pray tell, is Lehman resorting to leaks and whispers rather than the proper procedure of public disclosure via a press release? ... leaking an internal memo with non-public, material financial information to Gasparino is an SEC violation, although I am highly confident it was done in such a way the the firm has plausible deniability if questioned. Don't tell me this may have been an unauthorized employee leak; if this memo was circulated broadly to employees, it was done with the full intent that word would get outside the firm. That happens predictably with mass employee communications. And if it was limited distribution, the recipients, as anyone who has passed a Series 7 exam ought to know, are fully aware that selective disclosure of material information is a big no no under SEC Rule FD.
We'll weigh in with our feeling that it looks like what we've got here is a company heading into some guerrilla warfare with short sellers making some very public ploys about Lehman's future. (We're looking at you, David Einhorn). Not that it makes any dirty game justifiable, but if Lehman was feeling threatened enough by the "next Bear Stearns" speculation that had send its market cap down the toilet this week and last, some strategies seem more justifiable when in a fox hole than others. All that matters is the depth to which the perceived hole has been dug, really, in such situation. Smith makes essentially the same point, noting that management always has much more on the line in a battle with shorts than does the actual investor in a short position. Disclosure: HW's authors on this story had no positions in Lehman.