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http://www.trinity.edu/rjensen/fraud063006.htm

Outrageous Executive Audacity

"That Other Guy From Omaha," by Gretchen Morgenson, The New York Times, August 29, 2006

Mr. Gupta is, shall we say, a piece of work. He often prevents large shareholders from asking questions on conference calls. He has received compensation that was not earned under the terms of the company’s executive compensation program, according to a lawsuit that Cardinal Value Equity Partners, infoUSA’s largest outside holder, filed against the company. And, the suit alleges, his board has given him free rein to dispense stock options to whomever he likes.

Related-party transactions are also routine at infoUSA. The Cardinal lawsuit contends that infoUSA paid a company owned by Mr. Gupta about $608,000 in 2003 to buy his interest in a skybox at the University of Nebraska’s Memorial Stadium. The university is Mr. Gupta’s alma mater and home of the Cornhuskers football team. In June 2005, the suit says, infoUSA paid $2.2 million for a long-term lease of his yacht. The yacht, named American Princess, is 80 feet long and has an all-female crew, according to a report in The Triton, a monthly publication for boat captains and crews.

Leases on an H2 Hummer, a gold Honda Odyssey, a Glacier Bay Catamaran, a Mini Cooper, a Lexus 330, a Mercedes SL500 all used by the Gupta clan as well as rent on a Gupta family condominium on Maui have also been financed by infoUSA shareholders, the suit said.

Shareholders also paid a company owned by Mr. Gupta’s wife $64,200 for consulting services in 2003 and 2004. Shareholders have also covered the Gupta family’s personal use of a corporate jet leased by infoUSA from a company owned by the family to have fun in the sun in Hawaii and the Bahamas. Mr. Gupta apparently wasn’t in a mood to return the favor: during a four-year period ending in 2004, infoUSA paid $13.5 million to Mr. Gupta’s private company for use of the aircraft.

What to make of all of this? The Cardinal lawsuit contends that the carnivalesque spending amounts to unregulated perquisites and evidence of a somnambulant board. Sleepy, perhaps, but always on the move. Some 15 directors have spun through infoUSA’s boardroom door over the last decade; five of them stayed less than a year.

It wasn’t until two years ago November 2004 that infoUSA’s board created guidelines for the approval of related-party transactions over $60,000. The Cardinal lawsuit alleges that some of infoUSA’s related-party dealings with certain board members “did not have a sufficient record to show authorizations and whether the services could be procured from other sources at comparable prices.”

None of the infoUSA board members returned phone calls seeking comment. Mr. Gupta did not return several phone calls, either.

But Mr. Gupta’s biggest faux pas occurred in June 2005, when infoUSA warned that its earnings would not be up to expectations. The stock fell from $11.94 a share to $9.85 the day after the announcement. Less than a week later, Mr. Gupta offered to acquire infoUSA for $11.75 a share, far less than the $18 a share he had said the company was worth just a few months earlier.

A special committee of the company’s board was set up to evaluate Mr. Gupta’s offer and to field bids from other possible partners in order to secure the highest possible price for infoUSA shareholders. Almost exactly a year ago, the committee concluded that the $11.75 offer was too low and that it should be subject to a “market check.”

At a board meeting on Aug. 26, 2005, Mr. Gupta said that he would not sell any of his shares to a third party in an alternative transaction, according to the lawsuit. Some directors might have used this opportunity to give Mr. Gupta a well-earned public rebuke. But a majority of the sleepwalkers at infoUSA just got into lockstep with their chief executive.

The directors responded by deciding that there was no need for infoUSA’s special committee to exist. They voted 5 to 3 (with one abstention) to abolish it. The only directors voting for the committee’s continuance were three of its four members; the fourth abstained from voting. The stock closed that day at $10.89.

The vote was the last straw for Cardinal Value Equity Partners. It filed suit in February against Mr. Gupta, some of infoUSA’s directors and the company itself.

“Our suit says that the special committee was prematurely terminated, that they didn’t get to finish their work and that was the wrong decision by the entire board,” said Robert B. Kirkpatrick, a managing director at Cardinal Capital Management. “We’re not asking for $100 billion; we ask that the special committee be reconstituted to be able to have the time to fulfill their original mandate as dictated by the board.”

In other words, to reopen the possibility of a buyout.

IN the meantime, all is right in Mr. Gupta’s gilded world. About three weeks ago, on Aug. 4, infoUSA announced that it was buying Opinion Research, a consulting services company, for $12 a share, an almost 100 percent premium to Opinion Research’s market price the day before the announcement.

Lo and behold, who owned Opinion Research shares the day the deal was announced? The Vinod Gupta Revocable Trust, according to a regulatory filing, owned 33,000 shares. The trust, controlled by Mr. Gupta, sold 22,000 of its shares after the merger announcement sent Opinion Research’s stock rocketing.

The trust’s shares don’t represent a huge stake, but it is worth asking: Did infoUSA’s directors know that the Gupta trust was an Opinion Research shareholder when they signed off on the premium-priced deal? And what gains did the trust record when it sold into the deal-jazzed market? For now, the answers are unclear.

In coming weeks, a judge in Delaware will rule on whether the Cardinal lawsuit can proceed. InfoUSA has asked the judge to dismiss the case, saying that it has no merit.

“Unfortunately, the system is broken in this case,” said Donald T. Netter, senior managing director at Dolphin Financial Partners, a private investment partnership in Stamford, Conn., that is an infoUSA shareholder. “The board has failed to protect the unaffiliated shareholders. When the system works properly, you shouldn’t get into these situations.”

No kidding.