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Panda dung, robot undergrads, and the world's wackiest tech awards

Written By Emdua on Kamis, 20 September 2012 | 08.47

By Michael Fitzpatrick, contributor

FORTUNE -- If you ever wondered if artificial breasts can survive scalding hot springs, whether panda dung will dissolve garbage, and if a robot could enter university, then Japan would be the to satisfy your curiosity.

Such esoteric research is meat and drink to certain branches of the $130 billion research and development industry here. To which, when the annual Ig Noble prizes are presented at Harvard today, its organizer Marc Abrahams will give silent thanks. He couldn't do without them, he says. "Japan has been putting up stuff for so long it's hard to miss," he says hinting today will be another bumper year for Japan.

He refers to research that, while attempting to solve problems and drive industry, has achieved some crooked profundity while generating the added bonus of making people smile.

So far, in the prize's 22-year-history, two nations stand out amongst others in eligibility says Abrahams. "Japan and the UK both have consistently produced impressive numbers of Ig Nobel Prize winners," he says. "I think that's partly due to something the two cultures share. Most other countries punish their eccentrics. Japan and the UK, in contrast, are proud of their eccentrics."

MORE: Fear and loathing in Japan

That certainly might be true of Japan. For the people who transformed post-war penury into the world's number two economy -- often thanks to persistence and tinkerers' ingenuity -- offbeat inventors do have a special place in the heart of the nation's inspiration-seeking salarymen. Some popular TV here is devoted to lone inventors and their innovations that seemed quirky at the time but quickly become novel or breakthrough. Nintendo's (NTDOY) Wii or the Tamagotchi are two examples.

Noble prize winners (18 so far) are appreciated, too. Japan wants to produce 30 Nobel prize winners over the next 50 years. And in that quest spends more on R&D as part of gross national product than any other (3.47% of GNP compared to US 2.81% and China 1.55%). While Japan has the third largest budget globally for R&D and over 700,000 researchers.

Ironically it is this driven, earnest approach to innovation that ingenuously sparks a fair bit of unconventional research, and the unintentionally funny. "I think the reason why we have a disproportion (of Japanese Ig Noble winners) is the strict matter-of-fact-ness of Japanese researcher," points out Masataka Watanabe, chief science promoter for one of Japan's great centers of innovation -- Tsukuba University.

"Such a paradox is caused by Marc Abraham's sense of humor. Japanese laureates don't see their research as funny. But Marc has found funny things in them." This admission to a sense-of-the-absurd-failure might be closer to the truth in the land where irony is as rare as a Zen barbecue.

The Japanese have so far romped 15 Ig Noble prizes after 22 years of roping in actual Noble prize winners to give out the tounge-placed-firmly-in-cheek awards, which like the real Nobles are divided into categories including Peace, Biology, and Physics. As a type of invention's homage to the god of unintended consequences, Daisuke Inoue's 2004 Peace prize for inventing karaoke and "providing an entirely new way for people to learn to tolerate each other," was apt.

MORE: Welcome to the 'Republic of Fakes'

Japanese scientists have done particularly well in chemistry. Unknowing his research into why birds, literally, gave a miss to a metal statue in his local park would induce mirth worldwide, Yukio Hirose, a metallurgist at Kanazawa University, now sees the joke and gratefully received his prize in 2003. "The Japanese selected have been good sports for the most part," says Abrahams. "There were some who would not take part…" but he is quick to draw a veil over the details.

Some reveled especially in the media spotlight. The prize winner for that has to be "the one and only" Dr. NakaMats says Abrahams. "He is, above all, the Wizard of Oz." Modestly claiming to have invented the floppy disk, the fax and have patented over 3,000 other inventions beside, Dr. NakaMats, whose real name is Yoshiro Nakamatsu, is in a class of his own when it comes to Ig noble prize winners. In 2005 the 84-year-old won the Nutrition prize for photographing and analyzing every meal had eaten over 34 years.

He is better known in Japan as the country's favorite eccentric boffin who gets his ideas "while 0.5 seconds from death" holding his breath underwater. There is, he says, much method in his madness and the genius of Japanese invention. "There are many innovators in Japan. Because we are very poor in natural resources so we must use our intelligence and human resources," he explains.

Nakamatsu is now busy trying to save ourselves from ourselves as he watches humanity flail around fretting over energy. To such ends he claims he has invented an air-conditioner that uses just 1% of energy used by conventional units. Verifiable or not we need people like Dr. NakaMats to, as the Ig Nobles put it, "make people laugh, and then make them think."

20 Sep, 2012


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The 50 Most Powerful Women

President and CEO
IBM
2011 rank: 7
Age: 55

A 31-year IBM veteran, Rometty has been a key supporting player in some of Big Blue's biggest transformations: She managed the $3.5 billion PwC Consulting acquisition that launched IBM in the services business, and with chairman Sam Palmisano worked to develop the five-year growth plan. As CEO, she's now in charge of delivering on it.

By Beth Kowitt, Colleen Leahey, and Anne VanderMey.

20 Sep, 2012


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Pre-Marketing: QE Global

Dan Primack joined Fortune.com in September 2010 to cover deals and dealmakers, from Wall Street to Sand Hill Road. Previously, Dan was an editor-at-large with Thomson Reuters, where he launched both peHUB.com and the peHUB Wire email service. In a past journalistic life, Dan ran a community paper in Roxbury, Massachusetts. He currently lives just outside of Boston.

20 Sep, 2012


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Occupy Wall Street activists join the Apple iPhone 5 queue

Peaceful protest? Photo: Jessica Mellow

FORTUNE -- Looks like the launch of the iPhone 5 is about to get political.

Veteran line-sitter Jessica Mellow, who's been camping out in front of the big glass cube of Apple's (AAPL) Fifth Avenue store since last Thursday, reports that at 10 p.m. Wednesday  -- a day and a half before the Friday morning launch of the iPhone 5 -- a contingent of activists from the Occupy Wall Street movement showed up and began settling in for the night.

"They took about 20 spots, and they have nicer sleeping bags than we do," she says. "I hear there are more on the way. All I know is that they are planning some sort of (peaceful) protest. They want to put up tents but I don't think they will be allowed. And they are protesting Foxconn and slave labor in China."

We're going to have to check it out.

See also: iPhone 5: Customers in the Big Apple camp out 8 days early.

20 Sep, 2012


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Occupy activists join iPhone 5 queue

Peaceful protest? Photo: Jessica Mellow

FORTUNE -- Looks like the launch of the iPhone 5 is about to get political.

Veteran line-sitter Jessica Mellow, who's been camping out in front of the big glass cube of Apple's (AAPL) Fifth Avenue store since last Thursday, reports that at 10 p.m. Wednesday  -- a day and a half before the Friday morning launch of the iPhone 5 -- a contingent of activists from the Occupy Wall Street movement showed up and began settling in for the night.

"They took about 20 spots, and they have nicer sleeping bags than we do," she says. "I hear there are more on the way. All I know is that they are planning some sort of (peaceful) protest. They want to put up tents but I don't think they will be allowed. And they are protesting Foxconn and slave labor in China."

We're going to have to check it out.

See also: iPhone 5: Customers in the Big Apple camp out 8 days early.

20 Sep, 2012


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Inside Romney's fuzzy energy jobs math

FORTUNE -- With this election's sharp focus on jobs and the economy, both candidates are trying to show they can marry the goals of energy independence with employment and national economic growth.

Governor Mitt Romney says he will create more than 3 million jobs by easing restrictions on natural resource development and giving control of federal lands over to the states. Accusing President Obama of lagging in domestic fossil fuel production, Romney has painted himself as the candidate of oil, gas, and coal. The Republican presidential candidate has received almost $3 million in campaign contributions (not including donations to PACs and the RNC) from these industries, according to OpenSecrets.org. That's more than seven times the amount President Obama has brought in from these groups. But, so far, there is little evidence that the Republican candidate's platform will lead to more energy jobs.

The Romney campaign's energy job growth projections are primarily based on a March 2012 report from Citigroup that details the potential growth in domestic oil and gas production and the impact such growth would have on the economy as a whole. The report estimates that increased domestic oil and natural gas production could create more than 3.6 million jobs by 2020.

MORE: IBM's Ginni Rometty looks ahead

These estimates, however, do not depend on loosening regulations or handing over control of federal lands to the states, the only energy policy prescriptions that the Romney campaign has offered so far. In fact, Citigroup's projections assume that the U.S. would keep its current energy policies, according to Ed Morse, managing director and head of global commodities research at Citigroup Global Markets and the report's lead writer.

In fact, Citigroup's report refers to current energy regulations as "benevolent" and describes them as a necessary factor in maintaining the stability of the markets. "Federal regulation is better than state regulation," Morse says. Handing control over to the states, he says, "would more likely have a negative impact" on job growth.

Under state regulation, for example, the Keystone XL Pipeline -- a project that has Romney's support -- would not likely ever get built. "If the state of Nebraska were allowed to vote on whether the Keystone XL Pipeline were to be built in Nebraska, it probably would not happen," Morse says. And on dialing back federal regulations, Morse says, "I don't see how you can sanely develop resources that are inherently dirty without having government regulation to make sure that the tradeoffs between risks and potential new productions are managed."

Romney campaign spokesperson Ryan Williams disputes Morse's conclusions, saying, "U.S. public policy is the single most important determinant" of whether the country will supply the millions of promised jobs.

Morse is quick to point out that the Obama Administration has drilled more wells than any other president since Ronald Reagan and plans only to drill more. Domestic oil production has increased every year of Obama's term and the president has laid out plans to continue that course. Those plans include opening more than 75% of untapped resources in the Gulf of Mexico and Alaskan coast to drilling and instituting reforms that actually punish oil and gas companies with idle leases.

MORE: Who's better for stocks: Obama or Romney?

While the Romney energy platform calls for continued coal production, Citigroup's projections see coal as playing an increasingly diminished role in American energy. The report expects many coal-powered technologies to make a transition to gas, and relies on "the forced retirement of coal-fired plants" to eventually push the last coal holdouts into gas use.

Indeed, coal's demise is considered a given by many in the energy industry, with natural gas offering a cleaner, cheaper alternative. "Where are you seeing new coal in this country? You're not seeing new coal," says Ron Pernick, founder and managing director of energy research firm Clean Edge and author of Clean Tech Nation. Coal mining is also environmentally destructive, dangerous to its workers in the short term, and unhealthy in the long term.

For his part, Obama offers coal -- which directly employs around 136,000 people, according to the National Mining Association -- a second chance with a $3.4 billion investment in carbon sequestration (the capture and storage of carbon dioxide to reduce negative environmental effects) and other "clean coal" technology, but whether that is throwing good money after bad -- or simply a politically motivated promise -- is up for debate.

MORE: Is this man ready to run Ford?

The Citigroup report's job growth predictions include 785,000 additional jobs based on the idea that increased energy efficiency will reduce energy consumption and give consumers more disposable income, stimulating a wave of economic growth. Romney has repeatedly objected to efficiency mandates.  In a statement released after the President's new fuel efficiency standards were announced, Romney called the standards "extreme" and said any savings "will be wiped out by having to pay thousands of dollars more upfront for unproven technology that [customers] may not even want."  The Romney campaign has voiced its opposition to other government support for clean energy, including the wind industry production tax credit, which is set to expire at the end of the year. A report by Navigant Consulting found the expiration would cut the wind industry in half, costing approximately 37,000 jobs.

No matter who wins in November, we are likely to see more jobs from domestic fossil fuel production over the next four years. How many jobs we'll see will partly depend on how the government plans to get involved.

20 Sep, 2012


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Ford unveils its (unlikely) masterpiece

By Doron Levin, contributor

FORTUNE -- Ford Motor Co.'s restyled Fusion midsize family sedan clearly departs from the model it replaces in the looks department. The old one was utilitarian and sensible; the new one borders on racy, like a chorus line dancer stepping in for the clerk at Barnes & Noble.

The new Fusion is a departure mechanically as well: Ford's (F) new midsize car architecture is all its own, replacing one that was derived from one shared with Ford's former subsidiary, Volvo. The same vehicle, with minor differences, will be sold in Europe and China as the Mondeo and in South America dubbed the Fusion.

Ford's latest midsize family car, the best seller in its lineup, must contend in the most competitive segment in the U.S., responsible for one in four car sales. As such, Ford is turning its game up a notch, bidding to make the Fusion stand out from the crowd rather than blend with the appearance favored by Japanese carmaker's Toyota (TM) Camry and Honda (HMC) Accord.

MORE: What a European Mustang will look like

"I would call it eye-catching, definitely more upscale," said Judy Curran, Ford's vehicle line director for Fusion in a telephone interview. "It's got great proportions and is very sophisticated." Jesse Toprak, an analyst for TrueCar, an automotive website, said Fusion "looks pretty and is designed to stand out without being polarizing."

More than one critic has noted the design cues on the Fusion's exteriors that seem borrowed from Aston Martin, another subsidiary that Ford no longer owns. Alan Mulally, Ford CEO, has been relentless in his push to streamline and simplify the automaker, using the slogan "One Ford," so that worldwide operations are efficient and avoid costly duplication.

The first Fusions should be reaching U.S. dealerships in the next week or two from Ford's factory in Hermosillo, Mexico. Sometime next year, Ford intends to expand production by adding another assembly line at a plant in Flat Rock, Michigan.

MORE: Was GM really saved?

In the U.S., Fusion sales trail those of Toyota Camry, Honda Accord and Nissan (NSANY) Altima, while leading those of Hyundai Sonata and Chevrolet (GM) Malibu. Ford will need help in Europe, where demand for vehicles has collapsed broadly. In August, Ford's unit sales on the count were down a gut-wrenching 29% from a year ago. Just as critical as the sales numbers for Ford will be the revenue per unit it can realize. According to Curran, the vehicle's retail price starts "in the low 20s" and rise to $30,995 for the premium Titanium version.

Curran noted that a $1,000 "safety package" of options will include blind spot detection, lane departure warning and adaptive cruise control, which helps drivers avoid rear-ending a vehicle ahead due to distraction or loss of attention. That all three features are offered on a mainstream sedan shows how quickly features once offered in only the most expensive vehicles are migrating to the mainstream. The trend is bound to continue as the technology becomes less costly and more advanced variants are developed.

Mulally, who introduced 2013 Fusion in Times Square in New York City, emphasized the fuel efficiency of the gas-electric hybrid version, rated at 47 miles per gallon for city, highway and combined driving. Ford can boast that its hybrid is the most fuel-efficient in the segment, topping the Camry hybrid.

MORE: Hyundai is still killing it

The Fusion in many ways epitomizes the last six years of change at Ford under Mulally's direction. The automaker's simpler structure has allowed it to concentrate its resources and energy on making its core vehicles stronger. The extent to which that effort flows to the bottom line will be evident in short order.

20 Sep, 2012


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IBM's Ginni Rometty looks ahead

By Jessi Hempel, senior writer

FORTUNE -- Ginni Rometty's first customer conference as CEO of IBM (IBM) was an unusual affair, especially by Big Blue's buttoned-up standards. The June confab took place in an airy loft in Manhattan's hip Chelsea neighborhood. When the tiny elevator arrived to whisk a group of us to the meeting space, the doors opened and there was Rometty, flanked by a couple of visibly nervous assistants. "Really good to see you!" she said, clasping my hand warmly as her handlers checked their watches. The presentation was about to begin and Rometty still wasn't wearing her microphone. "Isn't this neat?" she asked.

The program started late. At 5-foot-11, with blond hair tucked behind a headband, Rometty, 55, has an almost regal bearing, but on this day she flubbed her entrance, bounding onto the stage before she could be introduced. She laughed it off. When an audience member's ringing cellphone interrupted the events, she joked, "I hope that isn't mine!"

You wouldn't catch Lou Gerstner or Sam Palmisano trying to smooth over someone else's faux pas. Rometty's two predecessors also are unlikely to have hosted a sales meeting in a loft, and they definitely wouldn't have described the proceedings as "neat." But they surely would have approved of Rometty's agenda that June day. She had assembled some familiar faces, the chief information officers who buy billions of dollars of software, tech services, and hardware from IBM (No. 19 on the Fortune 500), but she had also invited their chief marketing officers. (Thus the trendy venue.) Her ambitious -- and yes, unusual -- plan: Get the marketers to use IBM tools to sort their data for nuggets that will help them better reach customers and sell more stuff.

MORE: Ginni Rometty - No. 1 Most Powerful Women in Business

When Rometty (pronounced RAH-metty) became IBM's ninth CEO -- and its first woman chief executive -- she took control of the 19th-largest company in the world by revenue (2011 sales surpassed $107 billion) and, at presstime, the fifth largest by valuation, with a market cap of $235 billion. Her influence on the world of technology and her company's impact on the financial markets earn her the No. 1 spot in Fortune's annual ranking of the Most Powerful Women in Business. She inherits a company with an enviable growth record for its enormous size. Over the past decade, the company has increased profits by an average 16% every year, returning 12% annually to shareholders.

She also needs to live up to almost ridiculously high expectations: IBM has said it will add $20 billion more in revenue growth in the next three years. To put that in perspective, that's a business roughly the size of Nike (NKE), No. 136 on the Fortune 500.

Not that any of this is a surprise to Rometty, a 31-year veteran of IBM who is known to have thick binders of background material and data prepared for her in advance of meetings. Indeed, the most surprising thing about her June customer debut was how loose and improvisational it was. She's not a stiff -- "There's nothing imperious or imperial about her," notes Harvard Business School's Rosabeth Moss Kanter -- but Rometty rarely leaves anything to chance. For example, she declined to be interviewed in person for this article, and would answer questions only via e-mail.

Rometty was at Palmisano's side for much of his decade-long tenure, and became a serious candidate to succeed him about four years ago. And she was personally involved in setting the high bar that she must now clear. She and other senior leaders helped him develop the five-year plan -- dubbed "2015 Roadmap" -- that has IBM targeting more than $125 billion in revenue that year.

For Rometty the challenge of meeting that goal is only partly about inventing new technologies to sell to her existing clients. Growth at IBM's scale also means creating new markets, much the way it did with its Smarter Planet campaign, which sold nontechies such as mayors and police chiefs on the idea of using software to monitor and manage traffic, water systems, and sanitation trucks. Now Rometty is making a similar pitch to marketing executives, promising that technology will change the way they do their jobs. It won't be an easy sell: Marketers are less apt than bureaucrats to be wowed by a charismatic CEO or statistics about petabytes. Many are accustomed to seeing computing as a tool to support their creative endeavors, not the starting point.

The rising star (from left): featured in the IBM 2000 annual report; at an IBM facility in 2002; talking with clients at the CIO-CMO event in June

The rising star (from left): featured in the IBM 2000 annual report; at an IBM facility in 2002; talking with clients at the CIO-CMO event in June

But if she can pull it off, Rometty could initially help change the way corporations communicate with their customers -- and ultimately the way they use technology to build and sell their products. "This is a mindset shift, not a market shift," Rometty explained to the CMOs at the Manhattan event. "It changes everything." She was talking about her customers, but she could just as easily have been talking about IBM.

Rometty had always been a top performer, but she caught the eye of executives at headquarters in Armonk, N.Y., in 2002 when she managed the integration of IBM's $3.5 billion purchase of PricewaterhouseCoopers' IT consulting business. As general manager for IBM's global services division -- the unit that had been at the heart of Gerstner's now legendary resuscitation of the company -- Rometty pushed early for the acquisition and helped negotiate the deal. Overnight IBM became the world's largest consulting business. And then Rometty had to figure out how to integrate 30,000 PwC consultants into her group of 150,000 IBMers.

It was a mishmash of cultures that could have gone horribly wrong, but Rometty managed the integration with a particular sensitivity to its impact on employees. IBM was buying talent, after all. The acquisition wouldn't be successful unless Rometty persuaded the consultants, particularly the 1,000 or so incoming PwC partners, to stick around. She began planning for how the two cultures would fit together even before the dealmakers set financial terms. It was particularly challenging to navigate differing compensation packages. To bring salaries in line with IBM peers', some of PwC's top executive partners had to take as much as a 40% cut in cash compensation -- and forgo perks like club memberships. To make up for the cash reductions, Rometty negotiated stock options that motivated the new employees to stay for at least four years. Ultimately, top performers could earn a higher payout.

She also reached out to all PwC employees personally. The morning the acquisition was announced, they arrived to the blinking red light of a voicemail notification on their phones. "Got to admit feelings were mixed," wrote Tereza Nemessanyi, then a principal consultant at PwC, on her blog. "As a creative type, I was nervous of what I knew as a very rigid culture." The following two-minute message welcomed her personally to IBM, assured her that IBM would retain the best elements of the PwC culture, and most important, got her excited. "Jeez, that woman leaves some seriously good voicemail," wrote Nemessanyi, who tells me she was tempted to move to IBM but ended up staying with PwC's parent.

MORE: Big Blue's big brass - 9 IBM CEOs

This personal approach to leadership is the quality that resonates most with IBMers who have worked for Rometty. It's one reason she has been able to keep talented, entrepreneurial employees like Manoj Saxena, a general manager in charge of commercializing the Watson technologies. A serial entrepreneur, Saxena arrived at IBM in 2006 after the company purchased Webify, his business-to-business software startup. "At first my venture capitalist friends were taking bets on how many quarters I'd stay," he says. Rometty promised Saxena more resources and the opportunity to have a bigger impact at IBM, but she sold Saxena on the company a few years ago when he had a health issue. By that time Rometty was managing several hundred thousand people, but she regularly dropped him a personal e-mail to see how he was feeling. "She leads from both her head and her heart," Saxena says.

Customers get head and heart too. Nick Donofrio, who worked closely with Rometty before his retirement from IBM in 2008, remembers helping her address the concerns of a large Midwestern client sometime around 2005. The client had installed some new IBM products that weren't working well. Rometty called Donofrio, who was then executive vice president of innovation and technology, and told him they had to fly out immediately to see the client in person. The pair spent a day working closely with the client to get the project on track. But a day after they got back to New York, the client's system wasn't working again. Rometty insisted they fly out a second time to help the client fix the problem. "Most people wouldn't go twice," said Donofrio. "They'd send a junior person." As it turned out, it wasn't entirely IBM's fault -- the client hadn't followed instructions. But Rometty said nothing. "Ginni's not thinking, Did we do it wrong?" says Donofrio. "That's not where her head is. She's thinking about the client's success." (Perhaps tellingly, Rometty says she doesn't recall this particular example.) The customer, says Donofrio, has become an even larger customer.

IBM is constantly restructuring its workforce, and the coming changes are sure to test Rometty's leadership style. As IBM becomes more global, it will continue to bolster its ranks internationally, leaving the U.S. (an estimated 105,000 employees today) with a smaller number of workers -- mostly researchers, executives who focus on sales and marketing, and talent coming from startup acquisitions. For many current employees -- some of whom already feel taxed by the long hours and penny-pinching that IBM demands -- the process will be wrenching: They'll need to either reinvent themselves, or more likely, move on. And unlike when she was running global services, Rometty won't be able to leave them all a voicemail.

Rometty, 55, caught the eye of her bosses by successfully integrating PwC's consulting business in 2002.

Rometty, 55, caught the eye of her bosses by successfully integrating PwC's consulting business in 2002.

The former Virginia Nicosia is the oldest of four children raised by a single mom outside Chicago. Her mother, with whom she remains very close, was among her strongest influences. By the time she arrived at Northwestern University in 1975, Rometty had matured into a striking, intelligent student who was popular among her peers and successful in the classroom. She pledged the elite sorority Kappa Kappa Gamma, and her pledge mom, Erin McInerney, remembers they connected in part because both came from modest backgrounds. "Unlike most of the other girls, we'd had summer jobs and were on scholarships and had loans," she said. By senior year, Rometty was sorority president.

While many of her classmates studied the arts, Rometty was one of just a few of women to study computer science. In the late '70s, Northwestern's sole academic computer was so large that the university dedicated an entire building, the Vogelbach Computing Center, to housing it. Rometty and her fellow students learned to program it using punch cards. When Rometty needed help on an assignment, a KKG sister coaxed a fellow student named Craig Berman into tutoring her in exchange for dinner at the sorority house -- probably the only place on campus where students were served meals on tablecloths. One Sunday morning Nicosia appeared in Berman's fourth-floor dorm room, "a statuesque blond" who "kicked aside some dirty clothes stacked near the doorway." She had a list of written questions and programming issues, and when he tried to answer the questions, she pushed him instead to explain his method for reaching the solution. "A lot of people look like they are listening, but she really listened," he says.

Berman, who is now a vice president at Jeffries & Co. (JEF), describes his classmate as quiet, focused, always early, and organized. "If she fell off the sidewalk and into the lake, she would have come out wearing a scuba suit," he says. And she had good advice as well. A professor once marked Berman's homework incorrectly. In class he had an opportunity to show the professor up, proving he had the right answer. When he raised his hand, Rometty shoved it down, whispering, "You'll win your argument in private later or lose it in public now."

Rometty graduated in 1979 with a bachelor of science degree with high honors in computer science and electrical engineering. She had attended Northwestern on a scholarship from General Motors (GM), where she had interned between her junior and senior years, and she moved to Detroit to work for the automaker after graduation. There she met her husband, Mark Rometty, now an oil futures investor. The pair, who do not have children, enjoy scuba diving (as a matter of fact) and the occasional Broadway show together, as well as golfing near their Bonita Springs, Fla., home. (Rometty stays in a hotel-run condo in Westchester County when she is in New York.)

MORE: Interactive - investing in the Most Powerful Women

She credits her husband with being a great support to her. She describes a moment early in her career when her boss asked if she'd like to take a big promotion. She told her manager she didn't feel ready, and asked for the night to think about it. At home she discussed it with her husband. "He just looked at me, and he said, 'Do you think a man would have ever answered that question that way?' " Rometty took the promotion.

In 1981, Rometty took a job in IBM's Detroit office as a systems engineer -- a technical consultant of sorts -- for banking customers. In the decades that followed, she moved up through a series of sales and management jobs, working with clients in all of IBM's most important industries -- banking, insurance, telecommunications, manufacturing, and health care. Before moving into senior management, Rometty spent the '90s working in sales, a job for which her tech prowess and people skills made her uniquely qualified. Salespeople who met their annual sales quotas received commemorative pins and luxurious weekend getaways as a reward for earning membership in the prestigious 100% club. Rometty never missed a year.

Three weeks before Rometty was named CEO last fall, we sat together for an onstage conversation at Fortune's annual Most Powerful Women Summit. By then speculation had begun that IBM would soon announce her promotion. I asked her what she'd learned from Palmisano. Rometty reflected. "What he always says is, 'Nothing is inevitable.' " She went on to explain, "Whatever business you're in -- it doesn't matter -- it's going to commoditize over time. It's going to devalue. You've got to keep moving it to a higher value."

To put it another way, Rometty learned that IBM must keep evolving. There is always a new shift coming in technology, and if she doesn't help IBM become the first to discover and commercialize it, the company will lose its shirt.

It's sage advice that came through experience. The company is still haunted by the near-death experience of the early '90s, when it missed the technology shift to personal computers and came within a quarter of going bankrupt. Palmisano was the first CEO to step into the role after Gerstner turned the company around -- and he responded by making bold research-based decisions about the future of the business, and enforcing maniacal discipline over how those decisions were carried out. Perhaps most important, and somewhat unusual for contemporary corporate culture, he nurtured a consistent team of senior executives -- mostly IBM lifers -- with very little turnover.

Rometty (from left): watching the Masters golf tournament in Augusta, Ga., in April; giving a speech in Beijing last year; with businessman David Koch at the Time 100 Gala this year

Rometty (from left): watching the Masters golf tournament in Augusta, Ga., in April; giving a speech in Beijing last year; with businessman David Koch at the Time 100 Gala this year

IBM likes its leaders to keep a low profile, preferring a ruthless focus on customers to coverage in the press. Earlier this year when the all-male Augusta National Golf Club, which has historically offered membership to CEOs of companies like IBM that sponsor the event, did not offer Rometty a membership, she kept mum about the affair, even as the snub ignited a media firestorm. Though she hasn't explained herself, one gets the sense that her greatest contribution to feminism won't be helped by speaking out on issues so much as making IBM successful. She has a company to run.

So in keeping with IBM's traditional long-term approach to management, Rometty has been fulfilling the goals she helped her predecessor draft in IBM's 2015 Roadmap. To hit the massive $20 billion goal, Rometty has spelled out four high-growth areas for the company to focus on. It will continue the Smarter Planet work, in which it infuses the traditional systems that make our towns and cities work with new forms of computing. Revenue from this initiative jumped 50% last year as IBM began to attach the word "smarter" to new market categories like cities and commerce. The company will also invest in helping companies adopt aspects of cloud computing, and it will supercharge its work in business analytics. Rometty will spend a good deal of her time personally nursing along deals in growth markets, which are expected to provide up to 30% of IBM's revenue by 2015.

To that end, Rometty has been crisscrossing the globe since January. She set an early goal for herself of meeting 100 client CEOs in her first two months, and she quickly surpassed it. In April she traveled to Brazil to spend nearly a week hammering out the details of her first big CEO transaction, a deal with the energy business magnate Eike Batista, who calls her "transparent and straightforward." IBM will take over the IT operations for Batista's EBX Group in a contract that is estimated to be worth $1 billion over the next decade, and it will buy a 20% stake in an EBX subsidiary that provides tech services to industries like mining, energy, and shipbuilding.

MORE: What does power really mean?

As much as Rometty is acting on the strategy Palmisano laid out, she has put her own signature on the company as well. One big challenge with which IBM struggles is its reputation for being slow to execute projects, which are sometimes lumbered by layers of bureaucracy. So Rometty is attempting a fix. IBM's most senior executives have long served on three teams -- operating, technology, and strategy -- to help guide the company. Rometty created a fourth leadership team, the Client Experience Team, which she chairs. There are no senior executives on the team. Rather, she appointed a series of client-facing executives to meet with her once a month. They bring in other business leaders -- recently they hosted Ritz-Carlton chief sales and marketing officer Chris Gabaldon -- to hear how other companies manage customer relationships. Rometty says it's not about "clearing away roadblocks" so much as creating the "signature IBM relationship." IBM hopes it will help the company's reputation with customers as well.

As Rometty marches the company into IBM's second century, technology is again shifting. Rometty says we are entering the "cognitive era" of computing. History has produced only three computing eras so far, she explains. The first encompassed machines that counted and tabulated -- the calculators and punch-card machines that Thomas Watson first manufactured. The second era, which began in 1960, brought programmable computers to market. "Everything you know today -- the iPad in front of you -- is just programmable," Rometty told the audience at that first customer conference. What comes next? "This era is machines that learn."

The best example of this is IBM's Watson supercomputer, which soundly defeated the two men holding the longest Jeopardy! winning streaks. The computer system understands natural language. It can generate hypotheses, recognizing that there are different statistical probabilities for each outcome. And it learns as it goes along, refining its responses. When Rometty talks about the cognitive era of computing, that is what she means.

Jeopardy! champ Ken Jennings competes against IBM's Watson supercomputer.

Jeopardy! champ Ken Jennings competes against IBM's Watson supercomputer.

Watson came from IBM's labs, where the company invests an average of $6 billion annually. Now IBM is unleashing Watson on the business world. Longtime IBM customer Lori Beer drove to Yorktown Heights, N.Y., to watch that final match live, and that's where she first met Rometty. Beer, an EVP who oversees tech purchases for health insurer WellPoint (WLP), thought maybe Watson could be useful. She visited IBM Research, and Rometty made several visits to WellPoint. "She actually spent the time to get to know us," Beer says. "She really made sure she understood what the issues are."

By September 2011 the companies had hammered out a deal for WellPoint to use Watson's data crunching to help suggest treatment options and diagnoses to nurses and doctors. When presented with information about a new patient in the future, Watson will look for data on those with similar symptoms, as well as the treatments that have been most successful. It will provide a range of treatment options, going so far as to suggest how likely it is to be right about each selection. Less than a year after the contract was signed, the first pilots were rolled out in August with WellPoint nurses who manage complex patient cases and review treatment requests from medical providers. Meanwhile, Watson's computers are being put through a medical school of sorts, absorbing medical records and other data so that by the end of 2013 they can be deployed in oncology practices to help doctors treat cancer patients.

Rometty, of course, believes that Watson has great promise beyond medicine. That's why she had Beer speak at her first customer conference, the one that brought together technologists and marketers. The predictive nature of the technology could reinvent any company flooded with increasingly large amounts of data -- nowadays basically every business in every industry. But first, Rometty will have to translate the idea to a host of new customers who never fancied themselves all that technically minded. And like the eight men who have run this iconic company before her, she'll have to sell them on it.

This story is from the October 8, 2012 issue of Fortune.

20 Sep, 2012


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What does power really mean to women?

FORTUNE -- Here is what I learned from being present at the creation of Fortune Most Powerful Women in 1998 and helping to produce the annual MPW list 15 times.

Power is what you make it.

And Power, in the minds of the Fortune MPW, has changed greatly.

Let me explain, by taking you back to MPW's beginnings. MPW started, actually, with a trip to New Jersey in the summer of 1998. I visited Lucent Technologies, then a red-hot telecom giant, to interview the two most senior women there. One was a well-known executive who had turned around businesses inside AT&T (T): Lucent EVP Pat Russo. The other was a woman few people outside of telecom had heard of. Her name was Carly Fiorina.

When the 44-year-old group president of Lucent's Global Services Provider business told me her story that day, I was beyond impressed. Fiorina had dropped out of law school, started as a secretary, and risen to head Lucent's largest division. By Fortune's criteria -- the size and importance of the woman's business in the global economy, the health and direction of the business, the arc of the women's career, social and cultural influence -- Fiorina possessed more power than Oprah Winfrey. We named Oprah No. 2 that first year. We made Carly No. 1 and put her on Fortune's cover.

When she scored the CEO job at Hewlett-Packard (HPQ) the following summer, it was a stunning advance for women, but Fiorina felt anxiety about her power. "My strength is my strength, but it also can be a weakness," she later told me, as she struggled to hold on at HP. Her leadership style came across as too aggressive to many. In 2005, the board fired her.

The band of acceptable behavior for women leaders was, back then, even narrower than it is today. No question, aggressive women are judged more harshly than men tend to be. To deal with that reality, many women succeed by deploying a gentler brand of power.

Meg Whitman, as CEO of eBay (EBAY) (Fiorina's successor at No. 1 on the MPW list), was nicknamed "mom" by her senior team. Later, running for governor of California and taking charge at troubled HP, she necessarily toughened.

Anne Mulcahy, who saved Xerox (XRX) from bankruptcy, used to define power as "influence" -- "so it doesn't feel like power. It feels like consensus," she said. It took a years of being in charge, but "I've learned that a decision needs to be made. A call needs to be made...I'm still learning."

And then there is Oprah. When I interviewed her for a Fortune cover story, Oprah Inc., in 2002, she disliked the word "power" and refused to call herself a businesswoman. ("If I'm a businesswoman and a brand, where is my authentic self?" she asked.) Eight years later, when I returned to Chicago to talk with her about launching her cable TV network, OWN, she told me, "I accept that I'm a brand" -- and owned her "power."

Own your power. That's what I told Facebook (FB) COO Sheryl Sandberg the first time I met her, when she was the top woman at Google. Ken Auletta captured the moment in his 2011 profile of Sandberg in The New Yorker:

"Sandberg says that she had an "Aha!" moment in 2005, when Pattie Sellers, an editor at large at Fortune, invited her to the magazine's Most Powerful Women Summit, an annual gathering of several hundred women. Sandberg attended, but she thought the title was embarrassing, and refused to list it on the Web-based calendar that she shared with her colleagues. She says that Sellers later chided her for being timid [and asked] 'What's wrong with owning your power?'"

Sandberg urged young women to own their power in her 2009 essay for Fortune: "Don't Leave Before You Leave." Today, she is the world's most visible cheerleader for aspiring women, challenging them to take risks and "lean in" to their careers.

This year, the spotlight shines on two MPW who also have learned to own their power. IBM (IBM) CEO Ginni Rometty, Fortune's new No. 1 on the list, admitted at last year's Most Powerful Women Summit that early in her career when a boss offered her a promotion, she told him that she didn't feel ready. Actually, her husband gave her the "aha moment": "Do you think a man would have ever answered that question that way?" he asked her. Rometty accepted the promotion.

And vaulting up this year's Fortune MPW rankings, to No. 14: Marissa Mayer. In July, after accepting the CEO job at Yahoo (YHOO), the former Google (GOOG) executive revealed to Fortune: "I'm pregnant." A self-described shy "nerd" from Wausau, Wisconsin, Mayer is not only the youngest woman ever to make the MPW list. At 37, she is also the youngest CEO of a Fortune 500 company and the first to assume that top job pregnant.

The fact that the Yahoo board -- and the world, which reacted mostly positively --welcomes a female chief with a complicated life is progress.

Yes, Power is evolving. Mayer's story evokes the definition of power that I've come to embrace: Real power is personal power. It's what you do and what you have beyond your job description and your tenure. Real power is what you do with your full life.

20 Sep, 2012


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Inside Salesforce's major transformation

FORTUNE -- Salesforce has long been known for its cloud-based customer relationship management software for salespeople. That's why, after all, its ticker symbol is CRM.  But during a lengthy keynote speech at the company's annual Dreamforce conference on Wednesday, CEO Marc Benioff unveiled a slew of new products he hopes will be snapped up by HR and marketing teams, among other business groups.

Much of the new software is the product of recent acquisitions. Take Work.com, a feedback and performance review tool that was started by a small company called Rypple, which Salesforce acquired late last year. San Francisco-based Salesforce says Work.com will "liberate performance management from a top-down, once-a-year process into an integrated daily solution that makes a meaningful impact on business performance."

How exactly? By putting feedback and rewards capabilities within apps that employees and managers use regularly. (Of course, its success will at least partly depend on the company's ability to build Work.com into all sorts of apps, not just those made by Salesforce). Salesforce also announced the Marketing Cloud, which helps companies track and manage social media activity and is a combination of technology from recent acquisitions like Buddy Media and Radian6.

MORE: Intel wants to reinvent computing--again

Branching out from its core product isn't an option for Salesforce -- it's a necessity for the company to keep growing and keep investors happy, not to mention stave off increasing competition from larger enterprise players who are entering the cloud-based software space. At last year's Dreamforce Benioff pushed Chatter, his "Facebook for the enterprise." But it's clear Salesforce is ramping up its efforts to expand, and is making the necessary acquisitions to accelerate the process.

Of course, new products bring new competitors, and even though Salesforce has made a name for itself as the cloud-based CRM vendor, it's new to the hotly contested, so-called "human capital management" set of software tools used by HR departments. Meanwhile, large, traditional enterprise software companies like SAP (SAP) and Oracle (ORCL) have thrown billions -- not just millions -- of dollars on similar acquisitions.

There are also plenty of smaller, nimble competitors that Salesforce will be up against with Chatterbox, yet another new product that was officially announced this week. Chatterbox will allow customers to manage and share business files -- it's no surprise Salesforce is calling it the "Dropbox for the Enterprise." Several other players have already made headway in the file sharing business, like Box, which says it is being used in 120,000 companies (customers include AARP, Red Bull and P&G).

MORE: Can the Lumia smartphone save Nokia?

So what's next for Salesforce? Expect the company to expand its HR offerings with recruitment tools and other software. And expect more acquisitions and more attempts to push itself as a platform for developers, not just an application provider. Oh, and you can also expect Dreamforce to continue to be one of the most over-the-top technology conferences out there. Salesforce pulled out all the stops for this year's 90,000 attendees -- both MC Hammer and the Red Hot Chili Peppers performed.

20 Sep, 2012


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HP and IBM: Two paths, one future

By Kevin Kelleher, contributor

FORTUNE -- On the face of it, Hewlett-Packard and IBM have a lot in common. Both are storied brands with rich legacies that shaped high-tech. Both are working with companies large and small to help manage their technology. Both are angling for a piece of the markets -- like cloud computing and big data -- that promise years of growth.

And both have new chief executive officers: Meg Whitman moved into HP's (HPQ) CEO office a year ago; Virginia Rometty took the reins at IBM (IBM) in January. Both companies share a similar vision for success. And both face similar challenges to get there, like a sluggish global economy and the rise of disruptive new technologies.

Despite this bedrock sameness, HP and IBM are pushing forward on different paths. HP is in the midst of a multi-year turnaround, while IBM is building on a long-term plan outlined years ago. Neither company's path was charted in large part by its current leader. Why? First, their views on the role of hardware versus software in the future of IT; and second, their approach to mergers and acquisitions.

IBM's last decade has been marked by steady leadership pursuing a long-term course. To move forward from its recent history as a maker of big computers, the company famously pushed into IT-consulting services and software, taking a step away from hardware in 2004 by selling the PC division to Lenovo for $1.75 billion.

MORE: What does power really mean to women?

Like IBM, HP saw years ago that the future of big tech was not in selling big computers to companies, but in taking on the increasingly complex tasks of managing them and all the antecedent technologies. But unlike IBM, HP maintained that hardware would continue to play a key role in its tech outsourcing business -- a bet the company made when it spent $25 billion for Compaq in 2002.

After Compaq, HP continued to grow. It went from a company that made $57 billion in revenue in 2002 to one that made $127 billion last year. By contrast, IBM grew relatively slowly -- from $81 billion in revenue in 2002 to $107 billion last year.

Over the past decade, HP has trumped IBM in revenue growth through its aggressive acquisitions. Under Mark Hurd's tenure, between 2006 and 2010, HP spent big on tech brand names like EDS ($13.9 billion), 3Com ($2.7 billion), Palm ($1.2 billion) and 3Par ($2.4 billion). Under Hurd's ill-starred successor Léo Apotheker, HP spent $1.6 billion on ArcSight and $11 billion on Autonomy, two software companies.

IBM, by contrast, has made many mergers and acquisitions since spinning off its PC division, but only once in that tine has it spent more than $2 billion -- for business software maker Cognos for $5 billion in 2008. Instead, it's made a handful of billion dollar deals in that time span: Internet Security Systems ($1.6 billion), data analytics firm Netezza ($1.7 billion), Sterling Commerce ($1.4 billion), and others.

MORE: IBM's Ginni Rometty looks ahead

But there is another aspect to the story. Ever since Lewis Platt stepped down as HP's CEO in 1999, the company has gone through seven different leaders, including two interim CEOs. That's as many CEOs as IBM has seen since Thomas Watson, Jr., retired from IBM in 1971.

The pace of CEO turnover can be crucial: While IBM has had the luxury of laying out five-year plans, HP has shifted from hardware execs Fiorina and Hurd to software exec Apotheker to e-commerce veteran Whitman. And those transitions -- or lack thereof -- have had a big impact on the two companies' strategies.

In other words, HP's M&A moves in the past decade chronicle the strategy of a tech giant pushing into hardware and software alike, a clear bet on a future that would rely on both. IBM, by contrast, saw its future more in the zeros and ones of software than the physical machinery of hardware.

HP paid big for its bets on hardware, wagering it would win out in the end. IBM, meanwhile, made lots of smaller bets on software, which has proven to be a cheaper business to start-up than hardware. That doesn't mean IBM won't pay out for acquisitions: The company has indicated it will spend $20 billion on deals through 2015 -- more than it has spent in the last 10 years.

MORE: Investing in the Most Powerful Women

What it means is IBM believes its big investments will be in software companies that are only starting to show their stuff. HP, of course, will also be looking for good software investments, but it wants to counterbalance them against some of the hardware companies that it bought over the past several years. It's a debate between pure software versus a mix of software and hardware.

HP's bet is risky because the world of tech is more and more driven by software. Hardware is and will always be an important component of tech, but in many areas -- personal computers, servers, switches and routers -- software is driving efficiencies and innovation. Hardware, while ever improving, is increasingly seen as more of a commodity business that delivers low margins.

Software, of course, has long been a high-margin business. Even though HP, through its years of acquisitions, has seen its revenue grow faster than IBM's, it is IBM that has enjoyed the bigger profits. Last year, IBM's operating profit was 27% of its revenue, versus an 8% margin for HP.

That's where IBM and HP stand today. The bigger question for their new CEO's is, where will these companies go? Where can their leaders take them?

Rometty has indicated she will build on the strategies set down by her predecessors, although she is willing to put a bold stamp on the company if that's what it needs. Whitman has been frank about the challenges facing HP, yet willing to make tough calls on its future. Whitman resisted demands from investors to spin-off HP's PC business. And this week, she reiterated her desire to make the company a player in the growing market for smartphones.

There is room for both companies to thrive, whenever the global economy finally improves. IBM will tell companies it's got the consulting, infrastructure and software expertise they need to push into the brave new era of tech. HP will say it offers the same, but it has the soup-to-nuts solution -- from consultants to apps to PCs and smartphones -- that's even more comprehensive. Both will battle other giants in the space, like Oracle (ORCL) and Dell (DELL).

Will both thrive? The financial markets measure a discrepancy. IBM is up 13% so far this year. HP is down 29%. IBM has a market cap of $236 billion. HP is valued at $36 billion, or less than a sixth of its rival's value.

But before you consider any of those statistics, consider the single metric that many people believe says more about a tech giant's future than anything. IBM has spent $18 billion in research and development over the last three years, or 6.0% of its revenue in that period. HP has spent $9 billion in the same period, or 2.5% of its revenue. To plan for the future may mean spending less on high-ticket acquisitions and more on research and development. As both companies steer toward a brighter tomorrow, that strategy seems one well worth betting on.

20 Sep, 2012


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The 50 Most Powerful Women

CEO
IBM
2011 rank: 7
Age: 55

A 31-year IBM veteran, Rometty has been a key supporting player in some of Big Blue's biggest transformations: She managed the $3.5 billion PwC Consulting acquisition that launched IBM in the services business, and with chairman Sam Palmisano worked to develop the five-year growth plan. As CEO, she's now in charge of delivering on it.

By Beth Kowitt, Colleen Leahey, and Anne VanderMey.

20 Sep, 2012


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Sheila Bair and the bailout bank titans

By Sheila Bair, contributor

From left: Goldman's Lloyd Blankfein, J.P. Morgan Chase's Jamie Dimon, Citigroup's Vikram Pandit, and Merrill Lynch's John Thain leaving the Treasury in October 2008 after being offered a $125 billion bailout package

From left: Goldman's Lloyd Blankfein, J.P. Morgan Chase's Jamie Dimon, Citigroup's Vikram Pandit, and Merrill Lynch's John Thain leaving the Treasury in October 2008 after being offered a $125 billion bailout package

FORTUNE -- Few players had as close a view of the financial crisis as Sheila Bair, chairman of the Federal Deposit Insurance Corp. from June 2006 to July 2011. In this excerpt from her new book, Bull by the Horns: Fighting to Save Main Street From Wall Street and Wall Street From Itself, Bair, a Fortune columnist, describes a crucial meeting she attended at the Treasury Department on Monday, Oct. 13, 2008. There Treasury Secretary Hank Paulson persuaded a roomful of bank CEOs, including J.P. Morgan's Jamie Dimon, Citigroup's Vikram Pandit, and Goldman's Lloyd Blankfein, to go along with a $125 billion TARP bailout.

I took a deep breath and walked into the large conference room at the Treasury Department. I was apprehensive and exhausted, having spent the entire weekend in marathon meetings with Treasury and the Fed. I felt myself start to tremble, and I hugged my thick briefing binder tightly to my chest in an effort to camouflage my nervousness. Nine men stood milling around in the room, peremptorily summoned there by Treasury Secretary Henry Paulson. Collectively, they headed financial institutions representing about $9 trillion in assets, or 70% of the U.S. financial system. I would be damned if I would let them see me shaking. I nodded briefly in their direction and started to make my way to the opposite side of the large polished-mahogany table, where I and the rest of the government's representatives would take our seats, facing off against the nine financial executives once the meeting began. My effort to slide around the group and escape the need for hand shaking and chitchat was foiled as Wells Fargo (WFC) chairman Richard Kovacevich quickly moved toward me. He was eager to give me an update on his bank's acquisition of Wachovia, which, as chairman of the Federal Deposit Insurance Corp. (FDIC), I had helped facilitate. He said it was going well. I told him I was glad. Kovacevich could be rude and abrupt, but he and his bank were very good at managing their business and executing on deals. I had no doubt that their acquisition of Wachovia would be completed smoothly and without disruption in banking services to Wachovia's customers, including the millions of depositors the FDIC insured.

MORE: Forget Washington - here's how we'd fix the economy

As we talked, out of the corner of my eye I caught Vikram Pandit looking our way. Pandit was the CEO of Citigroup (C), which had earlier bollixed its own attempt to buy Wachovia. There was bitterness in his eyes. He and his primary regulator, Timothy Geithner, the head of the New York Federal Reserve Bank, were angry with me for refusing to object to the Wells acquisition of Wachovia, which had derailed Pandit's and Geithner's plans to let Citi buy it with financial assistance from the FDIC. I had had little choice. Wells was a much stronger, better-managed bank and could buy Wachovia without help from us. Wachovia was failing and certainly needed a merger partner to stabilize it, but Citi had its own problems -- as I was becoming increasingly aware. The last thing the FDIC needed was two mismanaged banks merging. Paulson and Bernanke did not fault my decision to acquiesce in the Wells acquisition. They understood that I was doing my job -- protecting the FDIC and the millions of depositors we insured. But Geithner just couldn't see things from my point of view. He never could.

Pandit looked nervous, and no wonder. More than any other institution represented in that room, his bank was in trouble. Frankly, I doubted that he was up to the job. He had been brought in to clean up the mess at Citi. He had gotten the job with the support of Robert Rubin, the former secretary of the Treasury who now served as Citi's titular head. I thought Pandit had been a poor choice. He was a hedge fund manager by occupation and one with a mixed record at that. He had no experience as a commercial banker, yet now he was heading one of the biggest banks in the country.

Still half-listening to Kovacevich, I let my gaze drift toward Kenneth Lewis, who stood awkwardly at the end of the big conference table, away from the rest of the group. Lewis, the head of the North Carolina-based Bank of America (BAC) -- had never really fit in with this crowd. He was viewed somewhat as a country bumpkin by the CEOs of the big New York banks, and not completely without justification. He was a decent traditional banker, but as a dealmaker his skills were clearly wanting, as demonstrated by his recent, overpriced bids to buy Countrywide Financial, a leading originator of toxic mortgages, and Merrill Lynch, a leading packager of securities based on toxic mortgages originated by Countrywide and its ilk. His bank had been healthy going into the crisis but would now be burdened by those ill-timed, overly generous acquisitions of two of the sickest financial institutions in the country.

Other CEOs were smarter. The smartest was Jamie Dimon, the CEO of J.P. Morgan Chase (JPM), who stood at the center of the table, talking with Lloyd Blankfein, the head of Goldman Sachs (GS), and John Mack, the CEO of Morgan Stanley (MS). Dimon was a towering figure in height as well as leadership ability. He had forewarned of deteriorating conditions in the subprime market in 2006 and had taken preemptive measures to protect his bank before the crisis hit. As a consequence, while other institutions were reeling, mighty J.P. Morgan Chase had scooped up weaker institutions at bargain prices. Several months earlier, at the request of the New York Fed, and with its financial assistance, he had purchased Bear Stearns. A few weeks earlier he had purchased Washington Mutual, a failed West Coast mortgage lender, from us in a competitive process that had required no financial assistance from the government.

Blankfein and Mack listened attentively to whatever it was Dimon was saying. They headed the country's two leading investment firms, both of which were teetering on the edge. Blankfein's Goldman Sachs was in better shape than Mack's Morgan Stanley. Both suffered from high levels of leverage, giving them little room to maneuver as losses on their mortgage-related securities mounted. Blankfein, whose puckish charm and quick wit belied a reputation for tough, if not ruthless, business acumen, had recently secured additional capital from the legendary investor Warren Buffett. Buffett's investment had not only brought Goldman $5 billion of much-needed capital but had also created market confidence in the firm: If Buffett thought Goldman was a good buy, the place must be okay. Similarly, Mack, the patrician head of Morgan, had secured commitments of new capital from Mitsubishi Bank. The ability to tap into the deep pockets of this Japanese giant would probably by itself be enough to get Morgan through.

Not so Merrill Lynch, which was insolvent. Even as clear warning signs had emerged, Merrill had kept taking on more leverage while loading up on toxic mortgages. Merrill's new CEO, John Thain, stood outside the perimeter of the Dimon-Blankfein-Mack group, trying to listen in. Frankly, I was surprised that he had even been invited. He was younger and less seasoned than the rest of the group. He had been Merrill's CEO for less than a year. His main accomplishment had been to engineer its overpriced sale to Bank of America. Once the BofA acquisition was complete, he would no longer be CEO, if he survived at all. [He didn't. He was subsequently ousted over his payment of excessive bonuses and lavish office renovations.] At the other end of the table stood Robert Kelly, the CEO of Bank of New York (BK), and Ronald Logue, the CEO of State Street Corp. (STT)

MORE: The 5 myths of the great financial meltdown

The game plan for the meeting was for Hank to tell all the CEOs that they would have to accept government capital investments in their institutions, at least temporarily. Yes, it had come to that: The government of the United States, the bastion of free enterprise and private markets, was going to forcibly inject $125 billion of taxpayer money into those behemoths to make sure they all stayed afloat. Not only that, but my agency, the FDIC, had been asked to start temporarily guaranteeing their debt to make sure they had enough cash to operate, and the Fed was going to be opening up trillions of dollars' worth of special lending programs. All that, yet we still didn't have an effective plan to fix the unaffordable mortgages that were at the root of the crisis.

The room became quiet as Paulson entered, with Bernanke and Geithner in tow. We all took our seats. He got right to the point. We were in a crisis and decisive action was needed, he said. Treasury was going to use the Troubled Asset Relief Program (TARP) to make capital investments in banks, and he wanted all of them to participate.

Paulson asked Geithner to tell each bank how much capital it would accept from Treasury. He eagerly ticked down the list: $25 billion apiece for Citigroup, Wells Fargo, and J.P. Morgan Chase; $15 billion for Bank of America; $10 billion each for Merrill Lynch, Goldman Sachs, and Morgan Stanley; $3 billion for Bank of New York; $2 billion for State Street.

Treasury Secretary Hank Paulson in a October 2008 press conference in Washington explaining the bank bailout. Behind him, from left: Fed chairman Ben Bernanke; FDIC chairman Sheila Bair; New York Fed chief Tim Geithner; Comptroller of the Currency John C. Dugan; SEC head Christopher Cox; and Office of Thrift Supervision chairman John M. Reich.

Treasury Secretary Hank Paulson in a October 2008 press conference in Washington explaining the bank bailout. Behind him, from left: Fed chairman Ben Bernanke; FDIC chairman Sheila Bair; New York Fed chief Tim Geithner; Comptroller of the Currency John C. Dugan; SEC head Christopher Cox; and Office of Thrift Supervision chairman John M. Reich.

Then the questions began.

Thain, whose bank was desperate for capital, was worried about restrictions on executive compensation. I couldn't believe it. Where were the guy's priorities? Lewis said that BofA would participate and that he didn't think the group should be discussing compensation. I watched Vikram Pandit scribbling numbers on the back of an envelope. "This is cheap capital," he announced. I wondered what kind of calculations he needed to make to figure that out. Treasury was asking for only a 5% dividend. For Citi, of course, that was cheap; no private investor was likely to invest in Pandit's bank. Kovacevich complained, rightfully, that his bank didn't need $25 billion in capital. I was astonished when Hank shot back that his regulator might have something to say about whether Wells' capital was adequate if he didn't take the money. Dimon, always the grownup in the room, said that he didn't need the money but understood it was important for system stability. Blankfein and Mack echoed his sentiments.

A Treasury aide distributed a terms sheet, and Paulson asked each of the CEOs to sign it, committing their institutions to accept the TARP capital. John Mack signed on the spot; the others wanted to check with their boards, but by day's end, they had all agreed to accept the money.

We publicly announced the stabilization measures on Tuesday morning. The stock market initially reacted badly but later rebounded. "Credit spreads" -- a measure of how expensive it is for financial institutions to borrow money -- narrowed significantly. All the banks survived; indeed, the following year their executives were paying themselves fat bonuses again.

In retrospect, the mammoth assistance to those big institutions seemed like overkill. I never saw a good analysis to back it up. But that was a big part of the problem: lack of information. When you are in a crisis, you err on the side of doing more, because if you come up short, the consequences can be disastrous.

MORE: Surprise! The Big Bad Bailout Is Paying Off

The fact remained that with the exception of Citi, the commercial banks' capital levels seemed to be adequate. The investment banks were in trouble, but Merrill had arranged to sell itself to BofA, and Goldman and Morgan had been able to raise new capital from private sources, with the capacity, I believed, to raise more if necessary. Without government aid, some of them might have had to forgo bonuses and take losses for several quarters, but still, it seemed to me that they were strong enough to bumble through. Citi probably did need that kind of massive government assistance (indeed, it would need two more bailouts later on), but there was the rub. How much of the decision-making was being driven through the prism of the special needs of that one, politically connected institution? Were we throwing trillions of dollars at all the banks to camouflage its problems? Were the others really in danger of failing? Or were we just softening the damage to their bottom lines through cheap capital and debt guarantees?

Granted, in late 2008 we were dealing with a crisis and lacked complete information. But throughout 2009, even after the financial system stabilized, we continued generous bailout policies instead of imposing discipline on profligate financial institutions by firing their managers and boards and forcing them to sell their bad assets.

The system did not fall apart, so at least we were successful in that, but at what cost? We used up resources and political capital that could have been spent on other programs to help more Main Street Americans. And then there was the horrible reputational damage to the financial industry itself. It worked, but could it have been handled differently? That is the question that plagues me to this day.

This story is from the October 8, 2012 issue of Fortune.

Excerpted from Bull by the Horns: Fighting to Save Main Street From Wall Street and Wall Street From Itself, by Sheila Bair. Copyright © 2012 by Sheila Bair. To be published September 25, 2012, by Free Press, a division of Simon & Schuster, Inc.

20 Sep, 2012


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New Internet lobbying group takes on Big Media

Written By Emdua on Rabu, 19 September 2012 | 14.18

FORTUNE -- The media industry has been lobbying Washington since before the Silent Film Era. The tech and Internet industries, which are increasingly pitted against Hollywood and the music business (mainly over piracy) have been slower to establish themselves on K Street.

That's been changing in recent years, and today marks the launch of the Internet Association, banding together such companies as Facebook (FB), Google (GOOG), Amazon (AMZN), eBay (EBAY) and several others to fight for what it calls "a free and innovative Internet."

There are good reasons for the industry's initial reluctance to plant a foothold in Washington: the commercial Internet was created largely by fast-moving, fast-growing companies often run by technolibertarian types and financed by venture capitalists who by and large felt no need for Washington's help and no desire to entangle themselves in politics. Unlike many new industries in earlier times, information technology and the Internet grew during a long period of deregulation, and government mostly left those industries alone (with certain notable exceptions.)

That's changing, with government now taking on issues such as intellectual property, antitrust, and taxation. At the same time, Silicon Valley -- in particular, the Internet industry -- has finally learned that it must counter the media industry's formidable political power with some power of its own.

Intellectual property is the new group's main concern, at least for the moment. Silicon Valley was spooked by the attempts to pass the Stop Online Privacy Act (or SOPA, in the House) and the Protect IP Act (or PIPA, in the Senate). Those bills were basically shouted down early this year by a public led by various interest groups. But it was considered a near-miss by a Hollywood that seems intent on imposing highly restrictive rules on Internet traffic through its dubious effort to fight piracy.

The group calls itself "an umbrella public policy organization dedicated to strengthening and protecting a free and innovative Internet." The association's CEO, Michael Beckerman said in a statement that the member companies "are all fierce competitors in the marketplace" that nevertheless "recognize the Internet needs a unified voice in Washington." The "future of the Internet is at stake," he said. Beckerman is a former staffer for the House Energy and Commerce Committee, which oversees Internet and telecommunications policy.

The other companies in the group are: AOL (AOL), Expedia (EXPE), IAC (IACI), LinkedIn (LNKD), Monster Worldwide (MWW), Rackspace (RAX), salesforce.com,TripAdvisor (TRIP), Yahoo (YHOO) and Zynga (ZNGA). Notably absent are Apple (AAPL)  and Microsoft (MSFT).

20 Sep, 2012


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Peer39 founder joins Sequoia Capital

FORTUNE -- Peer39 founder Amiad Solomon has joined Sequoia Capital as an Israel-based venture partner, Fortune has learned.

In an email to friends and colleagues, Solomon wrote:

It's been 7 years now since we started Peer39, created a new category of 'semantic advertising' and managed to make a small dent in the ad-tech landscape. Since then I've went on and co-founded three new Internet ventures with the most amazing teams - Komoona a fast growing profitable company serving the long tail; Radyoos Media, a company in the 'real time' consumer application space and Sparks a new e-commerce venture (coming soon).

My true passion is starting new companies and exploring new boundaries, now I hope to help early on fellow entrepreneurs do the same.

Sequoia has financed and helped built enormously successful companies, including Google, Yahoo, Paypal, YouTube, Cisco, Oracle, Apple, Linkedin, Zappos and many more – I believe that we should aim to build those types of businesses and successes out of Israel.

Peer39 raised over $30 million in VC funding, but ultimately was sold earlier this year for just $15.5 million to Digital Generation (DG). None of Solomon's subsequent three start-ups appear to have yet raised any institutional funding.

Prior to Peer39, Solomon worked in sales and business development for a company later acquired by General Electric (GE).

Sign up for Dan's daily email newsletter on deals and deal-makers: GetTermSheet.com

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Why Intel's Sean Maloney is retiring

Intel's Maloney and his family in Beijing

Sean Maloney, the Intel (INTC) executive who came back from a massive stroke to head the company's China operation, plans to retire in January.

Maloney, whom I profiled last year in "The Man Who Couldn't Speak," continues his recovery from his 2010 stroke. I haven't reached him. (It was bedtime in China when Intel announced the news this morning). But a source at Intel tells me that several factors led to Maloney's decision to retire.

First, there is the crazy pace and constant travel that accompanies the job of running Intel's $8.1 billion business in China.

Beyond that, Maloney has successfully built a leadership team in China and expanded the business there.

Perhaps most important of all, Maloney--once considered No. 1 in line to succeed Intel CEO Paul Otellini--realized that key to his ongoing recovery is quality time with his family. Maloney has six children. He and his wife, Margaret, and their three young daughters moved from Palo Alto to Beijing last summer. The Maloneys now plan to return to Silicon Valley.

20 Sep, 2012


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How good is Amazon's new Kindle Fire really?

FORTUNE -- When the first Kindle Fire arrived last year, some critics and users were quick to judge. The hardware could have been faster and better designed, the software less spastic. And where were the volume buttons?

Fast-forward a year or so and there's a slew of new Kindles to buzz over. The first to arrive, the 7-inch Kindle Fire HD, is entirely new. Weighing in at 14.6 ounces, this tablet keeps that stealthy all-black scheme, but it's now wider and squatter. Instead of shrinking, the black borders around the screen are larger, some would say unnecessarily so. The corners and back are more rounded. That's mostly a good thing, as it's easier to hold for longer periods of time.

MORE: How Amazon can top the tablet market

Newer tablets seem to be adopting quad-core processors, but Amazon (AMZN) chose instead a dual-core Texas Instruments' CPU here, along with 16 GB of storage, 1GB of RAM, Bluetooth, a gyroscope, a new set of built-in Dolby Digital Plus audio speakers, and dual WiFi antennas that CEO Jeff Bezos says translates to faster download speeds and more consistent reception. The display has been streamlined to reduce glare.

We spent a week with the Kindle Fire HD in tow, and  found it to be a significant improvement over last year's version all-around. For the most part, it feels like the hardware has caught up with software. Apps, books, videos and other media opened faster. Images are brighter and sharper on this new display, though in most cases, you still won't be able to read comfortably in the sun. As for those Dolby speakers? They're the loudest we've ever heard on any tablet: lacking in bass, but sharp and clear.

Amazon's software, a heavily customized version of Google's (GOOG) Android operating system, still resembles a book shelf, with a carousel-like row of recently browsed media to swipe through. But in lieu of a bottom row of favorited media, the row is now context-sensitive, changing based on the piece of media at the forefront of the carousel. If a book is highlighted, then the row below reveals several other works "Customers Also Bought." It's smart -- certainly another way for Amazon to potentially boost its sales even more via recommendations -- but  keeping the ability to somehow pin your favorite apps to the homescreen would have been useful. And for those wondering, the newest version of Amazon's Silk Browser is reportedly 30% to 40% faster. Anecdotally, we noticed Web sites loading faster, but not as fast as Chrome on other Android tablets or on Apple's (AAPL) iPad.

MORE: 5 ways the Kindle can become a top tablet

Amazon's Kindle Fire tablet may be a big improvement on last year's model, but there are some issues holding it back. The display may be sharper and brighter, but the tablet didn't always respond to our touch. (Opening a book for instance, sometimes required two or three taps.) We also never reached the 11 hours of battery life Amazon has advertised -- in the real world, it was more like 8.5. And we wish Amazon would include a power adapter in the box. Instead, that's a $20 item owners have to buy separately, which shouldn't have to be the case.

There's also the question of what you're using this for. Is it, as Bezos recently said, "the best tablet at any price?" No. Google's Nexus 7 is lighter, priced similarly and better geared towards multitaskers, though it offers half the storage that Amazon does. And of course, if price isn't an issue and you don't mind the somewhat larger size, the iPad still can't be beat where the union of hardware and software is concerned. But if you're invested in the Amazon ecosystem, the Kindle Fire HD is one of the better mobile solutions for accessing it.

20 Sep, 2012


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David Boies on how to get a headstrong CEO to listen

By Roger Parloff, senior editor

David Boies

David Boies

FORTUNE -- David Boies is the most celebrated litigator in America. In the 1980s he defended CBS's 60 Minutes in an era-defining defamation suit by General William Westmoreland. In the 1990s he led the government's landmark antitrust case against Microsoft. In 2000 he represented Vice President Al Gore in the historic Bush v. Gore contests. This decade, he's co-leading, with Gibson Dunn & Crutcher's Ted Olson, the challenge to California's gay-marriage ban, known as Proposition 8, perhaps the most momentous constitutional issue of our day. Now 71, he has tried six cases in the last 18 months. (See David Boies: Corporate America's No. 1 hired gun)

David Bernick, 58, is a mass-tort lawyer's mass tort lawyer. From breast implants to pharmaceuticals to asbestos to tobacco, he is not just a leading gladiator in this sprawling, amorphous arena, but one of the most incisive diagnosticians of the field's woes.

Boies left his longtime partnership at Cravath Swaine & Moore in 1997 to found his own firm, Boies Schiller & Flexner, which is now an AmLaw 100 firm of 250 lawyers. Bernick left his longtime partnership at Kirkland & Ellis in 2010 to become senior vice president and general counsel of Philip Morris International, the world's largest tobacco company (except for the Chinese state tobacco monopoly). This February he stepped down to return to practice, and in August he joined Boies's firm.

The two lawyers spoke with Fortune about everything from putting financiers behind bars to whether the LIBOR scandal is the next tobacco case. Below is an edited transcript.

Much of the public is very angry about how few criminal prosecutions have emanated out of the financial crisis. What would you tell those people?

Boies: I think I would tell them three things. First, it's important to distinguish between civil wrongs and criminal activity. Somebody may breach a contract, may negligently run into you on the highway. Those may be bad acts for which they are responsible for the damages, but they're not criminal acts. And it's very important that the prosecutorial power that we give US attorneys and district attorneys in this country be exercised responsibly, so that we don't go after people for criminal violations just because it's going to be good publicity or good politics.

Second, I would say that I think the prosecutors have been overly lax. It's not that they have been negligent. But these are hard issues. In some of these financial areas the prosecutors were to some extent over their heads in terms of an ability to really find where the smoking gun was, if you will. It wasn't because they were dumb. It was just because these are very, very complex issues, and they didn't have all the background and all the resources.

The third thing is that you have seen a revitalization of regulation, and you've seen a clarification of some of the regulations. The rules of the road are being better defined now, and that is something that makes it more likely that you will see in the future criminal prosecutions.

Bernick: It's pretty fundamental to make a distinction between a meltdown, which clearly took place, and malfeasance. The perception of the person on the street is that if you have such a catastrophe financially, there's got to have been something done that's wrong. And in some discrete instances I'm sure there may well have been. But when you have a meltdown like that, in a sense we all know that what accounted for it was fairly systemic. And if you have a systemic failure, that is highly unlikely -- unless things are really wrong here in America -- to have at its core criminal misconduct.

And it's not like the government's been sitting on its hands. They've been very active when it's come to insider trading and other things. So I don't think that the Justice Department has been reluctant to press forward.

Suppose you are advising a CEO who is about to be cross-examined. Are there any special considerations that come into play?

Bernick: The rules that ordinarily constrain questioning a witness in areas where they don't have personal knowledge -- that rule is kind of rubbery when it comes to a CEO because the CEO is presumed to speak on behalf of the company. Which is, in a sense, a fiction under the rules of evidence, but nonetheless, it's something that's allowed. Also, there are high expectations for a CEO's performance.

Given those special circumstances, we often see people struggle with implementation. Because you see, in one extreme, the CEO is [instructed by his lawyer], "Only talk about what it is that you know." Then you get the "I don't knows" and "I don't remembers" and "It came across my desk" and God knows what.

At the other extreme the lawyer [may say], "Well, I'm going to have the CEO show up for multiple preparation sessions and go through every document and examine every fact." Both of those approaches are rife with problems.

I [aim for a] kind of a sweet spot, not necessarily in between, but different in kind. What's critical is for the CEO to have an absolutely crystal-edged conceptual understanding of the case and how the case fits into the business and fits into that CEO's own approach and own plan for the company. Because the CEO is likely to be somebody who can think conceptually and doesn't need to know every single detail, but will do very, very well if they've got [that understanding and] can articulate it. That takes personal commitment by the CEO and time, but it's not busy work and slogging time. It's thoughtfulness. The CEO has got to speak to the case with personal conviction, and that's a good target to aim for.

Boies: I agree completely. Trying to have the CEO either disclaim knowledge about most of the questions or answer every question in detail is something that no human being, no matter how talented, can do well. You've got to focus in on what the case is about. The CEO's got to understand where the land mines are. But he can't pretend to have detailed knowledge. What you've got to try to do is to help them focus on the key issues, the anchors that they can use in responding, and the general kind of answers that they can give that don't give a false sense of precision, but do give the jury or the court a sense that this is somebody who is providing at least some information, even if it is at a general level.

How hard is it to get CEOs to follow your advice? Some must be incredibly headstrong.

Boies: CEOs have gotten where they are by paying attention to people whose views they have a high regard for. No CEO accomplishes what they do without relying on other people. And what sometimes happens is a failure of lawyering in the sense that lawyers, like all human beings, tend to have a certain regard for celebrities. In our world, CEOs are celebrities. So you tend sometimes not to treat them the same way you would a manager.

Plus they're paying you.

Boies: Plus they're paying you. They're your customer, and you want them to be pleased with the result. So I think it's sometimes a failure on the part of the lawyer really to be as clear and as tough as you need to be. I've had a couple of witnesses who were very difficult to get them to do what they needed to do, in particular not to answer questions that they didn't know the answers to. And ultimately the lawyer simply has to say, "If you want to give away your case, give away your case, but don't give away your case with me as your lawyer. If you want a different lawyer, that's fine, but if you want me as your lawyer, you're going to have to follow my advice."

Let's consider the Bill Gates deposition. [In August 1998 Boies, as the U.S. Department of Justice's Special Trial Counsel, deposed Microsoft's then-CEO Bill Gates on videotape in the United States government's antitrust case against Microsoft (MSFT). Believing that it showed Gates being uncooperative and evasive, the government introduced the deposition at trial.] If I remember, that was more than one day.

Boies: Yes, it was three days of deposition: two days together, and then one day about a week later.

So suppose you had represented Bill Gates, what would you have told him?

Boies: Well, one of the things that I would have told him during the break was that he had to go back in and restore his credibility. And I probably would have taken him on some direct examination to do that. In fact, I think one of the biggest mistakes I made as a lawyer was not stopping the deposition at the end of that second day, giving them an entire week to work with him and bring him back and sort of clean him up and make him the kind of witness he could have been. I mean, he is smart, passionate, articulate. He's somebody who could have been a killer witness for them. And for me to have given them the opportunity to do that over that week was just a rookie mistake that I shouldn't make at that age.

Did they take advantage of it?

Boies: They didn't really. And so, it's better to be lucky than smart. But it was an opportunity that they had.

There have been a lot of pieces of journalism that ask the question, "Is such and such the next tobacco?" I've written some myself. "Is fat the next tobacco?" "Are guns the next tobacco?" It always seems that, ultimately, the answer is no. Was tobacco an anomaly?

Boies: I think tobacco was an anomaly. It was not unique. Tobacco and asbestos each shared a lot of common circumstances. There are a few instances where you have a health issue, like asbestos, like tobacco, that is very widespread and is subject to massive litigation. I think those are few and far between. I don't think food additives, I don't think fat, I don't think guns, I don't think lead in paint, any of those things, none of them are like asbestos and tobacco. That doesn't mean that there aren't other things out there that will be, but it takes something that is in very, very common use where the dangers of it are well-recognized for decades and yet it continues to be used, and where you have a lot of bad documents that are created over the course of decades.

And this goes to one of the things about preparing CEOs. There is always some [document] in every corporation that says both sides of every question. You get a big enough company and you can always find a document that will say anything you want it to say. And when you have documents like that in a health and safety area, they can have a very explosive impact in litigation.

Bernick: I guess my perspective is that tobacco is kind of an iconic product and the litigation is iconic. A lot of people think about the tobacco litigation in kind of a gestalt way. But really the tobacco litigation had lots of different elements and most of them really weren't responsible for the traction that the litigation got and, ultimately, the most signal evidence of that traction, which is the enormous settlement. [In 1998 the four major tobacco companies agreed to pay $206 billion to 46 states over 25 years.]

The class actions essentially all failed. There was only one that actually went anywhere, which was Engle v. R.J. Reynolds, and it's still going on today. It's messy, but it's under control.

Personal injury never resurfaced as being a viable individual case to be brought. There are some, but they're not huge in number. The international cases -- all of that was a fizzle.

The litigation really got underway with the state-based cost-recovery cases, which were essentially the states suing as insurers [for reimbursement of the money] the states paid for smoking and health illness. And it was the prosecution of those state cost-recovery cases by virtually every state of the Union, with the support and participation of the state AGs,that really was the core of the case and is what prompted the settlement. I guess one of the legacies of the tobacco litigation is the state AGs have realized the cooperation is a good thing, and we still see that today.

But cost-recovery you don't see. And part of the reason for that is that the [settlement] happened so quickly. There wasn't a lot of [appellate court] review. And when the cost-recovery cases [finally got heard by federal courts] -- union health and welfare funds, insurance companies, blah, blah, blah -- none of it worked. So that was a very distinctive feature that we will not see again.

Boies: Just underscoring what David says, almost all of the money that has been recovered -- I mean, I don't know whether it's 99.9 percent, but it's in that area -- has been recovered from settlements, not from trials. That [tobacco] settlement was done at a time when you were uncertain about where the federal courts were going to go here and just how far the courts were going to allow the creation of sort of a special rule for one industry. Later I think you saw the courts were not prepared to do that, and so you saw these third-party payer cases routinely rejected by the courts. But you didn't know that at the time of the settlement.

Well, now that you've agreed that probably nothing will be the next tobacco, my next question is: Is LIBOR the next tobacco? [LIBOR, the London Interbank Offering Rate, is an interest rate benchmark set by pooling data contributed by major banks. Banks are now under scrutiny for having allegedly provided false data during the financial crisis to manipulate LIBOR or conceal their internal troubles.]

Boies: [Laughter] I think not unless the defendants screw it up. And the reason I say that is that -

I should first ask, are you in it already?

Boies: Well, we are in various aspects of it. We represent, for example, Barclays (BCS). HSBC. Goldman Sachs (GS). We represent people who are, in some sense, on both sides of the issue: people who allegedly were hurt or maybe allegedly benefited from it. But the fact of the matter is that you're not going to be able to demonstrate any significant amount of damages from what went on. Were there inappropriate things done? Certainly in isolated incidences there clearly were. And what people have seen in the press are these emails where traders are saying, "Can we manipulate the rate today?" Now, the thing to remember about those things is three things. First, those things happened very, very rarely. Two, they moved [the rate] an infinitesimal amount. Third, the people who benefited and the people who were hurt by that are hard to define and most of them were sometimes helped and sometimes hurt.

The other area is banks allegedly self-reporting interest rates lower than they were actually paying because they didn't want to make it appear that they were paying higher interest rates than anybody else.

Now, first, the regulators knew what was going on.

Is that clear?

Boies: For years. And the regulators didn't object for a very simple reason. What the regulators were trying to do is get the interest rates even lower themselves, so anything that lowered interest rates helped people, helped the economy. So the fact that the banks may have from time to time self-reported interest rates they were paying that were lower than what they were actually paying is hard to separate from what the government was doing, which was pushing down interest rates.

At the same time, the basis for liability is very amorphous. Most of the cases have been brought as antitrust cases. An antitrust case either requires monopoly power or collusion. None of the people had monopoly power over money, and these actions were all in the bank's individual self-interest. You didn't need any collusion for a bank to say, "I don't want to be an outlier." So you have an initial problem of demonstrating collusion. You then have a problem of demonstrating antitrust damages. And you have the fundamental problem, which is that interest rates were predominantly here being set and influenced by national and regulatory policies, not by the banks.

So was there inappropriate conduct that went on? I don't think anybody would dispute that. Should the people that engaged in that inappropriate conduct be called to account? They should be. But is this going to turn into a massive sort of damages playground for plaintiffs lawyers? I think that is highly unlikely.

Corporate defendants have always complained about the cost of discovery. Now with e-discovery, they're complaining even more. When you have to sift through millions of emails and stop computer tapes to preserve them and maybe scrape hard drives, there's a different level of expense and disruption here, they say. Is there?

Boies: Yes. Discovery is out of hand. Judges are trying to rein it in. We've made a lot of progress. The approach when I started practicing law, which was that almost anything that you asked for in discovery you got, has become much more restricted. That was inevitable, given the expansion of documents that came first with widespread use of copying equipment and now with electronics.

The corporations need to get behind efforts to restrict discovery.

The problem is that in almost every piece of litigation, one side or the other will be benefited by broad discovery. So you've got to be prepared to make decisions not based on what's good for you in a particular case, but what's good for you and for the justice system over the long term.

Bernick: Yeah. In a sense the underlying problem is the sheer volume of email companies generate and preserve without really having a good process for getting it off the system on a timely basis.

Dewey & LeBoeuf, a 1300-lawyer firm with a 100-year pedigree, cratered in May, and almost no one saw it coming. What lessons do we learn from Dewey & LeBoeuf?

Boies: One lesson is that law is a business and that you cannot over-expand, over-promise, over-leverage any more than you can in any other business. Another lesson is that law is more than a business, that if you don't have the professional collegiality, the glue that holds an institution together, you're not going to be able to be successful. And I think that Dewey LeBoeuf ended up failing both tests. It didn't operate as a very well-managed business, and it didn't have the professional collegiality and glue necessary to hold this peculiar kind of business that you call a law firm together, in which you have partners, you don't have permanent capital, you don't have permanent shareholders. You don't have the permanence of the corporate form of endeavor in which almost all other businesses are conducted. You have as your owners the people who are actually your managers and who are very independent-oriented people by nature. I think all those things mean that you need to have a sense of culture, a sense of institution that preserves the firm. And Dewey had that for many years. LeBoeuf may have as well. But they lost that. And when you lose that in the current environment, the results can be sometimes swift.

I wanted to ask David Boies: your dyslexia makes you an inspiration to dyslexic kids and adults. Does it still impact you and affect the way that you try a case?

Boies: Oh, it certainly affects the way I try a case. I think the net continuing impact is positive, not negative. Because of my inability to read notes with facility, I have developed a pattern where I will organize my thoughts and then speak extemporaneously around those thoughts without notes, and that is a continuing part of the way I try cases. I will still not read nearly as much as a lot of lawyers will, but that's much less important at my stage. I now have lots of other people who do a lot of reading and help me get stuff.

There are also lots of words I don't pronounce well, and my speaking vocabulary is probably -- it's less than half, for sure, of my reading vocabulary. So that affects the words that I use, which probably helps, because I'm tending to use simpler words and more familiar ones. Occasionally, I'll be reading a document and one of those words that I don't pronounce will come up. And what I often do is just spell that word.

Really? Can you remember one?

Well, I can remember one that I should have spelled. During the Microsoft case we would put up these documents, and I would read portions of them. And I kept referring to "lo-jin, lo-jin," which of course was "log in" [written "login"]. And the first couple of times I had it, people were sort of mystified. And the second couple times   people laughed. And finally somebody explained to me what it was.

Your firm is 15 years old now. A lot of clients come to your firm because they want to be able to say, "David Boies is my lawyer." You are 71 now. Do you have a succession plan?

Boies: It depends what you mean by succession plan. We have been sort of planning succession from essentially the first day because both myself and [co-founder] Jonathan Schiller were mature lawyers. And then Don Flexner joined us a couple years later. So from the very beginning we tried to develop a firm that had an institutional quality that was independent of the three of us.

Part of our success is the extent to which we now have clients who are not interested in having David Boies as their lawyer. And we were talking about Barclays and LIBOR and that's all being done by other partners. We have clients like Chevron, Bank of New York, HSBC that I've done essentially no work on. And today, probably 75 percent of the firm's revenue comes from clients that I have not worked on. Of the 25 remaining, the vast majority of that comes from work that I do very little on, but they are at least clients that I have some contact with.

Show the flag.

Boies: Show the flag, show up at dinners, you know, and sometimes actually try a case. [Boies has tried six cases in the last eighteen months.] I still like to do that, and I still continue to expect to do that for some period of time.

The other form of succession planning is structural. And eight years ago we set up an executive committee, and we have now an administrative partner for each office. The administrative partners together form an administrative committee that deals with most day-to-day administration problems. The executive committee does most policy issues. The three main partners have the designation of the managing partner, and we continue to play we think a useful role in giving the firm the benefit of our advice and counsel. But more and more, the day-to-day running of the firm is done by non-managing partner members of the executive committee and by the administrative partners. So I think we are well on the way.

If I were to leave the practice tomorrow, it would hopefully have some effect on the firm, but it would be less than it was a year ago. It would be much less than it was five years ago. And I think it is more than it will be a year from now, and much more than it will be five years from now.

19 Sep, 2012


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