Bad optics vs. fiduciary responsibility

Window from which shots were fired into crowded concert. (Pix by Jeff Scheid for NVIndy)

The pro/con format lives at NVIndy.

The online donation-funded news site today features columns by John L. Smith and Elizabeth Thompson taking differing stances on MGM’s decision to try to legally limit its liability for the Oct. 1 shooting that left 58 concert goers dead and hundreds more injured.

Smith makes a cogent argument that the legal maneuver — technically a suit against the victims — is tone deaf and damaging to the brand.

“The legal questions will be determined, but the fallout from the filing of the litigation against shooting victims still in various stages of physical and emotional recovery seems downright cruel,” Smith states. “It’s also terribly risky, and something more than money is at stake.”

Thompson argues that MGM should not be financially liable for the acts of a madman firing from the windows of his 32nd floor room in Mandalay Bay, any more than a convenience store should be liable if someone is shot on its property.

“It is easy to say MGM ‘should have’ noticed (Stephen) Paddock’s activities and prevented his crime,” she writes. “But it is not fair. An unfathomable act was perpetrated. None of us could initially believe it, even as it was happening. One cannot anticipate the unthinkable.”

Frankly, I think she missed a salient argument that MGM bears a fiduciary responsibility to its stockholders and employees to protect the bottom line from financial hemorrhaging. Money if fungible. What goes to cover legal liabilities is not available to pay dividends or wage hikes.

But Smith is right. The damage to the brand can also be costly.

Though MGM clearly bore far greater liability as a result of the 1980 fire that killed 85, Kirk Kerkorian’s rush to settlement may have been both good optics and sound fiduciary responsibility.

By the bye, both columns contained the obligatory disclaimers about MGM being a donor to the website.

 

 

 

Newspaper column: Free speech issues ‘on the ballot’ in Nevada

The right to free speech includes the right to not be compelled to speak.

That includes not being required to pay dues to a union whose political views might be different from yours, not being required to advertise abortion availability at your faith-based pregnancy counseling service, not being required to use your cake baking talent to create a special cake or your flower arranging expertise for a gay wedding.

All of these have come down from a closely divided U.S. Supreme Court in the closing days of this year’s court calendar.

This past week, the court ruled that public employees could not to be forced to pay dues to unions with which they might not agree.

“The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech,” wrote Justice Samuel Alito in the 5-4 opinion. “We have held time and again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’”

Public employee unions that advocate higher wages that require higher taxes are intrinsically political.

Just the day before the court ruled, again 5-4, that a California law that required pro-life, religious-oriented unlicensed pregnancy centers to place extensive disclaimers in their ads and on billboards telling people about abortion services was an unconstitutional impingement on free speech.

“Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them” wrote Justice Clarence Thomas in the majority opinion. “One of those services is abortion — the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions — at the same time petitioners try to dissuade women from choosing that option — the licensed notice plainly ‘alters the content’ of petitioners’ speech.”

A little more than a week earlier in a 7-2 ruling the court held Colorado could not force cake shop owner to make a special cake for a gay wedding.

Shortly thereafter. the court remanded a Washington case involving a florist who declined to arrange flowers for a gay wedding, citing the Colorado ruling.

The state of Nevada, under the direction of Attorney General Adam Laxalt, had joined in both the public employee union case and the California abortion law case on the winning side.

Laxalt’s office put out a press release about the California law ruling stating: “The ruling, which rests exclusively on free speech grounds, does not affect abortion providers; it neither requires them to change their practices nor infringes on their ability to provide abortions. The Supreme Court correctly held that compelling private organizations to promote the government’s preferred message under those circumstances is inconsistent with the First Amendment. This is an important holding ensuring that the government cannot simply force private speakers with whom it disagrees to also promote the government’s preferred message, especially when there are other ways for the government to promote its own message without interfering with private speech.”

Republican Laxalt’s Democratic opponent for governor in November, Steve Sisolak, put out a statement reported by The Nevada Independent saying, “I believe that women deserve access to all of their options when it comes to their reproductive health care. I still have concerns over the lack of information given by these crisis pregnancy centers and the harm it can cause.”

Sisolak continued, “As governor, I will fight to protect a woman’s constitutional reproductive rights and her consistent access to comprehensive care. Adam Laxalt has shown repeatedly that he will pursue an anti-choice agenda that will roll back the clock on women’s rights and bring Nevada down a dangerous path.”

This has nothing to do with abortion rights and only to do with speech rights.

This point was lost on Democratic Rep. Jacky Rosen who is running for Republican Dean Heller’s Senate seat. She sent out an email saying, “Deceiving women about their health care options is an attack on women’s fundamental reproductive freedom, and I will continue to stand against this Administration’s attacks on women’s rights and access to health care. Nevadans support a woman’s right to make these personal decisions.”

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Supreme Court hears free speech case

Lawsuit outlines compendium of allegations against Wynn

If you thought the sexual harassment allegations against Steve Wynn were horrendous, wait till you read the lawsuit filed today accusing him and his compliant board of excess pay and benefits. The Nevada Independent has posted a copy of the 42-page suit.

Most of the claims in the suit by shareholder Norfolk County Retirement System, filed in Clark County District Court, have been reported at one time or the other but the compilation is eye-opening. The suit accuses Wynn, his board and company executives of poor corporate governance and breaches of fiduciary duty at the expense of shareholders.

The suit notes, for example, that Institutional Shareholder Services, Inc. has recommended withholding votes to re-elect members of the Wynn compensation committee, citing “Wynn’s sizable pay packages compared with other CEOs and a severance agreement equating to $330 million that ‘exceeds the upper parameter of acceptable amounts,’ according to a report from ISS last year. Glass Lewis & Co, another advisory firm, also recommended that shareholders vote against the Company’s compensation package, citing ‘poor overall design’ and ‘performance disconnect.’ In fact, Glass Lewis gave the Company an ‘F’ for its pay-for-performance practices for the last two years.”

This past year ISS gave Wynn Resorts its worst ranking for governance risk.

The suit also recounts that the company leases Wynn’s personal art collection for $1 a year, but pays the cost of insurance, security and taxes.

Of course, it also relates the recent allegations of sexual harassment against Wynn, noting the board’s knowledge of and lack of action. The suit says that Wynn’s former wife Elaine Wynn’s lawsuit “accuses Mr. Wynn of using the Company ‘to fund his lavish lifestyle and personal politics’ and displaying ‘reckless risk-taking behavior’ that places the Company in jeopardy and has exposed it to legal challenges. Thus, regardless of whether Mr. Wynn initially concealed the settlement and allegations of egregious misconduct involving the Company, the Board knew of the settlement and allegations of patently egregious misconduct involving the Company by at least 2015 and failed to act and continued to support and recommend to the stockholders Mr. Wynn’s continued leadership and compensation. The Board knowingly failed to investigate the allegations of patently egregious misconduct by the Chairman and CEO and Mr. Wynn’s suitability for his fiduciary positions and regulatory compliance and his suitability as a gaming operator. Knowing failure to act by the Board on the allegations of such egregious misconduct involving the Company constituted a knowing and intentional violation of its fiduciary duties to the Company for which the Director Defendants are liable.”

Wynn’s current employment agree, the suit notes, runs till 2022 and pays him $2.5 million a year.

Then there is this chart: