“Romney and Bain claim that he was not involved with Bain, but Bain and its portfolio companies in their required filings under the Securities Exchange Act continuously certified to the Securities and Exchange Commission say precisely the opposite, asserting without qualification that he was a controlling person, fully in charge of Bain, under the federal securities law. Under normal circumstances, the question of the truth of this representation would result in an investigation by the SEC into possible criminal, as well as civil, violations of the law.”
— Robert Bauer, Barack Obama campaign counsel, Friday
There is a journalistic convention that appears to place great weight on “SEC documents.” These are public filings by companies, which usually means there are not great secrets hidden in them. The Fact Checker, in an earlier life covering Wall Street, spent many hours looking for jewels in SEC filings.
We are standing with our assessment that Mitt Romney left the helm of Bain Capital in 1999, when he departed to run the Salt Lake City Olympics. The date is important because some questionable investments by Bain took place between 1999 and 2002, when he ran for governor of Massachusetts.
A Boston Globe article Thursday raised new questions about that timeline, citing SEC filings, and the Obama campaign jumped to take advantage of it.
Possibly a typo
Despite the furor, we did not see much new in the Globe article. We had examined many SEC documents related to Romney and Bain in January, and concluded that much of the language saying Romney was “sole stockholder, chairman of the board, chief executive officer, and president” was boilerplate that did not reveal whether he was actually managing Bain at the time.
The one thing new we saw in the Globe story was the assertion that “Romney’s state financial disclosure forms indicate he earned at least $100,000 as a Bain ‘executive’ in 2001 and 2002, separate from investment earnings.” But then we realized we had already reviewed those documents in January.
The 2001 form describes him as a “former executive” — the campaign says this was retirement pay — but the 2002 form says “executive.” So either you believe he suddenly rejoined the firm, after leaving it, or someone made a typo.
Romney’s sudden departure from Bain had left the partnership in flux, in fact almost breaking up the firm, and a final resolution was not reached until he ended his Olympic sojourn and decided to run for governor. At that point he signed retirement papers that set his departure date as February 1999, the month he left for the Olympics.
Fortune magazine reported Thursday that it had obtained the offering documents for Bain Capital funds circulating in 2000 and 2001. None of the documents show that Romney was listed as being among the “key investment professionals” who would manage the money.
As Fortune put it, “the contemporaneous Bain documents show that Romney was indeed telling the truth about no longer having operational input at Bain, which, one should note, is different from no longer having legal or financial ties to the firm.”
$55 million profit
Let’s also not forget that Massachusetts Democrats tried to keep Romney off the ballot in the 2002 governor’s race on the grounds that he had been living and working in Utah, even paying taxes there, and thus had failed to meet the requirement to have lived seven consecutive years in Massachusetts.
The effort failed, but not after Democrats waged an expensive, months-long battle to prove that he worked so much on the Olympics that he was in effect a citizen of Utah.
Still, the Obama campaign has raised a very serious charge of potential criminal behavior. Does it have much credibility?
One of the SEC documents in question that has received attention in recent days is a Form 13D that was posted by Talking Points Memo. A Form13D is filed when an investor or investment group announces that it has acquired more than five percent of the company.
In this case, Bain had merged a juice producer it had bought in 1998, Fresh Samantha, with a rival called Odwalla. In return, a Bain investment fund received 3,612,122 shares in the new company. When Odwalla was sold to Coca-Cola in 2001, the Bain investment group made $55 million, more than four times its initial investment.
Romney is not mentioned in the filing Odwalla made at the time of the sale; instead, two Bain executives who sat on the board are listed.
Romney is listed in the documents involving the investment fund that made the filing, Bain Capital Fund VI, L.P., which was formed before his departure for the Olympics.
We consulted with securities law experts, with many years of experience with these forms. One expert examined this document at our request. He suspected that someone had simply duplicated a filing that had been made many times before, though he acknowledged, “it looks inartful in retrospect.”
He pointed out that the titles are basically meaningless, that someone can be listed as a chief executive and actually have no responsibilities whatsoever.