The availability of risk capital for early-stage ventures has proven itself to be remarkably resilient. It has overcome the cycles and uncertainties of our economy, as well as, the myopic tax policies perpetuated by our partisan politics. But I foresee a fresh challenge to the startup ecosystem on the horizon—and it is the direct result of bad brokers, disingenuous dealers, unprincipled promoters and iniquitous issuers.

The “bad actors” (to incite regulatory jargon) that I am referring to are the fraudsters who make confidence a career by peddling perilous product to unwitting investors of all sizes and sophistication. More often than not, they camouflage their chicanery under the cover of Regulation D.

Reg D provides for some companies to offer and sell their securities without having to register the securities with the SEC enabling access to the capital markets for small companies that could not otherwise bear the costs of SEC registration as would be otherwise mandated under the Securities Act of 1933.

Reg D is a success story that began when the SEC created the exemption in 1982 with the intent of simplifying capital-raising for small business owners to launch or expand their ventures. Subsequently, the provision has enabled literally hundreds of thousands of new ventures. Businesses ranging from neighborhood taverns in urban alleys to nascent technologies in Silicon Valley have relied upon Reg D to quickly, cheaply and efficiently secure financing.

But, private placements offered under Reg D have likewise endured a checkered history beginning with the Prudential Securites Inc. offering that devoured $1.4 billion from 100,000 investors back in the late 1980s. That was only the beginning as more recent abuses include;

• Stanford International Bank–for running a “massive Ponzi scheme” and offering phony CD’s via private placement deals totaling $2.7 billion.
• Provident Royalties, LLC—fraud and Ponzi scheme related to $485 million in oil and gas limited partnerships.
• Medical Capital Holdings Inc.—fraud accounting for an estimated $1.2 billion in investor losses from the sale of private securities in the form of notes on medical receivables.
• DBSI Inc—charged this past December with promoting a $600 million Ponzi scheme related to the sale of fraudulent tenants-in-common real estate exchange products.

Each of these private placement pilferings were conducted under the cover of Reg D in the virtual absence of gatekeeper protection or regulatory oversight. Regulators and lawmakers are rightly concerned, particularly with the private placements of limited partnerships that have been capitalized by offerings to “accredited” individual investors through independent broker-dealers that reap commissions as high 10%.

Though initially intended to enable entrepreneurship and small business financings—the legitimate users of Reg D have been eclipsed by the scamsters. The deals have become gateways to multi-million paydays for issuers, dealers and brokers.

“Fraudsters are primordial creatures who live in their own lawless existence,” says Neal H. Levin of Freeborn & Peters in Chicago, whose practice is committed exclusively to busting fraudsters and recovering assets.  “To a fraudster, it’s kill or be killed and they will use whatever tools are available to them in order to conquer.  Reg D has certainly proven to be one such tool.”

Considering the responsibility of lawmakers to protect unwary investors form unscrupulous promoters and the readiness for regulators to expand their regimes—private investments that claim to be exempt from SEC registration are a torrid topic these days.

There were 11,000 Reg D deals filed in 1996, but that number has swelled to a reported 26,485 in 2009 when estimated offerings exceeded $609 billion. Regulators are ill-equipped and lacking the proper resources to evaluate the thousands of oil and gas ventures and real estate partnerships that file under Reg D each year.

“Investors have been exposed to far more risk in private placement offerings than Congress could have imagined”, according to Denise Crawford, president of the North American Securities Administrators Association, adding “Reg D offerings receive virtually no regulatory pre-screening at any level of government.” Not surprisingly, Crawford and many others have been lobbying for a rollback of the federal statues in an effort to return the pre-empted authority back into the hands of the state regulators. In turn, they hope to close the oversight gap that Ponzi scheme operators tend to gravitate towards to engage in their duplicitous dealings.

Good luck with that. Investors certainly deserve better protection from fraudsters, but whether or not our budget, brain matter and bandwidth-strapped regulators have the resources to capably clean out the commode is a topic for another column.

The Investment News Fraud Charge Tracker presently lists 60 securities and ponzi frauds which account for $9.4 billion in bilkings, most of which were executed as private placements under Reg D. Of these 60 frauds, 20 of them (one-third) resulted in investor losses which exceed $50 million, yet these larger frauds accounted for $8.9 billion (95%) of the total losses tracked.

Clearly, more effective oversight is desperately needed to protect investors from the multi-million dollar private placement scams—so why not start at $50M?

My fear is that the sincere interest and obvious need to protect investors from these menacing mountebanks will give rise to regulatory overreach…that the earnest interest to reduce the oversight gaps that fraudsters freely operate in will inadvertently impair the ability of small businesses to finance their ventures. It almost occurred last year when former Senator and Banking Committee Chair Chris Dodd’s discriminatory dealings nearly gutted Reg D—which would have most certainly produced the unintended baby-bathwater consequence of stymieing the startups that depend upon the provision to provide efficient access to risk capital.

There is no evidence to suggest that the typical $1-10 million startup or small business financing facilitated by Reg D is a forum for fraud. In a letter to Dodd last March, the Angel Capital Association noted “The angel investment arena has been virtually complaint-free in terms of fraud. Accredited angel investors make their own decisions to invest directly into small businesses, without securities dealers or investment advisors.” That point needs to resonate with our lawmakers who tend to be notoriously nescient with respect to nuance—particularly when there are headlines to be made.

My proposal is simple. Any fund, limited partnership or series of funds that solicit investments from individual investors and subsequently collect north of $50 million from investors should be required to register as private fund advisors. Such a requirement would reduce oversight gaps and provide regulators at the state and federal level with the transparency required to identify potential pockets of individual investor’s capital at risk.

If there is a compelling case as to why limited partnerships that solicit hundreds of millions of dollars from individual investors should be exempt from oversight—I have certainly never heard it.

But, leave Reg D alone with respect to early-stage ventures. Private investment is the sine qua non of startups and small businesses. In light of current economic and employment woes, our politicians need to stop paying lipservice to the needs of small business and by avoiding unnecessary regulations that restrict capital to entrepreneurs.

Debut Album:   Them Crooked Vultures, Them Crooked Vultures, 2009

The common and conventional wisdom of venture investing is populated with a myriad of musty and meaningless maxims that do little to develop due diligence deft. The list of utter untruths include little tarradiddles such as the purported prerequisite that a start-up must draft a comprehensive business plan when seeking financing (wrong), or that there must a clearly defined exit strategy (also wrong).

The often cited notion that the entrepreneurs have material amounts of their personal cash invested as “skin-in-the-game” is another feckless formula for evaluating venture opportunities. It’s bunk. My only private investment write-off in the last ten years was the result of backing a proven entrepreneur with a prior high-multiple liquidity event who put $12 million of his own money behind a good idea that proved to be beyond his ability to execute. An expensive lesson, but…school me once (shame on me).

The majority of the most compelling private investment opportunities originated from entrepreneurs that lacked the personal wealth to back their great idea. Sweat equity, career opportunity costs, an equity positon providing material upside incentive and personal sacrifice are generally sufficient substitutes for a founder’s flesh.

One of the more sophomoric shibboleths among venture investment evaluation criteria is the fictitious “first-mover advantage” (FMA). The naïve notion, which garnered its groupies during the dot-com delirium, suggests that the first entrant to a market space can fend off the followers and dominate the market for a material period of time. Fueled by VC funding and visions of carried interests, blind faith to this “first-to-market” fallacy financed many blow-outs and busts.

Fact is, for every Amazon where the FMA proved sustainable, there are dozens of examples where the market pioneer gave ground to a later entrant. There are only a few instances where the first mover held considerable market share (and developed material enterprise value) for a material period…such as Henry Ford’s Model T dominated the market for years until giving ground to Chevrolet.

The second mouse gets the cheese

My own experiences concur with this more accurate history of venture. I had a hand in the development of a multi-billion alternative strategies asset management firm that picked off the AUM of the first-to-market pioneer firms by developing cheaper, more transparent and more liquid investment vehicles. The pioneers spent vast sums on educating the marketplace. We simply piggybacked and poached the pioneer’s early adopter clients on the way to assuming a dominant market position.

In most cases, you are better off backing the entrepreneurs that are building the second coming of the next big thing. The slower but wiser entrepreneur for me.

Viola, Erwise and Midas, the first browsers, gave way to Mosaic, which in turn, gave way to Netscape. Chux, the first disposable diaper from J&J gave way to P&G’s Pampers. Micro Instrumentation & Telemetry Systems pioneered personal computing with Altair, which later gave way to Apple who hardly dominates the personal computer market today.

Microsoft succeeded not by being first. Digital Research developed the first desktop operating system. In fact, Softy purchased the original DOS program from Seattle Computer works for $50K. Easy to forget today, but back in the day Gates expertise was marketing, not innovating.

Visacalc, the first desktop spreadsheet program, gave way to Lotus 1-2-3 which in turn gave way to Excel.  Boeing did not pioneer the commercial jet, Disney did not introduce the theme park, Starbucks was not the first gourmet coffee shop and Wal-Mart was not the pioneer of discount retailing. They were not first—they were better.

Proponents of the FMA argue that the first entrant achieves name recognition, achieves economies of scale, locks in early customers due to consumer habits or high switching costs and develops brand loyalty…consequently building barriers to entry.

But, with the exception of truly proprietary IP or geographic advantages in brick and mortar or service industries, I don’t find those “advantages” to be sustainable by virtue of fiat. Better will always end up beating out first.

The empirical research bears this out. In the 1996 study, “First to Market, First to Fail?”, Gerard Tellis and Peter Golder demonstrated that pioneers are rarely rewarded for their efforts. Rather, they found that another class of firms labeled early leaders (the category of second and third-comers) enjoyed “a minimal failure rate, an average market share almost three times that of market pioneers and a high rate of market leadership.”

Thats because the first-mover pays a huge cost in R&D, marketing and advertising to educate and entice early adopter customers or clients. The later comers have the benefit of case study, market intel and the opportunity to sell relative value…often referred to as the “free-rider effects”, where late movers may be able to free-ride on a pioneering firms investments in R&D, consumer education and infrastructure development. These “imitation costs” are more vastly affordable than the “innovation costs” that often cause the pioneer to crash and burn.

When evaluating pre-revenue ventures, I find it best to eschew first-to-market business models in favor of the better, faster or cheaper followers. Look to who’s next. It’s easy to be sucked in by the intuitive appeal of the FMA, but I have already been schooled…I won’t get fooled again.

Album:   Who’s Next, The Who, 1971

There is a better way to build investment portfolios than the methods presently employed by most investors and advisors.

Perhaps that is hard to imagine seeing as how well we have been served by Modern Portfolio Fallacies and the Efficient Market Hypocrisies, but if you have an open mind, there is a strong chance that these portfolio construction principles will resonate with you…particularly on the heels of what we have learned from the half dozen market meltdowns experienced since ‘87.

I know that the idea of a new asset-allocation model is intuitively tiresome…but if there was ever a time to revisit the prevailing conventional wisdom, it is now. This smarter portfolio approach places heavy emphasis on safety of principal, liquidity and income, yet simultaneously provides investors with compelling potential for capital appreciation.

I refer to it  as Hybrid Portfolio Theory (HPT) and could safely say that less than one percent of advisors have contemplated, let alone implemented such a methodology in their practice…despite its proven efficacy and how well it resonates with high-net-worth investors.

In HPT the investor allocates 100% of the assets into two distinct (hybrid) portfolios. The larger portfolio (A) represents 75-90% of the assets and is invested with the primary objective of liquidity, safety of principal and income. This portfolio is benchmarked against a blend of risk-free and short-term yield rates and invests predominantly in money markets, CDs, short-term muni’s and Treasuries.

The challenge of portfolio A is to maximize yield in bps and increase yield to the point that does not threaten the overall liquidity and safety of principal. With liquidity and safely of principal as primary objectives, that effectively eliminates allocations to high-yield corporate and junk bonds, REITs, MLPs, closed-end and utility stocks by the literal-minded HPT practitioner.

Why Bother with Stocks?

So, what is the source of return for capital appreciation in HPT? Not traditional equities. Stocks go up and stocks go down. That’s a symmetrical outcome that we now know empirically to be a bad bet unless you have a multi-decade investment horizon. Rob Arnott’s recent article “Bonds: Why Bother?” in the Journal of Indices emphatically settled the score.

Arnott proved that the 5% risk premium promoted by the financial services industry is at best unreliable and is probably little more than an urban legend. Starting at any time from 1980 up to 2008, an investor in 20-year treasuries, rolling them over every year, beats the S&P 500 through January 2009. Going back 40 years to 1969, the 20-year bond investor still outperforms by a marginal amount, even with the Carter-era inflation and traumatic bond market in the seventies.

It is not debatable. Equities have not delivered their risk premium and are simply not worthy of their risk. Rather than pursing the laughably unreliable risk premium of equities, Portfolio B is exclusively seeking higher risk–higher return positive asymmetric outcomes (PAO). The Portfolio B benchmark is in the 10-20% range.

A PAO is defined by its ability to generate high double-digit or multiples of return on investment, as can be achieved by successful investments in venture capital, private equity, direct (angel) private investment in start-ups, small business, private manufacturing business, private real-estate, private debt, franchises, operating cash-flow businesses, as well as, publicly-traded emerging growth companies and leveraged option strategies or highly-specialized investment strategies such as managed futures.

The PAO mandate is broad but should ultimately be defined by a positively skewed risk-reward ratio, as well as, the practitioner’s sector expertise and due diligence resources.

The investor’s overall hybrid portfolio benefits by assuring that the vast majority of assets are not exposed to a downright bad wager relative to risk-free or short-term assets, as well as, unpredictable (yet, frequent) black swan events that decimate investor portfolios.

HPT should be engaged and implemented as a theory, not as an absolute rigid asset-allocation model. If the portfolio manager, advisor or investor accepts that; 1) current asset-allocation frameworks cannot successfully mitigate significant market exposure and do little to protect investors from unpredictable negative black swans, 2) investors are generally over-exposed to equities in light of the proven absence of any sustainable risk premium, and, 3) investors benefit from limited but diversified exposure to investments and strategies characterized by the possibility of positive asymmetric outcomes…this is a portfolio theory that you can adapt into your other core asset-allocation principles and values.

When adapting HRT to your own biases, the allocator can exercise discretion with respect to;

1. The A:B Portfolio ratio
2. The constituent opportunity set for Portfolio A–from short-term high liquidity, lower-yielding, shorter-term instruments to Treasurys, TIPS and munis
3. The consitutent opportunity set for Portfolio B–from private venture investments to publicly-traded emerging growth companies to specialized trading and option strategies
4. The benchmarks applied to the A and B Portfolios

Today, investors more than ever appreciate and welcome the notions of safety and liquidity. They no longer believe in the buy-and-hope asset-allocation models and “stocks for the long run” mantras peddled by talking heads. Moreover, the coveted HNW-investor demographic that you either aspire to, or presently serve understands and accepts the risk and liquidity realities of private investment in venture and enterprise. In fact, in most cases, such investment or employment is how they generated their private wealth.

Assuming the proper resources, advisors that embrace Hybrid Portfolio Theory (for appropriate investor portfolios) your advisory practice would benefit by;

• Delivering the services, results and sensibility that desirable HNW investment clients are actually seeking from advisors,
• Protecting your client’s assets and portfolios from incurring significant losses from exposure to unpredictable black swan events,
• Strengthening advisory-client relationships by developing a unique and connected client community within your practice, and,
• Competitively distancing your practice from the vast majority of investment advisory firms that can provide no evidence of a discernible value proposition.

I understand that this sounds provocative considering what investors and advisors have come to believe in after years of over-attentive care and feeding by the financial services industry. Yet, if you acknowledge the historical data,  the frequent and unpredictable impact of negative black swans and the notion of investing for positive asymmetric outcomes ,you should not be questioning the virtues of HPT as much as the critical issues of; access to the opportunity sets, due diligence, implementation and execution of the strategy.

Stick with us as we intend to tackle those issues in coming posts.

A more detailed Powerpoint presentation and audio webinar on HPT is available here.

Album:    Hybrid Theory, Linkin Park, 2001

In prior posts I have taken swipes at traditional asset allocation, buy-and-hold investing, the Efficient Frontier, the Efficient Market Hypothesis and Modern Portfolio Theory (MPT).

Sure, I am trying to be provocative, poke a little at advisor complacency and provoke polemic on the comment boards…but I am also sincere. MPT relies entirely on investment history for investment analysis and conclusions. These tired and discredited methods are rubbish…and have cost investors trillions.

It is encouraging to see evidence of advisor post-mortems in progress as some advisors are seeking not to repeat the mistakes of the past. I was also entertained by John C. who cracked on the comment board, “What’s over 50 years old and still considered modern?   MPT”

But pretty pie charts and Powerpoints are not so easily disposed of. As an anonymous critic incites, “The appeal of Modern Portfolio Theory in the investment advising community is its simplicity, graphic presentation value, and most of all, little or no investing judgment or skill is required; just pick, print, present, and hope; chasing efficient frontiers, hoping that investment history will somehow repeat itself, and just waiting for historical updates to generate new efficient frontiers to justify investment change.”

Nevertheless, some advisors are stubbornly standing by their man(tra).

Modern Lovers

Consider these edited comments that I received from Matthew K. in response to the Crisis = Opportunity post;

“MPT works. With the right allocation and systematic rebalancing to maintain percentages as well as in line with client’s goals, there is no lost decade. Markowitz knew what he was doing, and as an academic, he did not stand to profit…When MPT is juxtaposed with Daniel Kahneman’s Nobel Prize winning ideas on heuristics, you see how MPT does add value when used in line with client’s goals…Any classic definition of “Venture” includes the idea of risk taking. Where does that fit in CAPM or the efficient frontier?”

I cannot rebut a hopeless romantic, so let’s engage Matthew K. in a virtual volley with interlaced quotes excerpted from a FT article and a McKinsey interview with the especial epistemologist, Nassim Nicholas Taleb. Taleb is the author of two true investor instant classics and must-reads, Fooled By Randomnes and The Black Swan.

Taleb has a strong opinion on the matter of MPT and modern finance…and he is no modern lover:

MK- MPT works. With the right allocation and systematic rebalancing to maintain percentages as well as in line with client’s goals, there is no lost decade.

NNT-We learn from crisis to crisis that MPT has the empirical and scientific validity of astrology, without the aesthetics…In 1990 William Sharpe and Harry Markowitz won the prize three years after the stock market crash of1987, an event that, if anything, completely demolished the laureates’ ideas on portfolio construction….I would ban portfolio theory immediately. It’s what caused the problems…Portfolio theory simply doesn’t work. It uses metrics like variance to describe risk, while most real risk comes from a single observation, so variance is a volatility that doesn’t really describe the risk. It’s very foolish to use variance.

MK-Markowitz knew what he was doing, and as an academic, he did not stand to profit…When MPT is juxtaposed with Daniel Kahneman’s Nobel Prize winning ideas on heuristics, you see how MPT does add value when used in line with client’s goals.

NNT-Academic economists are no more self-serving than other professions. You should blame those in the real world who give them the means to be taken seriously: those awarding that “Nobel” prize… Every time I have questioned these methods I have been abruptly countered with: “they have the Nobel”, which I have found impossible to argue with. There are even practitioner associations such as the International Association of Financial Engineers partaking of the cover-up and promoting this pseudoscience among financial institutions. The knowledge and risk awareness we are accumulating from the current subprime crisis and its aftermath will most certainly not make it to business schools.

Thanks, (virtual) Nassim. I will take the next one.

MK-Any classic definition of “Venture” includes the idea of risk taking. Where does that fit in CAPM or the efficient frontier?

VP-Of course, venture implies risk-taking… they are nearly synonymous. A venture investor is knowingly acknowledging and accepting an implicit and quantifiable serving of risk that is decidedly less than a range of positive (asymmetric return) outcomes. Perhaps investors would have been better served if their notion of the risk that they were assuming in their efficient frontiers was not muted (and implied to be mitigated) by the marketing machinations of MPT. CAPM is a future-oriented model yet it essentially relies on historic data to predict future returns. The Efficient Frontier? I have seen the inputs, I have seen the outputs…and I have seen the results…the efficient devastation of unsuspecting portfolios.

Album:   The Modern Lovers, The Modern Lovers, 1976