Tag Archive | "Patrick Byrne"

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More right than wrong


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They can't say he didn't warn them.


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They can’t say he didn’t warn them.


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Fairfax and just the facts, Ma’am.


In July of 2006, Fairfax Financial Holdings (NYSE: FFH) filed a lawsuit alleging stock manipulation on the parts of several hedge funds, contract hedge fund operatives, and John Gwynn, an analyst with stock brokerage Morgan Keegan & Co.

The complaint is very enlightening and detailed in its claims, which can be broadly summarized as follows: certain hedge funds, which stood to profit by scuttling Fairfax’s stock price, illegally conspired and acted to do as much.

More specifically, the complaint says:

As a result of [S.A.C. Capital]’s frequent communications with Morgan Keegan and Gwynn, S.A.C. learns when Gwynn intends to issue reports and what they will say and, indeed, frequently directs Gwynn on when to issue reports and what to say. (p.14)

Also like S .A.C., Exis is a significant client of Morgan Keegan and has substantial influence over Gwynn, with whom Exis also collaborates closely. (p.15)

…[convicted hedge fund operative Spyro Contogouris] orchestrat[ed] negative analyst coverage — particularly through Gwynn… (p.18)

Gwynn collaborated with certain hedge funds, including Enterprise member Trinity Capital, in developing extreme criticisms of Fairfax to support both short-term and long-term shorting strategies dubbed “the Fairfax Project.” Gwynn communicated these developed criticisms and his intention to release a highly negative report containing those criticisms in a series of road show presentations to major hedge funds including, among others S.A.C., Lone Pine, Kynikos, Highfields, Greenlight Capital, and Perry Capital . The hedge funds participating in this discussions understood at their conclusion that Gwynn intended to initiate coverage of Fairfax with an extremely critical report, they understood and contributed to the substance of the criticisms to be included in the report, and they understood that the report’s release would be timed to provide them an opportunity to establish their short positions. These critical Morgan Keegan clients also understood that once they had established a short position in Fairfax, Gwynn would continue to support that position with negative reports until they covered. This understanding was critical because the Fairfax Project contemplated short-term and longer term components, the latter of which involved enormous potential exposure to the Enterprise if the stock price increased substantially. (p.20)

The S.A.C. Defendants, Exis Defendants, Lone Pine Defendants, Rocker Defendants, Third Point Defendants and Trinity Defendants…frequently had communications and coordinated with [John Gwynn] and caused [Gwynn] to disseminate [his] reports to numerous clients, investors, journalists, and media outlets… (p.62)

Reading the complaint in full, it’s clear that Gwynn’s actions played a pivotal role in the execution of the defendant hedge funds’ manipulation efforts.

So clear, in fact, it may have contributed to Gwynn’s decision, six months later, to terminate coverage of Fairfax Financial (a fact bemoaned by Herb Greenberg, not surprisingly one of Gwynn’s biggest fans).

As expected, the suit’s many named defendants responded to the complaint with indignant denials and, in the case of John Gwynn, a countersuit filed in November of 2007, accusing Fairfax of making him “a scapegoat” for the company’s “financial, legal and accounting problems.”

Today, ten months after Gwynn’s countersuit was filed, a spokesman for Morgan Keegan told Bloomberg that Gwynn has been fired “for violation of a firm policy relating to his apparent advance disclosure of his pending research coverage of Fairfax Financial Holdings.”

In other words, Fairfax was correct about what Gwynn was doing.

Given that fact, what are the chances Fairfax was not also correct about who benefited from Gwynn’s corruption: mega hedge funds such as S.A.C. Capital, Third Point Partners, Greenlight Capital, Rocker Partners, et al?

And, supposing that aspect is true, there would appear to be quite a bit of coordination between short-selling hedge funds and shady stock research outfits.

And that sounds suspiciously like the claim Deep Capture reporter Patrick Byrne has been making, ad nauseum, for over three years.

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Fairfax and just the facts, Ma'am.


In July of 2006, Fairfax Financial Holdings (NYSE: FFH) filed a lawsuit alleging stock manipulation on the parts of several hedge funds, contract hedge fund operatives, and John Gwynn, an analyst with stock brokerage Morgan Keegan & Co.

The complaint is very enlightening and detailed in its claims, which can be broadly summarized as follows: certain hedge funds, which stood to profit by scuttling Fairfax’s stock price, illegally conspired and acted to do as much.

More specifically, the complaint says:

As a result of [S.A.C. Capital]’s frequent communications with Morgan Keegan and Gwynn, S.A.C. learns when Gwynn intends to issue reports and what they will say and, indeed, frequently directs Gwynn on when to issue reports and what to say. (p.14)

Also like S .A.C., Exis is a significant client of Morgan Keegan and has substantial influence over Gwynn, with whom Exis also collaborates closely. (p.15)

…[convicted hedge fund operative Spyro Contogouris] orchestrat[ed] negative analyst coverage — particularly through Gwynn… (p.18)

Gwynn collaborated with certain hedge funds, including Enterprise member Trinity Capital, in developing extreme criticisms of Fairfax to support both short-term and long-term shorting strategies dubbed “the Fairfax Project.” Gwynn communicated these developed criticisms and his intention to release a highly negative report containing those criticisms in a series of road show presentations to major hedge funds including, among others S.A.C., Lone Pine, Kynikos, Highfields, Greenlight Capital, and Perry Capital . The hedge funds participating in this discussions understood at their conclusion that Gwynn intended to initiate coverage of Fairfax with an extremely critical report, they understood and contributed to the substance of the criticisms to be included in the report, and they understood that the report’s release would be timed to provide them an opportunity to establish their short positions. These critical Morgan Keegan clients also understood that once they had established a short position in Fairfax, Gwynn would continue to support that position with negative reports until they covered. This understanding was critical because the Fairfax Project contemplated short-term and longer term components, the latter of which involved enormous potential exposure to the Enterprise if the stock price increased substantially. (p.20)

The S.A.C. Defendants, Exis Defendants, Lone Pine Defendants, Rocker Defendants, Third Point Defendants and Trinity Defendants…frequently had communications and coordinated with [John Gwynn] and caused [Gwynn] to disseminate [his] reports to numerous clients, investors, journalists, and media outlets… (p.62)

Reading the complaint in full, it’s clear that Gwynn’s actions played a pivotal role in the execution of the defendant hedge funds’ manipulation efforts.

So clear, in fact, it may have contributed to Gwynn’s decision, six months later, to terminate coverage of Fairfax Financial (a fact bemoaned by Herb Greenberg, not surprisingly one of Gwynn’s biggest fans).

As expected, the suit’s many named defendants responded to the complaint with indignant denials and, in the case of John Gwynn, a countersuit filed in November of 2007, accusing Fairfax of making him “a scapegoat” for the company’s “financial, legal and accounting problems.”

Today, ten months after Gwynn’s countersuit was filed, a spokesman for Morgan Keegan told Bloomberg that Gwynn has been fired “for violation of a firm policy relating to his apparent advance disclosure of his pending research coverage of Fairfax Financial Holdings.”

In other words, Fairfax was correct about what Gwynn was doing.

Given that fact, what are the chances Fairfax was not also correct about who benefited from Gwynn’s corruption: mega hedge funds such as S.A.C. Capital, Third Point Partners, Greenlight Capital, Rocker Partners, et al?

And, supposing that aspect is true, there would appear to be quite a bit of coordination between short-selling hedge funds and shady stock research outfits.

And that sounds suspiciously like the claim Deep Capture reporter Patrick Byrne has been making, ad nauseum, for over three years.

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Wall Street to USA: “I…drink…your…MILKSHAKE!”


The closing minutes of “There Will Be Blood” handily dramatizes naked short selling and, more generally, Wall Street’s relationship to the United States (WARNING: movie spoiler).

Oilman Daniel Plainview (Daniel Day-Lewis) discovers oil near Bakersfield, California, and buys up property in the area for drilling. He covets in particular the vast oil reserves under the land of William Bandy. Bandy refuses to sell on the advice of his preacher, Paul Sunday. Plainview goes on to build a fortune pumping oil from the tracts he has purchased.

Years later, a down-on-his-luck Preacher Sunday approaches Daniel Plainview and offers to help him purchase “the Bandy tract” to Plainview (in return for a kick-back, naturally). Here is Plainview’s response:

The movie ends on this cheery note:

These clips provide fine metaphor for the issue which Deep Capture seeks to expose: naked short selling. Wall Street has figured out how to drink America’s milkshake. The “straw” used is the act of taking investors’ savings in return for stock that Wall Street never actually had, never really borrowed, and consequently, never delivered. But they took the cash. This “straw” is composed of loopholes and rationalizations: loopholes that let them drain the capital of Americans, and rationalizations that let them do it with a straight face on the grounds that _______ (insert meaningless rationalization here: “They’re rich and thus good for it”; “All liquidity is good, even liquidity based on fraud”; “People who complain about paying for things they never receive are whining”; “The folks doing this are smarter than everyone else and have $45 million apartments” etc.)

The US is the supine Preacher Sunday, bleeding to death with a crushed skull. And Wall Street is, most definitely, finished with us.

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Gary Weiss knows what Joe knows


How did Gary Weiss come to know the substance, sentiment and timing of one of New York Times business columnist Joe Nocera’s most vicious attacks against opponents of illegal naked short selling, long before it was published?

We asked Joe.

Joe doesn’t know.

It all started on January 10, 2006, when Business Week writer Tim Mullaney clumsily fell into the very trap he had set for Overstock.com CEO (and Deep Capture reporter) Patrick Byrne. You can read all the gruesome details here and then here.

One week later, Gary Weiss launched his blog. We know from emails between Weiss and Floyd Schneider (read this to learn how I came to posses them) that at about that same time, Weiss began trying to convince journalists and editorial columnists to pen attacks on opponents of illegal naked short selling, particularly Patrick Byrne and Bob O’Brien (whom Weiss calls “Bob O’Baloney”), the pseudonymous author of the highly influential Sanity Check blog.

Weiss did this with little success, until February 22 of 2006, according to the following two emails Weiss sent to Floyd Schneider:

From: garyrweiss@verizon.net

To: Floyd3491@aol.com

Subject: Re: (no subject)

Date: Wed, 22 Feb 2006 18:34:19 -0500

Received: from unknown (HELO maincomputer) (garyrweiss@verizon.net@70.23.60.180 with login) by smtp101.vzn.mail.dcn.yahoo.com with SMTP; 22 Feb 2006 23:34:15 -0000

—–

Incidentally, don’t tell nobody! — but was preoccupied today. Interview with Joe Nocera of the Times for his Saturday column. Seems he is focussing on the naked-Mullaney situation. Mullaney tells me Nocera is sympathetic. We shall see……

Mullaney obviously is extremely nervous but me, I am fairly pleased I must say. I was… oh… shall we say unfavorable toward our Mr. O’Baloney.

The above is confidential!

Followed shortly by…

From: garyrweiss@verizon.net

To: Floyd3491@aol.com

Subject: Re: (no subject)

Date: Wed, 22 Feb 2006 18:56:25 -0500

Received: from unknown (HELO maincomputer) (garyrweiss@verizon.net@70.23.60.180 with login) by smtp102.vzn.mail.dcn.yahoo.com with SMTP; 22 Feb 2006 23:56:21 -0000

—–

Yeah, well I want to shift on to be a little quiet and modest between now and Friday. Yes, O’Baloney seems to have run up the white flag it would seem, at least for the time being. I think the SABEW blog seems to have brought him to reality. That is what was picked up by Nocera, by the way. This is totally my doing! Yuk yuk yuk.

The Mullaney thing really touches a raw nerve, you know.

Based on the above, we can conclude that at least three days ahead its publication date, Gary Weiss knew all about Nocera’s February 25, 2006 column Overstock’s Campaign of Menace.

Note, in the first of the two emails, Weiss insisted that “The above is confidential!”

This is with good reason, as it’s considered a serious breach of ethics for a business writer to reveal the nature of his or her coverage of public companies to outsiders ahead of time, lest the information be used to the advantage of an unscrupulous investor (ie, “trading ahead” of the story).

And yet, Weiss knew. And boasted about knowing.

Recently, Patrick Byrne asked Joe Nocera to comment on this apparent ethical misstep.

Here is Nocera’s response:

From: Joe Nocera

To: Patrick Byrne

Subject: Re: that gary weiss email

Sent: Thursday, July 17, 2008 11:31 AM

—–

I have no idea why Mr. Weiss would make those claims, nor has he ever had any “inside information” about any of my columns. I don’t give out such information. all best, Joe Nocera

I welcome Joe to explain how reality, and his apparent interpretation of it, can possibly co-exist.

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Upon Further Examination, It Seems My Paper Is Captured Too


No, no newspaperman actually said that. In so many words, anyway. But the following story is true.

In the spring of 2006 I met with the very bright editor of the editorial page of a major American newspaper (I do not name the paper only because I do not wish to embarrass the individual involved). After several hours of discussion, he said gently, “I know my paper has not been so fair to you.” He proceed to invite me to submit an editorial on the subject of naked short selling, suggesting a length of 1,200 words. I predicted that he would not be permitted to publish it. He replied, “I run the editorial page. I determine what gets published on it.”

Some time thereafter I sent him the editorial that appears below. The next day he called and said, “I’m terribly embarrassed to have to say this, but it appears I will not be able to publish this or anything by you.”

He sounded surprised. I wasn’t.

That said, it seems it a shame not to let it see the light of day, even at this late date. So again, the following is an editorial prepared for a major US newspaper which ostensibly is concerned with the operation of our capital market. The months referred to are 2006 months. Since then, the numbers involved have increased 30-100%.

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A stock transaction is an exchange of stock for money. In our country the mechanisms by which stock and money change hands (”settlement”) have become divorced. Commissions are paid when money is delivered, not stock. Since follow-through incentives are weak, sometimes no stock changes hands, in which case the system creates markers of various kinds. These can be failed-to-deliver short sales (the famed “naked shorts”), the (perhaps more numerous) failed-to-deliver long sales, failures to receive from overseas exchanges, share entitlements (i.e., what is left behind in your brokerage account when your broker loans your stock to someone else), “open positions,” and “desked” trades (whereby your broker buries your order in his desk but takes your money and sends you monthly brokerage statements reflecting a trade that never actually occurred). Because our system does not adequately distinguish these markers from real shares, the markers take on lives of their own, multiplying, and creating three problems as they do.

First, these phantom shares turn proxy voting and corporate governance into a hoax. The April issue of Bloomberg magazine reports, “A robust market for stock loans puts into circulation billions of borrowed shares that can create multiple votes that corrupt corporate elections.” The effect is that, “In close contests with little room for error, the results of high-stakes company decisions may hinge on the invisible influence of millions of votes that shouldn’t be counted.” According to Thomas Montrone, CEO of Registrar & Transfer Co., “It is an abomination…. A lot of the time we have no idea who’s entitled to vote and who isn’t. It’s nothing short of criminal.” A securities consultant notes, “There are votes cast twice on almost every matter of substance… It definitely can and does, in my experience, affect the outcome of corporate elections and proposals.”

How deep is this problem? Bloomberg writes that the “Securities Transfer Association, a trade group for stock transfer agents, reviewed 341 shareholder votes in corporate contests in 2005. It found evidence of overvoting-the submission of too many ballots-in all 341 cases.” Bloomberg suggests that that this is not innocent, but that arbitrageurs have discovered and are exploiting this crack. As one source notes, “It appears to be the case where there are opportunities to game the system.” Bloomberg concludes that until these problems are fixed, “double and triple voting on one share will continue to make a mockery of shareholder democracy.”

It’s one thing if a “Should HP buy Compaq?” decision gets gamed by arbitrageurs who understand the back office better than anyone else, but there is a second way this crack is exploited to harm investors. In a normal market supply and demand balance in equilibrium. If, however, some market participants can produce phantom goods, and thus shift the supply curve to the right, they can shift the equilibrium price as well (that’s why it is “illegal”). In some companies the supply of phantom shares has become a significant fraction of (or perhaps multiple of) the shares issued and outstanding. Evidence of this comes from detailed analysis of proxy over-voting such as appears in the Bloomberg article cited above, the persistence of firms on the Reg SHO threshold list, and examination of records from transfer agents, the Depository Trust and Clearing Corporation, and Freedom of Information Act responses from the SEC. A recent SEC FOIA response regarding the 2004 FTD’s of one company reveals days where over 40% of the volume were phantom shares, but I believe it may reach more than that in some companies. While the SEC could settle this question in a heartbeat, the Commission refuses to release relevant data on the following grounds: “The fails statistics of individual firms and customers is proprietary information and may reflect firms’ trading strategies.” That those strategies are “illegal” is apparently of little moment to our regulator.

Phantom shares can be used to game proxy voting and warp market prices, but the third effect is the one that haunts me: what risk do they create for the system? Robert Shapiro, Harvard Ph.D. economist and former Undersecretary of Commerce under President Clinton, has written, “There is considerable evidence that market manipulation through the use of naked short sales has been much more common than almost anyone has suspected, and certainly more widespread than most investors believe.” His research into death-spiral converts (a type of financing that generally is accompanied by naked shorting) turned up at least 200 companies that appear to have been largely destroyed, posting “a combined market loss of more than $105 billion.” Considering the more general topic of “massive naked short sales” he writes, “we believe that this type of stock manipulation has occurred in many hundreds and perhaps thousands of cases over the last decade…. Illicit short sales on such a scale or anything approaching it point to grave inadequacies in the current regulatory regime.” It would also imply damages in the low trillions of dollars (hence, the circling by plaintiff’s attorneys that has been reported in recent months).

Again, the SEC and DTCC have sought to assuage nascent public concerns while releasing as little data as possible. The SEC’s FOIA responses, however, reveal that on any given day, 500 million shares remain unsettled (N.B. this does not include share entitlements, desked trades, open positions, overseas delivery failures, or, as far as anyone can tell, ex-clearing). SEC economist Leslie Boni analyzed the FTD problem, and her report describes FTD’s as “pervasive,” calculates that the average persistence of failures is 56 trading days, that some go on for much longer, and that these failures are not random but strategic. Bradley Abelow, a former DTCC director questioned under oath for confirmation as New Jersey Treasurer, reluctantly described settlement failures within our system as “occur[ing] as a matter of course with great regularity,” adding “fails to deliver of securities is endemic.” The SEC’s own website, in a section on Regulation SHO explaining why in January 2005 they grandfathered all failed deliveries, reads, “The grandfathering provisions of Regulation SHO were adopted because the Commission was concerned about creating volatility where there were large pre-existing open positions” (those would be the same “large pre-existing open positions” they elsewhere assure us do not exist).

A tremendous amount of quibbling occurs over whether or not such evidence is decisive. What is overlooked is that we are not debating the properties of sub-atomic particles beyond the sensitivities of modern equipment. The question of how many unsettled long and short sale, open position, desked trades, offshore failures and share entitlements exist for any firm is a knowable fact. Each element is, in fact, known by someone. They aren’t saying. Instead, those who know these elements struggle to assure the public that there is no problem, and suggest that anyone trying to bring attention to this issue is a malcontent.

We are far down a financial rabbit-hole, one in which the SEC’s Red Queen is downplaying the problem while grandfathering it on the grounds that it is “concerned about creating volatility where there were large pre-existing open positions,” and refuses to disclose the size of these “large pre-existing open positions” on the grounds that it “is proprietary information and may reflect firms’ [illegal] trading strategies.” We catch disquieting glimpses of hundreds of millions of persistent unsettled trades,

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A Scandal Unfolds, and the Media Mob Scampers


Three years ago, Deep Capture reporter and Overstock CEO Patrick Byrne gave a famous conference call that he titled, “The Miscreant’s Ball.” His thesis was simple: Some short-selling hedge funds collude to destroy public companies by spreading misinformation, orchestrating government witch hunts, filing bogus class-action lawsuits, and, most egregiously, selling billions of dollars worth of phantom stock.

In the months that followed “The Miscreants Ball” presentation, a clique of journalists with close ties to short-selling hedge funds and CNBC’s Jim Cramer (himself a former hedge fund manager), set out to sully the reputations of Patrick and everyone else who sought to expose short-seller crimes.

Cramer pal Joe Nocera, who is the New York Times’ top business columnist, wrote that Patrick’s crusade against hedge funds that sell phantom stock was “loony beyond belief.” CNBC contributor and Marketwatch columnist Herb Greenberg, formerly an editor with Cramer’s web publication, TheStreet.com, labeled Patrick the “worst CEO in America” for taking on the shorts (ie., the same shorts who are now paying Herb for “independent” financial research). Fortune magazine’s Bethany McLean, who has yet to write a story that was not sourced from a small group of short-sellers connected to Jim Cramer, suggested in an article titled “Phantom Menace” that Patrick should be fired from Overstock for speaking out against the problem of phantom stock.

At the time, I was the editor of the Columbia Journalism Review’s online critique of business journalism. The attack on Patrick was like nothing I’d seen before, so I decided to write a story about the media’s coverage of short-sellers and phantom stock. When Herb Greenberg and Joe Nocera got word of this, they both called my editor demanding that he kill the story. Cramer sent a public relations goon to delay the story. Then a short-selling hedge fund, Kingsford Capital, appeared in my offices and offered to pay my salary.

My successor at the Columbia Journalism Review is now called “The Kingsford Capital Fellow.” One of Kingsford Capital’s managers was a founding editor of Cramer’s website, TheStreet.com. I do not believe that Kingsford’s interest in the Columbia Journalism Review is philanthropic. And I do not believe that the Columbia Journalism Review, “the nation’s premier media monitor” is capable of objectively monitoring the financial media so long as it’s chief writer on the subject is paid directly by this very controversial, Cramer-connected, short-selling hedge fund.

Perhaps facing similar pressures, or perhaps because they are unwilling to contradict Cramer’s influential Media Mob, or maybe because they’re just plain lazy, other journalists have shied away from covering the problem of illegal short-selling. Instead, reporters have incessantly repeated the party line that “short selling is good for the market. Only bad CEOs complain about short-sellers.”

In March, short-sellers destroyed Bear Stearns by spreading false information and selling millions of phantom shares. And now the shorts are going after another major investment bank. In a week of high drama, hedge funds have been circulating blatantly false and hugely damaging rumors that big institutions are pulling their money out of Lehman Brothers. If March SEC data is any indication, the shorts are also selling millions of dollars worth of phantom Lehman stock.

One of the nation’s most important investment banks is down, and another is on the brink. The American financial system wobbles.

And, suddenly, Cramer’s Media Mob is silent. Gone is all of the talk about Patrick Byrne being crazy. Nocera says nothing about the attacks on Lehman and Bear. Bethany McLean recently wrote a favorable review of a book written by David Einhorn, the most prominent short-seller of Bear Stearns and Lehman, but she dares not mention the current market predations.

Herb Greenberg, who used to sing the praises of short-sellers almost weekly, was last heard defending his hedge fund friends in April. CNBC seems to have taken him off that beat. (The network recently dispatched Herb to the San Diego County Fair, where he interviewed a vendor of deep-fried Twinkies).

But Jim Cramer is talking. No doubt to distance himself from the growing scandal, he went on CNBC today and said precisely what Patrick Byrne said three years ago. Noting that short-sellers are colluding to take down Lehman, he said the problem is “the need to be able to get a borrow and see if you can find stock….. no one is even calling to see if they can get a borrow. [In other words, hedge funds are selling stock they don’t have — phantom stock]. It’s kind of like, well listen, let’s just knock it down. It’s very similar to what Joe Kennedy would have done in 1929 [leading to Black Monday and the Great Depression] which is get a couple of cronies together and let’s take it down…”

Too late, Jim. For three years, you, CNBC, and a clique of journalists very close to you have ignored this crime because your short-selling hedge fund cronies claimed that phantom stock is not a problem. Meanwhile, hundreds of companies have been affected. Billions of dollars of value have been wiped out. And lives have been destroyed.

It is one of the most ignominious episodes in the history of American journalism.

Click here to enter the $75,000 “Crack the Cover-up” contest.

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Deep Capture Podcast: Episode 3


[display_podcast]

This episode examines the state of the news media, and the apparent bias business writers have against stocks targeted by illegal naked short selling hedge funds.

As an example, I take a look at a specific instance of business journalists continually getting one key fact wrong in their reporting, and the unwillingness of the Wall Street Journal — even when confronted with the truth — to correct the error.

Click here to read the original WSJ story (as reprinted in the Seattle Times).

Also, a transcript of this episode is available here.

Theme music for the Deep Capture Podcast composed by Derek K. Miller.

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