por admin » Vie Jul 15, 2016 10:51 am
Herbalife to Pay $200 Million Over Claims of Misrepresentation
Herbalife Ltd. has reached a deal to pay $200 million in a settlement with the Federal Trade Commission that will enable the company to avoid being classified as a pyramid scheme, a victory in its long-running battle with activist investor William Ackman.
The settlement, announced Friday morning, is a dramatic twist in one of Wall Street’s biggest fights in recent years. It could worsen a dismal stretch for Mr. Ackman’s Pershing Square Capital Management LP.
The company also said it has granted billionaire investor Carl Icahn the right to boost his stake to up to 34.99% of the company’s shares outstanding from a previous limit of 25%. Herbalife said Mr. Icahn currently owns about 18.3% of the company’s stock.
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The settlement with the FTC, which was reported by The Wall Street Journal before the Friday announcement, will require the nutritional-products company to improve disclosures about its distributors, according to people familiar with the matter. It also will tie distributor compensation to actual retail sales and force the company to collect receipts, the people said.
That will force the company to prove it has underlying users who drink its protein shakes, something it hasn’t disclosed and that was at the crux of the debate that Mr. Ackman stoked about its business model.
But while those agreements will cause shifts in its business, and possibly across the direct-selling industry, the FTC isn’t accusing it of being the kind of fraudulent scheme Mr. Ackman and others have claimed for nearly four years.
Shares of Herbalife jumped 16% to $68.80 in early trading. The stock is up by more than 25% so far this year.
Still, the FTC complaint disclosed Friday says the “retail sale of Herbalife product is not profitable or is so insufficiently profitable that any retail sales tend only to mitigate the costs to participate in the Herbalife business opportunity.”
“With the settlement agreement announced today, the FTC’s investigation of Herbalife is complete,” Herbalife said in a statement. It will separately pay the Illinois Attorney General $3 million as part of an agreement.
In late 2012, the nutritional-shake company was accused by Mr. Ackman, who had bet $1 billion against the stock, of running a pyramid scheme. Since then, his campaign has been one of Wall Street’s most dramatic circuses, including bitter accusations, investigations, a screaming match between billionaires on live television and a feature-length documentary premiering at the Tribeca Film Festival.
Mr. Ackman made it a personal crusade. The company painted him as a market manipulator.
Other wealthy investors, including Mr. Icahn, piled in against Mr. Ackman, squeezing his bet by driving up the stock price and raising questions about Mr. Ackman’s ability to continue the investment.
Mr. Ackman’s Pershing Square is already down more than 20% this year, on top of a similar drop in 2015.
His position in drugmaker Valeant Pharmaceuticals International Inc. has fallen more than 90% and cost him billions on paper, a decline he has also blamed for losses in other investments. Meanwhile, Herbalife stock has risen sharply since the beginning of last year
Founded in 1980, Herbalife, based in the Cayman Islands, sells protein shakes, snacks and other weight-management products along with other dietary and nutritional supplements through a network of distributors, who also can sign up new recruits and get paid based on a portion of their sales. For the first quarter, Herbalife reported a profit of $96 million on sales of $1.12 billion.
The FTC says that one sign of a pyramid scheme is if distributors sell more product to other distributors than to the public—or if they make more money from recruiting than they do from selling. The regulator confirmed it was investigating Herbalife in March 2014.
Herbalife always said it had actual sales. Mr. Ackman claimed that most new members instead lost their money because they couldn’t move the product they bought, but those purchases fueled compensation for their recruiters and those recruiters’ recruiters.
The activist could continue arguing the underlying sales don’t exist and that the settlement will actually hamper Herbalife’s business because distributors will leave if they aren’t being paid. He has previously flagged previous settlements that ultimately led to the collapse of other direct-selling firms when they were forced to show retail sales.
Regulators began looking at Herbalife after Mr. Ackman’s intense lobbying, which has continued to this day, with a series of daily videos this month showing some employees making claims of lavish lifestyles and promises of getting rich. He has pointed to a disclosure Herbalife has made that few people make money.
The FTC cited claims of those types of get-rich promises as evidence the company misled consumers in its civil complaint against Herbalife, and the settlement will bar such claims in the future.
Herbalife had said in May it was in “advanced negotiations” with the government over a potential agreement, and estimated it may pay a $200 million penalty. That had sent the shares soaring. The FTC said at the time the changes it could force upon the business could be more significant on the future operations than any penalty.
Meanwhile, Mr. Icahn appeared ready to increase his own bet on the company, getting board approval to buy up to 34.99% of the stock and said in a statement it was time for the company to explore strategic opportunities including purchases rivals.
—Brent Kendall contributed to this article.