Republican presidential candidate Mitt Romney. (Evan Vucci/AP)
Why does it matter when Mitt Romney left Bain Capital?
Millions of dollars of attack ads by the Obama campaign are hanging in the balance. If Romney left Bain in February 1999, when he departed to run the Olympics, then a number of business deals that went sour (such as KB Toys) can’t be counted as part of Romney’s tenure. If he actually left in 2002, as the Obama campaign alleges, then those deals are fair game.
We have looked at this issue before, back in January, and thought we had settled it.
But now the Boston Globe has raised the issue again. The story seems to hinge on a quote from a former Securities and Exchange Commission member, which would have more credibility if the Globe had disclosed she was a regular contributor to Democrats. (Interestingly, “The Real Romney,” a book on the former Massachusetts governor, by Boston Globe reporters, states clearly that he left Bain when he went to run the Olympics and details the turmoil that ensued when he suddenly quit, nearly breaking up the partnership)
We’re considering whether to once again take a deeper look at this, though it really feels like Groundhog Day again. There appears to be some confusion about how partnerships are structured and managed, or what SEC documents mean. (Just because you are listed as an owner of shares does not mean you have a managerial role.)
To accept some of the claims, one would have to believe that Romney, with the advice of his lawyers, lied on government documents and committed a criminal offense. Moreover, you would have to assume he willingly gave up his share to a few years of retirement earnings — potentially worth millions of dollars — so he could say his retirement started in 1999.
UPDATE: Fortune obtained the offering documents for a Bain Capital Fund circulating in June 2000, as well as a fund in 2001. None of the documents show that Romney was listed as being among the “key investment professionals.” 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.”
For interested readers, below is a summary of what we, FactCheck.org and Fortune magazine have previously concluded.
A 2002 statement he filed with the Massachusetts State Ethics Commission on his financial interests lists ownership of various Bain entities, some of which appear to intersect with the funds that invested in KB Toys. The document says that Romney is “a passive, limited partner [with] no management capacity” in many of these funds.
In the Massachusetts document, Romney is also listed as 100 percent owner of “Bain Capital Inc.” But there is less than meets the eye here. Bain Capital Inc. was the management firm, which was paid a management fee to run the funds and actually made virtually no profit, since it existed to pay salaries and expenses. After Romney formally left Bain in 2001, a new entity called “Bain Capital LLC” took over the management function.
By virtually all accounts, Romney was focused on the Olympics in the 1999-2002 period. Yet because Romney had not legally separated from Bain, his name is littered across Securities and Exchange Commission filings concerning Bain Capital deals during this period. The crazy quilt of private-equity structures, in some ways, makes his ownership appear even more ominous, as the filings list hundreds of thousands of shares controlled by Romney.
Even so, it is a real stretch to claim that Romney — himself — “closed” these stores. No evidence has emerged that he was involved in the KB Toys transaction. Indeed, when creditors sued over the dividend payment, they named six Bain-controlled entities and three Bain executives who had served on the board of KB Holdings.
Given that the plaintiffs’ lawyers will try to list as many defendants as possible to try to force a settlement, one can be certain Romney would have been named if there had been any hint of his involvement. But he was not named, despite the SEC filings suggesting his control of the shares.
In other words, creditors apparently had determined Romney was only a passive investor.
If the Obama campaign were correct, Romney would be guilty of a federal felony by certifying on federal financial disclosure forms that he left active management of Bain Capital in February 1999….
And after reviewing evidence cited by the Obama campaign, we reaffirm our conclusion that Romney left the helm of Bain Capital when he took a leave of absence in 1999 to run the Salt Lake City Organizing Committee for the 2002 Winter Olympics – as he has said repeatedly — and never returned to active management. The Obama campaign’s recent ads thus mislead when they point to investments made by Bain, as well as management decisions made by companies in which Bain invested, after that time.
What does the Obama campaign have in rebuttal? Very little, and none of it convincing in our judgment.
Much of the Obama campaign’s letter is devoted to quoting portions of documents filed with the Securities and Exchange Commission. In summary, the letter states there are “at least 63 filings with that agency after March 1, 1999 that list various Bain entities and describe them as ‘wholly owned by W. Mitt Romney.’” That’s true, but not relevant.
We have never disputed that Romney remained the owner of Bain while he was running the Olympics committee. The issue always has been, who was running Bain? Nothing in the SEC documents contradicts what Romney has certified as true.
On that point, the Obama campaign cites snippets of a few news clippings to make a case that Romney was still a part-time manager of Bain after he left to run the Olympics. But a close reading shows these news accounts don’t contradict Romney either.
Remember, Romney did not leave Bain Capital as part of a long-term, planned succession process. Instead, his departure was fairly sudden — borne of a desire to help salvage an Olympic Games that was $1.4 billion in the hole and tarred by a massive bribery scandal. The very first reports of Romney being considered for the Salt Lake City job were on Feb. 2, 1999. Just nine days later, he officially took over.
Not surprisingly, Bain Capital hadn’t worked out all the details of Romney’s departure. It eventually would discard the CEO position in favor of a horizontal management committee made up of numerous partners, and provide Romney with a golden parachute that included limited partnership interests in all Bain-related funds raised through 2009 (including the option for Romney to invest additional monies). But none of that was in place when Romney took the Salt Lake City job.
Moreover, unwinding a private equity firm’s ownership structure is extremely complicated. The “firm” itself is largely a legal construct of convenience, since it doesn’t pay salaries, make investments or do much of anything else. Instead, what matters are the individual funds.
In the case of Bain Capital’s funds, it’s reasonable to assume that Romney was considered a “key man,” meaning that each fund’s limited partners could have voted to end the fund’s investment period — or take over fund management themselves — if a super-majority felt it prudent. But that didn’t happen, and Bain saw no reason to expend massive administrative effort to amend existing funds. Instead, it asked Romney to sign documents when necessary, and made the managerial/ownership changes on new funds going forward….
The part about lying to the SEC is absurd, since the SEC doesn’t require an owner to be the operational decision-maker (Romney delegated such responsibilities, as is his right).
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