November 2009 Archives
After being clobbered by the double whammy of recession and credit crunch, it's wonderful to see JLR back in the black (in operating terms at least) with some excellent results.
Indeed, so much so that it will be fun to watch some of the teenage scribblers in the London business press digest this after roundly slagging off the firm earlier this year (they should get out more and understand manufacturing better).
The Tata-owned but Midlands based firm has made an operating profit after aggressive cost cutting and a rise in sales. The latter has been boosted by improvements in markets like China and the UK, and also through sheer hard work by the firm.
Its 2010 range of revamped Land Rover, Range Rover Sport and Discovery 4 is doing well. Meanwhile the stunning Jaguar XF takes on all-comers and the real benefits of the XJ are yet to come.
Well, it looks even more like the OFT just blew it. Their legal advisers, solicitors, Q.C.s, junior barristers, the lot between them, managed simply to mess up big time. At great cost to a lot of people, but at no great cost to the lawyers themselves, I'm sure.
Bearing in mind you and I are paying the OFT's legal costs, and are effectively paying the legal fees of all of the banks in the case we own (that's all apart from Barclays, HSBC and Nationwide) and all of the actual day-to-day court costs of the High Court, Court of Appeal and Supreme Court themselves, this was a very costly mistake indeed.
There now seems to be a general consensus of opinion around what I said yesterday: that the OFT simply argued too narrowly in the case and ended up making a huge legal technical error. To be put right will involve possibly another year or two's legal time and...of course....a year or two's legal fees and costs.
The Supreme Court in one of its later judgment paragraphs is very clear that, as I said in my last blog, it's not all over.
It even goes on to blame, as I did, succesive governments for not strengthening consumer protection. It implies that other EU member states have gone on to strengthen consumer protection beyond that provided by the European Regulations, as national governments were entitled to do so.
But that in a "light touch" era of regulation in the recent past governments decided not to.
Now, from a Supreme Court Justice that is a withering attack on government policy along the lines of my last blog-but-one.
On reading the full judgement, it is looking very much like every case that is in court will now proceed as normal and the court dealing with the case will have to address the issue of fairness as argued before them; even though the OFT cannot determine the matter, a court can.
Contrary to what the immediate media reporting has been, the Supreme Court judgement has not let the banks off the hook.
Even the OFT could come back to court: effectively, the Supreme Court has simply said that the OFT cannot address the issue of fairness under one specific rule under the regulations that was the specific subject of the appeal (but hinted they might be able to address it under another regulation, but they hadn't been asked about that one!).
The Supreme Court has decided that Overdraft Charges and Returned Item Fees do form part of the core terms of the banking contract and therefore form part of the 'fair price or remuneration' under the contract.
I got the prediction wrong on this and am very surprised indeed. The arguments of all of the justices in the Court of Appeal was very persuasive (lawyers, eh?).
Perhaps being charged overdraft and returned item fees has never entered into the life experience of those sitting in the Supreme Court?
We may no longer be able to refer to the charges as unlawful, that doesn't mean that they were not fundamentally immoral and constituted the unacceptable face of capitalism.
Tomorrow is the big day. The banks cannot hide any longer. If the new Supreme Court decides (as I predict it will) at 9.45 a.m that the banks' overdraft charges and returned item fees should be subject to the consumer laws on 'fairness' then that should be the end of the road for the banks. They will have to cough up. If they don't, then they will have to be forced to. Any attempt to prevaricate or effectively start the whole case again by challenging any subsequent assessment by the Office of Fair Trading that the charges are unfair has to be nipped in the bud.
It will be abundantly clear that the feckless, lazy banking institutions , which we later learned hadn't a clue what they were doing from one day to the next, used the British Public as an hourly charity bucket to make easy retail banking profits, rather than them actually doing anything related to the rigours of the real market. It was a charity, not an industry. And it's the charity where we all just keep giving. Bankers In Need, indeed.
The road started back in April 2007, when the OFT stepped in as a result of a mass consumer revolt which was clogging up the normal business of County Courts all over Britain. Shortly thereafter (just before Northern Rock started crashing) the High Court case began in summer 2007, it got to the Court of Appeal earlier this year, where the banks lost on the case of 'fairness'. They appealed to the House of Lords, which in the meantime morphed in to The Supreme Court.
Of course, back in April 2007, then the banks swaggered around like they owned the place, asserting with increasing vehemence that they had a perfect right to be unfair as much and as often as they wanted to. Customers who went overdrawn or didn't have enough money to pay a Direct Debit or a cheque were indeed feckless types who couldn't handle their money and need to be punished by penalty charges. They charged them ÃÂ£Billions. Easy money.
It also meant that Free Banking could be provided to the country at large on the back of unlawful deductions from the bank accounts of a significant portion of the population which verged on loan sharkery.
So, who turned out to be absolutely rubbish with money? Who turned out not to have the first idea about finance, and capital and balancing their books? Who turned out to be unable to get to the end of the day, never mind the end of the month, without (we learn today) bridging loans from you and from me running into ÃÂ£61Billions (in secret, by the way - we didn't even know we were doing it! How good of us.) Who had to be bailed out by ordinary people (their customers) simply to survive with ÃÂ£100Billions?
Who? The banks.
Who persisted, even after having their sorry assets saved, that they would appeal a clear decision from the Court of Appeal that they should be subject to the rules of fairness under Consumer Protection legislation? Who? The Banks. They felt that their charges were incidental to the real contract formed with the poor suckers who they liked in public to call their customers.
Who paid, and continues to pay most of the costs of the case and the many ÃÂ£millions in fees for lawyers on both sides and accountants and judges and paper and bottled water and travel expenses and hotel expenses? Who? The great British taxpayers.
The taxpayers who now own most of the banks in the case and saved the rest in the case by saving the entire system of banking from collapse. That intervention ensured their survival so they could actually continue with the appeal case! The whole case is substantially funded by the taxpayer for the banks to argue that they had, and have, the right to be unfair!
Last week I attended the PRCA Digital Revolution event at 'Funlop" as the Birmingham Post staff affectionately call their home.
Online PR guru, Fernando Rizo, was speaking on how to sell 'digital' to clients. (he was destined to become some sort of guru with a name like that!).
His main point was that, thanks to the internet, mass communication was no longer the preserver of the media - everyone is now in the broadcasting business and that has fundamentally changed how PR works.
(That's probably a poor summary so judge for yourself - video of his full presentation can be found here : http://bit.ly/3ADvb4 )
He also underlined what many of us have already worked out - that PR has become conversational. Rather than issuing press releases it is about listening to, and then joining, online conversations.
To use Fernando's words: PR consultants used to spend most of their day writing, now they need to spend most of the day reading.
Reports today suggested that the US chocolate firm Hershey is now contemplating going-it-alone in an effort to get its hands on the icon of British chocolate, Cadbury.
Analysts are suggesting that Hershey is looking at an offer of at least ÃÂ£10.2bn (or $17bn) to outflank Kraft's hostile bid of ÃÂ£9.8bn.
Hershey appears to have lined up financing from JP Morgan and Bank of America for such a bid. As noted last week, Hershey (which makes and sells Cadbury brands in the US, albeit sweetened for American tastes), has discussed a possible joint bid with the Italian chocolate firm Ferrero, but is now looking at going alone.
Hershey has eyed Cadbury before (notably back in 2008) and the appeal for Hershey is obvious. The latter is very much limited in its market appeal to North and South America, and is around just half the size of Cadbury. Cadbury would open up new markets in Europe and - critically - emerging markets such as India.
But two obvious questions arise: 1. Would it be biting off more than it can chew (excuse the pun) and 2. How would this impact on British jobs and production?
The Italian firm Ferrero, which owns Ferrero Rocher, Tic Tac and Nutella, is understood to be exploring options with American chocolate firm Hershey over a possible deal to buy Cadbury, the iconic British chocolate firm under attack from the huge American food conglomerate Kraft.
One possibility is for Ferrero to go it alone in buying Cadbury, whilst another option is a tie-up with the larger US based chocolate firm Hershey. The latter's bosses are believed to have discussed a possible joint bid with Ferrero. However this has yet to lead to agreement and a firm bid.
The Italian business newspaper Il Sole 24 Ore, reported yesterday that Ferrero could join investors and private equity players in a possible alliance with Cadbury. Traditional the family-owned Ferrero firm has eschewed acquisitions and has successfully grown organically, so this would represent a major change for the firm, but would potentially help it in penetrating the UK market.
Last week, Kraft launched its formal offer for Cadbury. The offer, of 300p in cash and 0.2589 new Kraft shares for each Cadbury share, valued Cadbury shares at 717p and the company at ÃÂ£9.8 billion pounds (or $16.3 billion).
The bid was rejected by management and now we are witnessing a hostile take-over attempt for one of the UK's last remaining independent manufacturers (yes, making chocolate is manufacturing).
After the hostile takeover bid was announced, a group of unions and MPs - in the first instance led by Perry Barr's Khalid Mahmood - raised the issue of why the state-rescued bank RBS has made available a ÃÂ£630m loan facility to Kraft, the US firm bidding to buy Cadbury.