Daniel Loeb

Questioning Bill Ackman's Herbalife profit motive

March 10, 2014: 2:59 PM ET

It may seem awkward, but is there anything actually wrong with a hedge fund manager bankrolling an all-out assault on a company?

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Correction: March 10, 4:45 PM.

FORTUNE -- Bill Ackman really, really wants to prove that Herbalife is a fraud. That's not new. What's new is the lengths he is apparently going to to convince everyone, particularly regulators, that he is right.

On Monday, the New York Times detailed those efforts in a front page story. The hedge fund manager has hired lobbyists, enlisted grass roots groups (in part with donations), made presentations to the SEC, and seemingly assisted others in writing letters to state attorneys general saying Herbalife is ripping people off.

The article doesn't say it explicitly, but the Times suggests that Ackman has stepped over the line in his attack on Herbalife (HLF), driven by his billion-dollar bet against the company and a desire to not be publicly proven wrong again. He just lost $500 million on a high profile bet on J.C. Penney (JCP) -- an effort to save the troubled company.

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The Times seems to have spent a fair amount of time reporting the story. It has a triple byline, and it includes a comparison of five letters signed by others sympathetic to Ackman's cause that suggests that they may have all been written by the same person. (Someone who works for Ackman? The article doesn't say, but that's where the reader is being led.) One of the letters is signed by someone who claims it wasn't written or sent by him.

And yet there's almost nothing in the article about whether Herbalife is indeed a pyramid scheme. Nor does it address the veracity of any of Ackman's other allegations about the company. The Times just says in passing that others have made similar claims about the company. It also says that it has been hard for others to find Herbalife victims. But it doesn't say whether it tried. Isn't that what journalists do better than others, particularly the Times?

Instead, the Times rests heavily on Ackman's profit motive as evidence that the investor's crusade against Herbalife is wrong. And it may indeed seem unfair or inappropriate that wealthy hedge fund managers can convince politicians to call for investigations that will help their trading book. But that doesn't actually make it wrong. Large companies routinely use lobbyists to recruit politicians to support their causes.

There doesn't seem to be anything punishable in what Ackman may have done, other than that potentially phony letter. Former SEC Chairman Harvey Pitt says what Ackman is doing is starting to look like manipulation, but even he says that as long as what Ackman is saying is the truth -- or at least as long he believes it to be the truth -- he's in the clear. There is no evidence that he believes what he is saying is inaccurate.

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It's not clear to me that what Ackman is doing looks like manipulation: That's when you artificially try to move a stock so you can sell quickly for a profit. Last year, Daniel Loeb bought into Herbalife when Herbalife shares took a nosedive on the wings of Ackman's initial allegations. The endorsement from a dueling hedge fund manager caused Herbalife's shares to recover and then some. Loeb sold for a quick profit. Few are calling this manipulation.

Leon Cooperman criticized Ackman last year, saying the hedge fund manager could be sued if he bailed out of his Herbalife bet quickly. But Ackman hasn't done that. He seems to be waiting for the fraud to be proven before he sells.

And isn't pretty much every economic activity motivated by profit? I mean, Samsung is hoping to profit from the demise of Apple, and they spend a lot of money on commercials to bolster those efforts. Clearly manipulation.

At a time when the SEC and other regulators are strapped for cash, shouldn't we welcome rich individuals who want to spend money exposing frauds? Ironically, this could be slowing the investigation of the company, because I am sure neither the SEC nor the Federal Trade Commission want to come across like they are working on behalf of a hedge fund. Also, it's probably better when these types of crusades come from successful hedge fund managers, anyway.

Barry Minkow, a formerly reformed fraudster (he's now back in prison), tried a cruder version of the make-money-from-exposing-frauds game a few years ago. And, in fact, one of Minkow's targets was Herbalife. But Minkow, not being a hedge fund manager himself, or really anyone people would give money to, struggled to make money on his quest. Eventually, he did, by allowing Herbalife to pay him to keep quiet.

The fact that Ackman has seemingly unlimited resources to take down a company for his and his investors' profit may seem troubling. But it also makes him someone who can't easily be bought off, or placated by a quick profit. That seems like a pretty good check on manipulation.

Correction: An earlier version of this story said Carl Icahn had sold his stake in Herbalife. He has not.

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