We have made substantial progress with our short position in Herbalife (HLF, Financial). On July 15, 2016, after a more than two-year investigation, the FTC found that Herbalife has been operating illegally, misleading consumers about the potential profitability of its so-called business opportunity, among other extremely critical findings. The FTC's settlement with Herbalife avoided using the words "pyramid scheme" to describe its business, but found that the company had all of the hallmarks of other pyramid schemes it has prosecuted recently. The FTC's findings confirm each of our principal allegations against the company.
The FTC stated that it chose to settle with Herbalife to avoid an extended period of litigation and to bring relief to consumers more rapidly. While Herbalife has to-date successfully spun the terms of the settlement as a victory for the company, the facts speak differently as the market appears to have recently begun to understand. While Herbalife stock rose more than 20% on the initial announcement of the settlement, it has declined since that time, and is now trading at approximately the same price as before the announcement.
Under the terms of the FTC settlement, the company is being required to totally restructure its business and compensate its distributors only for "profitable retail sales" to consumers who are not distributors pursuing the business opportunity (other than for a limited carve out for personal consumption of the product by distributors). In light of the fact that the FTC found little if any evidence of profitable retail sales, it is difficult to understand how the company can continue to motivate and recruit distributors to replace the more than 2,000,000 who quit each year when these aspiring distributors realize they cannot make money. As a result, we expect Herbalife to collapse as distributors leave as a result of the newly restructured compensation arrangements and required changes in marketing practices. While it is difficult to estimate a precise time frame for the company's demise, we believe it will not be years. We have already described the Complaint and Settlement Agreement in detail during our July 20, 2016 conference call and presentation which is available on the PSH website, www.pershingsquareholdings.com. In summary, the FTC fmdings make clear that Herbalife is a pyramid scheme.
A comparison of the FTC's fmdings about Herbalife with previous FTC pyramid scheme prosecutions reveals similar and often nearly identical language. The FTC Complaint alleged that Herbalife participants are "primarily compensated for successfully recruiting" new participants and not for selling products, the defming attribute of a pyramid scheme which has been alleged in each of the most recent FTC pyramid scheme cases. Exhibit I, which starts on page 32 of this report, compares the FTC's allegations against Herbalife and other companies the FTC deemed to be pyramid schemes. Most notably, the count against Herbalife for Unfair Practices closely mirrors the Illegal Pyramid counts in previous cases. It is clear from Exhibit I that the FTC found Herbalife to be an illegal pyramid scheme and alleged the necessary fmdings to support that charge but, as part of the settlement, agreed to avoid using the phrase "pyramid scheme." FTC Chairwoman Ramirez's public comments corroborate this conclusion.
We believe the implementation of the Settlement Agreement β the most comprehensive business model reform required by the FTC against any multi-level marketing company β will cause Herbalife's U.S. business to collapse and contribute to the eventual failure of the entire company. The settlement represents Herbalife's agreement to engage in a "top to bottom' restructuring of its business model in the United States. Key elements include:
- Compensation to distributors is limited to verifiable, "Profitable Retail Salesn
- Present compensation levels remain only if 80% or more of U.S. sales are verifiable, "Profitable Retail Sales";
- At least two-thirds of rewards paid by Herbalife to distributors must be based on Profitable Retail Sales of Herbalife products that are tracked and verified;
- Qualification purchases are prohibited;
- Misleading income claims are prohibited; and
- An Independent Compliance Auditor will be hired to oversee compensation plan changes for a period of seven years.
Since the day of the FTC settlement announcement, Herbalife has orchestrated a coordinated media campaign to misrepresent the findings of the FTC and the inevitable business impact of the relief demanded by the FTC.
On August 3, 2016, Herbalife reported its second quarter financial results. On the conference call, Herbalife management was consistently upbeat and bullish on the prospects for the business in the face of the FTC settlement, noting "these changes are good for our company," and "we have the greatest confidence in our ability to comply with the agreement and continue to grow our business in the U.S. and around the world." Management's latest commentary is a continuation of prior misrepresentations.
Herbalife's 10Q provided revised disclosure pertaining to the FTC settlement and updated risk disclosures. It struck a more balanced, and at times cautionary, tone compared with management commentary on the call, noting that "there is no guarantee that we will be able to fully comply with the Consent Order," and "Nile impact of the Consent Order on our business ... could be significant." All the same, the 10Q reiterated that Herbalife "neither admitted nor denied the allegations in the FTC's complaint' in agreeing to the terms of the Consent Order," and repeated the company line that "we do not believe the Consent Order changes our business model as a direct selling
company." The 10Q included new language noting that the Consent Order does not prevent "other third-parties from bringing actions against us, whether in the form of other state, federal or foreign regulatory investigations or proceedings, or private litigation, any of which could lead to, among other things, monetary settlements, fines, penalties or injunctions."
At a minimum, we believe the injunctive relief demanded by the FTC is likely to significantly weigh on Herbalife's financial performance in the coming quarters. Moreover, we believe that the FTC complaint and settlement provide a roadmap for other state Attorneys General and regulators in 93 other countries around the world to seek similar relief and to enforce similar protections for their consumers.
Despite a bleak financial outlook, Herbalife is trading at β13.5x the midpoint of management's revised 2016 guidance ($4.50 to $4.80) or β16 times 2016 guidance excluding certain items (which we believe are ongoing costs to the business but which Herbalife management inappropriately adds back). The implied multiple represents an even higher multiple of 2017 earnings, as Herbalife's future earnings are likely to be significantly lower as changes to the business model reduce the company's earnings power. These estimates exclude additional fines and/or the impact of additional injunctive relief that may arise from other regulatory agencies.
Herbalife stock price hit a recent high in the low $70s per share on the day of the settlement, but has declined to less than $62 currently. Putting aside the short case for Herbalife, it has become extremely difficult to comprehend the logic behind the bull case on Herbalife.
The bulls had believed that the FTC settlement would exonerate the company and otherwise not require any material changes to the company's business practices. This is defmitively false based on the FTC Settlement and Order.
Second, the bulls believed that the company would announce a large leveraged recap at the time of a settlement. When pressed about buybacks on the recent earnings call, the CFO demurred and reminded investors about the maturity of its credit facility in March 2017 and the $1.15 billion out-of-the-money convertible debt issue which is due within three years. We do not believe that banks and/or bondholders are likely to be willing to provide a material amount of debt financing to Herbalife in light of the FTC findings, and without knowing the revenues, earnings, and cash flow implications of the FTC's required business changes, which will not be fully implemented until May of next year.
Third, China, which has been the growth engine of the company in recent years, showed dramatically decelerated growth for the quarter calling into question its sustainability. Herbalife management stated that investors are likely to see "a significantly lower growth rate going forward" and that they do not believe China's growth rate is "sustainable at the current levels."'
Fourth, long-only institutional investors appear to be exiting, with Fidelity, a long-time shareholder selling nearly 40% of its holdings as disclosed in its recently updated 13G filing. Fidelity will not be required to notify the market of additional sales until mid-November. Capital Research has also been a substantial seller. In light of the FTC's findings of wrongdoing, we do not believe that legitimate institutional investors will continue to own Herbalife. The substantial majority of other holders appear to be fast-money investors who we believe mistakenly bought on the announced settlement, betting on a buyback, when more than 50% of the float on that day changed hands at prices nearly 20% above current levels.
Lastly, at current prices it is difficult to make a compelling argument for owning Herbalife even if one does not believe it is a pyramid scheme. The stock trades at about a 50 percent multiple premium to legitimate supplement retailers like GNC, which, unlike Herbalife, is not being required to completely change the way it compensates its distributors as well as its marketing practices.
While it has been a long road, we see multiple paths to an eventually successful outcome with this investment.
From Bill Ackman (Trades, Portfolio)'s mid-year 2016 letter.
