OK, let's say you are the U.S. government. You are the Federal Trade Commission. You are the Securities and Exchange Commission. You are the Justice Department. Are you going to, based on a hedge fund manager's say-so, shut down a company because this person says it is a criminal enterprise? Or are you going to take a look at the records of Dan Loeb and Carl Icahn and say, "You know what? They've done a lot of work. Let's just let the market decide whether Herbalife (HLF) lives or dies. It ain't dead yet, and these two investors say Herbalife is fine, and everyone recognizes these investors as being shrewd, with staffs that far exceed the ken of the government, and they own about 20% of the darned thing. So who are we to put it out of business?"
Does anyone really want an Arthur Andersen on their hands, that infamous Justice Department case in which a stroke of a pen wiped out tens of thousands of jobs?
Furthermore, is Bill Ackman a good stand-in for the government? Is it worth backing a hedge fund manager who has decided to wipe out a company? Is that a stand for the ages? Does that get you votes?
Hence, the odd state of a company that someone needs out of business, while two others just need to sit down and talk about how $5 billion can be found to take the company private.
And all it has to be is talk.
Icahn and Loeb know two things. One: Herbalife has a pristine balance sheet that has been very successful at generating worldwide profit. If it wanted to do so, it could move offshore -- move to Mexico -- and become a huge player in a growth economy. Two: The issue with shorting is that stocks can go to infinity. They stop at zero but they can go to infinity.
So we have a situation in which a company can now be bought because of two managers who are very smart are buying it, and are legitimizing it, or re-legitimizing it, right before our eyes.
Plus, we now know why Icahn was cruel to Judge Scott Wapner, the terrific host of "Fast Money's Halftime Report" on CNBC. Icahn couldn't talk about it because he was accumulating it.
Now, I am sure there are plenty of people who love Bill Ackman. I am sure that 100% that his partners will back him no matter what. I am certain that he believes the Nobel Prize for Economics awaits him and that President Obama is itching to give him the Medal of Freedom.
In the interim, as Stalin once asked of the Pope, how many divisions does he have? 'Cause I can tell you, Icahn and Loeb? They've got a lot of divisions. In this game, he who has the most divisions wins.
Random musings: Don't forget to watch my pal Scott Wapner's take on Carl Icahn for Round Two of Herbalife, maybe with an empty chair for future Nobel laureate Ackman?