Companies and Brands

Herbalife FTC Settlement Delivers Crushing Blow to Bill Ackman, Pumps Carl Icahn

Jon C. Ogg

Published: July 15, 2016 10:40 am

Last Updated: January 13, 2020 5:41 am

Herbalife Ltd. (NYSE: HLF) has been more than a controversial stock over the past three years or more. Short seller and activist investor Bill Ackman had roughly a $1 billion bet against this company and has been a vocal challenger, calling Herbalife a pyramid scheme. After being investigated by the Federal Trade Commission (FTC) for some time, Herbalife has reached a landmark settlement with the government for a $200 million fine and a change to some of its business practices and sales recognitions.

Herbalife is treating this as a victory. Bill Ackman was just out calling them a pyramid scheme one day ago on CNBC, and he has released multiple videos that were meant to show the company’s practices were deceptive (or worse). Herbalife’s public posturing of the settlement is that this does not change Herbalife’s business model as a direct selling company. Herbalife also is saying that the FTC’s investigation of Herbalife is now complete.

In another twist of fate, Herbalife has also said that its board has freed Carl Icahn from his limitations of taking a stake of up to 25% to a new higher threshold to acquire up to 34.99% of the company’s outstanding common stock. Icahn was last believed to own roughly 18% of the company, but Icahn’s own site did release a more than 500-word statement on the matter.

Herbalife included more data signaling that it and the Illinois Attorney General have also reached a settlement. Herbalife will pay just $3 million as part of the separate agreement. Herbalife press release said:

With the conclusion of the Illinois investigation, the Company is not aware of any active investigations by any other state attorney general… The settlements are an acknowledgment that our business model is sound and underscore our confidence in our ability to move forward successfully, otherwise we would not have agreed to the terms.

Perhaps the larger question now is whether Herbalife will begin to aggressively go after Ackman. The company has more or less allowed Ackman’s challenges to go without specific challenges. The FTC’s settlement effectively concludes that the company is not a pyramid scheme, one of the core arguments in the short seller’s pursuit of Herbalife.

Herbalife’s press release did not mention Ackman by name, and it does not disclose whether the company will consider pursuing legal efforts and financial damages against Ackman and his Pershing Square. Herbalife addressed the short sellers as follows:

As the Company concludes this matter and looks to a promising future, it hopes that those who have shorted the Company’s stock will finally understand their thesis is misinformed and flawed, and the Company will withstand any market-manipulation campaign, even an unprecedented one that has lasted more than three years and cost a billionaire short seller hundreds of millions of dollars in addition to significant reputational damage and a loss of credibility with investors.

As far as what impact this will have, Herbalife said:

The terms of the settlement apply only to the company’s sales in the U.S., which comprise approximately 20% of total net sales. As part of the settlement, the company agreed to new procedures and enhancements to some policies that already exist. Many of the terms agreed to were either already being contemplated by the company or are extensions of practices already in place and will be implemented over the next 10 months…

After more than an hour of trading on Friday morning, Herbalife’s shares were up a sharp 14% at $67.80, after hitting a new 52-week high of $72.22. The latest short interest data showed that some 21.68 million shares were counted formally as short. Note that this does not include the myriad synthetic trades that may exist via stock options and other instruments that creative and well-financed investors can use.

Icahn Enterprises L.P. (NYSE: IEP) was not mentioned by name, but this is Icahn’s public investment vehicle. Its units were last seen down 0.25% at $54.32, versus a 52-week range of $42.50 to $87.75.

Herbalife was also able to stand up a bit stronger in its settlement description, as follows:

While the Company believes that many of the allegations made by the FTC are factually incorrect, the Company believes settlement is in its best interest because the financial cost and distraction of protracted litigation would have been significant, and after more than two years of cooperating with the FTC’s investigation, the Company simply wanted to move forward. Moreover, the Company’s management can now focus all of its energies on continuing to build the business and exploring strategic business opportunities.

More details of the settlement can be found at Herbalife’s website and at the FTC website.