Robert H. Heath returns with some interesting observations on the new(s) cycle of information, and how traditional media outlets are demonstrating an ironic capacity for error:

More than a week has passed since the release of the “Report of the Examiner in the Chapter 11 proceedings of Lehman Brothers Holdings Inc” so naturally coverage of the report is moving beyond reaction to reflection.


This post offers my thoughts on the “reporting of the report” and the changing media landscape.

It remains popular within the mainstream media to dismiss the blogging community as mostly commentators rather than reporters. What’s more, according to the MSM types, most of the fodder for the blogosphere’s ruminations comes from reporting in the mainstream media.

The clear implication is that without the mainstream media to painstakingly investigate, write, edit and publish the news in the first place, the blogosphere would be reduced to self-indulgent opinionating and bloviating, like, for example the content you’d expect to find on MySpace.

Even worse, according to the extreme form of the argument, the lack of professional standards and good editing in the blogosphere can lead to reckless “reporting” with potentially costly consequences.

So I was puzzled last weekend when the NYT’s editorial page asserted that Lehman Brothers, in the last quarters prior to its September 2008 bankruptcy filing, engaged in repo transactions that removed “troubled assets” from its balance sheet.

My surprise arose not from Lehman’s conduct (although the Times professed to being “dumbstruck” and “blindsided”) but from the fact that I quite specifically recalled the report, right on page 796 saying:

…the vast majority of securities Lehman utilized in Repo 105 transactions were investment grade, with all but a few of the securities falling within the A to AAA range.

Curious how the Times editors were so perfectly misled on this point, I went back to the paper’s original story on the Lehman report, only to find the following correction.

Correction: March 13, 2010

An article on Friday about an examiner’s report detailing accounting maneuvers used by Lehman Brothers to conceal its perilous finances described incorrectly in some editions the assets that were temporarily shuffled off its books. They were mostly high-quality securities that could be easily accepted by other banks, according to the examiner’s report; they were not “troubled” and “mostly illiquid real estate holdings…”

So here we have a Times story, written under deadline, that gets a key fact exactly wrong, followed by a correction. Okay, stuff happens. But what must be especially embarassing to the Times is that the newsroom appears to have noticed and corrected its error before the editorial page went to bed with the wrong fact 24 hours later… kinda like a blogger spouting off his opinion about something he read online, without checking the veracity of the story.

Even worse, a full week later the New York Post, which apparently gets its facts from old copies of the Times, publishes this:

Among Valukas’ findings is that Lehman used an esoteric accounting practice known as ‘Repo 105,’ which allowed the firm to move toxic mortgage assets off its books in order to make it seem healthier.

Don’t these guys have time to read the financial blogs?

When it comes to reporting complex subjects, the mainstream media’s conventions may leave it competitively disadvantaged versus the blogosphere. The “inverted pyramid” approach to a traditional news article gives short shrift to second- and third-level details (which may be summarily discarded if the ‘news hole’ is too small).

The desire to present both sides of the story “objectively” requires time-consuming phone and email contacts for “On the one hand… on the other hand…” quotes from expert sources who may possess less knowledge about fast-breaking news than the reporter himself. And for print journalists, the need for a “static” version of a story to meet the circadian publishing cycle creates constraints that a living story on a blog doesn’t face.

Michael Kinsley has written and Kara Swisher has spoken (a little past the 10:00 minute mark) far more eloquently about this issue, so I’ll refer you to them.

Not so long ago, a “Report of the Examiner in the Chapter 11 proceedings of Lehman Brothers Holdings Inc” would have been released in a small press conference in New York City, where a smattering of lawyers and business journalists would lug their 2200-page copies back to the office to research potential lawsuits or the news angle. But the public at large would not have had convenient access to the source materials until they arrived at the local library, if at all. So journalists of yesteryear enjoyed quasi-monopolistic access to much of the source material for the important stories of the day.

A recent Pew Research Center study of news dissemination in Baltimore found that 63% of news stories originated with government entities. News organizations originated 14% and the remainder were largely from interest groups. This suggests that 86% of the “news” is originated (that is to say, “published”) by government and private non-journalistic organizations. Increasingly, these stories are being published online, where they’re immediately available to all interested readers. And for a story of any complexity, the party most qualified to comment may be some guy (a former Lehman repo trader, perhaps) posting in his pajamas from his basement office.

If you’ve read this far, you deserve a reward, so I’ll give the last word on the subject to the writing team on NBC’s hit comedy,”30 Rock,” who nail the topic with the brutally efficient satire. Currently available on Hulu (4:30 into the show).

In the scene, Avery Jessup a fictional, on-air reporter for CNBC (played by the adorable Elizabeth Banks) calls her lover, Jack Donaghy (played by Alec Baldwin) a senior executive at NBC, about a rumored takeover of NBC.

Phone rings in Donaghy’s office.

Jack Donaghy: “Hello?”

Avery Jessup: “Answering your own phone on the first ring… All hands on deck over there, huh?”

Jack Donaghy: “Whaddya mean?”

Avery Jessup: “C’mon the NBC buyout… what’s happening today?”

Jack Donaghy: (Increduously) “I’m sorry… you’re calling me as a source? How are you going to explain your unnamed executive to your producer.”

Avery Jessup: “I’ll tell him it’s a guy I’m having sex with. It’s a 24-hour news cycle here, Jack. We really don’t have time to do right any more.”

So the new fragrance in town is the just-launched temporary 5th network, the Coco Channel. This fast-growing network has it all.

Legal Dramas: (This video was removed by NBC today, but you can still find it on their site here)


Historical Documentaries:


Reality Shows:


And, news coverage:


No word yet on who might be available to head the network, but word on the street is that someone may be announced very shortly.

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JD-About-Town Jonathan Handel shares here some very interesting insights into the NBC/Leno/O’Brien slap fight. For the international reader, Jay Leno and Conan O’Brien are two big talk show hosts here in the USA, ostensibly “trapped” in a web of intrigue (others may suggest a quagmire of confused corporate fumbling) surrounding their futures as talk show hosts on that particular network. NBC, one of the USA’s top television networks, brusquely replaced Mr. Leno, former host of the renowned “Tonight Show”, with Conan O’Brien, in an effort to appeal to the prized younger demographic. They secured the demographic, but lost overall viewership. Meanwhile, the consolation prize offered to Mr. Leno, in the form of a prime time talk show, also failed in the ratings (again, some may prefer “was not given enough of a chance”). The Network affiliates revolted, and NBC – just as brusquely – announced an odd reshuffle that led to the current (and apparently soon to be resolved) standoff. For more details, read on!:

That sweet walkaway payday for Conan O’Brien might not be as rich as it sounds. Media such as Variety are reporting that NBC is likely to pay Conan $30 to $40 million to settle out his contract, with a deal to be reached shortly. But what none of the media appear to be mentioning is the two magic words of employment contract settlements: mitigation and offset. Depending on how those terms are deployed, the hit to NBC could be much less than the numbers imply – particularly if Conan scores a deal with Fox for a new show to start in September, as many observers expect.

Here’s how it works. First, as background, the NBC payments are likely to be made over the period of time remaining in his contract – at least, that’s what customary. Conan’s attorneys, agents and manager would probably press for some acceleration though, unless the tax consequences of doing so would be adverse.

In any case, mitigation is the concept that the terminated employee, i.e., Conan, has an obligation to seek other employment. If he fails to do so, the payments from NBC could stop. To protect against this, Conan’s representatives will seek, and may get, a “no mitigation” clause. In that case, the payments would keep coming even if Conan decides to sit on the beach for the next 2-1/2 years (reportedly the remaining term of his contract), though he’s unlikely to want to damage his personal brand name by simply disappearing.

At the very least, though, Conan’s team will argue for no mitigation from now until a new Conan show could feasibly be launched, which is generally assumed to be September, i.e., the beginning of the fall TV season. They’d also probably seek a guarantee that there would be no mitigation if Conan is offered and refuses a show of lesser stature, or one at a lower salary than he was receiving at NBC, or one that reaches too small a percentage of households in the country. In other words, under such contract terms, Conan would be able to refuse a “demotion” without violating a duty to mitigate.

Now on to offset. This is the concept that whatever the employee earns at his or her new job, if any, would be offset against the settlement payments owed by the old employer. This would apply only for the remainder of the old contract. For instance, suppose the agreed NBC termination payment (“liquidated damages,” in legal terminology) is $40 million, and suppose Fox pays Conan $30 million over the next 2-1/2 years. In that case, the $30 million could be offset against the $40 million, and NBC would only have to pay $10 million.

Naturally, Conan’s representatives will seek a “no offset” clause. This would be a hard-fought point, however. NBC would argue that Conan would be getting a windfall and, even worse, that he’ll be cashing those checks while competing against NBC itself. That’s like biting the hand that feeds you, but knowing you’ll get fed regardless.

Here again, there’s a compromise available: Conan and NBC might agree that his salary from the new show would be only partially applicable (i.e., partially offsetable) against the NBC liquidated damages payments. For instance, if 50% of his Fox salary (if he does a Fox deal) were applicable, then $15 million (in the above example) would be applied against the $40 million, reducing NBC’s obligation to $25 million.

On a different note, it wouldn’t surprise me if NBC seeks a non-disparagement clause from Conan. Paying him liquidated damages while he’s getting paid by Fox to bash NBC in his monologue might be too much for the NBC suits to accept.

Of course, this is all speculation. No one’s seen the existing contract, let alone the settlement agreement, since there is no settlement yet (and it’s not clear to me whether NBC would be required to file a redacted copy with the SEC). But it’s easy to see how mitigation and offset amount to a win-win. Those provisions could allow Conan’s people to leak big impressive figures, yet reduce the bite for NBC.

Whether that would be enough to keep heads from rolling at NBC is another subject. If the Comcast deal goes through, under which the cable operator would acquire a majority stake in NBC Universal from corporate parent GE, then I’d expect some hasty departures. Someone might get the ax even if the deal isn’t consummated. (The antitrust division of the Justice Department recently announced they will be reviewing the deal.) Ironically, terminating the responsible executives would probably require NBC to make more contract settlement payments.

Moving Jay Leno to 10:00 p.m. was an understandable experiment. It seemingly kept both Leno and O’Brien in the family, and lower ratings were acceptable to the network, since production costs for five nights a week of a talk show are a lot less than for five nights of scripted dramas.

Unfortunately, it looks like the downside wasn’t evaluated as thoroughly: Leno’s lower ratings at 10:00 meant diminished ratings for 11:00 p.m. local station newscasts, an unacceptable price for network affiliates, for whom the newscasts are a cash cow. Moving Leno back to late night gave NBC one host too many: Leno, O’Brien, Jimmy Fallon and Carson Daly. That’s four hosts for three chairs, and when the music stopped, O’Brien was out. Now, for NBC, it appears time to pay the piper.

Jonathan Handel is Of Counsel at TroyGould and practices digital media, entertainment and technology law.  He is an adjunct professor at the UCLA School of Law, and his op-ed pieces have appeared in the Los Angeles Times, the Daily Journal, and the Los Angeles Business Journal. Visit his site at

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