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Sep. 29 2009 - 9:50 am | 810 views | 5 recommendations | 60 comments

An Inside Look at How Goldman Sachs Lobbies the Senate

The SEC is holding a public round table Tuesday to explore several issues around securities lending, which has expanded into a big moneymaker for Wall Street firms and pension funds. Regulation hasn’t kept pace, some industry participants contend.Securities lending is central to the practice of short selling, in which investors borrow shares and sell them in a bet that the price will decline. Short sellers later hope to buy back the shares at a lower price and return them to the securities lender, booking a profit. Lending and borrowing also help market makers keep stock trading functioning smoothly.

via SEC Weighs New Rules for Lending of Securities – WSJ.com.

Later on this week I have a story coming out in Rolling Stone that looks at the history of the Bear Stearns and Lehman Brothers collapses. The story ends up being more about naked short-selling and the role it played in those incidents than I had originally planned — when I first started looking at the story months ago, I had some other issues in mind, but it turns out that there’s no way to talk about Bear and Lehman without going into the weeds of naked short-selling, and to do that takes up a lot of magazine inches. So among other things, this issue takes up a lot of space in the upcoming story.

Naked short-selling is a kind of counterfeiting scheme in which short-sellers sell shares of stock they either don’t have or won’t deliver to the buyer. The piece gets into all of this, so I won’t repeat the full description in this space now. But as this week goes on I’m going to be putting up on this site information I had to leave out of the magazine article, as well as some more timely material that I’m only just getting now.

Included in that last category is some of the fallout from this week’s SEC “round table” on the naked short-selling issue.

The real significance of the naked short-selling issue isn’t so much the actual volume of the behavior, i.e. the concrete effect it has on the market and on individual companies — and that has been significant, don’t get me wrong — but the fact that the practice is absurdly widespread and takes place right under the noses of the regulators, and really nothing is ever done about it.

It’s the conspicuousness of the crime that is the issue here, and the degree to which the SEC and the other financial regulators have proven themselves completely incapable of addressing the issue seriously, constantly giving in to the demands of the major banks to pare back (or shelf altogether) planned regulatory actions. There probably isn’t a better example of “regulatory capture,” i.e. the phenomenon of regulators being captives of the industry they ostensibly regulate, than this issue.

In that vein, starting tomorrow, the SEC is holding a public “round table” on the naked short-selling issue. What’s interesting about this round table is that virtually none of the invited speakers represent shareholders or companies that might be targets of naked short-selling, or indeed any activists of any kind in favor of tougher rules against the practice. Instead, all of the invitees are either banks, financial firms, or companies that sell stuff to the first two groups.

In particular, there are very few panelists — in fact only one, from what I understand — who are in favor of a simple reform called “pre-borrowing.” Pre-borrowing is what it sounds like; it forces short-sellers to actually possess shares before they sell them.

It’s been proven to work, as last summer the SEC, concerned about predatory naked short-selling of big companies in the wake of the Bear Stearns wipeout, instituted a temporary pre-borrow requirement for the shares of 19 fat cat companies (no other companies were worth protecting, apparently). Naked shorting of those firms dropped off almost completely during that time.

The lack of pre-borrow voices invited to this panel is analogous to the Max Baucus health care round table last spring, when no single-payer advocates were invited. So who will get to speak? Two guys from Goldman Sachs, plus reps from Citigroup, Citadel (a hedge fund that has done the occasional short sale, to put it gently), Credit Suisse, NYSE Euronext, and so on.

In advance of this panel and in advance of proposed changes to the financial regulatory system, these players have been stepping up their lobbying efforts of late. Goldman Sachs in particular has been making its presence felt.

Last Friday I got a call from a Senate staffer who said that Goldman had just been in his boss’s office, lobbying against restrictions on naked short-selling. The aide said Goldman had passed out a fact sheet about the issue that was so ridiculous that one of the other staffers immediately thought to send it to me. When I went to actually get the document, though, the aide had had a change of heart.

Which was weird, and I thought the matter had ended there. But the exact same situation then repeated itself with another congressional staffer, who then actually passed me Goldman’s fact sheet.

Now, the mere fact that two different congressional aides were so disgusted by Goldman’s performance that they both called me on the same day — and I don’t have a relationship with either of these people — tells you how nauseated they were.

I would later hear that Senate aides between themselves had discussed Goldman’s lobbying efforts and concluded that it was one of the most shameless performances they’d ever seen from any group of lobbyists, and that the “fact sheet” the company had had the balls to hand to sitting U.S. Senators was, to quote one person familiar with the situation, “disgraceful” and “hilarious.”

I’m including the Goldman fact sheets here. They will not make a whole lot of sense to people outside of the finance world, but if you can fight through them, what you’ll find is the statistical equivalent of a non-sequitur. Goldman here is lobbying against restrictions to naked short-selling, and in arguing that point they include a graph showing the levels of “short interest” during two time periods, September-October 2008 (when there was a temporary ban on all short-selling, naked or otherwise) and January-March 2009.

Goldman’s point seems to be that short-selling declined during a period when the market fell sharply, and short-selling went up when the market rallied. I guess on some planet, perhaps not on earth but some other spherical space-boulder, this is supposed to indicate that short-selling is good for the market overall.

(Which, incidentally, it might be. But we’re not talking about short-selling here. We’re talking about naked short-selling).

The thing is, you can’t deduce anything at all about naked short-selling by looking at a graph showing levels of normal short selling. This is like trying to draw conclusions about the frequency of date rape by looking at the number of weddings held. The two things have absolutely nothing to do with one another.

I was so sure that I was missing something that I started asking around. “If you are confused, you are not alone,” one economist wrote back to me. “I have no idea why they are conflating short selling and naked short selling.  Members of Congress are probably confused as well.”

The thing is, the only way to draw conclusions about whether or not naked short-selling is a problem is to look at individual cases of individual declines in the share prices of specific companies, and then check to see if there have been large numbers of failed trades in those stocks.

Goldman is not only not doing that here, they’re taking two statistics with no relation to naked short-selling (short interest and stock prices), stats cherry-picked during two seemingly random time-periods, and then slapping them underneath a cover sheet full of platitudes like “The US equities market is increasingly efficient and broadly regarded as the best in the world.” It’s not so much that this is a bad argument, it’s just… not really an argument at all. It’s lazy, really. It makes you wonder what’s going on at that company.

Anyway, I’ve got to run. I’ve got some more stuff coming out in the next few days, including some transcripts of compliance officers from certain banks blabbing about this issue.


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  1. collapse expand

    It’s good to have someone out there being able to put all of this into English for the rest of us.

  2. collapse expand

    “The US equities market is increasingly efficient and broadly regarded as the best in the world.”

    Regarded by whom? The foreclosed-upon-homeless? No. The millions of Americans – like me – being laid off because the economy is in the shitter? Nope.

    Oh wait – i’m guessing on eastern Long Island, Royal Palm Beach, Wall Street & Michigan Ave it’s a big resounding YES.

    Fuckers

  3. collapse expand

    I think the Goldman Sachs argument amounts to “if it ain’t broke, don’t fix it.” Most people, though, consider our markets broken.

    They hit on the point about adding liquidity to the markets. I question whether such liquidity is even a beneficial goal. If the spread on a $25 stock were $1, investors would only invest if they seriously wanted to own a piece of the company for the long term; that’s sort of the whole point of our markets, to get investor money to guys who will use it to build or grow a company. But it’s hard to make money flash trading — to name one of a myriad of ways to take a constant “rake” from the markets — with such a large spread.

    Thanks for posting the memo. I was fascinated by it. It struck me as somewhat crass and juvenile, at least compared to what I had always thought such a memo would look like. I expected more from communication between one of our most powerful corporations and our most powerful elected leaders.

  4. collapse expand

    What is good is that you are reminding readers of the role naked short selling played in bringing out the catastrophe. What is disturbing is that naked short selling was already illegal when it all went wrong. Much of what took place was not the result of a lack of government regulation (although we’ve learned that we more than need an overhaul), it was the result of a massive, illegal enterprise that the SEC failed to pick up and, to my knowledge, has yet to fully prosecute. I hope you publish the charts that are out there of the remarkable volume of naked shorts that preceded the collapse of these banking institutions as the data is nothing short of remarkable.

  5. collapse expand

    Matching failed fantom stock should be easy to trace, why is it so hard to prove. I get the feeling sometimes that the blame of Naked short selling is an excuse to cover poor financial reporting or profits. I would also check into the reporting of the companies that are complaining, some thing is fishy here. If it doesn’t make sense, it doesn’t make sense.

    • collapse expand

      “Matching failed fantom stock should be easy to trace, why is it so hard to prove.”

      Because as Matt mentioned, the regulators are captured. They don’t want to prove anything.

      Then there’s the so called financial “journalists” who’ve been rewarded handsomely for publishing hatchet jobs on companies that the hedge funds were shorting. (See: Jim Cramer) The SEC killed any subpoenas to regarding that fraud.

      In response to another comment. See in context »
  6. collapse expand

    It is probably true, that equity markets have become more efficient
    thanks to the improvements in electronic trading. I remember that
    “on the highest volume days”, during the 1998 LTCM crisis, we traded about 800 Mio. shares a day (NYSE). This years sell off brought record daily volumes that were beyond 10 Bio. shares traded a day (NYSE). Nobody knows exactly, because of all those dark pools and electronic liquidity centers that are not included in the NYSE statistics. Also, we may know the monthly total number of short interest in a stock – but
    on an daily basis, short selling statistics are difficult to find.

    http://online.barrons.com/public/page/9_0210-nysesslonglist-sslonglist.html

    Stock Exchanges around the world never kept up with the incredible
    pace, in which electronic trading was changing the markets. They should publish, on a real-time basis, total traded volume, covered-short selling volume and naked short selling volume. Brokers have the
    ability to give the information to the stock market in real-time.

    If short selling volume is going beyond a certain point, the market
    could interrupt short-selling or put up some rules, to prevent excessive short term damage. But…

    To prove that short selling alone can destroy a company, for me, is
    non sense, because I think it is the leverage that destroys a company
    not it’s share price. In a financial world, that is so over leveraged as
    today, anything can happen, as soon as volatility picks up.Of course,
    a lot of modern financial mathematics imply the market cap in their
    formulas , in calculating etc. But this is another problem, how
    mathematician and physicist are applying their models in the financial
    world, just to make bigger and bigger trades. There are more and
    more of these wizards of maths. coming to the markets, but only a
    very few are good.

    Regulations, for Financial Markets, the Investment Banking and Hedge-Fund industry are lagging desperately behind the times.
    It was in the year after the LTCM, in 1999 when John Cassidy wrote
    an outstanding article, “Time Bomb”, where he desperately asked
    for more regulations, if not taken…..

    “Next time there is a major shock to the financial markets, it might be another big hedge fund that finds itself in trouble, but hedge funds aren’t the only ones in danger. It could equally well be a big investment firm or a commercial bank that needs a bailout. ♦

    - John Cassidy, The New Yorker – July 05, 1999

    http://www.newyorker.com/archive/1999/07/05/1999_07_05_028_TNY_LIBRY_000018530

    • collapse expand

      Thank you! The banks destroyed themselves by leveraging up 50-1 and by making trillions in bad loans! There is a very good argument to be made that naked short selling makes the markets more efficient, especially now that nobody is willing to lend out their stocks for a borrow.

      More to the point, the CDS would have taken down Bear, Lehman, Merrill etc. if the equity shorts had not. The issue was the lack of proper central bank support for non-bank financial institutions (fixed now) and, longer term, a lack of meaningful regulation. While Goldman may be an egregious lobbyist, they’re behavior is no different from JP Morgan or any large European bank.

      In response to another comment. See in context »
  7. collapse expand

    wow, matt … i love and hate to read your articles. i love them because thank god someone IS investigating these evil (there really is no other word) practices … and hate them because this is truly terrifying. the corruption just doesn’t stop …

  8. collapse expand

    A question for The Taibbi: Matt, dood, did you happen to mention in Lehman’s takedown in the upcoming RS that Lehman did a bunch of insurance securitizations and health securitizations in their last year and those derivatives are still oozing in the world’s financial system (to the tune of how many trillions, one wonders????)?

    • collapse expand

      Matt

      This is incredibly important. The prime brokers GS, etc) are intentionally conflating legal short selling with illegal selling with no intention to borrow and deliver the securities sold. This is already illegal, and no new regs are required. But the SEC has consistently failed to enforce the rules or refer the behaviour to DOJ.

      In response to another comment. See in context »
  9. collapse expand

    Am I missing something or does GS go on to hurt their argument supporting naked short selling by including data on 12 of the slides that shows a reduction in CNS fails post introduction of reg SHO, rule 204 (unless GS has found a way around this regulation)?

    • collapse expand

      Frajay,

      What they’re saying is that Reg SHO 204 is sufficient to deal with the problem, and that no pre-borrow requirement is needed.

      204 helped, and fails have dropped some. But the system is still full of unnecessary loopholes. I’ll be getting into what those are as time goes on. But Goldman is just trying to say that the existing rules are fine and effective, nothing to see here, move along…

      In response to another comment. See in context »
      • collapse expand

        got, ty much

        In response to another comment. See in context »
      • collapse expand

        Matt:

        I asked my husband this morning why you seem to be one of the only reporters actually doing any reporting these days. Thank you for your efforts. I visit the SEC’s website weekly to see what they are doing about the Uptick Rule and Naked Short Selling and every week I learn that instead of actually doing anything about re-regulating the markets, they come up with another option for the public to comment on.

        It is a fight that I’ve written to Ted Kaufman, Barack Obama and my own State Senators about. It is very unfortunate that most people in this country have no idea what just happened to them and their 401K savings, pensions and retirement accounts. Thanks for doing what you do.

        In response to another comment. See in context »
      • collapse expand

        Thanks Matt for doing the role media once did and that is to question things. So much of media is now complicit “yes men”. That’s what happens when power is concentrated is so few hands.

        In response to another comment. See in context »
  10. collapse expand

    Matt, I agree with you points entirely. Here is a post I made on this topic one year ago:

    http://alephblog.com/2008/09/19/government-policy-created-too-hastily/

    Thanks, David

  11. collapse expand

    “It’s not so much that this is a bad argument, it’s just… not really an argument at all. It’s lazy, really. It makes you wonder what’s going on at that company.”

    Obviously, what’s going on at that company – and all major corporations these days – is that the point has been reached in this country where they no longer have to even try to convince those in power to give them what they want. They just have to come up with some bullshit that fools most of the people, in case any of them are looking, and give some very thin cover to the politicians. It’s easy to do when there are no dissenting voices allowed to take part in the talks.
    And why should they act differently? The politicians’ positions are protected by the two-party system, all but guaranteeing their re-election, and the corporations are protected by the politicians they hire. It’s a mutual admiration society for the crooks, dedicated to fucking the rest of us until we bleed to death from every orifice!
    For all the help we get from the Democrats, we may as well just do away with elected middle men and let the corporations run the show out in the open. Most people probably wouldn’t even notice.

  12. collapse expand

    you wrote:It’s been proven to work, as last summer the SEC, concerned about predatory naked short-selling of big companies in the wake of the Bear Stearns wipeout, instituted a temporary pre-borrow requirement for the shares of 19 fat cat companies (no other companies were worth protecting, apparently). Naked shorting of those firms dropped off almost completely during that time.

    If you have to pre-borrow, then how can you naked short? If you pre-borrow, then you’re not naked, right? If I understand this correctly, the pre-borrow reg effectively bans naked shorting, so one would expect naked shorting to drop off completely. What am I missing here?

  13. collapse expand

    Bravo….go get ‘em!

    Gary Matsumoto

  14. collapse expand

    Matt,

    I am 100% in support of serious prosecution and enforcement of failure to locate for all short sales, however, I’m curious why you don’t seem to mention anything from page 2 of the slides you posted.

    Isn’t it a bit one-sided to get your panties in a bunch over the semi-irrelevent data re: reg SHO and fail to acknowledge that GS admits there needs to be more transparency for actionable IOI’s and “flashed” orders?

    Cheers,

    Anal_yst
    http://business.theatlantic.com/author/Anal_yst

  15. collapse expand

    The system is filled with willful ignorance to more than the use of mere “loopholes.”

    Via Section 17A (a) (2) of the ’34 Exchange Act, Congress mandated the SEC: “having due regard for the public interest, the protection of investors, and the safeguarding of securities, to facilitate the establishment of a national system for the prompt and accurate clearance and settlement of transactions in securities”

    By delegating all authority and responsibility for the prompt and accurate settlement of trades to the Wall Street owned, operated and controlled Depository Trust and Clearing Corp, the SEC fostered a complex bait and switch system of stock counterfeiting and wealth transfer that continues to steal billions with impunity.

    The SEC has consistently, for at least the last decade, in a myriad of ways, zealously ignored its congressional mandate, allowed massive wrongdoing to go unpunished and protected and advanced Wall Street interests to the extreme detriment of the investing public and the financial well being of the world.

  16. collapse expand

    Long and short transactions fail for many reasons, and anybody who wants to claim that naked short selling is (illegally) going on, should cite data showing the reason for any fails.

    Meanwhile, apparently independent academic research is pretty unanimous showing that short selling is an important part of sending the message that a stock is inflated, and that without short-selling, market manipulation is more possible (more profitable). *Abusive* short selling, where a short seller attempts to stampede the market, is well-defined, illegal, and occasional, while *abusive* buying is the basis for most price manipulation, and unmentioned by people who conflate short-selling with price manipulation.

    Various short-selling restrictions, being full of tricky-to-access loopholes, make it more difficult for traders to buy and sell legitimate strategies. For example, suppose I own XYZ, am concerned about how well its widget strategy is doing, but don’t want to sell now for tax reasons. I would want to buy a put, an option to sell at a price not much below today’s. But the seller of that put, to insulate himself from the actual bad news, should it happen, needs to *short sell* some of the XYZ shares to protect himself. If he can only short on upticks, or engage in extra paperwork, he’ll price in the extra cost and risk into a worse price for me.

    In all the uproar about short-selling, there is a tiny minority that has been harmed by efforts to drive stock prices down unreasonably; a larger minority that has been harmed by having their actual bad company prospects exposed by shorts when they were trying to keep them a secret, and a huge majority of people who want to trust these CEOs and their circle of friends. Many of the latter are clueless about what’s really going on. This article does not include enough information — citing “staffers’ incredulity” as the totally non-expert sources — to distinguish it from the clueless.

    • collapse expand

      “In all the uproar about short-selling, there is a tiny minority that has been harmed by efforts to drive stock prices down unreasonably”

      Oh really? It is an old tactic of those who profit from Naked short selling to try and confuse it with legitimate short selling. That argument is tired and frankly I am sick of it. Give it up.

      I have personally witnessed the transfer of billions of dollars from main street to Wall Street by what can only be explained as naked short selling. I have seen millions more shares than exist in a company’s float be traded day after day (Even The DTCC’s laughingly low ball estimate of FTD’s amounts to billions of dollars each year). More than 1000 mostly small and growing companies that we know about have been destroyed by the illegal practice. In the past, most of the larger companies with loads of capital have to begrudgingly count it as a cost of doing business. But after what we have seen with Bear and Lehman, even they have to consider the threat of being taken down.

      The entire breakdown of our financial system has been caused by the massive, rampant counterfeiting of securities of all types. This arguably orchestrated fraud of counterfeiting securities is called many things MBS, modern bank lending, Naked Treasuries, etc… Naked short selling is only one of them but it all boils down to one thing; The Federal Reserve and Wall Street have dictated policy to let them create money from thin air that they don’t have to pay back. We the people will, however, end up paying it back or the system crashes under the weight of all the greed that has been created.

      Thanks to Mr. Taibbi for giving some light to the subject. Some of us have been screaming about it for years but for some reason scarcely anyone in the MSM wants to relay this critically important story.

      Hmmmmm….

      In response to another comment. See in context »
  17. collapse expand

    Matt,

    The SEC itself is capable of regulating. But the agencies highest ranks are coordinating very closely with the industry.

    The U.S. is coming off a period of very ‘light touch’ capitalism on top of the well-documented fact the enforcement side is stacked with industry-friendly players. It wasn’t too many years ago Federal Agencies were publicly competing with each other to show how they were business-friendly by not enforcing anything.

    We need a Paul Volcker on the enforcement side.

  18. collapse expand

    Nobody is going to believe anything about Naked short selling unless the companies involved come forward with their own time lines of events including their reporting and projections and their relationship to the brokers. It would take more than one thing to go wrong to be able to profit from naked short selling, and no one noticing, unless it was on such a large scale, which it doesn’t seem to be.

    • collapse expand

      Actually, several companies have come out with information suggesting that they have been attacked by massive naked short selling.

      You know what happens?

      The SEC investigates the company that is screaming for help!

      Not surprising when you find out that the companies who profit from naked short selling and the SEC have an employee revolving door.

      In response to another comment. See in context »
  19. collapse expand

    http://www.deepcapture.com

    Everything you never wanted to know about naked short selling.
    Look into CNS, and what goes on inside the black-box DTCC…

  20. collapse expand

    Are you implying that Lehman and Bear would not have failed were it not for naked short selling? Are you sure it wasn’t the fact that they were both INSOLVENT? For christ’s sake, Lehman was fooling around with their balance sheet and got nailed for it (thanks in part to Einhorn). Both banks dove headfirst into the business of securitizing crappy mortgages. They failed because the massive losses they were incurring on those securities made them insolvent. Equity owners got wind of this and their stock prices incorporated the information. An insolvent corporation has zero equity, and their stock prices reflected that. This is how markets are supposed to work.
    Why is Goldman interested in the continuance of naked short selling? It reduces borrow costs, which any market participant (like Goldman) likes. Lower transactions costs = higher profits. The more constraints we place on short selling, the less efficient the marketplace will be. I know at least one study has been done on the impact of short-selling on both banks – http://mba.yale.edu/news_events/pdf/financial%20conf-paper%2011.pdf – and you should read it before you go any further on this topic. And what about the fact that Goldman is just as vulnerable to naked short selling as any other public company? Goldman’s stock price got hit back in March along with the rest of the financials, didn’t it? The only thing sillier than getting worked up about naked short selling is calling for the reinstatement of the uptick rule.
    Goldman certainly does a TON of evil things, but you are way off base on this one.

    • collapse expand

      Sorry that paper examined the impact of NAKED short selling on both banks.

      In response to another comment. See in context »
    • collapse expand

      I don’t care how solvent the company is that is attacked. That’s like shooting someone who has cancer because you believe that they are going to die eventually anyway. The market should decide the share price, not some conniving group of hedge funds.

      Naked short selling is fraud, pure and simple and there are plenty of good companies who have been put out of business or severely damaged by the counterfeiting of their shares.
      Do you honestly believe that a company should be able to sell something that they do not own or ever intend to own?

      Publicly-traded companies are the only ones authorized, under the Securities Act of 1933, to issue stock in those same companies.

      In response to another comment. See in context »
  21. collapse expand

    Matt, you’ve found your way into an incredibly important and timely (and I’m sure time exhaustive) subject, writing about the financial crisis and the machinations behind it. As Zaid said, putting it into English for the rest of us is a great service to not only your readers but the public in general. Your work on the general American psyche was terrific in The Great Derangement. Where do you foresee your work going? I’m sure there is and will continue to be plenty more to mine as The Wall Street continues to unfold.

  22. collapse expand

    Hey Matt, really enjoyed your whole series on Goldman so far…Check out this link http://www.deepcapture.com/the-story-of-deep-capture-by-mark-mitchell/ for some first hand knowledge on the impact of naked short selling…At first it seemed way over the top but as I dug deeper it mirrored similar experiences i’ve personally had in the market…Cheers…

  23. collapse expand

    Seems obvious that the heart of Goldman Sachs is going to be the heart of free unregulated trade, and that Goldman Sachs will do anything to keep the markets unregulated including misinforming elected officials so that they agree to keep markets unregulated or simply misinforming elected officials to bamboozle them into feeling inadequate to make any rash and hasty decisions.

    Back in the early 80’s I was an intern at a large German vehicle manufacturer (think Beasty Boys and you’ll probably guess which one) while there I attended a share holders meeting and noticed all the graphs in the share holders report went neatly up from left to right production, productivity employment, and so on and so forth every representation of statistics seemed to show healthy steady growth.

    Then I read the dates on the x axis of the said graphs and they all read from 1982 on the left to 1975 on the right, in other words the graphs all showed a steady unhealthy decline of production and employment.

    Most of the companies private share holders were pensioners who had worked their entire lives at the company and were too busy stuffing carrier bags with sausages and bread rolls that were freely available too even notice.

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    I'm a political reporter for Rolling Stone magazine, a sports columnist for Men's Journal, and I also write books for a Random House imprint called Spiegel and Grau.

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