Wednesday, December 23, 2015

The Hoodie

The media have had a great time showing Martin Shkreli being arrested for alleged securities fraud wearing his hoodie. 

This was a delicious come-down for Shkreli, who recently shot to fame when a private company he controlled, Turing Pharmaceutical, bought the rights to a specialty drug and then, just because it could, raised the price by a gadillion percent. 

But charges also were lodged against a lawyer, Kaye Scholer partner Evan Greebel, shown below when he was with Katten Muchin Rosenman (where he was when he allegedly broke the law by assisting Shkreli).

Greebel has also been arrested and indicted for aiding part of Shkreli's alleged frauds. Both have also been sued by the SEC. The charges, although serious, are pretty straight-forward and garden-variety. Nothing too subtle.

Shkreli was indicted and sued for committing fraud against investors in two hedge funds that he apparently ran into the ground with crappy investments, while lying to new investors about such things as AUM, whether the funds had auditors or administrators, and the like. Then, he offered to pay out the investors out with cash and shares from a public company he controlled, Retrophin, Inc. To do this, both the indictment and the SEC complaint allege, he created allegedly phony consulting agreements between Retrophin and the hedge fund investors, under which the investors would be entitled to Retrophin shares as their compensation for services rendered. Supposedly, he did this with the knowledge and assistance of Greebel. 

According to the indictment, Greebel's assistance ran deeper and longer than what the SEC alleged. The indictment alleges that the "consulting agreements" were created only after Shkreli, with Greebel's assistance, had backdated documents designed to show that one of Shkreli's hedge funds had previously invested in Retrophin, arranged for the payment of cash and Retrophin stock to seven hedge fund investors, created promissory notes to Retrophin from the hedge funds. Apparently the auditors were not satisfied, so Greebel and Shkreli allegedly went the consulting agreement way.

Query: why did the SEC not go into the gory background leading up to the pre-consulting- agreement shenanigans charged in the indictment? Since to prove the allegations in the indictment will require proof beyond a reasonable doubt, while proof of the SEC's allegations will require proof by a preponderance of the evidence (more likely than not), one would expect the SEC to go far and wide to include alleged violations and for the prosecutors to focus their allegations more narrowly. 

There's more: Greebel might have some explaining to do about the fact that, according to an August 2015 SEC filing by Retrophin, Katten apparently received over $500,000 in legal fees from Retrophin for work the firm did for Shkreli's hedge funds. Meanwhile, did the Katten firm's accounting department notice that Company A was paying the legal bills of Company B? If so, was Katten management told? What happened then? One can assume this will come out in Katten's internal investigation, which The American Lawyer says has started.

Two observations: 

1.Sleazy client, overeager lawyer hungry for fees and Macher-dom?

According to the AML article, "[an unnamed Katten] partner who worked with Greebel on Retrophin-related matters told The Am Law Daily that they had concerns about Greebel's relationship with Shkreli, whose forceful personality includes a penchant for making public statements and pushing outside counsel to bend to his will. The lawyer admitted to being shocked at the way Shkreli spoke to Greebel, a lawyer 10 years his senior, and said that Greebel seemed overwhelmed trying to placate Shkreli and meet his demands." Say what?

2.Who the hell would invest millions of dollars with this schmendrick?

Wednesday, December 16, 2015

The Mighty Pete Strikes Out

Every once in a while, a sports commissioner actually gets things right.

This week, Baseball Commissioner Rob Manfred denied the request of Pete Rose to remove the permanent restriction on Rose's "eligibility" in Major League Baseball. 

Pete Rose as a young phenom.
And he was a phenom.

As a baseball fan and as a lawyer, I thought the decision was correct. 

In 1989, Pete Rose, indisputably one of the greatest hitters of all time, was permanently barred from baseball by then Baseball Commissioner A. Bartlett Giamatti. A report conducted by attorney John Dowd concluded that Rose had bet on Cincinnati Reds games in 1985 and 1986, when he was the player-manager of the Reds, and in 1987, when he was the manager of the Reds. Rose initially denied that he bet, but admitted having done so in his 2004 autobiography. Commissioner Giamatti and Rose agreed to a resolution without any finding on whether Rose had bet on baseball, and without Rose's admitting or denying that he bet on baseball. Rose "acknowledged that the Commissioner has a factual basis to impose the penalty. The penalty? "Peter Edward Rose is hereby declared permanently ineligible in accordance with Major League Rule 21." (The "without admitting or denying" formulation was borrowed from the SEC's much-discussed policy of settling cases with defendants without their admitting or denying the violations alleged.)

Major League Rule 21(d) states: "(d) Any player, umpire, or club or league official or employee, who shall bet any sum whatsoever upon any baseball game in connection with which the bettor has a duty to perform shall be declared permanently ineligible."

Rule 15(c) states: "A player or other person found guilty of misconduct or other acts mentioned in Rule 21, or convicted of a crime involving moral turpitude, may be placed on the "Ineligible List" by the Commissioner or the Commissioner's designee. A player or other person on the Ineligible List shall not be eligible to play or associate with any Major or Minor League Club." Rule 15(d) states that the Commissioner "may ... in his or her sole discretion and upon such terms and conditions as he or she may deem proper, reinstate any such person from the Ineligible List or transfer the person from the Ineligible List to the Disqualified List." (The Disqualified List refers to players who violate a term of their contract. Rule 15(b).)

In one portion of his decision, Commissioner Manfred framed the issue as follows: "in considering Mr. Rose's application for reinstatement, I, as Commissioner of Baseball, must determine the risk that Mr. Rose will commit a violation of MLB's rules (most significantly Rule 21) following his reinstatement that may impact the integrity of the game." Elsewhere, Manfred said that "[i]n order to be satisfied that the policy underlying Rule 21 is not undermined by the granting of an application for reinstatement, I believe that, at a minimum, there must be objective evidence which demonstrates that the applicant has fundamentally changed his life and that, based on such changes, the applicant does not pose a risk for violating Rule 21 in the future."

The Commissioner cited a number of facts beyond those in the Dowd Report, including newly available evidence showing that Rose bet on games in 1986 and Rose's admission at his meeting with Manfred that he had  bet on Reds' games in 1987 and that he still bet on baseball today. The Commissioner found that Rose's "public and private comments . . . provide me with little confidence that he has a mature understanding of his wrongful conduct, that he has accepted full responsibility for it, or that he understands the damage he has caused."

The Commissioner's conclusion summed up his reasoning:
In short, Mr. Rose has not presented credible evidence of a reconfigured life either by an honest acceptance by him of his wrongdoing, so clearly established by the Dowd Report, or by a rigorous, self aware and sustained program of avoidance by him of all the circumstances that led to his permanent
ineligibility in 1989. Absent such credible evidence, allowing him to work in the game presents an unacceptable risk of a future violation by him of Rule 21, and thus to the integrity of our sport. I, therefore, must reject Mr. Rose's application for reinstatement.
 Here's why I thought this decision was correct:

1. The issue is not whether Rose was a great hitter, deserving of first-ballot entry to the Hall of Fame, which, absent his transgressions, would seem to be automatic. Indeed, Manfred was careful to say that he had no authority over whether Rose was eligible for entry to the Hall. (The Hall would have to change its rules, however, since presently anyone on MLB's "ineligible" list is ineligible for admission to the Hall.) The issue is whether there is a reasonable risk that Rose will violate Rule 21 if he is readmitted to MLB and is employed by a team. (In the securities laws, the issue of whether to grant an injunction against future violations of the law is determined by the court's judgment as to whether, given the attendant circumstances, there is a "reasonable likelihood of future violations.")

2. Rule 21 is an important rule. Betting on games does violate the integrity of the game, and the integrity of the game is vital. Betting on games, particularly betting on your games while a manager, merits banishment.

3. Rose is and always has been a serial liar. He lied in 1989 when he denied he had bet. He lied on his taxes and went to prison. He even appears to have lied when he met with Commissioner Manfred concerning his request for reinstatement. This means that he simply cannot be trusted.

4. Rose admitted to the Commissioner that he still bets on baseball. That it is legal in Nevada, where he lives--it being assumed that he bets at legal gambling venues--does not mean that it is not a violation of Rule 21, if he were employed by any team. While it is hard to see how a 74-year-old baseball executive could influence the result of a game, and while Rue 21 the rule is not a model of clarity, the rule covers club and legal officials and club employees, some of whose responsibilities do not necessarily relate to a specific game, so I assume that a fair reading of Rule 21 would be that if a front-office executive or advisor bets on baseball, it's a violation.

Finally, Commissioner Manfred stated that, "[as I understand it, Mr. Rose has never seriously sought treatment for either of the two medical conditions described so prominently in his 2004 book and in Dr. Fong's report." (A report was submitted to the Commissioner by Rose's lawyers from  Dr. Timothy Fong, the Co-Director, UCLA Gambling Studies Program and Director, UCLA Addiction Psychiatry Fellowship. Manfred declined to discuss its substance for confidentiality reasons but said he"gave the report little weight because the factual background recited in it is inconsistent with what Mr. Rose told me during our meeting.") In my view, whether Rose sought treatment for what is apparently a psychological addiction to gambling is interesting but relatively far afield from the issue before the Commissioner.

Friday, November 20, 2015

The Republican nominee will be...

That guy looks really familiar. 

What's he doing, thinking about what would have happened had Jimmy Carter's grandson not snuck into the fundraiser in Boca and recorded that damned "47%" speech?'s Willard Romney, the ex-fund raiser for Bain Capital.

Lovable Mitt.

It's obvious, maybe.

Here's the latest averages from Real Clear Politics:

TRUMP:  24.6%
CARSON: 21.8%
RUBIO: 12.4%
CRUZ: 11.0%
KASICH: 3.4%
PAUL: 3.2%
PATAKI: 0.6%
GRAHAM (Lindsey, not Otto): 0.4%
JINDAL: 0.3%

Jindal has "suspended" his campaign. Let's assume that his backers go back to sleep.

I refuse to believe that even this Republican Party is going to nominate either of the two know-nothings at the top of the polls. Besides, Iowa is ground-game central, so can we assume that The Donald and Doctor Carson have no effective ground game? I think that's a fair bet. Besides, many GOP voters in Iowa and New Hampshire are not going to vote for either of these two clowns no matter what the polls say. 

Let's assume Rubio is un-nominable because of his prior "record" on immigration. 

Let's assume Cruz wears badly as the months go on. That strange-looking face with the voice of chalk on a chalkboard. Maybe Trump should say "Look at that face" and point to Cruz!

Are these unrealistic assumptions? Hardly. 

So, who's left? Bush, Kasich and Fiorina. 'Nuf said.

Enter Mitt.

By the way, why did Ben Carson retire from medicine?

Monday, November 16, 2015

The SEC's incompetence, combined with its raw power, makes it truly a menace.

The Securities and Exchange Commission (SEC) is meant to be the guardian of the public interest in honest securities markets. Its enforcement effort occasionally is equal to the task. But, far too often, it simply arrives at the fire long after the embers are cold. And, more importantly, more than should be the case it either fails so miserably to do its job that massive damage is caused by its inaction--see Madoff and Stanford, for example--or its enforcement efforts are more symbolic than real--see its generally tepid response to the Wall Street horrors of 2006-2008.

Once in a while, however, the SEC's staggering incompetence borders on willful blindness. Coupled with its enormous power, this incompetence is truly dangerous.

My beliefs in this respect are not theoretical. They are based on my experience  as an attorney at the Division of Enforcement Home Office in Washington, D.C.  (from 1973 to 1981) and 35 years of experience in private practice, where I have represented clients in SEC investigations conducted by the Denver, Chicago, Houston, New York and Miami offices, and the Home Office.

One of the ways the SEC uses its power is in seeking an ex parte TRO, including asset freezes. The theory is logical: go in without notice, get an order, and prevent the Bad Guys from scattering money to the ends of the earth. The Staff files the Complaint, filled with scandalous allegations of wrongdoing, with a foot's worth of supposedly supporting documentation. Judges or their clerks read the allegations and trust that the massive documentation supports, and certainly does not dispute, the allegations. TROs and asset freezes are entered. It is often too late to rescue the defendants from their destruction if, later, the allegations are shown to be false or dangerously incomplete. I have seen this happen in cases on which I was engaged to represent defendants. 

A recent chilling example is the Opinion and Order in SEC v. Caledonian Bank Ltd., No. 15-cv-894 (S.D.N.Y. Nov. 10, 2015), DE 140. The long and short of it is that SEC alleged that a Cayman Islands bank and broker had sold stock of four penny stocks as part of a massive pump and dump scheme and made dozens of millions of dollars from this scheme. It turned out that the shares were not Caledonians'--they were its customers, and all that Caledonian received from these sales were commissions. The Court, however, had frozen assets of both Caledonians--$76 million for the bank alone--and the bank went under after a bank run. The damage was done. As the Court observed in its Opinion and Order, 31:

As the 'statutory guardian' of the nation's financial markets, the SEC is imbued with enormous powers to protect the investing public. It can halt securities trades and seek to freeze-through its representations to a court-the assets of any institution. However, the SEC's canon of ethics cautions: "The power to investigate carries with it the power to defame and destroy." 17 C.F.R. § 200.66. Judges rely on the SEC to deploy those powers conscientiously and provide accurate assessments regarding the evidence collected in their investigations. In that way, the integrity of the regulatory regime is preserved. 
This case reveals the dire consequences that flow when the SEC fails to live up to its mandate and litigants yield to the Government's onslaught. During an ex parte proceeding to freeze assets, where the adversary process is not in play, the SEC has an obligation to timely alert the court to foreseeable collateral damage. By overstating its case, the SEC can do great harm and undermine the public's confidence in the administration of justice. And that damage can be compounded when financial institutions, anxious to appease a regulator, submit to unconscionable terms and permit their depositors' assets to be held hostage without seeking immediate relief from a court. As this case demonstrates, these concerns are not hypothetical. 
Judge Pauley focused most of its ire on the fact that, at the same time as fatally false allegations were made in a complaint developed by the Home Office, the New York Regional Office--supposedly unknown to the HO people--was working on another case involving overlapping facts, and another group in the HO had proof that Caledonian's sales were as broker, and not principal. (Rather than get deeper into the weeds, I refer the reader to the Opinion and Order for the depressing story.) 

Thus, the Court wrote plaintively: "It is hard for this Court to believe that the SEC does not have systems in place to ensure that enforcement and regulatory staff are aware of investigations with common facts or the same individuals or entities. And it is hard to believe that those charged with overseeing enforcement are not monitoring activities to avoid needless duplication of effort." Id., 14.

If only the Court knew that the problem goes deeper than the left hand not knowing what the right hand is doing (or, perhaps more bluntly, the index finger of the left hand does not know what the pinkie was doing.) The problem here was that the facts alleged were not true. How can this happen? All too easily.

I have long contended that one of the principal problems with the SEC's enforcement efforts is how often the facts that the SEC alleges in its complaints filed in court (or with an in-house ALJ) are simply inaccurate. There is a rather simple solution to this problem: make sure that a senior staff person at the SEC carefully reviews for accuracy every staff "action memorandum"--the memorandum prepared by the enforcement staff and addressed to the full Commission, in which the facts underlying a recommended enforcement action are laid out. In my experience, in-depth review has never been the norm at the SEC. The reasons traditionally given vary--lack of manpower, lack of time, desire not to offend staff persons by, in effect, showing lack of "trust," etc. Obviously I do not know whether this was done in this case. Maybe it was. If so, it was not done with the required attitude of "prove it!". 

I have urged Congress, when looking at the SEC, to insist this simple remedy be made the rule. Make sure that every case that is brought, whether it's going to be settled or litigated, is based on facts that can be proven. How anyone could argue against that is beyond me. The damage done to innocent people by false SEC allegations is devastating. True, it may not be happening to Goldman Sachs or Citigroup or the like, so The New York Times or The Wall Street Journal may be too busy to focus on what occurs here. But it's a damned scandal, anyway, and it should be remedied, once and for all.

Friday, November 13, 2015

Outrageous outrage

The amount of outrage being expressed in today's world is outrageous. It depreciates the value of outrage and makes it easier for true outrages to escape our attention.

First, two definitions: 

Outrage: extreme anger: a strong feeling of unhappiness because of something bad, hurtful, or morally wrong.

Extreme: very great in degree.

It's one thing to express "outrage" over something important. Such as, for example, police shootings of unarmed black people. Or Bush's invasion of Iraq without a clue or care as to what would happen if Saddam Hussein were toppled. Or politicians' lies or evasions about undeniable facts. 

But do expressions of "outrage" over the design of Starbucks' coffee cup deserve "extreme anger"? No. 

Obsessing about the design of a coffee cup shows extreme infantility, not "a strong feeling of unhappiness because of something bad, hurtful or morally wrong." Years ago, a common saying was "Keep Christ in Christmas." The point was that Christians should focus on the religious significance of Jesus's birth and not obsess over the material trappings of the season, particularly "Christmas shopping." A recent editorial in the Racine Journal Times had this to say: "If you’ve got time to rant on Facebook about the design of a cup which was going in a trash can or recycling bin regardless, you’ve got time to 'go thy way, sell whatsoever thou hast, and give to the poor' (Mark 10:21) or 'visit the fatherless and widows in their affliction' (James 1:27)."

The outrage factor is also prevalent in politics. I receive unsolicited political emails. They are obviously designed to stimulate support for or opposition to a particular candidate or issue. Far too many pronounce this or that action as "outrageous." Undoubtedly, this trend is made more prevalent by the need for evoking an emotional, rather than an intellectual, response, which is the very purpose of almost all "social media" communications.

Bah, humbug.

Sunday, July 19, 2015

Greek Moral Hazard and Haircuts: ηθικού κινδύνου and κούρεμα


Holy moral hazard! Those immoral Greeks. Borrowing too much and sticking it to the stolid Northern Europeans! Would that it were so easy.

Moral hazard is usually used to refer to the risk that nations, companies or individuals will borrow more than they can repay if they know or believe they won't have to pay some or all of what they borrow. 

But moral hazard goes both ways: economists also refer to creditor moral hazard: the risk that lenders will lend too much if they know or believe that they will be bailed out. The "Too Big to Fail" banks in the U.S. made creditor moral hazard all too real when they went beserk lending to deadbeat borrowers in the 2000s. 

The 2010 and 2012 international bailouts of Greece actually were bailouts of the European and Greek debts that lent to Greece. Only a small percentage, maybe 10%, went to Greece.

A recent Financial Times column focused on the little-ballyhooed lender moral hazard:
There are two sets of moral hazard over Greece. First is the moral hazard of the lenders. Just like the criminally irresponsible banks in the run up to the 2007 subprime crisis, lenders took no account of Greece’s ability to repay when advancing them ludicrously cheap loans. But when the crisis first hit, the German and French banks and other owners of Greek bonds were bailed out, allowing them to escape relatively unscathed. (The 2012 haircut hurt those bondholders who stayed in, but Europe’s banks had already cut their exposure to Greece.)
Is there any doubt that this will happen again and again and again?



The IMF staff has recently made it clear that Greece will not be able to meet the targets for reduction of debt established in the 2012 bailout. ("It is clear that the policy slippages and uncertainties of the last months have made the achievement of the 2012 targets impossible under any scenario.") But Angela Merkel cannot stand the political risk to her own government if it agreed to a haircut. So, haircuts are, for now, off the table. So says Christine Lagarde, Managing Director of the International Monetary Fund, 

What's wrong with haircuts?

In debt restructuring agreements, a haircut is a percentage reduction of the amount that will be repaid to creditors. Haircuts occur when the value of a loan -- the amount the borrower is willing or able to repay -- drops precipitously. Generally, a haircut has to be agreed to, unless it is shoved down the lender's throat as a matter of law. Think bankruptcy.

Sovereign defaults are fairly commonplace. According to Database of Sovereign Defaults, 2015recently published by the Bank of Canada, during every year from 1975 to 2014, over 40% of all nations were in default to one extent or another. There have been many instances of sovereign debt haircuts--from 1970 to 2010, 182 haircuts in 68 countries, according to statistics contained in a report, Sovereign Defaults: The Price of Haircutspublished by a Munich-based research group, the CESifo Group.

A new paper, Sovereign Debt Relief and its Aftermath, issued by the same group, found that "[t]he economic landscape of debtor countries improves significantly after debt relief operations, but only if these involve debt write-offs. Softer forms of debt relief, such as maturity extensions and interest rate reductions, are not generally followed by higher economic growth or improved credit ratings." In other words, debt write-offs enhance the debtor's economic prospects. 

In bailing Greece out, Germany, in reality, bailed out international banks, putting taxpayers, not stockholders, at risk. Of course, if the banks had remained at risk, each nation would eventually have had a choice: let the shareholders suffer or pass the risk onto the taxpayer. Lehman Brothers or AIG, Merrill, RBS, etc. 

The question is, would the taxpayers of Germany be better off in the long run if Greece is allowed to continue to stagnate and suffer or if it were helped back to its feet? 

Thursday, June 11, 2015


Repeat after me...

Hillary Clinton's nomination is inevitable.
Hillary Clinton's nomination is inevitable.
Hillary Clinton's nomination is inevitable.
Hillary Clinton's nomination is inevitable.

Noone cares about the Clintons' "honoraria" or the Foundation's "contributions".
Noone cares about the Clintons' "honoraria" or the Foundation's "contributions".
Noone cares about the Clintons' "honoraria" or the Foundation's "contributions".
Noone cares about the Clintons' "honoraria" or the Foundation's "contributions".

There's noone else.
There's noone else.
There's noone else.
There's noone else.

Poll after poll show that Hillary Clinton's favorability ratings are plunging. Take one pollster-CNN:

5/29/14-6/1/14: 55+, 42-, 3 undecided (net 13+)
11/21/14-11/23/14: 59+, 38+, 2 U (net 21+)
3/13/15-3/15/15: 53+ 44-, 2 U (net 9+)
5/29/15-5/31/15: 46+, 50-, 3 (net 4-)

Here's how she is doing head-to-head with possible GOP nominees:

General Election: Bush vs. ClintonCNN/Opinion ResearchClinton 56, Bush 39Clinton +17
General Election: Walker vs. ClintonCNN/Opinion ResearchClinton 59, Walker 37Clinton +22
General Election: Paul vs. ClintonCNN/Opinion ResearchClinton 58, Paul 39Clinton +19
General Election: Cruz vs. ClintonCNN/Opinion ResearchClinton 60, Cruz 36Clinton +24
General Election: Rubio vs. ClintonCNN/Opinion ResearchClinton 55, Rubio 41Clinton +14
General Election: Christie vs. ClintonCNN/Opinion ResearchClinton 58, Christie 39Clinton +19
General Election: Huckabee vs. ClintonCNN/Opinion ResearchClinton 58, Huckabee 37Clinton +21
General Election: Carson vs. ClintonCNN/Opinion ResearchClinton 60, Carson 36Clinton +24


Race/Topic   (Click to Sort)PollResultsSpread
General Election: Bush vs. ClintonCNN/Opinion ResearchClinton 51, Bush 43Clinton +8
General Election: Walker vs. ClintonCNN/Opinion ResearchClinton 49, Walker 46Clinton +3
General Election: Rubio vs. ClintonCNN/Opinion ResearchClinton 49, Rubio 46Clinton +3
General Election: Paul vs. ClintonCNN/Opinion ResearchClinton 48, Paul 47Clinton +1
General Election: Cruz vs. ClintonCNN/Opinion ResearchClinton 52, Cruz 43Clinton +9
General Election: Bush vs. ClintonABC/Wash PostClinton 47, Bush 44Clinton +3

Her support among Democrats is even suffering:

ollDateSampleClinton Sanders Biden O'Malley Webb Chafee Spread
RCP Average5/19 - 6/2--59.011.511. +47.5
FOX News5/31 - 6/2395 RV57118421Clinton +46
CNN/Opinion Research5/29 - 5/31433 A601014120Clinton +46
ABC News/Wash Post5/28 - 5/31376 RV621014311Clinton +48
Quinnipiac5/19 - 5/26748 RV57159111Clinton +42
FOX News5/9 - 5/12370 LV6366020Clinton +50
PPP (D)5/7 - 5/10600 RV6313--265Clinton +50
FOX News4/19 - 4/21388 LV6249100Clinton +50
Quinnipiac4/16 - 4/21569 RV60810310Clinton +50
CNN/Opinion Research4/16 - 4/19458 A69511131Clinton +58
FOX News3/29 - 3/31397 LV6131221--Clinton +49
PPP (D)3/26 - 3/31449 RV546732--Clinton +40
ABC News/Wash Post3/26 - 3/29RV6651201--Clinton +54
CNN/Opinion Research3/13 - 3/15466 A6231511--Clinton +47
McClatchy/Marist3/1 - 3/4462 RV6051311--Clinton +47
Quinnipiac2/26 - 3/2493 RV5641001--Clinton +42
PPP (D)2/20 - 2/22310 RV5451612--Clinton +38
CNN/Opinion Research2/12 - 2/15RV6031512--Clinton +45
FOX News1/25 - 1/27390 RV5531721--Clinton +38
PPP (D)1/22 - 1/25386 RV6021511--Clinton +45
Rasmussen Reports1/18 - 1/19648 LV594623--Clinton +47
CNN/Opinion Research12/18 - 12/21469 A663811--Clinton +57
ABC News/Wash Post12/11 - 12/14346 RV6141403--Clinton +47
FOX News12/7 - 12/9409 RV6231011--Clinton +50
McClatchy/Marist12/3 - 12/9429 RV6241111--Clinton +51
CNN/Opinion Research11/21 - 11/23457 A655901--Clinton +55
Quinnipiac11/18 - 11/23610 RV574911--Clinton +44
Rasmussen Reports11/20 - 11/21LV62--722--Clinton +45
ABC News/Wash Post10/9 - 10/12RV6411312--Clinton +51
McClatchy/Marist9/24 - 9/29408 RV6441521--Clinton +49
FOX News7/20 - 7/22438 RV64--121----Clinton +52
CNN/Opinion Research7/18 - 7/20449 A67--82----Clinton +57
Quinnipiac6/24 - 6/30610 RV58--91----Clinton +47
ABC News/Wash Post5/29 - 6/1RV6921221--Clinton +57
FOX News4/13 - 4/15395 RV69--141----Clinton +55
Reason-Rupe/PSRAI3/26 - 3/30A64--11------Clinton +53
CNN/Opinion Research3/7 - 3/9372 A64--134----Clinton +51
PPP (D)3/6 - 3/9429 RV66--112----Clinton +55
PPP (D)1/23 - 1/26334 RV67--71----Clinton +60
ABC News/Wash Post1/20 - 1/23RV73--11------Clinton +62
Quinnipiac1/15 - 1/19803 RV65--81----Clinton +57
FOX News12/14 - 12/16412 RV68--121----Clinton +56
PPP (D)12/12 - 12/15453 RV66--102----Clinton +56
Quinnipiac12/3 - 12/91095 RV66--80----Clinton +58
McClatchy/Marist12/3 - 12/5466 RV65--121----Clinton +53
CNN/Opinion Research11/18 - 11/20RV64--122----Clinton +52
Rasmussen Reports11/7 - 11/8LV70--100----Clinton +60
PPP (D)10/29 - 10/31400 RV67--122----Clinton +55
Quinnipiac9/23 - 9/29RV61--110----Clinton +50
CNN/Opinion Research9/6 - 9/8448 RV65--102----Clinton +55
Rasmussen Reports8/1 - 8/2LV63--121----Clinton +51
PPP (D)7/19 - 7/21418 RV52--121----Clinton +40
McClatchy/Marist7/15 - 7/18426 RV63--131----Clinton +50
PPP (D)5/6 - 5/9589 RV63--132----Clinton +50
Quinnipiac4/25 - 4/29RV65--131----Clinton +52
PPP (D)3/27 - 3/30666 RV64--181----Clinton +46
PPP (D)1/31 - 2/3416 RV58--191----Clinton +39
PPP (D)1/3 - 1/6400 RV57--163----Clinton +41
PPP (D)11/30 - 12/2454 RV61--122----Clinton +49

If Bernie Sanders is polling over 10% and Joe Biden is tied with him despite not having said a word about running, there's an opening. 

Oh, yes, she's leading in the polls. So were Lyndon Johnson in 1967, Edmund Muskie in 1971, Scoop Washington in November 1975, Edward Kennedy in November 1979, Mario Cuomo in 1991, and Hillary Clinton in November 2007. 

Noone is inevitable.  

If anyone is silly enough to disregard the fact that Clinton has very heavy baggage that is costing her and is likely to get worse once she comes under attack, what can we say?

Nature abhors a vacuum. So does politics.

Is there an alternative? Yes.

Joe Biden. Martin O'Malley. Elizabeth Warren. Mark Warner. 

Nature will take its course.