Mera Chung had known for weeks that her 30-year career in retail was coming to an end. But Chung, a vice president of design for Crazy 8, a division of Gymboree Group Inc., wasn’t prepared for what CEO Shaz Kahng and human resources chief Bridget Schickedanz would tell her late on a Wednesday afternoon in mid-January.
They had called Chung in to inform her of an imminent bankruptcy filing, Gymboree’s second in two years, which would accompany the liquidation of two of the company’s three brands, including Crazy 8, which caters to lower-income parents. Chung was ready for that; the closure of Crazy 8 was announced in December, and the bankruptcy was long rumored. But then Schickedanz dropped the bomb.
“She said, ‘We had to make some other decisions and you’ve been impacted,’” Chung explains. “‘We had to terminate the severance plan.’”
The severance plan, according to Chung and two of her close friends, was a key reason why she decided to move to Gymboree from Old Navy five years earlier. The retail sector’s volatility has boiled over recently, with rapid-fire bankruptcies and store closures emptying malls across the country, much of it driven by private-equity firms busting out otherwise profitable companies. But Chung, a single parent caring for an elderly father, came to Gymboree because she knew she’d be due a year’s worth of salary if the company ever went belly-up.
Instead, on the same day as the bankruptcy filing, Gymboree’s board triggered Article VII of the severance plan, a self-destruct button that enabled the company to terminate the plan “at any time in any respect” via a majority vote from the board of directors. As a result, none of the roughly 400 staff members at Gymboree headquarters in San Francisco would receive severance, to say nothing of the nearly 10,000 clerks at 800 Gymboree and Crazy 8 locations, who would now be managing going-out-of-business sales without the promise of assistance in the aftermath.
Kahng told Chung that there just wasn’t enough cash available to pay severance. But Chung said she had information, which she would later share with the U.S. bankruptcy trustee overseeing the case, that at least a few executives would leave Gymboree with golden parachutes.
A few weeks earlier, she had learned about a confidential deal between the board and eight members of Gymboree’s executive leadership team. According to Chung, those executives received paper checks with a “retention bonus” equal in value to their severance payouts. The board, which includes representatives from hedge funds and private equity firms, told the executives to deposit the checks immediately. Bankruptcy experts often call this type of payment a “disguised severance.”
Chung heard this firsthand from one of the bonus recipients. Chung had an equivalent title to most of the members who she was told received the bonuses, but she was left out. She would later tell the bankruptcy trustee in a letter that she watched as four of those bonus recipients jetted off to the Sundance Film Festival, just days after Gymboree declared bankruptcy.
In the meeting, Chung had asked, “What about the retention bonuses the others have, including you?” referring to Schickedanz, a member of the executive leadership team. Kahng would only reply, “That is not an appropriate question and I will not comment on it.”
Chung said she had replied, “The answer is what’s not appropriate.”
Gymboree, founded in 1976, is on its way to history. Children’s Place, a rival retailer, paid $ 76 million for the rights to the Gymboree and Crazy 8 brands, and the Gap is purchasing Gymboree’s 139-store luxury chain, Janie and Jack. But the disguised severance maneuver Chung has alleged reveals how in corporate America, the winners at the top can win even in failure. And nobody else is safe — certainly not the line-level workers, but not even vice presidents like Mera Chung.
The Intercept has reviewed documents confirming the termination of the severance plan on the day of the bankruptcy. Chung made her allegations about the disguised severance to friends, attorneys, and bankruptcy officials in the weeks after Gymboree’s filing, according to interviews and documents. And Julie Thompson, a vice president of product integrity and compliance for Gymboree, also said in a separate interview that bonus payouts were made to the executive leadership team.
Moreover, Chung alleged to the trustee that Gymboree underreported the extent of the retention bonus payments in a filing with the bankruptcy court. In that filing, Gymboree acknowledges “discretionary bonus payments of $ 270,000 to two employees,” but Chung asserts that eight executives received bonuses totaling an estimated $ 2.1 million.
Gymboree, its executives, and board members have failed to respond to numerous requests for comment through email, phone, and LinkedIn. Calls to the company’s media relations department have gone directly to voicemail. Three calls to personal cellphones of members of Gymboree’s executive leadership team were answered, but the individuals refused to comment.
The situation at Gymboree echoes other recent retail bankruptcies in which executives got a king’s ransom while everyone else got a firm handshake. Toys “R” Us and Sears were approved for millions in executive bonuses, a fact that has enraged advocates for line-level workers. “These are the same handful of people who couldn’t run our company successfully, and they’re being rewarded while everyone’s severance is taken away?” asked Lily Wang, deputy director for Organization United for Respect’s Rise Up Retail campaign.
You can make a case for retention bonuses for top executives in some bankruptcies. They are usually justified as a way to keep the leadership from decamping to other jobs as soon as the bankruptcy is filed. “The rationale is by giving good people retention bonuses so they will stay, the company will have much greater likelihood of reorganizing and getting back on its feet,” said Brett Weiss, a bankruptcy attorney in Maryland.
But in this case, Gymboree was knowingly liquidating most of its business before the bankruptcy was ever filed, making retention bonuses less urgent. “This was a liquidation chapter 11, the executives are not going to be in these positions a year from now,” Weiss said. “Maybe they said, ‘How can we get more money out without having the trustee claw it back? What’s the greatest number of people we can do this for without raising red flags? How about the executive leadership team?’” Gymboree’s lawyers in the bankruptcy case did not respond to a request for comment.
Moreover, while some executives do need to be in place to wind down operations, the alleged bonuses were not uniformly given to executives who had that role. For example, the VP of marketing allegedly got a bonus, even though marketing operations effectively ceased. Meanwhile, Thompson’s job involved regulatory compliance, which any retailer still selling products (even in a going-out-of-business sale) needs to maintain. Yet she was denied a bonus and fired without severance.
The situation has left Chung devastated. “Me and this other woman were the altar sacrifices for the others to get paid,” she says. “People have to understand how vulnerable they are.”
Chung was recruited to Gymboree five years ago by her former boss at Old Navy, where she was the vice president of kids and baby clothing design. She was told that she would have the run of an entire brand, the low-price Crazy 8. “It was their only brand that was relevant,” Chung says. She took the job.
At the time, Gymboree was under the control of Bain Capital, Mitt Romney’s old private-equity firm. The private-equity business model involves engaging in buyouts with borrowed money and putting that mountain of debt on the company it purchases, all the while extracting profits from the company through management fees. Few companies, particularly in the high-risk retail sector, can deal with such a debt burden — it makes it difficult to invest in stores, personnel, or better products.
Chung says this showed in how Gymboree ran the business. “Instead of investing in creative talent, they promoted design and merchandising from within,” she says. “Merchandisers became complacent with wanting product they knew would sell from the year before. There were years upon years of awful clothes with poodles and trucks on them.” She also complains that Crazy 8 had no marketing budget, and her work to break with standard fare was practically hidden.
By 2017, Gymboree couldn’t hold out any longer and went into bankruptcy. The business was put in control of its largest creditors, who were private equity and investment firms. The seven-member board included then-CEO of Gymboree, Daniel Griesemer; Ron Beegle, CEO of investment consultant Carriage House Capital Advisers; Matt Perkal, a partner at hedge fund Brigade Capital Management; Brian Hickey from mutual fund firm OppenheimerFunds; and Eric Sondag, a partner at private-equity firm Searchlight Capital, who was made board chair. Other members of the board were not disclosed, and since Gymboree is not a public company, they have no requirement to do so. Apollo Global Management, Marblegate, Nomura Securities, and Tricadia Capital Management also had a share of the company.
Though Gymboree emerged from bankruptcy in decent financial shape, Thompson described the new board as uninterested. “There was zero involvement in what was going on day to day,” she says. “They just let the CEO do whatever he wanted.”
Griesemer decided to invest in a complete redesign of Gymboree’s clothing line. It was a high-cost gamble off the bankruptcy, and it failed; when the new clothes hit stores last summer, parents called them “complete garbage.” Says Thompson: “I started paying attention to sales, and I was like, ‘Oh my god, this is so bad.’ It was negative 20 to 30 percent [compared to the previous year] every single day.”
By November, Griesemer was fired, and Kahng, the new CEO, came in. She had started her career as a food scientist at Kraft and was an independent member of the board prior to being named CEO, according to her LinkedIn page.
“She thought they were going to try to rehab the brand, that this was her career-defining moment,” Chung says. She described one meeting in which Kahng pronounced that Gymboree needed to be a “disruptor” like Apple. “She said, ‘What does every parent experience?’” Chung recalls. “‘Every parent in the world feeds their child strained carrots. When my children were babies, there were carrot stains on everything. We could do something so simple, an orange bib.’ She was 100 percent serious. I barely got through the meeting.”
The disruption didn’t take. By early December, the company announced that it would shutter all Crazy 8 stores after the holidays and significantly reduce the Gymboree footprint. Chung says that in the month after the announcement, Kahng never formally addressed Crazy 8 employees, leaving them confused about their roles. If the brand was closing, there was no need to design or purchase product for the next season. “My team of 20 said, what do we do?” Chung recalls. “They said keep showing up until further notice. They didn’t want to let us go because then they would have to pay severance.”
The Gymboree management severance plan was not a package negotiated individually. It was an employee benefits plan, established under the auspices of the Employee Retirement Income Security Act. This has become popular, particularly with large companies, says Jim Keenley, an ERISA attorney in Berkeley, California. The statute provides protections to workers if they aren’t given what’s promised in the severance plan. It offers no protection, however, if the plan is terminated.
“It’s an illusory contract,” says Keenley. “It’s very common for severance plans to have language in them that say, here’s your severance but we can take it away at any time for any reason.” No advance warning is needed for termination, under current law. While retirement benefits under ERISA are better protected, severance plans are considered a welfare benefit, and the funds do not vest.
So employees have no recourse if a termination occurs. And most of them don’t read the fine print allowing companies like Gymboree to pull that trigger. “I didn’t have anyone look at it,” says Thompson. “I was naïve.”
Both Thompson and Chung were told after the 2017 bankruptcy that the severance plan remained active. And both sought further assurances after it was clear that Gymboree would slide into bankruptcy again. Chung says she had asked three colleagues — the general counsel, the VP of human resources, and the general manager of her brand, Crazy 8 — whether her severance would be honored. None gave a straight answer. But Thompson said that when she approached the general counsel, Kimberly MacMillan, in early January, MacMillan reassured her, “Don’t worry, we will file it as a first-day motion.”
In bankruptcy-speak, MacMillan was saying that the severance plan would be one of the payouts that Gymboree would seek to get approved when it filed. Pending court approval, all employees eligible for the severance plan would be compensated. The severance plan was approved in the 2017 bankruptcy, so Thompson trusted MacMillan that the same would happen the second time around. “I had good working relationship with [MacMillan],” Thompson says. “She fucking lied to my face.”
MacMillan, in a short phone call with The Intercept, said that “we [Gymboree employees] follow a strict no-comment policy” with the media, and hung up.
Around the same time, Chris Lu, general manager of Crazy 8, was commuting home with Chung. “She would always disclose things to me, she would blab them to me,” Chung says. In her letter to the trustee, Chung writes that Lu told her that members of the executive leadership team were “paid their severance,” after demanding assurances from the board of directors. The board arranged for a “retention bonus contract” in the amount of the severance pay. “She said I couldn’t tell anyone about it,” Chung recalls. “I said, ‘Why did you tell me that if I cannot say anything?’”
In a brief phone conversation with The Intercept, Lu would only say, “I can’t talk to you. … I’m going to hang up now.”
According to Chung’s trustee letter, members of the executive leadership team who may have received retention bonuses included Lu, MacMillan, Schickedanz, Chief Financial Officer Jon Kimmons, VP of Information Technology David Sondergeld, VP of Logistics Dana Todorovic, VP of Sourcing Patricia Lesser, and VP of Marketing Parnell Eagle. Those in the “next level down” like Chung were left out, even though she had the same VP title as several of the recipients. Chung and Thompson were not formally part of the executive leadership team.
Thompson had also heard about the not-so-secret retention bonuses. “Nobody officially told me, but I heard rumors,” she says. She talked it over with Chung just before the bankruptcy. But when Thompson asked MacMillan about the executive leadership team meeting with the board, MacMillan told her that she couldn’t comment on it.
Both Thompson and Chung were told about the severance termination on the same evening. That day, everyone in the office figured out who was being let go, because human resources had cleared out the layoff victims’ time-off balance from the payroll processing system. “Everyone compared notes, mine’s not cleared out, mine is,” Thompson says. “Everyone zeroed out is going to get let go. Mine was zeroed out at end of Wednesday.”
Thompson was told by phone that she would be terminated without severance. Kahng, who as CEO was also a member of the board, told her that “it wasn’t our decision. Goldman Sachs is running the show now, we couldn’t do anything about it.”
Goldman Sachs was the lead creditor on Gymboree’s remaining loans, which it used for cash flow. The investment bank was the first in line to get paid from the bankruptcy. “It’s like when you get on an airplane — Goldman was group 1,” says Chung.
The next day, staff was packed into a tiny conference room. Chung decided to wear a vintage Sex Pistols T-shirt to the meeting with the words “No Future” scrawled on the front. Schickedanz, the human resources chief, read a prepared statement through tears. Everyone had to turn in their ID badges, laptops, and corporate credit cards, and vacate the building by the end of the day. Employees would get their last paycheck and paid time off, and that was it.
Schickedanz, in a phone call with The Intercept, said, “Oh, I thought you were someone else calling. … I’m going to jump off [the phone],” and hung up.
One employee, Katherine Pocrass, filed a class-action lawsuit against Gymboree, alleging that the company did not provide 60 days’ advance notice of the mass firing, as required under the Worker Adjustment and Retraining Notification Act. Attorneys for that case did not respond to a request for comment.
The WARN Act case is ongoing, and Chung would be eligible to be a member in the class-action, which could yield up to 60 days of back pay. But her severance was for a year.
Chung says she met with 17 different attorneys seeking legal recourse for her full severance. Each of them said that while Gymboree’s actions were unconscionable, they were technically legal; the severance plan entitled the company to terminate at any time. Eugene Pak, a business litigator in the Bay Area, said that the situation struck him as “unethical.” Added Keenley, the ERISA attorney: “I think Mera felt that it was unfair. … I’ve been looking for ways to find that it was not lawful, but I have not found them.”
Ron Tyler, a friend of Chung’s and a law professor at Stanford, provided her with several legal contacts. “I think her devastation comes from the fact that she, after very carefully and persistently creating this extremely successful career, to have it end so dramatically and intentionally by her company,” Tyler says. “And she saw the writing on the wall. Had it not been for that [severance] agreement, she would have left before.”
Shortly after the bankruptcy, Chung felt an even deeper sting. One of the lawyers she consulted asked how many employees worked at Gymboree headquarters, and so Chung put the question to Lu. “She was laughing and said, ‘I’ll call you when I land, I’m going to Sundance,’” Chung says. Chung wrote to the trustee that Lu and three other members of the executive leadership team — Tricia Lesser, Shelly Walsh, and Parnell Eagle — had decamped to the Sundance Film Festival, weeks after being given a retention bonus to stay on at Gymboree. Thompson corroborated that Gymboree executives were at Sundance, though she didn’t name names.
Pictures from Lu’s Facebook account, since removed, place her in Park City, Utah, at the time of the film festival. One check-in still on Facebook places her there as well.
“It’s like a B-grade Netflix movie,” Chung says. “If they were so needed for retention, why were they able to go to Sundance?”
Chung began to write letters to members of the board of directors through LinkedIn. “In your decision to Terminate my Severance Plan on the same day you filed for Chapter 11, you have succeeding in destroying my career, and the financial security it took me over 30 years to build,” she wrote. “I ask you to search your conscience and let me know how you sleep at night.”
According to Chung, she received vague assurances from Kahng and board member Beegle. Both later blocked Chung as a contact on LinkedIn, so she can no longer access these responses.
A week later, Lu texted Chung: “Shaz [Kahng] asked me to tell you to ‘hold tight & not do anything rash.’”
Chung tracked down the emails of board members and fired off a second letter, expressing her intention to publicly expose the severance termination and the secret bonus payment. Schickedanz, the head of HR, wrote her an email in response that read like a form letter. “The Company’s cash position was so constrained that Gymboree Group had to begin immediately reducing the Company’s workforce,” Schickedanz wrote. “While we wish the circumstances were different, there are not sufficient resources available to provide severance.” The disguised severance to the executive leadership team was not referenced.
“What this letter does NOT explain is why the company’s ‘cash position’ was different approximately 3 weeks prior to Jan 16, when the ELT (executive leadership team) received the now widely known ‘confidential’ retention bonus,” Chung replied. Schickedanz did not respond.
Shelly Walsh, general manager of Janie and Jack, the viable brand that Gymboree was attempting to sell, was not present at the executive leadership team meeting where bonuses were allegedly distributed. She negotiated a subsequent agreement for a $ 400,000 bonus to remain with the company through the sale, which Gymboree had to get bankruptcy court to approve.
In February, the U.S. bankruptcy trustee for the eastern district of Virginia, where Gymboree’s bankruptcy was filed, objected to a motion to approve an additional $ 2.2 million in incentive and retention bonuses to 52 key employees. This included the $ 400,000 to Walsh.
“These employees comprise less than 0.5 % of Debtors’ total workforce of over 10,000 employees, many of whom – the true rank-and-file and hourly employees – are literally working themselves out of jobs in connection with the Debtors’ going out of business sales,” wrote the U.S. trustee, a neutral governmental party that operates in the interest of the process. The filing also notes: “In the 90-days prior to the Petition Date, the Debtors and their non-Debtor affiliates made discretionary bonus payments to two other employees who are also participants under the Employee Programs in the aggregate amount of approximately $ 270,000.00.”
This appears to refer to the retention bonuses to the executive leadership team, which Gymboree was required to disclose to the bankruptcy court because they occurred 90 days before the filing. But both Chung and Thompson doubt the figures. On March 11, Kahng resigned as CEO. She did not return a request for comment through LinkedIn.
In her letter to the bankruptcy trustee, Chung estimated that the $ 270,000 represented the average annual salary of each of the eight executive leadership team members who received the disguised severance. That would put the total at $ 2.1 million.
Chung received a response from the U.S. trustee’s office, asking if her email could be shared with the unsecured creditor’s committee, which can seek clawbacks of the bonuses if they were found to be paid out and undisclosed. Chung agreed. A Justice Department spokesperson told The Intercept that the U.S. trustee does not comment on internal communications or deliberations regarding pending cases.
In addition to clawbacks, other sanctions could include “anything from jail time to a stern speaking-to and anything in between,” said Weiss, the bankruptcy attorney. “It could be perfectly innocent or it could be criminal.” So far, a prison sentence seems unlikely. Despite the U.S. trustee’s filing, bankruptcy court Judge Keith Phillips approved Gymboree’s additional bonus payouts, with some minor modifications. The biggest change was that a pre-petition retention payment of $ 52,500 for one undisclosed employee was cut in half.
Weiss expressed some surprise that the payments were approved over the U.S. trustee’s objections. But “judges don’t typically dig into monthly operating reports in large corporate entities,” he says. And even the trustee is resource-constrained. “They have some forensic accounting experience, but they’re not forensic accountants. They don’t have the staff and expertise to go after fraud at that [high] level.”
Creditors can afford to investigate secret payouts, but the time and expense of proving a case over a few million dollars may not be worth it to them. In addition, the 2005 bankruptcy bill includes some restrictions on bonus and severance payments to senior officers and managers, but it’s up to judges to make the determinations on which bonuses are reasonable to retain executives and which are excessive. “The 2005 amendments are garbage,” says Weiss. “It doesn’t surprise me in the least that they were not written in a way that makes it easy to prevent this sort of stuff.”
The upshot of this is that top executives have a relatively free hand to extract cash from a dying company — a particular problem in retail, where Payless Shoes and numerous others have closed shop. And that comes at the expense of both creditors and their fellow employees, even people high up in the organization like Mera Chung.
“The Goldman Sachses of the world are going to do whatever they want,” Chung says. While the firing didn’t leave her destitute, the combination of an uncertain future in retail and the need to care for her father makes things far more treacherous than it would have been with the severance. She worries about fellow creative directors, who are unaccustomed to legalese, not knowing the risks of losing their safety net if the business goes under. And she wants people to know what was done to her.
Referring to her colleagues and board members, she tells me, “You are going to have to answer to scrutiny for being a scumbag. I’m not going to walk away until your face is on a fucking billboard.”
View Article Here The Intercept