Opinion

Felix Salmon

Yes, the SEC was colluding with banks on CDO prosecutions

Felix Salmon
Apr 9, 2014 23:23 UTC

Back in 2011, I asked whether the SEC was colluding with banks on CDO prosecutions. And now, thanks to an American Lawyer Freedom of Information Request, we have the answer: yes, they were.

This comes as little surprise: it beggared belief, after all, that every bank would end up being prosecuted for one and only one CDO. But now we have chapter and verse: the key precedent, it seems, was the first one, Goldman Sachs.

The SEC filed its case against Goldman and Tourre on April 16, 2010. Three days later Goldman reached out with a $500 million settlement offer, according to an email that Reisner sent Khuzami. Although that proposal was close to the final payment, it took another three months to announce a settlement. As Khuzami described to Kotz, Goldman wanted a global settlement that resolved not just the Abacus investigation but the SEC’s probes into roughly a dozen other Goldman CDOs.

Khuzami didn’t want to give Goldman that public victory. When the SEC and Goldman announced on July 16, 2010, that the investment bank would settle the Abac­us case for $550 million, the SEC said in a press release that the settlement “does not settle any other past, current or future SEC investigations against the firm.”

Khuzami was determined that Goldman’s payment only be linked to ABACUS. “This was not a $550 million settlement for 11 cases,” Khuzami told Kotz. “We may tell Goldman that we are concluding our investigations in these other matters without recommending charges, but that doesn’t mean we’re settling them. And that was an important point for us, because we didn’t want them out there saying, you know, they settled 12 CDO investigations for an average of $30 million each, and, you know, didn’t [Goldman] get a great deal.”

Yet in its statement on the Abacus settlement at the time, Goldman said that the SEC had concluded a review of other CDOs and did not anticipate recommending claims for now.

It’s quite impressive how quickly and accurately Goldman nailed the amount of money that it would have to pay the SEC to settle the case: when it took three months to come to the $550 million settlement, I for one assumed that Goldman had to be dragged kicking and screaming to that point. In fact, however, Goldman was happy to offer half a billion dollars right off the bat. The tough part of the negotiation was not over the Abacus fine — it was over the question of whether the SEC, with the Abacus prosecution successfully under its belt, would then go after Goldman for a dozen other deals which were functionally equivalent.

The answer was a clear no: Goldman might be equally culpable for 11 other deals, but the SEC quietly assured Goldman — but not the public at large — that none of those deals would result in any charges.

And with the Goldman deal now public knowledge, we can assume that the same nod-and-a-wink deal was struck with all the other one-and-only-one CDO bank prosecutions: Citigroup, JP Morgan, Merrill Lynch (which evidently included Bank of America), Mizuho Securities, Wachovia, Wells Fargo, UBS. Add them all up, and I wouldn’t be surprised if there are 100 unprosecuted CDO deals out there, all of whom had victims just as deserving as the ones who got paid out on the prosecuted deals. Basically, there’s a CDO lottery, and, thanks to the way in which the SEC cozied up to the big banks, the average CDO investor has a very small chance of having won it.

As Khuzami says, if you look at them on a per-CDO basis, the big headline numbers suddenly become much more modest and affordable for Wall Street banks. So there’s a real scandal here: firstly, the SEC was not being fully honest with the public about the deals it was cutting. Secondly, the SEC failed to stand up for CDO investors it should have fought for. Thirdly, the SEC tried to make it look as though it was levying massive fines for single deals, when really the settlements were omnibus deals covering some unknown quantity of CDOs.

Now that this information is public, the SEC should apologize to all of us for its behavior, and promise not to collude with Wall Street again. If it doesn’t, that’s a clear sign that Wall Street’s most salient watchdog is still as captured as ever.

COMMENT

Nothing new here. The SEC is controlled by politicians who receive millions of dollars from Wall Street firms to make sure regulations and enforcement favor Wall Street and not investors. And, SEC attorneys will eventually work for Wall Street firms for five times the money they are paid by the SEC. This is collusion at a high level. The solution is in Washington, but apathetic investors/voters have let politicians make collusion a way of doing business. They stay in power and retire with millions of dollars. Only the American public can fix this. But, they are not motivated to fix it – Americans rarely react until problems are out of control. The political problem may get their attention when they cannot afford to retire and are looking for someone to blame. Start with the senators from your state.

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Annals of captured regulators, NY Fed edition

Felix Salmon
Mar 20, 2014 23:40 UTC

Peter Eavis has a worrying story today: the chairman of the New York Fed, William Dudley, has effectively, behind the scenes, managed to delay the implementation of an important new piece of bank regulation.

The first thing to remember here is that delaying regulations is an extremely profitable game for the financial industry. If a new regulation will cost a bank $100 million per year, and the bank gets that new regulation delayed by a year, then it’s just made $100 million in excess profit. What’s more, the further away you get from the crisis, the harder it becomes for new rules to grow teeth. So when the banking lobby doesn’t like a certain piece of regulation, its tool of choice is to bog it down and delay it to the point at which no one but the banking lobby cares any more. And then allow it to be implemented with so many loopholes and carve-outs that it’s effectively toothless.

In this game, the banks are on one side, and the regulators — primarily the Federal Reserve — are on the other. So it’s particularly worrying when a regulator ends up causing a delay and thereby helping the banks. And yet that’s exactly what seems to have happened:

Mr. Dudley’s concerns played a decisive role in holding up the final version of the rule, two of the people said. Some regulators, including officials at the Federal Deposit Insurance Corporation, were counting on the leverage regulation being completed by the end of last year. Strong supporters of the rule wanted it issued by then to reduce the chances that pressure from bank lobbyists would dilute it. The rule is now expected to come out in April at the earliest.

The optics here are not helped by the fact that Dudley made his millions at Goldman Sachs, a bank which would be directly affected by the rule in question, which forces big banks to increase the amount of capital that they hold against their assets. Neither are they helped by the fact that Dudley runs the New York Fed, which is generally seen as the arm of the Fed which is closest to, and friendliest with, America’s biggest banks. (Indeed, JP Morgan’s Jamie Dimon was a member of the board there for the six eventful years to 2013.)

Mostly, however, the problem is that Dudley’s objection is very silly.

Mr. Dudley raised the possibility that the rule could inhibit the Fed’s ability to conduct monetary policy…

The Fed officials in Washington assessed his concerns but did not think they were serious enough to warrant significant changes to the rule, the three people said.

In theory, Dudley is right. The way that the Fed conducts monetary policy is by instructing the traders at the New York Fed to buy and sell certain financial instruments so that a particular interest rate — the Fed funds rate — is very close to a certain target. Through a complex series of financial interlinkages, setting the Fed funds rate at a certain level then has a knock-on effect, and ultimately helps determine every interest rate in America, from the Treasury yield curve to the amount you pay for your credit card or your mortgage.

Those interlinkages are so complex that they’re impossible to model with any particular accuracy: all the Fed can do, really, is set the Fed funds rate and then see what happens to everything else. And directionally the causality is clear: if the Fed wants rates to rise, then it pushes the Fed funds rate upwards, and if it wants rates to fall, then it brings the Fed funds rate down. That doesn’t always work at the distant end of the yield curve, but it’s still most of what monetary policy can do.

Especially early on in the chain, a lot of the interlinkages take place at the level of big banks. And so it stands to reason that if you change the leverage requirements of big banks, that might change what happens to interest rates when you move the Fed funds rate. Or, on the other hand, it might not. In any case, if and when the Fed starts raising the Fed funds rate, it’ll rapidly become pretty obvious what’s happening to the rest of the interest-rate world, and the FOMC will react accordingly.

In the most extreme case, the FOMC might even change the way it sets interest rates, and start using interest rates other than the Fed funds rate to conduct monetary policy. After all, the Fed can intervene pretty much anywhere in the financial system it likes. Obviously, Dudley, as the head of the New York Fed, would be the person most closely consulted in terms of determining the most effective way for the Fed to intervene and move American interest rates. And in making his recommendations, he would have to take into account everything he knows about the architecture of the financial system, including the leverage ratios being demanded of the biggest banks.

But what doesn’t make sense is the idea that Dudley would try to throw a spanner in the works of an important piece of bank regulation, just because it might make his rate-setting job more difficult. The New York Fed is a highly profitable institution which employs a large number of extremely able traders and economists, all of whom are well versed in navigating the complexities of the interest-rate market. If a change to the leverage rule makes their job a bit more interesting or difficult, well, that’s part and parcel of what it means to work at the New York Fed. It’s no reason at all to delay a rule change and give New York’s banks a gift on a plate.

COMMENT

I think someone’s misunderstood something here. The delay has gone into the drafting of the final rule, after consultation based on the Notice of Proposed Rulemaking. That doesn’t mean that the date of implementation of the rule itself is necessarily going to change – in the NPR this rule was meant to be slowly phased in and to take effect on 1 January 2018. Given that, I think it’s pretty unlikely that a slight delay to get the rule drafted correctly – or even a full Quantitative Impact Study – is going to change the implementation schedule.

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The bank tax rises from the dead

Felix Salmon
Feb 26, 2014 06:05 UTC

Back in January 2010, Barack Obama — flanked by Tim Geithner, Larry Summers, and Peter Orszag — unveiled a new tax on big banks, or a “financial crisis responsibility fee”, as he liked to call it. Of course, this being Washington, the initiative never got off the ground, and was largely forgotten — until now:

The biggest U.S. banks and insurance companies would have to pay a quarterly 3.5 basis-point tax on assets exceeding $500 billion under a plan to be unveiled this week by the top Republican tax writer in Congress.

This doesn’t mean the tax is likely to actually see the light of day, of course — but the fact that it has some kind of Republican support has surely breathed new life into a proposal that most of us thought was long dead. After all, the initial proposal was designed around the idea that the tax would allow the government to be repaid for the cost of the TARP program — a goal which has now pretty much been met.

There are some interesting differences between the Obama tax of 2010 and the Dave Camp plan of 2014. The Obama tax was on liabilities; it specifically excluded deposits (which already have a sort-of tax associated with them, in the form of FDIC insurance); and it would have been levied on all financial institutions with more than $50 billion in assets. It was set at 0.15%, and was designed to raise $90 billion over ten years.

The Camp tax, by contrast, is on assets, which means that deposits sort-of get taxed twice; but that means it can also be set much lower, and the size cap be raised much higher, while still raising the same amount of money. Camp’s tax is a mere 0.035%, and is applied only to assets over half a trillion dollars. It’s designed to raise $86 billion over ten years — although, confusingly, the Bloomberg article also says that “it would raise $27 billion more over a decade than the president’s plan would”.

I like the simplicity of the Camp plan, although I would have preferred to tax liabilities rather than assets. After all, it’s not size that’s the real problem, it’s leverage, and it’s always good to give banks an incentive to raise more capital and less debt.

I like the way that it’s targeted: just ten US institutions would account for 100% of the revenues from the tax. The list in full: JPMorgan; Bank of America; Citigroup; Wells Fargo; Goldman Sachs; Morgan Stanley; GE Capital; MetLife; AIG; and Prudential. None of them need to be as big as they are, and between them they’re more than capable of coming up with $9 billion a year to help make up for the fact that they each pose a huge systemic risk to the US economy.

At heart, this is a Pigovian tax on something (too-big-to-fail financial institutions) we don’t want, and often Pigovian taxes are more effective than regulation when it comes to minimizing such things. What’s more, it’s sharp enough to hurt: JPMorgan, for instance, would have ended up paying about 15% of its 2013 net income in this one tax alone.

For exactly that reason, however, I’m still skeptical that the tax will ever actually arrive. Those ten institutions are extremely powerful, and are more than capable of persuading politicians on both sides of the aisle to vote against a tax which singles them out for pecuniary punishment. The tax was a good idea in 2010, and it’s a good idea today. But it has very little chance of ever becoming a reality.

COMMENT

Isn’t 3.5bp/quarter pretty much the same rate as 15bp/year?

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You won’t have broadband competition without regulation

Felix Salmon
Feb 21, 2014 17:03 UTC

Tyler Cowen isn’t worried about the cable companies’ broadband monopoly. His argument, in a nutshell: if you can’t afford broadband, that’s not the end of the world: you can always go to the public library, or order DVDs by mail from Netflix. And if the cable companies’ broadband price is very high, then that just increases the amount of money that alternative broadband providers can potentially make in this “extremely dynamic market sector”. Indeed, he says, if regulators were to force cable companies to decrease their prices, then that would only serve to decrease the amount of money that a competitor could make, and thereby lengthen the amount of time it will take “to reach a more competitive equilibrium”.

The first big thing that Cowen misses here is television. Cowen knows that there’s more to broadband than watching movies on Netflix, but what he doesn’t really grok is that there’s more to Netflix than watching movies on Netflix. Netflix has moved away from the movies model (which was a constraint of the DVDs-by-mail model) to a TV model. And that makes sense, because Americans really love their TV. They love it so much that cable-TV penetration is still substantially higher than broadband penetration. As a result, any new broadband company will not be competing against the standalone cost of broadband from the cable operators: instead, they will be competing against the marginal extra cost of broadband from the cable company, for people who already have — and won’t give up — their cable TV.

If you’re a cable-TV subscriber, the cost of upgrading to a double-play package of cable TV and broadband is actually very low; what’s more, there’s a certain amount of convenience involved in just dealing with one company for both services. The result is the barriers to entry, in the broadband market, are incredibly high. Cowen talks about pCells and Google Fiber, but really they prove my point: pCells are untested technology which would surely cost a mind-boggling amount of money to roll out nationally, while it’s taking even the mighty Google a huge amount of time and money to bring its own broadband service to a relatively small number of mid-size cities.

What’s more, all of that effort is redundant and duplicative: we already have perfectly adequate pipes running into our homes, capable of delivering enough broadband for nearly everybody’s purposes. Creating a massive parallel national network of new pipes (or pCells, or whatever) is, frankly, a waste of money. The economics of wholesale bandwidth are little-understood, but they’re also incredibly effective, and have created a system whereby the amount of bandwidth in the US is more than enough to meet the needs of all its inhabitants. What’s more, as demand increases, the supply of bandwidth quite naturally increases to meet it. What we don’t need is anybody spending hundreds of billions of dollars to build out a brand-new nationwide broadband network.

What we do need, on the other hand, is the ability of different companies to provide broadband services to America’s households. And here’s where the real problem lies: the cable companies own the cable pipes, and the regulators refuse to force them to allow anybody else to provide services over those pipes. This is called local loop unbundling, it’s the main reason for low broadband prices in Europe, and of course it’s vehemently opposed by the cable companies.

Local loop unbundling, in the broadband space, would be vastly more effective than waiting for some hugely expensive new technology to be built, nationally, in parallel to the existing internet infrastructure. The problem with Cowen’s dream is precisely the monopoly rents that the cable companies are currently extracting. If and when any new competitor arrives, the local monopolist has more room to cut prices and drive the competitor out of business than the newcomer has.

In other words, the market in delivering broadband to the home is pretty much the opposite of the international text-messaging market which was disrupted so effectively (and so profitably) by WhatsApp. The initial impetus for WhatsApp came in Europe, where lots of people want to communicate with their friends across borders: from Germany to Austria, say, or from the Netherlands to Belgium. Text messaging across borders is expensive, both to send and to receive, and WhatsApp used those phones’ existing internet connectivity to be able to provide a better service at a price of zero. Since the mobile operators weren’t willing to bring their international text-messaging prices down to zero, they simply lost tens of billions of dollars’ worth of text messages to WhatsApp and other internet-based messaging services.

In broadband, by contrast, it’s the cable operators who could, if they wanted to, bring the marginal cost of broadband down to zero. (There’s no reason, in principle, why they can’t provide broadband for free to anybody with a cable-TV subscription.) Meanwhile, any would-be disruptor, needing to repay a massive capital investment, is going to have less ability to slash prices than the incumbents do.

So don’t count on competition to bring down prices in the broadband space. This is an area where the regulators — and only the regulators — can really be effective.

COMMENT

Realist, I knew that number was ridiculously low, but I couldn’t let it go.

Still, $20 billion in capex for a telco with revenue of $128 billion is not special. And I would bet a disproportionate amount is spent on their LTE network. I doubt much is spent expanding their fiber footprint or upgrading their DSL service.

Posted by KenG_CA | Report as abusive

When disruption meets regulation

Felix Salmon
Jan 30, 2014 15:37 UTC


Nick Dunbar has a fantastic post today headlined “Disruptive Business Models, Uber and Plane Crashes”, talking about how “the latest flurry of innovation” is being concentrated in regulated industries. Dunbar concentrates on non-financial companies: his examples are Uber, Airbnb, and a small company called Manx2, which was an airline in much the same way that Uber is a taxi service or Airbnb is a hotel company. Manx2 no longer exists, in the wake of a plane crash which killed two pilots and four passengers.

What Manx2 actually did was sell tickets. For each particular route, Manx2 then contracted with a plane operating company to fly the passengers…

The Spanish regulator that oversaw Flightline had no clue that the crew who had trained and been accredited in sunny Spanish climes were working remotely for Manx2, flying to fogbound Irish airports. And the passengers who bought tickets from Manx2, which the report says was ‘portraying itself as an airline’ had no clue about the risks they were taking by flying in such a plane run by a freelance operator. Reading the report, it’s hard not to get the impression that the virtual airline business model of Manx2 was partly to blame for what happened.

All regulated industries are inefficient: regulation cannot help but add a layer of bureaucracy to any organization, and no one ever hired a compliance officer as a way of boosting productivity. This creates a natural inclination, on the part of entrepreneurial types, to want to disrupt the industry in question. They look at it, they see all that inefficiency, and they know they can produce 90% of the output with 10% of the overhead.

The problem is that from a societal perspective, sometimes 90% — or even 99% — just isn’t good enough. Airlines are a good example: thanks to regulation, they’re incredibly safe. And when a company like Manx2 manages to slip through the regulatory cracks, the consequences can be disastrous.

The anti-Uber lobby is making similar claims about taxicabs: that they’re licensed for a reason, and that Uber’s attempt at doing an end-run around taxicab regulations is going to endanger passengers and other road users. When you get in a cab, you’re placing your life in someone else’s hands, and you really don’t want that person to be a violent criminal, or have a history of nasty traffic accidents. What’s more, the government is generally better at checking on such things than private companies are.

The main reason why local governments mistrust Uber, however, has nothing to do with public safety: it’s simply a fiscal matter. Both hotels and taxis are important revenue sources for municipalities, which is why city governments tend to be unenthusiastic about Airbnb and Uber.

From the point of view of Silicon Valley libertarians, the idea that they’re disrupting a long-established flow of public monies is a feature, not a bug. If you threaten their disruptive business models, you’re threatening their freedom! That’s the message being sent quite explicitly by the mild-mannered Fred Wilson; his west-coast counterparts, like Balaji Srinivasan and Peter Thiel, have a tendency to go even further.

In finance, regulation is very important indeed — if you want to prevent everything from terrorist finance to global financial meltdown, central authorities need to be able to keep tabs on all financial flows. Finance startups generally operate in a lightly-regulated grey area, just because compliance costs tend to be prohibitively high if you want to, say, start a bank. That explains why Simple isn’t a bank; why most microfinance shops don’t accept deposits; why Apple didn’t storm into the payments space years ago; why it’s so difficult for startups to compete with PayPal, which has spent many years and hundreds of millions of dollars on global compliance; and so on and so forth.

And so when states like New York and California try to gently embrace bitcoin, bringing it into the regulatory fold while not stifling it entirely, the result is always going to be a little bit messy. Bitcoin is built on libertarian mistrust of regulations; indeed, much of the enthusiasm surrounding it comes precisely because it is such a powerful and elegant means of circumventing government control.

I can see the argument for lighter regulation of microfinance institutions: if your depositors have just a few dollars in their accounts, you can’t be expected to spend $50 per customer per year on know-your-customer operations. But in the case of bitcoin, the scoundrels have the head start, and the regulators are never going to be able to catch them. As a result, the entire bitcoin edifice is probably going to end up being shut down by the Feds at some point. It might well get replaced by some other cryptocurrency, but in the case of bitcoin, the regulatory arbitrage is already far too advanced. Which means that if the bitcoin economy continues to grow, the world’s financial regulators will eventually have no choice but to kill it.

COMMENT

The manx2 example sounds like a far more basic failing if Dunbar actually knows what he is talking about – which he may not.

The notion of pilots being trained only to fly in certain geographies sounds dramatically off vs. FAA practice, which I thought was similar in other countries. If the pilot and equipment are only qualified for VFR – Visual Flight Rules – then they only fly in VFR conditions, which would mean without fog. Full stop. If pilot and equipment are IFR – Instrument Flight Rules – then they can land based on instruments, and fog shouldn’t matter. It would be very unusual – maybe impossible – for any sort of commercial passenger or large-scale charter to operate VFR in the U.S.

Posted by realist50 | Report as abusive

Why Zions needs to bite the bullet and sell its CDOs

Felix Salmon
Jan 9, 2014 15:15 UTC

It’s hardly news that in the run-up to the financial crisis, some banks created highly-toxic collateralized debt obligations, and other banks bought those highly toxic CDOs and put them on their balance sheets. The result was that when the crisis hit, and the CDOs plunged in value, a lot of banks needed to take a lot of write-downs.

Certain banks, however, holding certain CDOs, managed to avoid taking any write-downs, and instead quietly just held on to those instruments, keeping them on their books at 100 cents on the dollar. Essentially, they bought complex financial instruments, and then treated them for accounting purposes as though they were their own loans, being held to maturity, which therefore didn’t need to be marked to market. And regulators allowed them to get away with it — until now.

Nick Dunbar has a very good explainer of what’s been going on with these CDOs — specifically, the ones which include obscure creatures known as trust preferred securities. And Floyd Norris has the best short description of exactly what TruPS are, and how they became CDOs:

Trust-preferred securities became popular with bank holding companies in the 1990s because bank regulators allowed them to be treated as capital by the issuing bank, just like common stock, but they were treated as debt securities by the Internal Revenue Service, allowing the issuing bank to deduct interest payments from income on its tax return. The C.D.O.’s were created to allow many small banks to issue such securities, with the buyers reassured by the apparent diversification.

These gruesome instruments actually helped some banks get through the crisis: if you issued TruPS, then you could (and almost certainly did) suspend interest payments for as long as five years, without penalty. But we’re now getting to the end of that five-year period, and, as Norris says, “it is unclear how many of them will be able to make back payments before the periods end this year and in 2015”. Which means that TruPS CDOs, like many other financial innovations of the 2000s, have notably failed to bounce back to their pre-crisis valuations.

As Dunbar says, these things have no place on banks’ balance sheets. And, gloriously, the Volcker Rule has ensured that they’re being kicked off those balance sheets. (Better late than never.) Under the rule, CDOs of TruPS are categorized as a “covered fund”, which banks aren’t allowed to own.

The problem is that certain banks, most notably Zions Bancorp, still own billions of dollars of these things, and have never written them down. If and when they do so, they’re going to have to take hundreds of millions of dollars in losses. And so out come the lobbyists — and out come the silly pieces of legislation, seeking to create a massive carve-out from the Volcker Rule, which would allow Zions and others to hold on to these TruPS CDOs indefinitely.

Even if your goal is to keep the TruPS CDOs on banks’ balance sheets, this legislation is a dreadful way of doing so — since, as Norris notes, the proposed law goes much further than that, and effectively allows banks not only to hold the old instruments, but even to create brand-new ones. Talk about not learning our lesson. But in any case, Zions and the other banks which bought these instruments should, finally, be forced to rid themselves of them. Zions is never going to be happy about taking a loss, but now’s not a bad time for banks in general to be taking losses. And frankly, all of these gruesome CDOs should have been jettisoned from banks’ balance sheets years ago. Let’s hope this legislation goes nowhere, and that these ugly reminders of pre-crash “financial innovation” finally start being held by buy-siders who mark to market, rather than by banks claiming that they’re worth 100 cents on the dollar.

The invincible JP Morgan

Felix Salmon
Jan 8, 2014 16:11 UTC

When JP Morgan paid its record $13 billion fine for problems with its mortgage securitizations, the bank came out of the experience surprisingly unscathed, in large part because Wall Street reckoned that the real guilt lay mainly in the actions of companies that JP Morgan had bought (Bear Stearns and WaMu) rather than in any actions undertaken on its own watch. There was a feeling that the bank was being unfairly singled out for punishment — a feeling which, at least in part, was justified.

The latest $2 billion fine, however, which also comes with a deferred prosecution agreement, is entirely on JP Morgan’s shoulders — and still, as Peter Eavis reports, it’s being “taken in stride” by the giant bank. It really seems that CNBC is right, and that profits really do cleanse all sins. How is it that a $450 million fine sufficed to defenestrate the CEO of Barclays, but that Jamie Dimon, overseeing some $20 billion of fines plus a deferred prosecution agreement just in the space of one year, seems to be made of teflon?

To answer that question it’s worth looking at the details of what exactly JP Morgan did wrong in this case. The key part of the Deferred Prosecution Packet is Exhibit C, the Statement of Facts, all of which have been “admitted and stipulated” by JP Morgan itself. And it certainly lays out some jaw-dropping behavior on the part of the bank, which oversaw Madoff’s main bank account for more than 20 years: between 1986 and 2008, account #140-081703 received a jaw-dropping $150 billion in total deposits and transfers, and showed a balance of $5.6 billion in August 2008. Even when you’re as big as JP Morgan, that’s a bank account you notice.

Except, maybe, not so much:

With respect to JPMC’s requirement that a client relationship manager certify that the client relationship complied with all “legal and regulatory-based policies, a JPMC banker (“Madoff Banker 1”) signed the periodic certifications beginning in or about the mid-1990s through his retirement in early 2008…

During his tenure at JPMC, Madoff Banker 1 periodically visited Madoff’s offices… Madoff Banker 1 believed that the 703 account was primarily a Madoff Securities broker-dealer operating account, used to pay for rent and other routine expenses. Madoff Banker 1 also believed that the average balance in Madoff Securities’ demand deposit account was “probably [in the] tens of millions.”

This is sheer unmitigated — and, yes, probably criminal — incompetence. It takes a very special kind of banker to not notice that an account has more than a billion dollars in it, for a period of roughly four years, from 2005 through most of 2008. As Matt Levine says, “Madoff Banker 1 is like the one banker on earth who underestimated his client’s business by a factor of 100 or so. ‘Boss, I’ve made the firm thousands of dollars this year,’ he probably said, ‘and I deserve a bonus of at least $200.’”

The incompetence doesn’t stop there. At the beginning of January 2007, the account — which, remember, JP Morgan officially considered to be used “for rent and other routine expenses” — saw inflows of $757.2 million in one day. This tripped all manner of automated red flags, but the investigation into those red flags consisted of — get this — visiting the Madoff website. That’s it.

Was there other suspicious activity in this account? Of course there was: lots of it. As far back as December 2001, a client of JP Morgan’s private bank, who also held a huge amount of money with Madoff, moved an astonishing $6.8 billion in and out of that 703 account. In one month. You just can’t do that without generating all manner of suspicious activity reports from JP Morgan to bank regulators. And yet, somehow, impossibly, no such report was generated.

Similarly, in 2007, JP Morgan’s private bank conducted due diligence on Madoff — after all, many of its clients wanted in on Madoff’s amazing funds — and concluded that the numbers “didn’t add up”. And still no hint of running any problems up the chain to either JP Morgan’s regulators or Madoff’s. The same thing happened again in 2008, at an entity called Chase Alternative Asset Management.

And then in late 2008, shortly before the whole Madoff enterprise imploded, JP Morgan bankers in London became so suspicious of the whole enterprise that they sent two different reports to the UK’s Serious Organized Crime Agency. Yet none of this information made it to US regulators.

Levine has a relatively benign explanation for all this: he says that JP Morgan comprises “more or less independent” businesses, which naturally don’t speak to each other, or inform each others’ regulators when they smell something suspicious.

But sometimes the different bits of JP Morgan did talk: for instance, in June 2007 there was a meeting about Madoff in Manhattan, which included the investment bank’s chief risk officer; the Hedge Fund Underwriting Committee (which included “executives from various of JPMC’s lines of business”); the London Equity Exotics Desk (which later examined Madoff in detail and concluded he was probably a fraud); the investment banks’s Global Head of Equities; executives from the broker-dealer; and other people who had direct credit relationships with Madoff. The meeting concluded that JP Morgan wasn’t going to do a big deal with Madoff based simply on Madoff saying “trust me”, and not allowing any direct due diligence. But while JP Morgan was careful with its own investments, and ultimately took out most of the money it had with Madoff before the firm collapsed, once again it saw no reason to tell regulators about its suspicions.

And specifically, there’s one individual within JP Morgan, identified as the “Senior IB Compliance Officer”, who had all of the information from London, who was responsible for passing suspicions on to US regulators, and who ended up doing nothing beyond having “an impromptu conversation in a hallway” with a few colleagues.

The government doesn’t show — it doesn’t need to show — that if JP Morgan had done what it was supposed to do, then US regulators would have cracked down on Madoff before the Ponzi scheme collapsed under its own weight. The point is that regulators can only do their job if they’re given the information they’re required by law to receive — and JP Morgan (not Bear Stearns, not Washington Mutual, but JP Morgan itself) utterly failed, over many years, to provide them with that information.

And yet, to Eavis’s point, JP Morgan is now effectively untouchable by the government. Sure, it can be fined billions of dollars; it can even be slapped with a deferred prosecution agreement. But the fines just come out of the pot of money devoted to paying such things — it’s known as “legal reserves” — and so long as the bank can show that it makes good profits after reserving for fines, Wall Street seems happy for the bank to make few if any major changes. Jamie Dimon remains as CEO, answering to a board chaired by himself; the bank remains one of the biggest in the world; and while prosecutors are winning countless battles against the bank, it’s abundantly clear that the bank is going to win the war.

When did JP Morgan effectively become too big to regulate? How is it that Jamie Dimon and his starry-eyed shareholders have been able to see off forces which toppled many other banks and CEOs? That’s an article I’d love to read — the story of how, with some combination of luck and aggression, Dimon held on to his position as the most powerful bank CEO in the world — even as other banks, and other CEOs, fell steadily by the wayside.

In the face of a determined regulatory onslaught over the past 18 months, from mortgage-related prosecutions to the Volcker Rule, JP Morgan’s share price has gone steadily up and to the right, almost doubling over that period. In the view of Wall Street, that share price is Dimon’s vindication, and his ultimate shield. The lesson of yesterday’s news cycle is that no one can pierce it. Not even the Justice Department.

COMMENT

“The government doesn’t show — it doesn’t need to show — that if JP Morgan had done what it was supposed to do, then US regulators would have cracked down on Madoff before the Ponzi scheme collapsed under its own weight.”

The suspicious activity that JPMorgan failed to file was in fact filed earlier:

“12 Years Before Madoff Was Arrested, A Major JP Morgan Chase Competitor Filed A Suspicious Activity Report”

http://www.forbes.com/sites/robertlenzne r/2014/01/08/12-years-before-madoff-was- arrested-a-major-jp-morgan-chase-competi tor-filed-a-suspicious-activity-report/

“In 1996, some 12 years before Bernie Madoff was arrested for the largest Ponzi scheme in history, a JP Morgan Chase competitor, rumored to be Deutsche Bank DB -3.66%, filed a suspicious activity report on Madoff with regulators, closed its Madoff account and turned over its Madoff deposits to JPMC.”

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The $5 trillion dilemma facing banking regulators

Felix Salmon
Dec 3, 2013 17:16 UTC

Last month, I wrote about bond-market illiquidity — the problem that it’s incredibly difficult to buy and sell bonds in any kind of volume, especially if they’re not Treasuries. That’s a big issue — but it turns out there’s an even bigger issue hiding in the same vicinity.

The problem is that there’s only a certain amount of liquidity to go around — and under Dodd-Frank rules, a huge proportion of that liquidity has to be available to exchanges and clearinghouses, the hubs which sit in the middle of the derivatives market and act as an insulating buffer, making sure that the failure of one entity doesn’t cascade through the entire system.

Craig Pirrong has a good overview of what’s going on, and I’m glad to say that Thomson Reuters is leading the charge in terms of reporting about all this: see, for instance, recent pieces by Karen Brettell, Christopher Whittall, and Helen Bartholomew. The problem is that it’s not an easy subject to understand, and most of the coverage of the issue tends to assume a lot of background knowledge. So, let me try to (over)simplify a little.

During the financial crisis, everybody became familiar with the idea that a bank could be “too interconnected to fail”. The problem arises from the way that derivatives tend to accumulate: if you have a certain position with a certain counterparty, and you want to unwind that position, then you can try to negotiate with your original counterparty — but they might not be particularly inclined to give you the best price. So instead you enter into an offsetting position with a different counterparty. You now have two derivatives positions, rather than one. The profits on one should offset any losses on the other — but your counterparty risk has doubled. As a result, total counterparty risk only ever goes up, and when a bank like Lehman Brothers fails, the entire financial system gets put at risk.

There are two solutions to this problem. One is bilateral netting — a system whereby banks look at the various contracts they have outstanding with each of their counterparties, and simply tear them up where they offset each other. That can be quite effective, especially in credit derivatives. The second solution is to force banks to move more of their derivatives business to centralized exchanges. If there’s a single central counterparty who faces everyone, then the problem of ever-growing derivatives books goes away naturally.

Of course, if everybody faces a central counterparty, then it’s of paramount importance to ensure that the clearinghouse in question will itself never fail. Naturally, the clearinghouse doesn’t own any positions, but on top of that it has to be able to cope with its own counterparties failing. Typically, the way it does that — and we saw this during MF Global’s collapse — is to demand ever-increasing amounts of collateral whenever there’s a sign of trouble.

Such demands have two effects of their own. The first, and most important, effect is that they really do protect the central clearinghouse from going bust. But the secondary effect is that they increase the amount of stress everywhere else in the system. (MF Global might have ended up going bust anyway, but all those extra collateral demands certainly served to accelerate its downfall.) Pirrong calls this “the levee effect”:

Just as making the levee higher at one point does not reduce flooding risk throughout a river system, but redistributes it, strengthening a central counterparty (CCP) can redistribute shocks elsewhere in the system in a highly destabilizing way. CCP managers focus on CCP survival, not on the survival of the entire system, and this is quite dangerous when as is almost certainly the case, their decisions have external effects. Indeed, greater reliance on CCPs increases the tightness of the coupling of the financial system, which can be highly problematic under stressed conditions.

Essentially, when markets start getting stressed, liquidity and collateral will start flowing in very large quantities from banks to clearinghouses. Indeed, to be on the safe side, central clearinghouses are likely to demand very large amounts of collateral — as much as $5 trillion, according to some estimates — even during relatively benign market conditions. That is good for the clearinghouses, and bad for the banks. And while it’s important that the clearinghouses don’t go bust, it’s equally important that the banks don’t all end up forced into a massive liquidity crunch as a result of the clearinghouses’ attempts at self-preservation.

The banks, of course, will look after themselves first — especially as the new Basel III liquidity requirements start to bite. If they need to retain a lot of liquid assets for themselves, and they also need to ship a lot of liquid assets over to clearinghouses, then there won’t be anything left for their clients. Historically, when clients have needed to post collateral, they’ve been able to get it from the banks. But under Basel III, the banks are likely to be unable or unwilling to provide that collateral.

So where will clients turn? These are truly enormous businesses which might need to be replaced: Barclays has cleared some $26.5 trillion of client trades, while JP Morgan sees an extra half a billion dollars a year in revenue from clearing and collateral management.

Just as in the bond markets, one option is that the clients — the buy-side investors — will turn to each other for collateral, instead of always turning to intermediary banks. That’s already beginning to happen: some 10% to 15% of collateral trades already involve non-banking counterparties. But it’s still very unclear how far this trend can be pushed:

While corporates and buysiders might be comfortable sharing confidential information with their banking counterparties, shifting to a customer-to-customer model is a big step.

“The problem is that buyside firms have to open up their credit credentials to each other to get a credit line in place. I always felt that was an impediment to customer-to-customer business, but the combined impact of new rules changed that,” said Osborne.

Osborne, here, is Newedge’s Angela Osborne; her job is to start replacing banks in the collateral-management business. Once you adjust for Osborne talking her own book, it’s clear that there’s still a very long way to go before the banks will realistically be able to step back from this market.

After all, it’s not as though the banks’ buy-side clients themselves have unlimited amounts of collateral which they can happily post at a moment’s notice. It’s true that they aren’t as leveraged as the banks are. But they themselves have investors, who can generally ask for their money back at any time — normally, when doing so is most inconvenient for the fund in question. If they tie up assets posting collateral for themselves or others, that makes it much harder for them to meet potential redemption requests.

All of which means that as we move to a system of central clearinghouses, a new systemic risk is emerging: “fire sale risk” is the term of art. If a market becomes stressed, and the clearinghouses raise their margin requirements, then the consequences can be huge. In the bond market, the death spiral is all too well known: a sovereign starts looking risky, the margin on its bonds is hiked, which in turn triggers a sell-off in that country’s bonds, which makes them seem even riskier, which triggers another margin hike, and so on. This can happen in any asset class, but derivatives are in many ways the most dangerous, just because they’re inherently leveraged, and the amount of leverage that the clearinghouses allow can be changed at a moment’s notice.

Do the world’s macroprudential regulators have a clear plan to stop this from happening? Do they have any plan to resolve the inherent tension involved in demanding that banks retain large amounts of ready liquidity, even as they also allow clearinghouses to demand unlimited amounts of liquidity from the very same banks? The answers to those questions are — at least for the time being — very unclear. But the risk is very real, and it makes sense that regulators should do something to try to mitigate it.

COMMENT

Maybe I am missing something but this pretty much seems to be a made up risk to me. It would make sense for the banks to push this story so they can keep screwing over their costumers with OTC derivatives.

Is there any example in history of a clearing house causing a financial crisis? Collateral calls add stability to the system by lowering leverage before it gets to levels where systematic default is a danger. If a collateral shortage leads to the credit derivative market shrinking that is a positive in my book.

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Bad bank of the day, RBS edition

Felix Salmon
Nov 25, 2013 19:07 UTC

Here in the US, the bank-related scandals pertaining to the financial crisis invariably focus on the go-go years before everything fell apart, when the originate-to-distribute model created horribly skewed incentives across most of the privately-owned financial sector. In the UK, however, the latest big scandal is in many ways the exact opposite: it governs the behavior of RBS, one of the largest banks in the world, after the financial crisis, and after it was effectively nationalized by the UK government.

One of the problems with this story is that it’s hard to find a single place where the scandal is clearly laid out in its full gruesomeness. The BBC has done probably the best job, but most of the credit here really goes to the Sunday Times, which conducted a two-month investigation, and whose story (which is behind a subscription paywall, sorry) is a fantastic example of how a well-chosen set of individual stories can really bring systemic problems into focus.

And then there’s the Tomlinson Report. Lawrence Tomlinson is an entrepreneur and advisor to the government, and has delivered a 20-page paper entitled “Banks’ Lending Practices: Treatment of Businesses in Distress”. Its conclusions are clear — but its methodology is not, and I’m a bit sad that Tomlinson, after six months’ work, didn’t spend a little bit of effort to make the report more readable and provide detail on how exactly he arrived at his conclusions.

But putting everything together, a coherent narrative does emerge. Basically, after the crisis, RBS was in desperate straits, and had to deleverage fast — especially when it came to property loans. It gave that job to a bunch of bankers — and bankers, quite naturally, have a tendency to try to maximize their own profits. Which is exactly what they did, with no regard whatsoever to the wellbeing of their borrowers. Indeed, the bankers seemed to relish taking a maximally adversarial stance towards RBS’s borrowers, as though they were players in a zero-sum game. The result was a large amount of unnecessary human distress, on the borrower side, along with an unknown quantity of marginal extra profits on the RBS/taxpayer side.

It helps to look at a real-world example or two, otherwise everything is just too abstract. John Morris spent £65 million converting a country house into luxury apartments; he had another £2.5 million in the bank to cover any last-minute problems, and already had buyers lined up for four apartments worth £7 million. But then, without warning, RBS drained the account with £2.5 million in it, stalling the development, and causing the buyers to walk away. Morris tried to buy the whole thing for £32 million, but RBS said no, instead selling it to its own property division, West Register, for £16 million.

Here’s another: Eddie and Cheryl Warren bought the Bold hotel in Southport for £3.7 million, with a loan from RBS. In the UK, mortgages are floating-rate, and the bank forced them to take out an interest-rate swap to protect them against rising rates. When rates fell, they had to pay penalties on the swap of £120,000 per year — but even so, they always remained current on all their payments. That notwithstanding, RBS declared that thanks to the rate swap, the Warrens were deeply underwater. The bank declared the hotel to be worth just £1.8 million, forced the Warrens into insolvency, and then ended up selling the hotel to — yes — West Register, for the bargain-basement price of £1.4 million. The Warrens lost everything, including their home; they are now divorcing.

And then there’s Leonard Wilcox, who took out a £2.5 million loan to buy a property site valued at £5.35 million, only to see it being sold to West Register for £1.1 million in the end, losing his own home in the process.

The Sunday Times found lots of other stories like this, all of which included something called the Global Restructuring Group (GRG) at RBS. This group had the ability to take over loans and behave with breathtaking aggression and arrogance — and it took full advantage of all its powers.

Once you’ve read the Sunday Times story, the Tomlinson report becomes much easier to understand. The GRG would storm into a portfolio, and decide that its first job was to find something wrong. The trick was always to declare the borrower in violation of some covenant or other, even if she was fully current on her payments. Often, that would be done by writing down the value of property collateral.

On top of that GRG would pile fees onto the businesses it was given oversight of: one such business says that it had to pay an extra £256,000 in RBS fees alone, while others had to pay six-figure sums for external accountants to conduct an “independent business review”. None of this ever helped the businesses in question:

When asked, a whistleblowing ex-RBS banker confirmed that they could not think of any occasion in which a business entered RBS’ Global Restructuring Group and came back into local management.

Tomlinson, as befits a free-market entrepreneur, thinks that more competition would solve these problems. He’s wrong about that. Remember that all of this activity took place within a panicky post-crisis environment: no banks would have stepped in to take over these loans in mid-2009, no matter how many banks there were. And now that credit is flowing more easily again, the problems have gone away of their own accord: they were an artifact of their time. What’s needed is just better bank regulation, to make sure that banks don’t behave atrociously when the economy is going through a nasty recession. As part of that, banks should be encouraged not to mark real-estate collateral to market, in situations where the loans are not delinquent or past-due.

Tomlinson is right, however, that bank customers do need some kind of avenue of redress or complaint — in the UK, for these borrowers, there is essentially none, and they can’t even sue the banks, since any law firm which does business with banks will refuse to take their case.

There are broader lessons here, too, for anybody thinking about splitting troubled banks up into a good-bank / bad-bank structure. The problem with bad banks, which inherit troubled assets and try to wind them down with the minimum of losses, is that they can’t make money from lifetime relationships: their lifetime is by its nature highly limited. And so they have every incentive to treat their borrowers very badly, even when, as in this case, the bank is state-owned.

COMMENT

Felix, GRG didn’t start doing this in 2008, it started in 1991, and it’s been polishing its game ever since.

http://www.ianfraser.org/has-rbs-become- a-rogue-institution/

E.g. relating to a rip-off set up in 2007:
http://www.scotcourts.gov.uk/opinions/20 10CSOH3.html

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