Financial Regulatory Forum

Legal Opinions and Ernst & Young: The Grim Repo’s next targets? – Westlaw Business

By Erik Krusch (Westlaw Business)

Legal opinions underpin the Lehman-related lawsuit against Ernst &Young (E&Y) by New York Attorney General Andrew Cuomo, and both lawyers and auditors can’t help but take note. The AG alleges that Lehman’s then-auditor E&Y provided substantial assistance to Lehman in its perpetrating a massive financial fraud. In particular, Cuomo has charged the accounting giant with three counts of securities fraud under the Martin Act and a charge of persistent fraud and illegality brought under the Executive Law § 63(12) of New York.

The AG’s case centers on Lehman’s use of the now notorious Repo 105 to lower its leverage levels. Lehman accounted for Repo 105, which amounts to selling securities for 105% of their value to counterparties with the agreement to repurchase the securities later, as sales rather than loans. It is standard practice to account for securities repos as loans. Repo 105 allowed Lehman to shift assets (and more to the point, “net leverage”) from the curious eyes of the ratings agencies, investing public and regulators. Ernst & Young signed off on this accounting from 2001 until Lehman’s demise in 2008. For additional information on Repo 105 please see the previous Westlaw Business Currents article The Tale of the Grim Repo: Lehman’s Link to True Sales.

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US Treasury seeks new members for Bank secrecy group; lobbyists need not apply — Complinet

By Brett Wolf, Complinet

The US Treasury Department has announced that it is seeking financial industry representatives to join its 50-member Bank Secrecy Act Advisory Group. For the first time, this year’s application process has barred registered lobbyists from the group, whose duties include evaluating potential anti-money laundering and counter-terrorist financing regulations. Citing an Obama Administration Executive Order and Presidential Memorandum, the Federal Register notice submitted by Treasury’s Financial Crimes Enforcement Network stated that “member organizations may not designate a representative to participate in BSAAG plenary or subcommittee meetings who is registered as a lobbyist pursuant to 2 U.S.C. 1603(a)”. (more…)

Ernst & Young charges highlight grey area in leverage accounting – Complinet

By Emmanuel Olaoye, Complinet

Civil fraud charges against Ernst & Young LLP have raised the question of whether accounting standards have become so specific that institutions view them as obstacles to maneuver around rather than guidelines for accurate reporting. Legal and accounting experts said that the suit filed by Andrew Cuomo, New York attorney general, was likely to mean the end for transactions such as the “Repo 105″ device at the center of the controversy, particularly if it led to a settlement. It could break new ground in the liability of accounting firms, they added.

The lawsuit has accused E&Y with improperly allowing Lehman Brothers to use a complex accounting transaction known as “Repo 105″ to reduce the apparent debt level of the failed investment bank, giving investors the impression that it had a lower level of debt than it actually did. The lawsuit has claimed that E&Y knew Lehman was treating the transfer of billions of dollars of securities in “Repo 105″ transactions as asset sales rather than loans. “Repo 105″ is the name of the accounting transactions that Lehman used to classify its short-term borrowings as sales. Lehman collapsed in September 2008, at the height of the global financial crisis.

“If there is a settlement this type of transaction would not be used again. The ‘Repo 105′ is radioactive. I don’t think accounting firms will be allowing their clients to use them again,” said Howard Schilit, founder and chief executive of the Financial Shenanigans Detection Group LLC.

ANALYSIS-CFTC speculation limits may pass quietly, unchanged

U.S. Commodity Futures Trading Commission Chairman Gary GenslerBy Christopher Doering

WASHINGTON, Dec 17 (Reuters) – New U.S. rules to limit speculation in commodity markets could move forward quickly, and with few alterations, after objections by the measure’s most vocal supporter unexpectedly delayed a key vote.

Gary Gensler, head of the U.S. Commodity Futures Trading Commission, abruptly postponed a vote on Thursday to open proposed new position limits to public comment, evidence of mounting pressures internally as the agency implements dozens of rules meant to make markets safer and more transparent.

The agency must carefully balance the laws it is required to implement as part of the sweeping Dodd-Frank financial overhaul with the opinions of its five commissioners, who disagree on how they should get there.

WikiLeaks furor raises risk issue for financial firms -Complinet

WIKILEAKS/By Brett Wolf, Complinet

Some financial institutions are scrambling to put distance between themselves and the whistleblower web site WikiLeaks, but is this necessary? Financial services firms face no clear legal obligation to cut off WikiLeaks and its founder Julian Assange, but intense publicity and the pressure brought by the US government and lawmakers to cripple the organization are forcing companies to weigh other risks they might face if they continue to do business with WikiLeaks.

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Dodd says the threat to financial reform real but not complete – Complinet Interview

U.S. Senator Christopher DoddBy Ted Knutson, Complinet

As Democratic U.S. Senator Christopher Dodd prepares to leave office, Republicans are threatening to chip away at what may be his biggest legislative accomplishment: the Wall Street regulation overhaul he helped steer through Congress this year as chairman of the Senate Banking Committee. It was the biggest fix to the financial regulatory system in 70 years, and Republicans emboldened by November election gains are looking to deny regulators the extra money they want to enforce it, and to delay seating a head of the Consumer Financial Protection Bureau (CFPB).

Dodd said in an interview with ThomsonReuters unit Complinet that the damage to a “real darn good bill” could be real, but not complete. In his half-hour interview last Friday, Dodd looked ahead to the future of the Dodd-Frank Wall Street Reform and Consumer Protection Act and back at the two-year process that led to its creation.

Complinet: How much would it damage regulatory reform if Republicans block budget increases for the Securities and Exchange Commission and the Commodity Futures Trading Commission that say they need to implement it? (more…)

Asia regulators say G20 reform driven by U.S., Europe

By Daisy Ku and Rachel Armstrong

HONG KONG, Nov 29 (Reuters) – The lack of a unified Asian voice in the Group of 20 leading economies means the United States and Europe are driving the overhaul of global financial regulation with several of the new rules posing significant challenges for emerging markets, regulators said in a regional summit on Monday.

The G20 has endorsed a series of major reforms to banking and financial market regulation, which the five Asian members of the group and Financial Stability Board members Hong Kong and Singapore have signed up to.

But Asian regulators say a number of these rules pose significant difficulties for their markets, while others don’t address the way the crisis hit their economies. This, they say, is partly due to the fact that the United States and Europe find it easier to arrive at a common approach to regulatory change.

FACTBOX-CFTC to-do list for implementing reforms

Nov 22 (Reuters) – The U.S. Commodity Futures Trading Commission faces the mammoth task of writing detailed regulations to implement reforms passed by Congress giving the agency oversight of the $600 trillion over-the-counter derivatives market.

Working from a list of 30 topic areas, the agency may end up writing 50 to 60 regulations, CFTC Chairman Gary Gensler has said.

The CFTC hopes to unveil the first drafts of most of the proposed rules by the end of the year to allow time for public comment and revisions before its July deadline for final regulations. Some rules have earlier deadlines.

from Reuters Investigates:

Financial cyber-bullying?

"They love a conspiracy theory on the boards," David Jones, chief market strategist at spread betting firm IG Index told UK correspondents Rosalba O'Brien and Matt Scuffham when they were reporting for "The stock, the web, the CEO and his lawyers" . It's a look at some of the shenanigans around highly speculative resource stocks when they are discussed on message boards like  ADVFN and iii. Late-night gossip and personal insults are par for the course: some suspect organised short-sellers may be behind the talk. Given the high volumes of online trading in the UK, we wonder how long it will be before regulator FSA is forced to take a closer look.

Day-trader John Douce is sceptical about the boards' impact on stock prices

Day-trader John Douce is sceptical about the boards' impact on stock prices

COLUMN-The journey’s just starting on bank capital

By Keith Mullin, Editor at Large, International Financing Review

– the views expressed are his own –

LONDON, Nov 12 (Reuters) The popular quote about focusing on the journey rather than the destination could well have been written about current moves to create the next generation of bank capital instruments and determine the place of hybrid debt in bank capital structures.

Stakeholders – politicians, regulators, supervisors, issuers, intermediaries and investors – have spent an inordinate amount of time trying to come up with a formula that will offer affordable hybrid capital to banks that meets lawmakers’ demands for a robust safety net (i.e. one that absolves taxpayers of responsibility) and at the same time hits investors’ return and risk metrics. Yet for all of the progress made so far, we are nowhere near a conclusion on rules and processes that will facilitate any of the above. (more…)

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