Wednesday, June 16, 2010

Gonzalo Lira: What do BP and the Banks Have In Common? The Era of Corporate ...

I've often thought that my generation is like the turn-of-the-Nineteenth-century British generation. We were all born into the World's greatest country near its inevitable decline. It's said watching the fall from grace. Can you say nǐ hǎo?

 
 

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via naked capitalism by Yves Smith on 6/16/10

By Gonzalo Lira, a novelist and filmmaker (and economist) currently living in Chile

On the occasion of the BP oil spill disaster, President Obama's delivered an Oval Office speech last night—a masterpiece of milquetoast faux-outrage. The speech was all about "clean energy" and "ending our dependence on fossil fuels". Faced with the BP oil spill—likely the most severe environmental disaster ever—this was President Obama's response: Polite outrage, and vague plans to "get tough", "set aside just compensation" and "do something".

President Obama missed what the BP oil spill disaster is really about. Though unquestionably an environmental disaster, the BP oil spill is much much more.

The BP oil spill is part of the same problem as the financial crisis: The BP oil spill and the banking crisis are two examples of the era we are living in, the era of corporate anarchy.

In a nutshell, in this era of corporate anarchy, corporations do not have to abide by any rules—none at all. Legal, moral, ethical, even financial rules are irrelevant. They have all been rescinded in the pursuit of profit—literally nothing else matters.

As a result, corporations currently exist in a state of almost pure anarchy—but an anarchy directly related to their size: The larger the corporation, the greater its absolute freedom to do and act as it pleases. That's why so many medium-sized corporations are hell-bent on growth over profits: The biggest of them all, like BP and Goldman Sachs, live in a positively Hobbesian State of Nature, free to do as they please, with nary a consequence.

The added bonus to this, though, is that the largest corporations have convinced the governments and the people of the "Too Big To Fail" fallacy—they have convinced the world that if they cease to exist, the sky will fall atop our collective heads. So if they fail, they must be saved—without argument, without penalty, and without reform.

Let's take BP: British Petroleum caused the Deepwater Horizon oil spill in the Gulf of Mexico. There were various Federal Government agencies charged with supervising their operations—but all of those agencies deferred to BP, before the accident. As a large corporation—one of the largest oil companies in the world—BP operated more or less without any Government supervision. As is emerging, because of this lax and toothless supervision, safety rules and procedures were ignored. Insane risks were taken. No safety contingency plans were drawn up.

From what some memos are saying, disaster was inevitable.

Once the accident happened, BP controlled the information it released concerning the disaster. BP unilaterally decided not to proceed with an immediate top-kill of the well—instead, BP risked a wider disaster, in order to save the oil field by drilling a "relief well". BP's reasoning was simple: By implementing an immediate top-kill, BP would have sacrificed the oil field (and lost its investment) in order to save the environment. BP did not do this. Instead, it tried to stretch out the process, so as to salvage the oil field (and the profits) with the "relief well". But when it became impossible to hide the extent of the damage—when the smell of oil permeated the clear skies of Louisiana a hundred miles from the site of the spill—BP tried to implement the top-kill. We know how that ended.

Where was Authority? Where was Someone In Charge? The fact was, there was no one in charge. There was no one supervising—or at any rate, the ones who were supposed to be supervising had had their teeth yanked. And BP knew it—so they did whatever they wanted, regardless of the risks, or the costs.

Worst of all, BP realizes that, if it finally cannot get a handle on the oil spill disaster, they can simply fob it off on the U.S. Government—in other words, the people of the United States will wind up cleaning BP's mess. BP knows that no one will hold it accountable—BP knows that it will get away with it.

No one was holding the banks accountable either. It's no accident that American and European banks nearly went broke, but banks here in Chile sailed along smoothly: That's because banks here are regulated up the wazoo. They literally can't fart without an independent banking inspector supervising them, and then getting a stamped form in triplicate. When Chile's banks went bust in the crisis of 1980, it put paid to any illusions that the banks knew what they were doing—the government bailed out the banks then, but kept them under glass ever after.

But in Europe and America, the story was the Greenspan Put. Easy Al was so convinced that the banks would "self-regulate" that he pulled the teeth of the Fed, the banks regulatory agency, and let the "free market" have its way.

With this free pass, what do you think the banks did? They went anarchic—they invented all sorts of clever "financial products" that exponentially increased risk, rather than mitigating it. We all saw how that movie ended. When Lehman busted and the credit markets froze, a slap-dash improvised "rescue package" was drawn up, then the $700 billion TARP, then Quantitative Easing, all of these efforts lubed up with a lot of talk to "strengthening the regulatory environment" and "protecting the financial markets".

The upshot? The banks did whatever they pleased—with no supervision. And when their recklessness led inevitably to the catastrophe in the Fall of '08, the banks got bailed out—with no repercussions. The biggest ones even managed to turn a profit off the tax payer-funded bail-outs!

Even after the worst of the crisis—when the effects of no regulation and no supervision were clearly understood—nothing happened. The zero-regulation, zero-supervision regime continued.

This isn't the case for people, for individuals: People are regulated, people are controlled. Individuals are supervised and limited in what they can do and say—and no one complains. On the contrary—everyone is relieved, because it protects us all from the unreasonable behavior of an individual.

As an individual, I am limited in countless ways, from the trivial, like jaywalking, to the severe, like murder. I can't even speak up and yell "Fire!" in a crowded theater—I would be arrested for inciting a panic, the general good of avoiding a potentially lethal stampede overriding my need to express myself by yelling "Fire!" when there is none.

Curiously, individuals—ordinary people—are being supervised and regulated more and more stringently. Yet at the same time, corporations are becoming more and more free to do as they please. No one notices how strange this is—we have even lost the social framework to even talkabout regulating and supervising corporations, because too many foolish pundits equate supervision and regulation with Socialism. Yet curiously, personal freedom is being chipped away, day by day, without a peep from these pundits.

Meanwhile, the banks run amok.

Meanwhile, BP runs amok.

We can look at other industries—Big Pharma, for one—but there's no real need: Big Pharma will fit the same pattern as BP and the banks. Get so big that you can do whatever you want, and no one will challenge you, not even the government. Carry out practices that will inevitably create a crisis—like unsafe drilling, like toxic bonds—and be confident that you will be bailed out.

Bailed out, and allowed to continue, unfettered. "Allowed" to continue, unfettered? I'm sorry, I mis-spoke: Encouraged to continue, unfettered.

This era of corporate anarchy is reaching a crisis point—we can all sense it. Yet the leadership in the United States and Europe is making no effort to solve the root problem. Perhaps they don't see the problem. Perhaps they are beholden to corporate masters. Whatever the case, in his speech, President Obama made ridiculous references to "clean energy" while ignoring the cause of the BP oil spill disaster, the cause of the financial crisis, the cause of the spiralling health-care costs—the corporate anarchy that underlines them all.

This era of corporate anarchy is wrecking the world—literally, if you've been tuning in to images of the oil billowing out a mile down in the Gulf of Mexico.

I think we are at the fork in the road: One path leads to revolutionary change, if not outright revolution. The other, appeasement and stasis, as the corporations grind the country down.

My own sense is, there will be no revolutionary change. The corporations won. They won when they convinced the best and brightest—of which I used to be—that the only path to success was through a corporate career. No necessarily through for-profit corporations—Lefties never seem to quite get how pernicious and corporatist the non-profits really are; or perhaps they do know, but are clever enough not to criticize them, since those non-profits and NGO's pay for their meals.

Obama is a corporatist—he's one of Them. So there'll be more bullshit talk about "clean energy" and "energy independence", while the root cause—corporate anarchy—is left undisturbed.

Once again: Thank God I no longer live in America. It's too sad a thing, to watch while a great nation slowly goes down the tubes.


 
 

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Thursday, June 10, 2010

SEC Investigation of Goldman Trading Against Its Clients Widens

The FT had a front page story (link below) about the SEC investigating another Goldman CDO called "Hudson."  Apparently Hudson was the focus of the Senate hearings.  The situation is a little different than ABACUS.  In the Hudson transaction, Goldman was not acting as a market maker for third-party counterparties (unlike the Paulson v. IKB deal in ABACUS) but was THE actual counterparty.  Goldman disclosed both a long and a short position in Hudson that turned out to be 0.4% long and 99.6% short.  (BTW, the $8 million long position was less than half the $17 in fees Goldman collected on the deal!)  It looks like Lloyd needs to have another conference call.

 

The post below discusses the story, cites to some of the Senate references, and mixes in another FT story hypothesizing why the SEC is investigating Goldman and Merrill, but not Deutsche Bank.  The conspiracy theorist think the SEC is using Goldman to establish the template before it goes after DB b/c Khuzami could not participate in a DB matter.    

 

 

 

 

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via naked capitalism by Yves Smith on 6/10/10

 

The latest shoe to drop on the Goldman front is the report on Wednesday that the SEC was investigating yet another one of its synthetic CDOs, this one a $2 billion confection called Hudson. It isn't clear whether the SEC will file charges, but this one has the potential to be particularly damaging in the court of public opinion, since this CDO was created solely as a proprietary trading position to help the firm get short subprime risk in late 2006, when the market was clearly on its last legs.

By way of background, the assets in a synthetic CDOs are credit default swaps. In the case of Hudson, they referenced $800 million of BBB subprime bonds, 2005 and 2006 vintage, and $1.2 billion of the ABX. The deal was a wipeout.

What makes Hudson different from the Abacus CDO that is the subject of an SEC lawsuit is that it was not even arguably intermediated between customers. Goldman was not only the initial short counterparty (as was indicated in the contract as standard verbiage), it was every and always intended to be the ultimate short counterparty. Why does this matter?

Synthetic CDOs were sold to investors as the economic equivalent of cash CDOs, ones whose assets were subprime bonds rather than credit default swaps. That was always more than a bit disingenuous. Cash CDOs had for some time been the way that underwriters would dispose of the pieces of subprime bonds they were unable to sell, namely the riskier tranches. Conceptually, it was like taking unwanted parts from (presumably) healthy pigs, grinding it up with a little bit of better meat plus some spices and turning it into sausage.

But the short players like Goldman set out to create sausage from pigs known to be sick because that would be more profitable for them, and this was a zero sum game: their profit came at the expense of their customers. Note that this is NOT inherent to investing, that the dealer's gain is necessarily the customer's loss. A dealer might exit a trade that he sees as unprofitable because he expect the price to fall in the next few days. The customer may have a completely different time horizon, and the success of his investment will not be affected much by what would be for him trading "noise" over the next few days.

Let's put it more simply: how many of you would knowingly choose to be on the other side of a Goldman prop trade, particularly if you knew Goldman had designed the instrument to enable it to go short? Answer: probably zero.

There is an (in theory) less culpable scenario, but it does not get Goldman out of the SEC's crosshairs. The initial motivation for its Abacus program (25 synthetic CDOs in total) was to lay off long CDS positions it took. Let us say a hedger like a bank wanted to reduce its subprime exposure. It could sell the loans or bonds, or simply hedge it by entering into a CDS with Goldman. From time to time, Goldman would flatten its position by bundling these exposures into a synthetic CDO. This was hardly unusual; a similar process was well established in the corporate CDS market.

So if that is the case (big if, one will have to look at Goldman's intent, as revealed by internal messages, as to whether it was merely laying off exposures in a routine manner or cherry picking particularly drecky exposures to establish a profitable short), Goldman's "we're just acting as a market maker" argument is not a complete fabrication. But it still appears to have a legal problem. See this statement in its marketing documents (p. 346 of the Goldman documents released by the Senate):

Goldman Sachs has aligned incentives with the Hudson program by investing in a portion of equity and playing the ongoing role of Liquidation Agent.

Yves here. This is a flat out misrepresentation. The equity position is a Trojan horse for the much larger short position. The equity was at most 5% of an ABS CDO; Goldman was at least 95% net short this deal (if p. 401, which shows Goldman had a $8 million equity position, is correct, it was 99.6% short! And since per p. 402, it reported $17 million in P&L on the deal, so it took more out in fees than its equity stake. Nice work.). It most certainly did NOT have incentives aligned with its investors

Goldman may argue that the disclaimer language in itty bitty print on the next page gets it off the hook, but I have my doubts that that will be viewed with much sympathy. There is a notion of good faith and fair dealing that underlies all contracts. It is such a bedrock concept that it is not clear that Goldman can try to disclaim its way out of it.

Goldman has more language that is misleading (p. 357):

Goldman Sachs' objective is to develop a long term association with selected partners that can adapt to and take advantage of market opportunities

• The goal is to create attractive proprietary investments by leveraging expertise of both Goldman Sachs COO and Mortgage Desks while maintaining a consistent approach and creating a unified issuance program across multiple transactions

Yves here: Translation. We want to sell you more deals like this, so trust us, we won't fleece you.

Note that Goldman explicitly says it is NOT laying off its own exposures, and by implication based on the body language thus far, it is pickin' good stuff for this deal (p. 358):

• Goldman Sachs' portfolio selection process:

• Assets sourced from the Street. Hudson Mezzanine Funding is not a Balance Sheet COO
• Goldman Sachs COO desk pre-screens and evaluates assets for portfolio suitability
• Goldman Sachs COO desk reviews individual assets in conjunction with respective mortgage trading
desks (Subprime , Midprime, Prime, etc.) and makes decision to add or decline
• All CDS use rating agency approved confirms (pay as you go)

It appears this deal was not an easy sale (p. 803, from an October 2006 e-mail by Michael Resnick):

do we have anything talking about how great the BBB sector of RMBS is at this point in time … a common response I am hearing on both Hudson' HGSl 1s a concern about the housing market and BBB in particular!

We need to arm sales with a bit more – do we have anything?

Now Goldman defenders may argue that the investment bank is being unfairly singled out. However, that is hard to take seriously. There were very few banks in the business of synthetic CDO programs for their own account : Goldman, who is being investigated, Morgan Stanley, ditto, and Deutsche Bank….not. One industry source has also told us that Citigroup did deals along similar lines, but we have not gotten independent confirmation (update: aha, some new G2 in a very good article at the Financial Times tonight).

Some cynics may contend that the failure to go after Deutsche Bank is due to the fact that the head of SEC enforcement, Robert Khuzami, not only comes from Deutsche, but was involved in its CDO business. But the reality is more complicated. Getting someone like Khuzami, who is also a former prosecutor, was a coup for the SEC. He would clearly have to recuse himself from any cases involving his former employer. Insiders can correct me if I am wrong, but not only does the SEC not appear to have anyone who could step into Khuzami's shoes (in terms of having both the product knowledge and the litigation experience), but it would be difficult to hire someone with a similar profile. Thus the fallback may be to perfect the litigation strategy on Goldman and Morgan so it then can then be deployed against Deutsche and not require someone as high powered to lead the effort.

Just because the wheels of justice seem to be grinding a bit slowly does not mean that in the end, they will not grind exceedingly fine.

 

 

 

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