The New Robber Barons Page 25

  In his March 30 release, Buffett wrote that Sokol's purchases of shares of Lubrizol, a company targeted as a Berkshire Hathaway acquisition candidate, were not a factor in his decision to resign. Jonathan Weil retorted that the line "wasn't remotely credible." Buffett himself admitted at his annual meeting the trades were a firing offense.

  Buffett tried to dodge the key issues at the annual meeting by saying that people were bothered by his March 30 release because they missed "some big sense of outrage." Actually, the public has had enough phony outrage. Missing were candor and material facts.

  The most important fact was that while Buffett wrote on March 30 that neither he nor Sokol felt the trades were "in any way unlawful," after a month of press uproar, Buffett admitted at his annual meeting that on the day he wrote his release he turned over evidence to the SEC's enforcement division that was "some very damning evidence, in my view."

  Now the rating agencies are reviewing weak corporate governance at Berkshire Hathaway and may downgrade the company's credit rating. That would lead to relatively higher funding costs which would create a drag on returns.

  Buffett didn't think this incident would damage his reputation, but perhaps as Jonathan Weil points out, it's because the press has gone easy on him in the past. Buffett isn't being judged on appearances. He's being judged by words and actions completely under his control.

  CHAPTER 11

  THE “REGULATORS”

  Inside the Wall Street Journal’s Future of Finance Initiative

  December 14, 2009

  Last week I was a participant in the Wall Street Journal's Future of Finance Initiative in England. WSJ has written a summary of the conference highlights, and missed some key points. Allow me to fill in the blanks.

  Paul Volcker, former Fed Chairman and current Chair of the President's Economic Advisory Board, made the most worthwhile comments. Moral hazard was not discussed in the open forums, so Volcker reminded the assembly. Yet even Volcker did not broach the topic of fraud.

  Alistair Darling, Chancellor of the Exchequer, spoke on the opening evening. I asked him why massive financial fraud remained unaddressed. Darling appeared momentarily confused and seemed to suggest this was exclusively a U.S. problem to be handled by the courts. I pushed back on this notion. By the time one needs a lawyer, it is too late. I noted that we, the middle aged financiers in the room, are responsible for taking action. If we don't face this issue head on, we will never restore trust in the financial system.

  Ana Botin, Banesto's Executive Chairman, suggested that the risk manager should report to the board. Then she blew it with the assertion--made several times--that the CEO can also be Chairman. (Ken Lewis defended his dual role as CEO and Chairman of Bank of America at a Fed conference in 2003. How did that work out?)

  I didn't challenge Botin's assertion, because I used my two minutes (literally) during the "Too Big to Fail" breakout session to (unsuccessfully) try to carry the point that when banks fail, we should allow shareholders to be wiped out, and debt holders should take losses. (Under that scenario, most of the current managers would be booted out.) Instead, the group posted the need for a "living will" to be designed by the managers that made life support during our recent crisis a debatable necessity.

  Elizabeth Corley, CEO of Allianz Global Investors in Europe, presented conclusions from her panel's discussion of the "Regulatory Frontier." The panel's idea of upgrading regulatory resources was to deploy senior financial institution officers to regulators for two or three years and vice versa. Meanwhile, the financial institutions should chip in to maintain the regulators' former high pay. Howard Davies of the London School of Economics saved me from having to explain the concept of regulatory capture. After he spoke, I was the only one to clap. Apparently everyone else thought the panel was titled the "Predatory Frontier."

  Robert Diamond, president of Barlcays PLC, sounded like a financial holocaust denier. He seemed to think that the idea of breaking up banks has only to do with the threat to the financial system, if they fail. The point is that some of these institutions threatened the financial system--and continue to threaten the financial system--because they are too big to manage.

  Diamond seemed to dislike the term "socially useless" to describe recent financial innovation and defended Barclays' proprietary trading. Since Barclays has dropped its suit involving its total return swap with Bear Stearns' imploded hedge funds, Diamond may have already forgotten this relevant example of financial innovation gone wrong. Hedge fund investors were wiped out, the hedge funds' dodgy assets landed on Bear Stearns's balance sheet, and later on JPMorgan Chase's balance sheet, after it acquired Bear Stearns. Our past crisis taught us that hedge funds are not independent of the banking system. This transaction wasn't merely socially useless, it had negative social utility.

  Mario Draghi, Bank of Italy's Governor and Chairman of the Financial Stability Board, seemed to think that hedge funds are independent. This is simply incorrect. If the example above didn't persuade him, he might consider the assets that came back onto bank balance sheets and contributed to market instability. For example, in March of 2008 as Bear Stearns bit the dust, the Carlyle Group's CCC fund assets and the assets of Peloton's funds boomeranged back on bank balance sheets at the most inopportune time.

  Bob Diamond defended structured credit products saying there is a real purpose for structuring credit for pension funds. He was probably unaware that state pension funds in the United States were damaged by the unintended consequences of a "AAA" rated structured credit product. The pension funds were wise enough to avoid investing in the product, yet as I explained in my February 2007 letter to the Securities and Exchange Commission, large fixed income pension funds were unintentionally harmed by the market distortions caused by this financial innovation.

  My letter to the SEC cited this financial innovation as an example of why the special NRSRO designation of the rating agencies should be revoked. The product did not deserve its "AAA" rating. It had substantial principal risk and deserved a non-investment grade, or junk rating. Within a year all of these new "AAA" innovations blew up. Moody's estimated that investors in one of them would get back only around ten cents on the dollar.

  Not all financial innovation is harmful, but it is undeniable that in recent years it was a runaway train that nearly derailed the global financial system. You wouldn't have realized that, if you listened to most of the participants. They chiefly represented the interests of large financial institutions, and the financial system is still attached to the privileged placenta of central banks doling out taxpayer subsidies. Most of the conference reflected the insulated thinking of this protective womb.

  Treasury Cover-Up of Goldman’s Role in AGI Crisis

  December 22, 2009

  In November 2009, I wrote in the Huffington Post that Goldman Sachs Group nearly bankrupted AIG. In December, the Wall Street Journal explained to the general public that Goldman fueled AIG's gambling and played a much bigger role in the mortgage bets that nearly felled American Insurance Group (AIG) than the Treasury, the Fed, or Goldman itself publicly disclosed.

  The TARP Inspector General's November 17 report missed the most damaging facts. Intentionally or otherwise, it was evasive action or just plain whitewash. The report failed to clarify Goldman's role in AIG's near collapse, and that of all the settlement deals, the U.S. taxpayers' was by far the worst.

  Goldman originated or bought protection from AIG on about $33 billion of the problematic $80 billion of U.S. mortgage assets that AIG "insured" with credit derivatives, about twice as much as the next two largest banks involved.

  Goldman acted as middle-man on $14 billion of that amount, after it took the risk of mortgage assets originated by other banks and insured all of it with AIG. Goldman may wish to claim it "was only following orders," but since Goldman also originated many of the mortgage assets ultimately protected by AIG, it should have been well aware of the risk posed to itself and to AIG. The risk was then Goldman's. If
AIG failed, Goldman Sachs would have had to make good on those trades. Goldman stuffed so much risk into A.I.G. that Goldman nearly killed its own "hedge."

  In November 2008, the New York Fed paid 100 cents on the dollar for the $14 billion of mortgage assets related to Goldman's trades. Goldman estimated the assets had lost $9.6 billion, or around two-thirds of their market value. Overall, the government's bailout out of AIG allowed Goldman to avoid losses on its trades covering $22 billion in assets.

  The U.S. taxpayer deserved a much better deal. In late July 2008, SCA, another bond insurer, settled similar contracts for only around thirteen cents on the dollar. In August 2008, Calyon, a French bank also involved in AIG's transactions, settled disputed financial guarantees with FGIC, a bond insurer facing bankruptcy, for only ten cents on the dollar. Ambac, another bond insurer in need of capital, recently canceled similar trades for ten cents on the dollar.

  Defenders argue that circumstances surrounding AIG were different from the other bond insurers. They are correct; the circumstances were worse. The Fed should have made sure any payments that originated from AIG, before or after the bailout, were only temporary loans to be repaid as soon as possible.

  This link provides a snapshot from January 2008 of two of Goldman's value-destroying securitizations that were protected by AIG. (You will have to enlarge the image after clicking, and the document is a bit awkward.) The first is Abacus 2005-2; Goldman originated and bought protection on these mortgage assets. The second is Davis Square Funding IV. Goldman originated this deal, and French bank Societe General bought protection from AIG against it.

  Inside Goldman's mortgage assets were value-destroying assets created by other Wall Street firms. Everyone bought each other’s junk so prices stayed artificially high, and the risk could be dumped on someone else. Of course, this doomed strategy eventually fell apart. At the time of the AIG bailout, losses were quickly eating away at the insides of these products cooked up in Wall Street's financial meth labs.

  Among the many shards of glass masquerading as gems, you will find Tourmaline CDO 2005-1. It was managed by Blackrock, the manager of the AIG assets that the Fed purchased with public money. Perhaps the Fed's theory in handing out no bid contracts to Blackrock has something to do with the diligence displayed by a fox watching a hen house.

  The Fed gave the U.S. taxpayer a raw deal. At the time Goldman got its give-away, Henry Paulson was treasury secretary -- he was also Goldman's CEO when it put on its trades with AIG -- and former Goldman chairman Stephen Friedman was then chairman of the New York Federal Reserve Bank. Goldman CEO Lloyd Blankfein was the only Wall Street executive at one of Paulson's bailout meetings. Goldman was inside the tent advising on the most self-serving way to save itself and gain unfettered access to public funds.

  In the fall of 2008, Goldman Sachs became a bank holding company before switching to a less regulated financial holding company in August 2009*. This prevented a run on Goldman Sachs and gave it permanent access to Fed funds, taxpayer money. Goldman pays rates near zero for short-term borrowing while it earns profits on the higher rates paid on the capital it is required to deposit with the Fed. Goldman also issued nearly $21 billion in debt guaranteed by the FDIC. Most valuable of all, however, is the perception that Goldman is so well-connected, that the government will never let it fail.

  Goldman paid mega bonuses in past years subsidized by selling hot air. Now it proposes to again pay billions in bonuses based on earnings made possible by taxpayer dollars.

  Now that the crisis is over, we should ask Goldman Sachs -- and all of AIG's other trading partners involved in these trades -- to buy back these mortgage assets at full price. Alternatively, we can impose a special tax. Instead of calling it a windfall profits tax, we might label it a "hot air" profits tax.

  A Goldman spokesman denies it could have known these mortgage assets were a problem, but Goldman also acknowledged I had warned about them -- and the grave risks they posed -- at the time they were created. It said my opinion was in the "minority." As it happens, Goldman's opinion was proved tragically wrong, and mine was proved correct. It is not in the public interest to rely on Goldman's opinion about the greater risk it now poses to the global markets, and the Treasury should exact a much greater financial cushion.

  The global financial crisis and the special circumstances surrounding AIG's bailout were extraordinary. It is unconscionable to reward value destroying activity that damaged not only AIG, but enabled massive damage to the U.S. economy. It is in the public interest to claw back public money. Goldman should buy back these mortgage assets at full price, or we should impose a reparations tax. Furthermore, Goldman should pay off its FDIC guaranteed debt, and once again become an investment bank with no access to Fed borrowing, before it pays taxpayer-subsidized bonuses to its employees.

  Timothy Geithner, I Call Your Bluff

  January 7, 2010

  The Treasury responded to reports that the New York Fed asked AIG to suppress and delay facts about the bailout. Meg Reilly, a Treasury spokesperson claimed: "In the transaction at the heart of this dispute...the FRBNY [Federal Reserve Bank of New York] made a loan of $25 billion which is on track to be paid back in full with interest." She claims the loan is currently "above water."

  In the first place, that loan is not the heart of the dispute. Nonetheless, the FRBNY should immediately release the details of all of the Maiden Lane III assets backing that loan and show the current prices BlackRock has placed on them. Based on the current market, it is extremely likely that the loan is underwater.

  The assets backing the loan are so-called super senior and AAA rated collateralized debt obligations (CDOs). Similar CDOs trade for under ten cents on the dollar, not close to the average price of 35 cents for the loan's assets shown in a recent Fed report. The Fed claims prices climbed 4.5%. Yet in the secondary market, prices have dropped.

  The Fed awarded no-bid contracts to BlackRock to manage and price these assets (among other things). Given BlackRock's track record as a CDO manager*, I have no reason to believe its prices are reliable. As I mention above, I have reason to question the prices.

  If the Treasury wants to publicly claim the loan is not underwater, now is the time to prove it, even though this particular loan is not the key issue.

  As Representative Darrell Issa explained in his letter to the Fed, at the heart of this dispute is my assertion that Treasury Secretary Timothy Geithner, in his former role as President of the FRBNY, paid 100 cents on the dollar to settle AIG's credit default swap contracts, and he wildly overpaid. Other bond insurers including Ambac, MBIA, and FGIC have settled similar contracts for as little as ten cents on the dollar.

  The general public was kept unaware of several politically explosive facts. Risky subprime loans partly backed CDOs that AIG insured. Goldman Sachs played a key role in AIG's distress with both credit default swap transactions and CDOs that Goldman underwrote. The identities of the banks--including some foreign banks--that received payments were not revealed until five months after the bailout. The November 2009 TARP Inspector General's report failed to mention that Goldman originated or bought protection from AIG on about $33 billion of the problematic $80 billion of U.S. mortgage assets that AIG "insured" with credit derivatives, about twice as much as the next two largest banks involved.

  The TARP report also failed to highlight the character of the synthetic CDOs underwritten by Goldman Sachs that remain on AIG's books. There is nothing wrong with hedging or taking the opposite view to one's customers. There is nothing wrong with using credit derivatives to accomplish this goal. But there are serious questions about whether residential mortgage backed securities and downstream CDOs were value-destroying and misrated.

  Wall Street was chiefly responsible for the "financial innovation" that did massive damage to the U.S. economy. I assert there should be fraud audits of Wall Street's securitization activities.

  Given the extraordinary circumstances surrounding AIGs trades, the global fin
ancial crisis, and the AIG bailout, it is time to reopen this issue. AIG's counterparties can repurchase the approximately $62 billion CDOs from Maiden Lane III at full price**. If the Fed really believes they are worth 35 cents on the dollar, then these counterparties will be getting a windfall versus ten cents on the dollar. As for Goldman Sachs's approximately $8.2 billion in CDOs (including synthetic CDOs) that are still on AIG's books, they can be settled at ten cents on the dollar, and excess collateral currently held by Goldman can be returned. This is the value at which other bond insurers have settled similar deals. The return of payments to AIG can be used to pay down its public debt, before banks pay tax-payer subsidized bonuses to their employees.

  * BlackRock managed Pacific Pinnacle CDO ($1 billion; closed 1/1/07; event of default 2/4/08); Pinnacle Point Funding ($2B closed 6/7/07; acceleration 12/13/07); Tenorite CDO I ($1 B closed 5/11/07; liquidation 2/7/08); and Tourmaline CDO III ($1.5 billion closed 4/5/07; event of default 3/31/08). (Earlier I wrote a post that included a 2005 Tourmaline deal managed by BlackRock that ended up being part of a CDO bailed out by the Fed.) I highlight BlackRock's 2007 CDOs similar to those in it now manages for the Fed, because in 2007 mainstream media was already reporting on the potential for these CDOs of this type to blow up. I wrote an article for the precursor to Risk Professional in early 2007 warning about the type of value-destroying CDOs that AIG insured. I had also issued earlier warnings on other types of value-destroying CDOs.