Tag Archives: SEC

Financial Reform and Regulatory Expansion

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Whether you like it or not, the Dodd-Frank Wall Street Reform and Consumer Protection Act is now law. Passed by the Senate finally last week and signed by President Obama yesterday, financial reform will have wide-ranging implications for the financial services sector (including the insurance industry), the rest of corporate America and, really, just the whole country.

The most immediate effect will be the creation of new regulatory groups.

The National Law Review published a great breakdown. Here are the four more interesting additions.

Consumer Financial Protection Bureau
Will write consumer protection rules for banks and nonbank financial firms offering consumers financial services or products and ensure that consumers are protected from “unfair, deceptive, or abusive” acts or practices.

Federal Insurance Office
Will monitor all aspects of the insurance agency and identify issues or gaps in regulation that could lead to systemic risk.  Based upon its findings, the FIO will make recommendations to the FSOC regarding insurance institutions that pose a systemic risk and should be subject to greater regulatory oversight.

Financial Stability Oversight Council
Will identify risks and emerging threats to the financial stability of the United States arising from large bank holding companies and systemically important nonbank financial companies and respond with appropriate regulation to reduce the risk from their size and activities.

Office of Financial Research
Will have the power to subpoena financial information from institutions under the supervision of the Fed.  The OFR may require periodic and other reports from any nonbank financial company or bank holding companies.

The law also includes provisions surrounding “too big to fail,” the “Volker rule,” derivatives, hedge funds and “predatory” lending, but the regulatory changes are the most significant. And while it will be interesting to see how these new agencies take shape, the expanded mission of the SEC is the real story here.

I don’t think it’s a stretch to say that the SEC has been an abject failure since (at least) the turn of the millennium. I’m sure there was some good work done by the agency during this time, but if its core mission is to safeguard Americans from being duped by the unintelligible complexity masking the activity of Wall Street, the financial watchdog could not have performed more miserably. On its watch, complex, risk-laden transactions proliferated and — once the mirage of risk-free mortgage securities disappeared — ran the global economy head first into a brick wall. And this failure to check the financial institutions culpable was so great that, more than two years after Bear Stearns collapsed, nearly 10% of Americans still can’t find a job.

The Washington Post details the SEC’s expansion.

The SEC is required to issue 95 new regulations governing a wide swath of the financial sector, dozens more than the Federal Reserve, the new Consumer Financial Protection Bureau or other federal agencies. The SEC is also slated to complete 17 one-time studies and five new ongoing reports, according to a tally by the law firm Davis Polk & Wardwell.

The SEC will serve on the new Financial Stability Oversight Council, a new interagency body meant to spot emerging risks to the overall financial system. It will have to write rules to supervise the multibillion-dollar market of derivatives linked to stocks and bonds. It will begin examining the activities of hedge funds and private equity firms and tighten oversight of credit-rating agencies. And it will do studies of short selling and whether brokerage and investment firms must meet higher standards.

Perhaps only the Office of Thrift Supervision can compete with the SEC in terms of the new law’s impact. But in contrast to the SEC, which is gaining so many new responsibilities, OTS, which regulated home lenders, is being abolished.

Indeed, the SEC is coming out of the financial regulatory overhaul far stronger than many observers of the agency might have anticipated.

While in some ways it seems counterintuitive to task what some have perceived to be a failed agency with greater authority, I suppose some body has to do it. And change — for the better — is theoretically what reform is all about.

So … Enter a new stage of regulation, as John Lester and John Bovenzi succinctly point out.

Enactment of Dodd-Frank … marks only a new stage of financial reform, as the debate shifts to the rulemaking efforts of federal agencies. The complexity of the law and the many decisions delegated to regulators makes it difficult to predict which of the law’s many provisions will come to be the most significant. Ultimately, it will be regulators who determine the true impact of the law.

And that’s what has so many people scared — including business leaders who think regulators will be too draconian and SEC critics who think regulators will be too inept.

AIG: A Timeline to the End of the SEC Probe

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It had to happen sometime. This morning it was announced that U.S. regulators have closed an investigation of AIG and some of its executives over the insurance giant’s near collapse that led to a $182 billion government bailout.

Let’s take a look at the timeline of many of the events surrounding the AIG disaster (with help from ProPublica, the New York Fed and Bloomberg).

  • August 5, 2007: During a conference call with investors, various high-ranking AIG officials stressed the near-absolute security of the credit-default swaps. “The risk actually undertaken is very modest and remote,” said AIG’s chief risk officer. Joseph Cassano, who oversaw the unit that dealt in the swaps, was even more emphatic: “It is hard for us with, and without being flippant, to even see a scenario within any kind of realm of reason that would see us losing $1 in any of those transactions…. We see no issues at all emerging. We see no dollar of loss associated with any of that business.” Martin Sullivan, AIG’s CEO, replied, “That’s why I am sleeping a little bit easier at night.”
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  • October 1, 2007: Joseph St. Denis, the VP of Accounting Policy at AIG Financial Products, resigns after Cassano tells him, “I have deliberately excluded you from the valuation of the [credit-default swaps] because I was concerned that you would pollute the process.”
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  • November 7, 2007: In an SEC filing, AIG reports $352 million  in unrealized losses from its credit-default swap portfolio, but says it’s “highly unlikely” AIG would really lose any money on the deals.
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  • December 5, 2007: In an SEC filing, AIG discloses $1.05 billion to $1.15 billion in further unrealized losses to its swaps portfolio, a total of approximately $1.5 billion for 2007. During a conference call with investors, CEO Martin Sullivan explains that the probability that AIG’s credit-default swap portfolio will sustain an “economic loss” is “close to zero.” AIG’s risk-modeling system had proven “very reliable,” Sullivan said, and since the transactions were so “conservatively structured,” AIG had “a very high level of comfort” with its risk models.
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  • February 28, 2008: In its year-end regulatory filing, AIG sets its 2007 total for unrealized losses at $11.5 billion. AIG also discloses that it had thus far posted $5.3 billion in collateral. It’s the first time the company has disclosed the amount of posted collateral. AIG puts the notional value of the entire swaps portfolio at $527 billion. But as we said above, about $61 billion of the swaps had exposure to subprime mortgages. AIG also announces that Joe Cassano, the chief of the unit that dealt in the swaps, has resigned. What AIG doesn’t disclose is that he’s kept on under a $1 million per month consulting contract.
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  • August 6, 2008: In its second quarter filing, AIG ups its unrealized loss in 2008 from the credit-default swaps to $14.7 billion, for a grand total loss of $26.2 billion. It also discloses another impressive number: It’s posted a total of $16.5 billion in collateral.
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  • September 16, 2008: The Federal Reserve Board saves AIG by pledging $85 billion [11]. As part of the deal, the government gets a 79.9 percent equity interest in AIG.
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  • October 8, 2008: The Fed pledges another $37.8 billion to AIG.
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  • November 10, 2008: Board of Governors and Treasury announce the restructuring of the government’s financial support to AIG. The restructuring includes a Treasury purchase of AIG preferred shares through the Troubled Asset Relief Program (TARP), reduction of $85 billion revolving credit line to $60 billion and the creation of two limited liability companies (LLCs) to lend against AIG’s residential mortgage-backed securities (RMBS) and collateralized debt obligations (CDOs).
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  • March 15, 2009: AIG, under pressure from regulators, releases a statement that discloses the names of its counterparties, which includes banks such as Goldman Sachs and Deutsche Bank AG. The counterparties received about $50 billion in forfeited collateral postings and Maiden Lane III payments since the Sept. 16, 2008, rescue, the statement says. The statement lists a sum of payments to each bank. It doesn’t identify the securities tied to the swaps or list the value of individual purchases by the banks.
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  • March 18, 2009: AIG Chairman and Chief Executive Officer Edward Liddy testifies before House Financial Services Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises.
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  • March 24, 2009: Federal Reserve Chairman Ben S. Bernanke and New York Fed President William C. Dudley testify before House Committee on Financial Services.
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  • May 7, 2009: AIG reports first quarter 2009 earnings. (Risk Management Monitor coverage)
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  • May 21, 2009: Edward Liddy leaves AIG after eight grueling months acting as chairman and CEO with no pay. (Risk Management monitor coverage)
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  • December 13, 2009: Eli Lehrer writes an editorial entitled “Kill AIG Now.” (Read Risk Management Monitor’s reaction to the piece, plus an in-depth comment from Lehrer himself)
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  • Jan. 7, 2010: Bloomberg reports that e-mails obtained by Representative Darrell Issa show the New York Fed pressed AIG to withhold details from the public about the insurer’s payments to banks.
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  • March 1, 2010: AIG agrees to sell its subsidiary American International Assurance Company Ltd. (AIA) to Prudential Financial, Inc. for approximately $35.5 billion.
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  • March 8, 2010: AIG agrees to sell its subsidiary American Life Insurance Company (ALICO) to MetLife, Inc. for approximately $15.5 billion.
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  • June 10, 2010: A Congressional watchdog criticized nearly every move the Fed has made during the AIG fiasco. “The government’s actions in rescuing AIG continue to have a poisonous effect on the marketplace,” said the congressional oversight panel led by Harvard University law professor Elizabeth Warren.
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  • June 17, 2010: The SEC ends its probe of AIG and its executives.

No charges were ever filed against AIG or its executives, and since the Justice Department’s probe ended and May and the SEC’s probe ended today, no charges will likely ever be filed.

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SEC Watchdogs Watching Porn, Not Wall Street

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SEC porn XXX

According to an internal investigation, 33 SEC employees or contractors have been watching porn on company time and company computers. Not only are these obvious and widespread violations of SEC policy — and hopefully, the policy of every company outside of that specific industry — but the transgressions all occurred at a time when the financial companies that the watchdog was supposed to be watching were, ya know, busy burning down the global economy and all.

Rep. Darrell Issa (R-CA), the ranking member of the House Committee on Oversight and Government Reform, had this to say:

“It is nothing short of disturbing that high-ranking officials within the SEC were spending more time looking at pornography than taking action to help stave off the events that brought our nation’s economy to the brink of collapse … This stunning report should make everyone question the wisdom of moving forward with plans to give regulators like the SEC even more widespread authority. Inexplicably, rather than exercise its existing regulatory enforcement authority, SEC officials were preoccupied with other distractions.”

Exactly how widespread were these “distractions”? In at least two cases, it was certainly impairing regulators’ ability to do their jobs.

A regional office staff accountant tried to access pornographic websites nearly 1,800 times, using her SEC laptop during a two-week period. She also had about 600 pornographic images saved on her laptop hard drive.

Separately, a senior attorney at SEC headquarters admitted to downloading pornography up to eight hours a day, according to the investigation.

“In fact, this attorney downloaded so much pornography to his government computer that he exhausted the available space on the computer hard drive and downloaded pornography to CDs or DVDs that he accumulated in boxes in his office,” the inspector general’s report said.

For its part, the SEC issued this response:

“We will not tolerate the transgressions of the very few who bring discredit to their thousands of hardworking colleagues,” he said.

Depending on your moral sensibilities, the news may be worse for what it represents (employees who clearly aren’t fully committed to doing their jobs for 8 hours a day) than for what actually happened.

Either way, not a good look for the agency — both figuratively and literally.

Turning Whistleblowers into Millionaires

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The U.S. Foreign Corrupt Practices Act is not new. Founded in 1977, the act’s main mission has always been to curtail improper accounting practices by companies operating internationally and prevent bribes. Thus, the “corrupt” aspect. In many parts of the world, there is a thin line between a “gift” and a “bribe,” and this regulation is designed to better demarcate that line and ensure that those businesses that overstep it have to pay a penalty for doing so. (Here’s a more detailed explanation if you’re into reading legalese.)

Only in recent years, however, has the act started to gain any real teeth.

Dow Jones reports on the expansion of the FCPA of late.

There have been a rising number of FCPA enforcement actions in recent years…with 34 prosecutions netting $435.3 million in penalties in 2009, according to the Department of Justice. In 2008, Justice said 17 prosecutions netted $497.6 million in penalties.

Because of this ramped up enforcement, companies should be sure to revisit compliance efforts. In fact, we ran a piece by Jonathan Marks of Crowe Horwath on that very topic last November, offering 10 tips on how to make sure your foreign operations are on the up-and-up. (“Global Presents”/global presence … Get it? We’re very clever … We know.)

Thus, the real news now is not more fines — it is the coming overhaul of the incentives that will be awarded whistleblowers going forward. The Senate and House bills for financial regulation differ on the matter somewhat, but both will create what is being termed a “bounty program,” in which the person who reports the FCPA violation would receive a percentage of whatever the related fine ends up being.

The final percentage will obviously hinge on what is actually written into legislation, but regardless, it has the potential to turn a whistleblower into a millionaire overnight.

Among key language differences between the bills, the House version, which passed in December, has no set minimum percentage of the collected funds in a case for the SEC to pay to a whistleblower. The SEC has greater discretion in determining the bounty than it does under the Senate’s version, which has a 10% minimum. Both have a 30% maximum payout.

Theoretically, a whistleblower could come into a huge windfall based on this formula. Consider the case of Siemens AG, which paid $800 million in fines to the SEC and the DOJ in 2008 after pleading guilty to violating the FCPA. Had those penalties been the result of information obtained by a whistleblower, the person could have received a $240 million payout, or a minimum bounty of $80 million based on the Senate language.

$80 million for tipping off the G-men about a foreign infraction? That’s a lot of coin. Certainly enough to motivate employees, you would think.

Mike Koehler, an assistant professor of business law at Butler University in Indiana, who is an expert on FCPA-related issues and blogs under the name FCPAProfessor, sees such sums being an effective incentive.

“Any time you incentivize rank-and-file workers with a lot of money, rational actors are going to respond. You’re going to see an increase in enforcement activity regardless of whether the action violates the law,” Koehler said.

I know I’ll be on the look-out

whistleblower

The future whistleblowers of America?