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- Author: Oonagh McDonald x
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This book provides a compelling account of the rigging of benchmarks during and after the financial crisis of 2007–8. Written in clear language accessible to the non-specialist, it provides the historical context necessary for understanding the benchmarks – LIBOR, in the foreign exchange market and the Gold and Silver Fixes – and shows how and why they have to be reformed in the face of rapid technological changes in markets. Though banks have been fined and a few traders have been jailed, justice will not be done until senior bankers are made responsible for their actions. Provocative and rigorously argued, this book makes concrete recommendations for improving the security of the financial services industry and holding bankers to account.
This book explains the fundamental causes of the bank's failure, including the inadequacy of the regulatory and supervisory framework. For some, it was the repeal of the Glass-Steagall Act that was the overriding cause, not just of the collapse of Lehman Brothers, but of the financial crisis as a whole. The book argues that the cause is partly to be found both in weak and ineffective regulation and also in a programme of regulation and supervision that was simply not fit for the purpose. Lehman Brothers' long history began with three brothers, immigrants from Germany, who sold selling groceries and dry goods to local cotton farmers. Dick Fuld, the chairman and CEO, and his senior management, ignored the increased risks, choosing to rely on over-valuations of the firm's assets. The book examines the regulation of the Big Five investment banks in the context of the changes which took place in the structure of banking after the repeal of the Glass-Steagall Act. It describes the introduction of the European Union's Consolidated Supervision Directive in 2004. The book examines the whole issue of valuing Lehman's assets and details the regulations covering appraisals and valuations of real estate, applicable at the time and to consider Lehman's approach in the light of these regulations. It argues that that the valuation of Lehman's real estate assets was problematic to say the least, as the regulators did not require the investment banks to adopt a recognized methodology of valuation, and that Lehman's own methods were flawed.
Mayer Lehman Brothers' long history began with three brothers, immigrants from Germany, setting up a small shop in Alabama, selling groceries and dry goods to local cotton farmers. Their business soon evolved into cotton trading. Dick Fuld made a series of acquisitions, designed to lessen Lehman's dependence on fixed-income trading, and focus attention on mergers and acquisitions, investment banking and raising capital. He began the process of restructuring the company so that it consisted of three major operating units: investment banking, equities and fixed income. He refocused the company's activities on high-margin business such as mergers and acquisitions, bringing in experienced senior staff to manage the business. The description of the company's activities reflected both the move away from fixed income trading, and Fuld's ambitions for Lehman Brothers.
In its financial report for the fiscal year ending 30 November 2007, Mayer Lehman Brothers reported record revenues of nearly $60bn, and record earnings in excess of $4bn. Lehman's March 2008 results were revealed that its liquidity pool had increased from $35bn to $54bn. To bolster liquidity and to help the financial markets function more effectively, the Federal Reserve established the Primary Dealer Credit Facility. Before the announcement of its third quarter results, Lehman's shares were very volatile, falling by 13 per cent on one day and rising by 16 per cent on another. The Consolidated Supervised Entity Programme, designed to ensure that a firm could withstand the loss of its unsecured financing for up to a year, was abruptly ended on 26 September 2008. The downfall of Bear Stearns, Lehman Brothers, and Merrill Lynch was not completely due to the regulators; they brought their downfall on themselves.
On 10 September 2008, Dick Fuld presented what would be the firm's last earnings report, announcing the loss of $3.9bn, the second quarterly loss that had increased from the previous quarter's loss of $2.8bn. It also released some plans and proposed actions, which included the increase in total stockholders' equity, spin-off of certain commercial real estate assets, and a potential deal with a Korean sovereign wealth fund. All of the proposed actions were no more than plans, as opposed to completed deals or agreements. Just two days after Mayer Lehman filed for Chapter 11, Barclays announced that it would acquire Lehman Brothers North American investment banking and capital markets operations and supporting infrastructure. That included Lehman Brothers' New York headquarters and two data centres, all for $1.75bn, a price which the New York Times described as a 'fire sale' and which was much less than Lehman expected.
This chapter examines the regulation of the Big Five investment banks in the context of the changes which took place in the structure of banking after the repeal of the Gramm-Leach-Bliley Act 1999 (GLBA). It also examines the introduction of the European Union's Consolidated Supervision Directive in 2004. The Act did not 'repeal' the Glass-Steagall Act in its entirety, but only repealed sections 20 and 32, which prohibited member banks from affiliating with organizations dealing in securities. The Federal Reserve became the 'umbrella' supervisor for any Financial Holding Company owning a bank; under its 'streamlined supervision' remit, the Federal Reserve was limited in its day-to-day authority to oversee functionally regulated non-banking subsidiaries of the holding companies. Though the Securities and Exchange Commission had adequate tools and statutory backing for taking on the consolidated supervision of the Big Five investment banks, its inability to carry out effective supervision was revealed soon.
The Lehman Chapter 11 bankruptcy case represents the 'largest, most complex, multi-faceted and far-reaching bankruptcy case ever filed in the United States'. After the bankruptcy process completed, there was no further investigation of the Examiner's conclusions about the 'colorable' claims. This chapter explores the main issues cited for the cause of the bankruptcy and reasons why Mayer Lehman conducted its business without proper oversight. To hide the extent to which Lehman Brothers Holding Incorporated (LBHI) was leveraged, the company developed and used a version of Repo 105 and Repo 108 in 2001. But it used the device much more extensively in 2007 and 2008, as focus on the leverage ratios of investment banks increased. The Examiner appointed by the Bankruptcy Court found sufficient evidence to support that 'Lehman did not appropriately consider market-based yield when valuing Principal Transactions Group (PTG) assets in the second and third quarters of 2008.'
Under its dramatic headline, 'Mayer Lehman's chaotic bankruptcy filing destroyed billions in value', the Wall Street Journal proclaimed that a 'less hurried Chapter 11 bankruptcy filing would have preserved tens of billions of dollars of value'. International derivative contracts were not the only problem. Its collapse resulted in over 75 separate and distinct bankruptcy proceedings immediately, and affected thousands of financial market participants through its wide range of contracts. It is important to focus on the procedures set out by International Swaps and Derivatives Association (ISDA) and to consider what contribution the Master Agreements were able to make to sorting out the enormous number and the wide range of derivatives, running into trillions of dollars. In the aftermath of the financial crisis, regulators turned their attention to capital, liquidity and supervision, in order to prevent the failures of what then became known as 'systemically important financial institutions' (SIFIs).
This chapter examines the issue of valuing Mayer Lehman's assets, explaining the reasons for the market's lack of confidence in Lehman's valuations. The kind of regulations governing valuation in force between 1994 and 2007 are set out. The valuations were Lehman's own, and were presented as being marked to market. The chapter highlights the key points arising from the Examiner's analysis of Lehman's approach to valuation. The purpose is to detail the regulations covering appraisals and valuations of real estate, and consider Lehman's approaches to valuation for its commercial-principal transactions group's portfolio (PTG), in the light of these regulations. The analysis was that the senior management decided to go for profits, rather than restricting the risks laid down by their risk management team. Lehman's corporate charter and Delaware company law protected directors from personal liability based on their business decisions, since neither breached the duty of loyalty or good faith.
Professional standards for the valuation of commercial and residential real estate existed at that time of Mayer Lehman Brothers' bankruptcy. However, bankruptcy Examiner Valukas demonstrates that Lehman showed little interest in conforming to them or hiring those who knew how to apply them. This chapter sets out the difficulties of valuing both complex financial instruments and real estate, and especially commercial real estate and development land. It describes the methodologies used to value commercial real estate and complex financial instruments. The chapter draws on the procedures as set out by the Royal Institution of Chartered Surveyors in London, and the Appraisal Foundation, which sets the Uniform Standards of Professional Appraisal Practice (USPAP), the standards required by the Financial Institutions Reform, Recovery and Enforcement Act 1989. It also examines some major derivatives in force when Lehman's collapsed, including collateralized debt obligations (CDOs) and collateralized loan obligations (CLOs).