Relevant and even prescient commentary on news, politics and the economy.

Is ‘overbanked’ going to be a common household word?

Via The Big Picture and Ritholz comes Nervousness in over banked Europe

Go no further than the following two charts to understand why markets freaked out over Dijsselbloem’s comments.    Europe is way overbanked and vulnerable to financial sector shocks.
Even in the so-called “safe haven” Switzerland the banking system is outsized relative to the country’s GDP.  Compare the relative size of UBS, for example,  to the largest bank in the U.S.,  JP Morgan.  Nuff said.

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Addressing TBTF with tax and other policy: because "Big Banks Go Wrong, Pay Little Price"

by Linda Beale

Addressing TBTF with tax and other policy: because “Big Banks Go Wrong, Pay Little Price”

The New York Times today reiterated what many Americans lament–Big Banks went uncharged for serving as the main engine of the Great Recession that cost ordinary Americans jobs, homes and futures.  See Andrew Ross Sorkin, Big Banks Go Wrong, but Pay a Little Price, New York Times, at B1 (March 12, 2013).

Big Banks (and especially their managers), however, made out like bandits through the socialisation of losses and privatisation of gains.  The aftermath of the crisis provided  lower cost of funds from the perceived government TBTF subsidy.  Big Bank managers made big bucks leading their institutions into disaster and “staying on” after the disaster because their “expertise” was essential.  The stock market, but not ordinary Americans’ pocketbooks or paychecks,  has recovered from the recession, forging a return of lucrative M&A activity and, of course, the management of wealthy people’s assets.  No Big Bank has faced criminal indictment for “the damage caused to the economy and millions of Americans” by their  sloppy mortgage financing, sloppy foreclosure procedures, and casino capitalism “bets” with credit default swaps and other derivatives.

The reason–the lesson from Enron and Arthur Andersen, where thousands of lower-level employees who had no control over corporate actions lost their jobs when the firms collapsed after wrongdoing and charges.  Any Big Corp can be TBTF.  “[S]imply charging a company with a crime reaises the possibility of putting the firm out of business.”  Id. at B5.  Collateral damage is therefore a major hurdle to bringing a criminal case against a corporation.

The takeaway, according to the Times article, is that “prosecutors should focus on the individuals responsible for the misconduct” rather than indict corporations, which can result in “condemnation of one person [many employees] for the actions of another [boards and managers or ‘rogue’ employees]” (quoting, in the latter case, Elizabeth Ainslie’s paper on indicting corporatrions).

While protecting employees of rogue firms (where management and directors have pursued aggrandisement of their own status and riches at the cost of society’s well-being) is important, it is not clear that the takeway outlined above is a complete answer.  Several additional components should be addressed, by a combination of Congressional and state legislative action and regulating agencies.  And actions to limit the size of corporations would have another advantage–acting as a deterrent to their power in dictating the well-being of ordinary employees, and thus helping to deflect the growth of corporatism in our society.

  • First,  boards that make irresponsible judgements that allow CEOs and managers to engage in reckless bets with their companies should be able to be held personally responsible more easily, without corporate protection for the ultimate costs. 
  • Second, anti-trust needs to be expanded to limit the interwoven boards and contractual relationships that permit a few TBTF institutions in an industry to dominate the market and set the “Wall Street Rule” for what is acceptable behavior.  ULtimately we need forced split-up of TBTF institutions, through anti-trust or new means, as necessary.
  • Third (and most relevant for this blog, of course), tax policies encouraging corporate consolidation should be strictly limited.  The section 368 reorganization provisions should be tightened to require a much higher percentage of continued shareholder interest: the current requirement for a tax free reorg of only 40% (under an example in the reorg regulations) should be tighted to at least 70%.  The opportunities for loss recognition in reorgs provided by the Bush Treasury under regulations should be eliminated.  Spins of parts of mega corporations to existing shareholders should remain tax-free, but spins that amount to initial steps in acquisitions should be more limited.

Will Congress (or state legislators) take any of these actions?  It is highly dubious.  The left is too often too cowardly to act and mostly funded by wealthy interests.  Most on the right–disproportionately represented in Congress because of gerrymandering in the House and the disproportionate Senator-to-population ratios in the Senate–dogmatically favor market fundamentalism no matter the evil it causes when it comes to advantages for business to make more profits, even if it comes at the expense of ordinary people through market power to defeat unions, defeat reasonable pay requests, etc.  (Of course, when it comes to exploiting government , the right tends to favor government subsidies–look at Wisconsin’s recent move to remove pesky environmental regulations protecting wetlands to support a mine owner, in the purported interest in supporting job creation, even when the mine is likely to cause long-term environmental damage and potentially devastating water pollution and destruction of wetlands.)

cross posted with ataxingmatter

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Warren questions Benanke on ‘too big to fail’

Via Bloomberg comes this snippet from testimony between Senator Warren and Ben Bernanke.  Follow the link as the embed does not seem to work.

Partial Transcript via Global Economic Trends

Warren: These big financial institutions are getting cheaper borrowing to the tune of $83 billion in a single year, simply because people believe government would step in and bail them out. And, I’m just saying, if they’re getting it, why aren’t they paying for it?

Bernanke: I think we should get rid of it.

Warren: Alright. I’ll ask the other question. You were here in July, and you said you commended Dodd-Frank for providing a blueprint to get rid of “Too Big to Fail”. We’ve now understood this problem for nearly five years, so when are we going to get rid of “Too Big to Fail”?

Bernanke: Well, some of the you know uh as we’ve been discussing, some of these rules take time to develop. Uh, uh. ….”

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Are banks too big to jail?

Update:  Dealbook at the NYT interviews the producers of ‘The Untouchables’.

Yves Smith at Naked Capitalism comments begin:

Lanny Breuer, former Covington & Burling partner and more recently head of the criminal division at the Department of Justice, resigned abruptly today. The proximate cause may be a Frontline show that ran two nights ago, part of a series on the financial crisis…

and ends

But sadly, Breuer’s resignation is unlikely to be a bellwether that lying does not pay. He simply didn’t lie well enough and that made him an embarrassment.

David Sirota at Salon discusses the significance of:

PBS Frontline’s stunning report last night on why the Obama administration has refused to prosecute any Wall Streeter involved in the financial meltdown doesn’t just implicitly indict a political and financial press that utterly abdicated its responsibility to cover such questions. It also — and as importantly — exposes the genuinely radical jurisprudential ideology that Wall Street campaign contributors have baked into America’s “justice” system. Indeed, after watching the piece, you will understand that the word “justice” belongs in quotes thanks to an Obama administration that has made a mockery of the name of a once hallowed executive department.

The Frontline report is titled “The Untouchables,”

As this excerpt from Breuer’s 2012 speech to the New York City Bar Association shows, that characterization of Breuer’s declarations is not an overstatement (emphasis added):

To be clear, the decision of whether to indict a corporation, defer prosecution, or decline altogether is not one that I, or anyone in the Criminal Division, take lightly. We are frequently on the receiving end of presentations from defense counsel, CEOs, and economists who argue that the collateral consequences of an indictment would be devastating for their client. In my conference room, over the years, I have heard sober predictions that a company or bank might fail if we indict, that innocent employees could lose their jobs, that entire industries may be affected, and even that global markets will feel the effects.

In reaching every charging decision, we must take into account the effect of an indictment on innocent employees and shareholders, just as we must take into account the nature of the crimes committed and the pervasiveness of the misconduct.

I personally feel that it’s my duty to consider whether individual employees with no responsibility for, or knowledge of, misconduct committed by others in the same company are going to lose their livelihood if we indict the corporation. In large multi-national companies, the jobs of tens of thousands of employees can be at stake. And, in some cases, the health of an industry or the markets are a real factor. Those are the kinds of considerations in white collar crime cases that literally keep me up at night, and which must play a role in responsible enforcement.

Save for the intrepid Marcy Wheeler and now Frontline, this speech received almost no news media attention despite being arguably one of the most important statements to come from a top law enforcement official in recent history.

The highlighted parts of that speech are what is so significant. In them, Breuer is saying that enforcing the law should not be — and no longer is, in the Department of Justice — prosecutors’ chief priority. Rather, he says listening to Wall Street’s economic arguments about the alleged cost of stopping and/or punishing lawbreaking should be.

… After all, it was Breuer who sculpted the Obama administration’s settlement with megabank HSBC after the bank admitted laundering money for drug cartels and terrorist organizations.
In that decision not to criminally prosecute any HSBC executive who had enabled such laundering, Breuer explicitly cited the same radical Too Big to Jail principle aired in the PBS Frontline report. He said: “Our goal here is not to bring HSBC down, it’s not to cause a systemic effect on the economy, it’s not for people to lose thousands of jobs.”

For pure adversarial and investigative journalism horsepower, the PBS Frontline piece rivals Bill Moyers’ epic PBS indictment of those charlatans who enabled the Bush administration’s march into the Iraq War. It is a must-watch in the truest sense of the overused term because it so powerfully explains how Obama’s campaign motto of “change” meant something entirely different than what many thought. In the case of financial crime, it meant the embrace of a radical Too Big to Jail ideology, one that creates a moral hazard, encourages exactly the same kind of crimes and therefore makes it more likely that another financial meltdown will happen.

UPDATE: A mere hours after the PBS Frontline piece aired, Lanny Breuer just announced he is resigning his post at the Justice Department. Meanwhile, PBS reporter Martin Smith just reported that in response to his report, the Obama White House has decided to block access to Frontline reporters in their future reporting.

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If too big then, what are they now?

Jon Ogden at Switch Your Bank offers a graphic picture of too big to fail.  Lifted from an e-mail response to me…:

The units on the left axis are total assets in billions. So, yes, the total domestic assets of these 4 US megabanks grew from nearly $4.5T in 2007 to nearly $6T in 2012, or about 30%.
The data comes from the FDIC database, where I looked up each individual megabank’s assets each year since 1995.

And we also have too big to prosecute” added to the titles via HSBC.

Deal book reports two recent examples of trend:

GOLDMAN PROFIT ROSE TO $2.89 BILLION IN 4TH QUARTER Goldman Sachs on Wednesday reported a fourth-quarter profit of $2.89 billion, or $5.60 a share, well above the results a year earlier and handily beating analysts’ expectations of $3.78 a share. The results were buoyed by strong trading and investment banking results. The firm’s conference call is at 10:30 a.m.

JPMORGAN PROFIT JUMPS 53% JPMorgan Chase reported a record profit of $5.7 billion for the fourth quarter, up 53 percent from the period a year earlier. Revenues were also strong, rising 10 percent to $23.7 billion. The results were bolstered by a surge in mortgage lending.

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