Trust Preferred CDO Update

We ended last year with a special report on what we saw as the changing nature of banks’ “choice” to defer. Our piece, entitled “The Tripping Point” concluded as follows:

“…while data remain scarce for the illiquid, opaque world of bank trust preferred securities in TruPS CDOs, our preliminary analyses tend to support the theory that not all deferring banks are poorly positioned, under-capitalized institutions. As we monitor the situation and continue to gather further evidence to either support or reject this argument, we eagerly anticipate a conclusion that not all deferring banks are doomed to fail.”

Since January 1, 2010, we have an increasing DEFAULT rate on banks in general. Using the FDIC’s cohort of 8,012 FDIC-insured financial institutions as of 12/31/09, we calculate a roughly 2.24% annualized default rate as of June 18, 2010. This default rate constitutes a 46% increase since the September 30, 2009 annualized default rate of approximately 1.53%, which was based off a 12/31/08 cohort of 8,305 FDIC-insured financial institutions.

(PF2’s base projections anticipated a roughly 50% weighted average increase of this 1.53% default probability over the forthcoming two years. Having realized this 46% increase, and from our various conversations with market participants and regulators, our best guess estimate is to anticipate another weighted average increase of 35%, over the forthcoming two year period. Thus, over the coming period, we attach an expected default probability of 3.02% to the average performing bank in our analysis of TruPS CDOs.)

We also encourage you to visit some of the excellent investigative journalism that’s been covering the TruPS market this year. Here follow some key pieces that provide insights into the differing pressures on and by banks, CDO investors, and external market participants. Amongst other things, the two June articles throw further light on the possibility that certain banks are opting to defer simply as a ploy to encourage investors to allow them to pre-pay their preferred securities at a discounted. (Of course this is not always the case, and banks certainly have the right to defer on their preferreds.)

June 11, 2010; American Banker: Blocking Rescues, or Challenging Bum Deals?

June 8, 2010; Bloomberg: Banks in `Downward Spiral' Buying Capital in CDOs

March 19, 2010; Bloomberg BusinessWeek: CDO ‘Samaritan’ Hildene Duels Funds Over Collateral

April 27, 2010; American Banker: TruPS Leave Buyers in CDO Limbo;

In Due Diligence We Trust

“Guildenstern: We only know what we’re told, and that’s little
enough. And for all we know it isn’t even true.

Player: For all anyone knows, nothing is. Everything has to be taken on trust; truth is only that which is taken to be true. It’s the currency of living. There may be nothing behind it, but it doesn’t make any difference so long as it is honoured. One acts on assumptions. What do you assume?”

- Tom Stoppard’s Rozencrantz and Guildenstern are Dead

As we battle a crisis among crises, the informational asymmetry between sophisticated and unsophisticated investors becomes all the more striking.

The so-called sophistication level requirements have conveniently lingered despite the increasing complexities brought on by financial innovation: the dollar amount of income or net worth for natural persons to be considered “Accredited Investors,” for example, has not been adjusted for inflation in the almost 30 years since it was originally adopted; similarly investments in auction rate securities (ARS) were initially limited to institutional investors with minimums of $250,000. In recent years the minimum level has been brought down to $25,000 in an effort to lure as many market participants as possible, and more worryingly to make ARS available to the general public.

(“Accredited Investor” is defined to include natural persons having an annual income of $200,000 -- or $300k with spouse -- over specified periods or a net worth of $1mm or more. ARS typically refers to either municipal or corporate debt securities or preferred stocks which pay interest at rates set at periodic auctions. The market for ARS, prior to the collapse of the auction market, purportedly stood at around $350 billion.)

As such, Accredit Investors have over time become far less “accredited.” More importantly, the less “accredited” investors were being allowed to purchase increasingly complex securities. Investors, not wanting to look bad, chose to trust others rather than give voice to their lack of understanding. They place their trust in their lawyers, accountants, financial advisers and brokers. And the rating agencies.

They trust these parties differently: they trust their lawyers, financial advisers and brokers to act in their best interests and to be mindful of their risks. They trust them based on their credentials, the lengthy relationship they’ve had with them in the past and the fact that they have supervisory boards (e.g., FINRA, FASB and the SEC) tasked with ensuring they behave properly. They trust the rating agencies to provide an independent, objective opinion that has no party’s ulterior motives at heart and accuracy as its only goal.

Unable to perform their internal analysis, investors increasingly had to blindly trust the rating agencies’ ratings, from both a modeling perspective, and from an unbiased credit risk opinion perspective. Less sophisticated investors tended to rely more heavily on analyses performed by the rating agencies. More sophisticated investors, like Paulson, worked day and night to take advantage of their analytical advantage, by finding and betting against those bonds whose ratings least reflected their true credit quality.

The opaque, private securitization market provided a handy tool for poorly incentivized parties to take advantage of less sophisticated parties: the immature securitization market is noted for its lack of transparency and disclosure. More recently it has been marked by its misrepresentations. Battles continue to be fought over who owns the rights to the mortgages underlying the mortgage-backed securities vehicles; the bankruptcy process for off-shore vehicles remains underdeveloped relative to the United States; off-shore legal counsel seems nowhere to be found; and the complexity of some of the special purpose entities (and the number of different interests being represented) creates havoc for our litigious society.

In sum, the securitization market was particularly susceptible to being abused. And it was abused. The SEC vs. ICP case, seems only the tip of the iceberg as we begin to examine the repercussions that come from the several incentive misalignments that are apparent throughout the securitization vehicle. We are abounding with conflicts of interest while informational asymmetries, resulting in various forms of moral hazard, proliferate.

Economy-wide, we have realized that we need to encourage, if not force, the investor to perform necessary levels of due diligence both pre and post investing in complex securities. We need to impose adequate safe-guards on these vehicles to ensure that they are not mismanaged, and that managers are incentivized to manage across the capital structures, in the spirit of the deals. We also ought to encourage regulator responsibility, and permit them the authority necessary to step in sooner – to act before the problems become insurmountable. The recent, indefatigable, examiner activity seems too little too late. But it is crucial that the standard be set.

TruPS CDO Ratings Performance

Click on the diagram to enlarge it

Notes

(1) Performance includes bank, insurance and REIT TruPS CDOs.

(2) The data show no upgrades on any tranches by any of the rating agencies.

(3) The migration tables indicate an average downgrade in the region of 12 rating subcategories; downgrades are continuing to this day.

(4) Often the same tranche is rated by more than one rating agency.

(5) The tranche ratings exhibited, in some instances, continue to benefit from the rating of the insurer, to the extent the insurer's rating remains stronger than that of the underlying tranche.

(6) The vast majority (91.76%) of the deals closed in the region between 2003 and late 2007.

(7) Please visit cdodatabase.com for more information on TruPS CDOs.

(8) Data on TruPS CDO issuance can be found here.

The Carry Trade from Off-Balance-Sheet Heaven

The Citigroup-structured CDO, Adams Square Funding II, Ltd., closed in March 2007 with the $600mm Class A1 Floating Rate Notes (Due 2047) not being offered by Citi; rather the A1 notes were being insured by a swap counterparty by way of the then-convenient-and-now-infamous negative basis trade.

By insuring this A1 tranche trade (Ambac Assurance was reportedly the ultimate swap counterparty), Citi was able to lock in substantial up-front “profits” on the trade in addition to their significant underwriting fee. FASB’s accounting regime (1) enabled the so-called profits on the trade to be recognized immediately, by way of “sale accounting,” and (2) allowed the trade to disappear into off-balance-sheet oblivion, away from Citigroup shareholder verification.

The negative basis trade was perpetuated by several banks for many reasons, as described more comprehensively here. The forthcoming chart provides what we believe to be a thorough breakdown of the minimum estimated up-front profit -- of approximately $9.8mm -- Citigroup would have been able to achieve in having the A1 wrapped by a monoline guarantor.



Indeed UBS’s shareholder report explains that

[UBS’s] CDO desk viewed retaining the Super Senior tranche of CDOs as an attractive source of profit, with the funded positions yielding a positive carry (i.e. return) above the internal UBS funding rate …

and…

Day1 P&L treatment of many of the transactions meant that employee remuneration (including bonuses) was not directly impacted by the longer term development of positions created…

UBS may have made larger sums on the deals they had wrapped: UBS’s cost of credit default swap (CDS) protection was on average as low as 11 bps, or 0.11%.

The ability to lock in such enormous, fictitious, gains (and potentially distribute some of these gains immediately in the form of bonuses to investment bankers) proved to be a major contributor to the financial crisis. With the under-capitalized monolines – such as ACA, AIG, Ambac, CIFG, FGIC, FSA, MBIA, Radian and XL -- struggling or failing to support the credit protection contracts they had over-sold, several of the TBTF banks were forced to rely on the government’s (and taxpayers’) aid to fund the ultimate return to their balance sheets of what we estimate to be $300 billion of off-balance-sheet negative basis trade securities.

Other resources: a diagram describing the trade more generally, in its context relative to the CDO, can be found here.

Credit Ratings vs. Credit Default Swaps

As an alternative to relying overly on ratings produced by credit rating agencies, several ratings reform proposals offer the usage of bond or credit default swap (CDS) prices or spreads as a more plausible option. Some of these proposals are positively suggestive of the fact that market prices are both more accurate and more predictive than credit ratings.

I’m not convinced.

Firstly, with ratings being so deeply embedded throughout our financial structure, the ratings of the assets themselves become an integral component of the market-implied risk assessment. For example, even when analyzing securitized products Vink and Fabozzi (2009) show credit ratings to be a major factor accounting for the movement of primary market spreads. Thus, for any proposal to be convincing it would have to test the accuracy and reliability of CDS spreads on unrated bonds or companies. Alternatively, a study would need to compare the performance of traded securities whose ratings are not publicly known (also known as shadow ratings) to the performance of those shadow ratings.

Secondly, bond yields (or spreads-to-swaps) and credit default swap premiums are largely incomparable to credit ratings for many reasons. These differences will have to be tackled in a separate piece, but at the very least there’s that non-insignificant concept of liquidity. Both CDS premiums and bond yields include the various risks – not just credit risks – that come with investing in, or buying protection on, a security. Credit ratings speak solely to long-term credit risks.

One may argue that the ratings were far less accurate than CDS spreads during the crisis, and that this (i.e., during a market dislocation) is the only time we depend on accurate default projections and we should therefore abolish rating agencies in general. While I don’t wish to complain of these proposals, I fear that they complain unfairly of the rating agencies.

Yes the CDS spreads may better reflect default probability during a crisis. By definition they’re more adaptive to changing market conditions, versus the ratings which are long-term predictors. But would you want ratings to change in as volatile a fashion as CDS spreads? Would you want ratings to depend on headline news, or on audited (or lightly audited) financial data? Also, one shouldn’t forget that CDS spreads on CDOs and RMBS tranches were just as poor reflections of market-perceived asset quality before the crisis. The crisis could only occur, in part, because the banks were able to buy protection so cheaply from the monolines, by way of being long the CDS -- the infamous negative basis trades.

But even if these proposals made sense and even if their hypotheses were correct, they would be missing at least one crucial point: we need ratings. Meaningful ratings are essential – certainly now. Let me explain why, albeit by way of a long-winded explanation.

For financial reform to be successful it needs ultimately to deal with the flaws in our banks’ risk management procedures – and to deal with them in an environment in which the very serious practice of risk mitigation is left by senior management to risk managers, just as the serious business of growing revenues while attending to shareholder pressure is left by risk managers to upper management.

That these two functions are more adversarial than independent in nature is a concept not to be lost on us. Overly cautious risk management might hinder the implementation of growth opportunities, or the extent thereof. At times, indeed, they may be thought by the skeptic to be mutually exclusive.

Indeed the overpowering pressures that come with business initiatives can influence even the most judicious risk manager’s ability to perform her function in an objective manner, even though her function ought to be both separate from and independent of the business strategies. (See for example “Lehman’s Worst Offense: Risk Management.”)

With both traders and management being compensated for revenue generation, and with prudent risk managers acting only as a hindrance to the initiation and exploitation of growth opportunities, there remains little incentive for senior managers to maintain a healthy risk management environment. Instead of cultivating an environment in which risk managers are educated in monitoring the real risks (which requires expensive resources including personnel, data and systems) they are seen rather as a burden and a cost center, and are therefore starved of the resources necessary to question traders, trades, and trading strategies.

In sum, we remain in the infancy of creating a functioning risk control practice in place at our major banks. We are yet to promote adequate business-peer challenge processes and our price verification processes remain immature. Credit ratings, if created and applied properly, can provide a healthy starting point for internal skepticism; they can provide the independent credit risk assessment that supplements an analysis performed by the front-office or by the back-office.

Conclusion

CDS spreads are untested as a predictor of long-term default probability on unrated securities. Perhaps the reliability of CDS spreads depends on the underlying referenced entity being rated. There’s no doubt that CDS spreads are useful indicators – but I seriously doubt that they’re anywhere near as useful as ratings in predicting long-term default probabilities or losses.

I remain convinced there's an important place in our market for one or more independent agencies to provide their objective opinions in the form of a rating. For ratings reform to be successful, however, requires that the necessary measures be put in place to ensure that rating analysts are unfettered by market share concerns, and are incentivized only by ratings quality and accuracy. If we can achieve these objectives, ratings will return to providing a meaningful utility.

The SEC v. Goldman Sachs

The civil suit filed by the Securities and Exchange Commission against Goldman Sachs revolves around a combination of three patterns we have seen recently:

(1) the ability of external parties to adversely influence the portfolios that support securitized vehicles (see for example the Magnetar trade or the TPG trade);

(2) the harmful effects of the negative basis trade (according to the New York Times article, seven of Goldman’s Abacus deals were wrapped by AIG); and consequently

(3) the capacity for ratings to be “gamed.”

Ultimately, the complexity and opacity of the structured finance product make it susceptible to abuse by poorly incentivized parties. Securitization is abounding with conflicts of interest while informational asymmetries, resulting in various forms of moral hazard, proliferate.

But none of these problems would exist if ratings were always perfect: the negative basis trade would never have existed and the Abacus deal’s reportedly poorly-selected portfolio would never have received the ratings it was able to achieve.

And so we must deal with the very serious business of underwriters “gaming” the ratings system, which jeopardizes both the accuracy and the integrity of ratings and the ratings process.

But first we need to understand the observer effect.

The Observer Effect

In the social sciences any framework or methodology is subject to what is called the observer effect. The observer effect deals broadly with the process by which subjects alter their behavioral patterns on becoming aware of a test’s objectives.

Consequently, behavior induced by the methodology can be different from that on which the historical data was based. The subjects’ response varies based on the incentives of the subjects and the potential complexity of the underlying product.

The problems for ratings become most apparent when the incentives of the subjects (e.g. mortgage bankers) vary significantly from those of the creators of the methodology (i.e. rating agencies). The assumption, or hope, that models and careful study of the historical data can overcome the misalignment of incentives has been shown to be a fallacy: poorly incentivized market participants were able to create products and scenarios never contemplated by historical analysis.

How? Suppose we have a duopoly of rating agencies X and Y. Rating agency X decides that according to its internal calculations, it will more heavily scrutinize a particular quantitative factor – the borrower’s FICO score – when considering the quality of a mortgage for the purposes of its ratings methodology. Rating agency Y, however, discloses that its methodology predominantly hinges on the loan-to-value (LTV) ratio of each mortgage.

As an originator of mortgage loans (or structurer of RMBS securities) if you have a package of loans possessing high FICO scores, capitalistic tendencies will encourage you to approach rating agency X for your rating.

This is known as ratings arbitrage, or “gaming the system.” A more realistic scenario may be that once rating agency X publicly discloses that it considers FICO to be the key driver of mortgage performance, mortgage originators or structurers, will seek to put together a bunch of comparatively cheap mortgages representing high FICO score borrowers but with very poor other qualities and bundle those together in an RMBS to be rated by rating agency X. Originators might specifically target high-FICO individuals, knowing they’ll be able to off-load these mortgages by way of an RMBS to be rated by rating agency X, almost irrespective of the other qualities pertaining to the borrower (e.g. salary) or the mortgage itself (e.g. documentation level). While FICO score may have originally been a key driver of mortgage performance, all else equal, these high-FICO pools now significantly underperform.

Thus, due to what we call customization — or active adverse selection – rating agency X’s RMBS analysis turns out to have been inaccurate or compromised. (The “problem” of customization is not limited to the selection of the portfolio, but may include adverse selection of the securitized vehicle itself, or counterparties to the structure. Like the product itself, the problem is multidimensional.)

If the rating agencies continue to publicly disclose their procedures they will need to be increasingly adaptive and accurate in our computationally-intensive market, lest their rating models be otherwise gamed. They will have to be nimble and swift, like investment banks: they will need to be everything they currently are not.

The regulatory drive towards creating multiple rating agencies presumes that increased competition encourages higher standards. Niels Bohr noted that “the opposite of a great truth is also true.” In this situation, perhaps the flip-side is a greater truth: that as far as creating rating agencies goes, less is more.

Ratings competition was a key driver in the decline in standards, with rating agencies competing on ratings for market share: higher ratings translate into increased market share, which is crucial for publicly-traded companies.

The more models and options available, the easier it is to arbitrage the system, finding the least conservative rating agency to rate each particular pool of assets.

Choose Your Own Adventure

In good times anything is possible. Second class managers can raise capital for new funds; corporate debt managers suddenly become experts in structured finance; and trust proliferates.

In good times risk-averse pension funds invest in ABS CDO equity and traditional managers go for the exotics, be they weather derivatives, airline securitizations or bonds secured by the future royalties from David Bowie’s music. In good times small managers win bids to manage multi-layered complex CDO-squared portfolios supported by actively-managed leveraged loan funds, ABS CDOs, CDOs supported by commercial real estate, bond funds, trust preferred CDOs and other CDO-squareds, collectively; and structurers can sell anything, everything. Oh, in good times

… anything is possible. And if it shouldn’t be possible, it can be hidden away behind all the growth that we are seeing -- and we can be easily distracted by, and forgiving due to, all the peripheral positives.

STYLE DRIFT

In bad times everything is illiquid. Those same managers no longer have the experts around who made them believe their forays into alternative exotics would pay off. Those exotics lie in side pockets, either unanalyzed or constantly scrutinized -- but no longer ignored.

Oh in bad times the too-big-to-fail become too-big-to-succeed and have to be trimmed to take advantage of overlaps and economies of scales.


... in good times we overcome our animalistic instincts to preserve. Utility theory trumps our innate loss aversion and for a short while the concept of risk leaves the dictionary.

Then we blink, take a good look around and troubled times have come
to My Hometown.

Counterparty Risk

In 2009 we discussed in great depth many of the risks relating to both CDO structures and to their underlying securities. We'll continue to explore these nuances in 2010, but first we'll kick off with one of the risks we only covered lightly in '09 - counterparty risk.

Stepping back for a second here: the key concept is that in the complex, opaque and illiquid world of CDOs, at each credit rating level you were being paid more -- higher coupon or spread -- to assume additional risks, other than credit risks. These include but are not limited to illiquidity risks, model risk, operational, legal and counterparty risk.

We commented in a NYSSA article that: "We desperately need to move away from a culture in which investors, sophisticated or not, would buy the highest-yielding asset at each rating level, irrespective of its other-than-credit risks and without having performed an adequate analysis (or even possessing the tools or skills to perform such an analysis)."

The recent U.S. Bankruptcy Court ruling in the Dante CDO lawsuit captures several of these key risks: complexity, model risk, counterparty risk and legal risk. For an immature product (synthetic CDOs) supported by an imperfectly defined-or-tested bankruptcy process, the several layers of risks and dependencies inevitably give way when the unexpected occurs: in this case, the default of Lehman Brothers. (Lehman was single-A rated, not AAA, and so it raises an additional eyebrow that its default should impinge upon the performance of a tranche whose AAA ratings were designed to have been removed from any such dependencies.)

Debtors: LEHMAN BROTHERS HOLDINGS INC., et al.
Plaintiff: LEHMAN BROTHERS SPECIAL FINANCING INC.
Defendant: BNY CORPORATE TRUSTEE SERVICES LIMITED

Here follow some choice extracts from the ruling:

"This is a matter arising out of a complex financial structure that includes an added layer of complexity due to the pendency of parallel and potentially conflicting legal proceedings in this Court and the United Kingdom. The litigation in England (the “English Litigation”) was first commenced in the High Court of Justice, Chancery Division (the “High Court”) followed by an appeal to the Court of Appeal, Civil Division (the “Court of Appeal” and, together with the High Court, the “English Courts”). At issue both here and in the English Courts is the priority of payment to beneficiaries (one a noteholder and the other a swap counterparty) that hold competing interests in collateral securing certain credit-linked synthetic portfolio notes. The swap counterparty is Lehman Brothers Special Financing Inc. (“LBSF”), one of the Lehman entities whose chapter 11 case is before this Court.

... After a trial, the High Court issued a judgment in which it held, inter alia, that LBSF’s interest in the collateral securing the Swap Agreements (the “Collateral”) was “always limited and conditional,” and, therefore, payment pursuant to Noteholder Priority did not violate the so-called “anti-deprivation principle” under English law.

... the Court has learned that the Debtors are perhaps the most complex and multi-faceted business ventures ever to seek the protection of chapter 11. Their various corporate entities comprise an “integrated enterprise” and, as a general matter, “the financial condition of one affiliate affects the others.”

... The issues presented in this litigation are, as far as the Court can tell, unique to the Lehman bankruptcy cases and unprecedented. The Court is not aware of any other case that has construed the ipso facto provisions of the Bankruptcy Code under circumstances comparable to those presented here. No case has ever declared that the operative bankruptcy filing is not limited to the commencement of a bankruptcy case by the debtor-counterparty itself but may be a case filed by a related entity -- in this instance the counterparty's parent corporation as credit support provider. Because this is the first such interpretation of the ipso facto language, the Court anticipates that the current ruling may be a controversial one, especially due to the resulting conflict with the decisions of the English Courts.

One of the distinguishing characteristics of the Lehman bankruptcy cases is the complexity of the underlying financial structures many of which are being analyzed for the first time from a real world bankruptcy perspective. It is to be expected, as a result, that the cases of LBHI and LBSF on occasion would break new ground as to unsettled subject matter. This is one such occasion.

This decision places BNY in a difficult position in light of the contrary determination of the English Courts confirming that Noteholder Priority applies to claims made against it in England by Perpetual. This is a situation that calls for the parties, this Court and the English Courts to work in a coordinated and cooperative way to identify means to reconcile the conflicting
judgments.

For more on counterparty risk in CDOs, see: Hedged Trades: Lessons from the Crisis (slide 9)

If you haven't already joined us at our Ratings Reform website, please visit http://ratingsreform.wordpress.com/. We look forward to your comments and suggestions throughout 2010, and beyond!

The Winter of Our Disconnect

Asset-Backed Alert has been kind enough to allow us to republish their one article from this morning's edition. It brings to the fore various of the topical issues that face and undermine the future securitization as a whole: lack of transparency, lack of supervision, and an unwillingness for market participants to take responsibility for anything that isn't explicitly defined to fit within their specified, direct jurisdiction. Without further ado, I hand you over to Asset-Backed Alert (all emphasis added by them):

------------

BONY Keeps Distance From CDO Tussle

Hildene Capital has hit a snag as it tries to have Cohen & Co. removed as manager of four collateralized debt obligations.

Hildene, which has been butting heads with Cohen for about two months, fired its latest salvo last month by trying to organize a vote among noteholders. But trustee Bank of New York balked when Hildene asked it to help arrange the ballot, saying it’s not the bank’s job to circulate such proposals.

The matter underscores an ongoing debate among market players about the roles trustees should play, especially when it comes to serving as a conduit of information and policing potential indenture violations. Some believe those shops are best suited to handle requests like the one from New York-based Hildene, as investors are often unaware of the identities of other bondholders.

Hildene holds junior paper from the Cohen deals — Alesco Preferred Funding 1, 2, 3 and 4 — and has nominated itself to step in as manager. The deals, issued in 2003 and 2004, were each backed by trust-preferred shares. Their combined face value was initially almost $1.5 billion.

At issue is a practice in which Cohen has moved collateral in and out of the transactions even though the underlying asset pools are supposed to be static. Cohen has said that it acted properly. But Hildene, which bought its interests on the secondary market, insists that Cohen’s moves are grounds for the Philadelphia firm’s dismissal.

Hildene’s complaint revolves around the idea that it was misled into basing its purchases on evaluations of the Alesco issues’ original obligors, as Cohen wasn’t supposed to trade the underlying collateral. Hildene cites an example in which Cohen removed $24 million of shares issued by FBR Capital from one of the deals this year and replaced them with $25 million of shares from Colonial Bank, which was subsequently seized by the FDIC.

Hildene said in an Oct. 5 letter to Bank of New York that such swaps violate the transactions’ indentures, and thus are illegal. The firm followed up on Nov. 25 by sending a letter to investors that it knows to hold stakes in the Alesco issues, requesting that they cast ballots to fire Cohen from its management role. It asked for Bank of New York’s help in the voting process around the same time.

Cohen, meanwhile, responded by asking Bank of New York to distribute a Dec. 7 letter in which it proposes to stop trading the deals’ underlying shares unless it receives investor approval. The firm also promises to direct any proceeds from such sales to investors, including all fees.

Cohen’s letter reiterates the firm’s denials of wrongdoing and reaffirms that it had the right to carry out the trades Hildene is disputing. “Moreover, we believe that asset exchanges helped to stabilize the portfolio and resulted in an enhancement of the financial interests of our investors,”
Cohen wrote.

The Alesco deals were among 17 that Cohen issued under that banner.

Too Big Too Frail, or a King’s Gambit

Looking back at the years from the late 1990s to, really, 2006, the escalation of securitization acted as a vehicle for tremendous growth in the United States. It provided an additional source of demand for receivables from student loans and credit cards to residential mortgages; and it allowed investors the ability to gain exposure to certain of these asset classes in accordance with their desired risk level.

If rapid economic growth was the advantageous result of securitization, what was the cause? The usual suspects: to avoid certain taxes and regulatory capital charges, taking assets off banks’ balance sheets in such a way as to allow or promote almost unlimited lending.

Having grown together and having fallen apart together, it’s difficult not to see securitization and our economy in a similar light, or at least to see the art form of securitization as a microcosm for the U.S. financial economy as a whole.

The parallels are uncanny

While European and Asian investors, post the Asian crisis, had an insatiable desire from the supposedly safe and reliable U.S. market, structured finance investors’ appetites were similarly indefatigable. Foreign investors moved steadily from U.S. Treasuries to agency mortgages to corporate bonds, non-agency mortgages and on as their confidence increased; structured finance investors transitioned from CMOs to CBOs, CLOs, trust preferred CDOs and then on to CDOs of CMOs, CDOs of CDOs of CMOs, and even collateralized fund obligations (CFOs).

Both foreign investors and structured finance investors were burnt. Both the U.S. economy and the securitization market are trying to struggling new ways to grow, to reinvent themselves. Both are recovering from severe criticism pertaining to their regulation (e.g., the SEC has been faulted for its failures to investigate certain Ponzi schemes like that of Madoff, and to monitor the credit rating agencies (CRAs); while the CRAs are heavily criticized for their ratings on residential mortgage-backed securities, among other products).

And both are realizing that the interconnectedness of their risks pose “systemic” risk issues: while “too-big-to-fail” banks are purportedly being supported by the U.S. government to mitigate against further widespread turmoil, the effects of single mortgage and corporate credit failures are rolling through the structured finance products network, from direct securitizations to resecuritized products like RMBS CDOs, CDO-squareds and even CFOs, backed by hedge funds that have often invested in structured finance securities.

The “holes” that exist in certain CDOs and have been exploited recently by, among others, TPG, Marathon, Goldman Sachs, Cohen and KKR, remind us of the vulnerabilities in our financial system, where Marxist (or Michael Moore-like) capitalistic short-term measures continue to be the order of the day, be it in the form of bonuses or aggressive trading strategies. It’s not your money, and hey if it doesn’t work out, there’s always another firm looking for an aggressive trader. Reputation and responsibility to the client or customer seem to be a thing of the past. (Think of Billy Joel's Allentown or Bruce Springsteen's -- ironically called the "Boss" -- My Hometown.) The U.S. work culture is moving further and further away from the “permanent employment” environment, such as that of Japan.

Financial product regulation needs to be mindful of, and consistent with, the changing working environment and investment tendencies.

The King’s Gambit opening in chess is just that – a gambit. White offers a free pawn and weakens his king’s safety in exchange for a gamble on speedy development. The quick expansion leaves “holes” that can only be ignored for so long. If the speedy development doesn’t prove successful (i.e. meaningful and lasting) white is in danger of having a weakened, exposed king, and must quickly consolidate if he wishes to survive.

Relative to the economy, the problem is not how big the banks are, but how exposed they are to poor investments, how well their risks are managed and how liquid their capital. Do we have the transparency to regulate them, and can they adequately manage themselves? (State Street and US Bancorp are examples of “big” institutions that have not failed, being service rather than investment-heavy: the key differences being strategy, focus and management.) It’s not, therefore, a question of “too-big-to-fail” as Mortimer Zuckerman suggests. Nor is it a problem of too-big-to-succeed. (BlackRock has shown us that.) It is a problem of too-complex-to-regulate.

Consolidation, thus, ought to comprise a slew of objectives, including: ensuring all players in the game are more responsible and perform the necessary due diligence; ensuring that regulators understand and are able to accurately gauge the marginal and cumulative risks involved before approving the usage or purchase certain financial products; and requiring that regulators be granted the necessary authority and be incentivized to apply it, responsibly, to enable their efforts to have a lasting effect.

And so we end off with our financial reform motto: the key challenges at hand are to better align regulatory interests and to create an environment that encourages market transparency, consistency, and responsibility. Liquidity will inevitably follow.