(RESERVE YOUR SEATS: On August 26, 2014, for what seems the fiftieth time, the U.S. Court of Federal Claims rejected the U.S. government's attempt to extinguish Starr International Co. v. United States. Judge Thomas Wheeler said the case brought by Hank Greenberg's AIG (specifically, Starr International Co., which owned 12.5% of the shares on September 15, 2008) will go to trial on September 29, 2014. Wheeler stated: "The complexity of the submissions and the factual disagreements strongly point to the need for a trial." According to Reuters, "a U.S. Department of Justice spokeswoman declined to comment." On the other hand, David Boies, the Attorney of Record from Boies, Schiller & Flexner, LLP, representing Starr International, did comment: "The decision speaks for itself." Former AIG Chairman Hank Greenberg has sued the U.S. government for $25 billion as compensation for the shares owned by Starr International. According to Reuters, "The trial is expected to last six weeks.")
The news sounds reassuring: "U.S. bank regulators plan to adopt rules on [September 3, 2014] forcing big banks to hold more assets that they could sell easily in a credit crunch, a requirement that is closely linked to the experience of the 2007-2009 financial crisis." It is possible the rules will work.
However, no formula will capture rising or falling confidence in a financial company at some future date. We are vectoring towards another 2008. Confidence, on the part government and Federal Reserve officials, financial institutions, and the public, are intertwined. When financial institutions are afraid to lend to each other liquid assets will be held for dear life.
There are two topics in store. First, changes to financial institution bankruptcy law may prompt a bank run. Second, depositions in Starr International Company, Inc. v. United States [the AIG lawsuit - see: "David Boies vs. Citizen Ben S. Bernanke," and "The Professor Who Did Not Save the World"] should awaken investors to our "policy makers" disintegration when we needed a leader. (It is significant when the bureaucratic meritocracy rose to positions of leadership, it changed its role to that of "policymakers." That it did not and does not want to lead is the reason it is spent.)
In the discussion about financial institution bankruptcy (topic number one), it is well to keep in mind consequences are magnified by topic number two. As a footnote, it is inconceivable the government and Fed models, such as those used to calculate the September 3, 2014, bank liquidity rules, include an exponential factor that kicks in when the combined worries of a Dodd-Frank "call" and a heavy-handed government rescue mission hit simultaneously.
The changes to financial firm bankruptcy are not new. They are part of the Dodd-Frank legislation. After taking a poll (of three) it was agreed investors and bank depositors are not conscious of the changes. ("Conscious of" - banks may have sent notices, 10Ks and certainly security offerings served notice, but memories fade.)
Since this is not new, a summary will be brief. It is also a transcription of Paul Singer's description at the Grant's Interest Rate Observer conference in April 2012. Singer is CEO of Elliot Management Corporation and a lawyer. He explained: "Dodd-Frank radically changed bankruptcy law to enable the FDIC to seize financial companies which are thought to be in danger of default. Prior law for decades required, of course, actual default or a voluntary filing by management. The seizure process in Dodd-Frank takes two - count them - two days, and is essentially unreviewable and unappealable. The FDIC is also ordered, pursuant to Dodd-Frank, to toss out management and seek damages from people, including third parties, who are 'responsible' for the financial condition of the troubled company. It also enables the FDIC to transfer assets willy-nilly out of the corporate entities where they reside, thus making the analysis of one's counterparty impossible, and to discriminate among classes of creditors similarly situated if the FDIC thinks it will fulfill some higher good.... Thus creditors, counterparties, clearing customers and trading partners of financial companies which become troubled, post Dodd-Frank, have only one rational response to potential trouble or perceived trouble, given the opacity and leverage I have mentioned before: instantly stop trading, sell claims, pull assets, basically run for the hills."
Now, for the bad news: The depositions in Starr International v. United States show a government that did not wait for Dodd and Frank to muster 10,000 pages (and counting) of bureaucratic snooping. In the pinch, Secretary of the Treasury Hank Paulson, Fed Chairman Ben Bernanke and (then) New York Federal Reserve President Tim Geithner acted willier and nillier than (we may hope) the FDIC will behave, and without legal authority (as you will read below), during the 2008 financial crisis.
The public view was described last week by Reuters: "The bailout saved AIG from [the possibility of] filing for bankruptcy. The Federal government took 92% of AIG's shares in return for $152 billion that the Fed and Treasury eventually pumped into the insurer." [Bracketed comment in Reuters dispatch added. - FJS]
Reading "The Plaintiff's Corrected Proposed Finding of Fact," it looks as though the bailout forced AIG into an unnecessary bankruptcy; hence the bracketed insertion in the Reuters description above. This is the Plaintiff's case, of course, and protests will be aired on the witness stand starting in late September.
Note #1: the wording from the Finding of Fact is sometimes what a layman may call "telegraphic;" I have left it as is. Note #2: Only a handful of the Findings of Facts are discussed below. There are well over 100. The legal case may address others.
Returning to the scene of the confusion, then-New York Federal Reserve President Tim Geithner described the drama (in deposition) on September 15, 2008: "Of the twenty-five largest financial institutions at the start of 2008, thirteen had either failed (Lehman, WaMu), received government help to avoid failure (Fannie, Freddie, AIG, Citi, BofA), merged to avoid failure (Countrywide, Bear, Merrill, Wachovia), or transformed their business structure to avoid failure (Morgan Stanley, Goldman.)"
The United States (as stated in the lawsuit) would not hear of outside parties that were willing to bridge or supply capital needed by AIG. Quoting the Finding of Fact: "Sovereign wealth funds, including the Government of Singapore Investment Corporation (GIC) and the Chinese Investment Corporation (CIC) expressed interest in investing in AIG."
Specifically, "The Chinese Investment Corporation (CIC) expressed interest in investing in AIG. Defendant discouraged the CIC and representatives of the Chinese Government from assisting AIG. At 12:25 p.m. on September 16, 2008, [it was relayed to Secretary of the Treasury Hank Paulson].... CIC was 'prepared to make a big investment in AIG, but would need Hank to call [Chinese Vice Premier] Wang Qishan.' The Chinese 'were actually willing to put up a little bit more than the total amount of money required for AIG.'" [Italics added. - FJS]
"On September 16, 2008, [Under Secretary of International Affairs David] McCormick spoke to Paulson about the Chinese interest in investing in AIG. McCormick then told [Taiya] Smith [Paulson's deputy chief of staff and executive secretary] that Treasury "did not want the Chinese coming in at this point in time on AIG."
"Later that day, Smith met with Chinese Government officials in California during Joint Commission on Commerce and Trade in Yorba Linda, California. During that meeting, 'all [the Chinese officials] wanted to talk about was AIG.' Smith spent one or two hours explaining what was happening with AIG. She conveyed the message that Treasury did not want the Chinese to invest in AIG." [Italics added - FJS]
Senator Hillary Clinton took time off from her presidential campaign to save the floundering insurance company: ""On September 17, 2008, United States Senator Hillary Clinton called Paulson "on behalf of Mickey Kantor, who had served as Commerce secretary in the Clinton administration and now represented a group of Middle Eastern investors. These investors, Hillary said, wanted to buy AIG. 'Maybe the government doesn't have to do anything,' she said.'" Paulson told Senator Clinton, 'this was impossible unless the investors had a big balance sheet and the wherewithal to guarantee all of AIG's liabilities.'"
Since the price of oil was descending from its recent high of $150 a barrel, it was worth investigating whether they had "a big balance sheet." As for "the wherewithal to guarantee all of AIG's liabilities," Paulson had no idea what the liabilities were worth - he could not explain to counsel why the government seized AIG: "Paulson: The 'taking of equity in companies that receive government assistance' is 'a punitive condition.'"
Treasury Secretary Hank Paulson
Several outside parties were calculating values, but from the evidence, no one within "The United States" did so. None of the witnesses could tell David Boies where the "79.9% of AIG shareholder's equity" - the original figure wrought - came from. (Geithner: "I am not certain I understand the reason why it was not more than that. I don't know why it was not less than that." Paulson: "I didn't focus on how that number was determined, although I clearly focused on the number and remember discussing it." FRBNY: "did not conduct an independent analysis regarding the appropriate terms for Government assistance to AIG." Bernanke: A. "I don't know." Bernanke left as he entered - a space-cadet, paper-shuffler.)
There were, however, several parties that calculated the value of "AIG," from different perspectives and for different reason.
For instance: "According to BlackRock, an independent advisor working on behalf of AIG, 'Collateral posted to counterparties under the CDS in the portfolio is over $29 billion, far in excess of the projected net cash flows in BlackRock's stress case.' BlackRock estimated that AIG's projected net cash flows for the life of the CDS contracts, discounted at LIBOR, ranged between negative $7.3 billion in a base case and negative $15.2 billion in a stress case."
Also, "New York State Superintendent of Insurance Dinallo testified that even 'if there had been a run on the securities lending program with no Federal rescue, our detailed analysis indicates that the AIG life insurance companies would not have been insolvent'" [Italics added. - FJS]
In addition: "KKR's [Kohlberg, Kravis - FJS] Derrick Maughan provided sworn testimony that if 'AIG, the company, or the Fed as lender of last resort, had wished they could have stabilized the company through Government invention support [sic], and then introduced private capital.'"
There were other avenues offered to prevent AIG's nationalization: "BlackRock 'presented three options for FRBNY to consider.... [This included] counterparties cancelling their credit default swaps and selling the underlying CDOs to an FRBNY-financed SPV, for total consideration of par, comprised of previously posted collateral, cash, and mezzanine note in the SPV'; the obligation to perform under the credit default swaps 'transferred from AIG to an SPV guaranteed by the FRBNY'; and creation of an 'SPV to purchase the underlying CDOs from AIGFP's counterparties, in connection with a termination of the related credit default swaps'"
Apparently, no option matched nationalization. New York State was ready to save AIG. "Around noon on September 15, 2008, New York Governor David Paterson announced that he had 'directed' the New York State Insurance Department to permit AIG to access approximately $20 billion in liquid assets from certain AIG insurance subsidiaries. He also urged the federal government to be involved in some type of arrangement, whereby AIG would have the necessary resources and bridge loans to tide AIG over until it could resolve its liquidity problems."
"On September 16, 2008, Dinallo reiterated Governor Paterson's offer to allow AIG to upstream $20 billion from its insurance subsidiaries. Geithner responded, "No, we're good." As a result, Dinallo was 'led to believe definitively that we were no longer part of the fix.'" "Good" at what?
If you ever watched Chairman Bernanke brush aside Congressional inquiries about the Federal Reserve exceeding its authority during testimony, he would invoke Section 13(3) of the Federal Reserve Act. This always shut the congressman up, even though, on at least two occasions, he leaned back for a Fed staff member to remind him the number of the section: "13(3)."
In the Finding of Fact, Paulson and Geithner are quoted far more than Bernanke except for some hysterical recollections, including: "September and October of 2008 was the worst financial crisis in global history, including the Great Depression." That could be true, but is a wild assertion without support (which Bernanke has never in his life supplied), a successful tactic that guided Time magazine to name him Thing of the Year.
On the other hand, Tim Geithner offered a more convincing assessment, that "2008" was "the worst financial crisis since the Great Depression." Chairman Bernanke accomplished a rare feat. He was a less reliable witness than Tim Geithner.
Another example of Bernanke's fevered understanding: "Of the 13 most important financial institutions in the United States, 12 were at risk of failure within a period of a week or two." He said this at least once before, when he testified during the FCIC investigation. After the FCIC transcript was released, it was noted this was a ridiculous comment. Yet, he persists. If the government approached every financial institution's potential insolvency as it did AIG, the government would have owned 6,000 banks in three days' time.
One findingshows AIG's nationalization - the government acquiring equity ownership from shareholders - was an ad lib operation by the trio. The finding states: "The Federal Reserve had no authority to purchase or hold equity," the facts include (there are many more):
Geithner: "Under section 13(3) of the Federal Reserve Act, the Fed is prohibited from taking equity or unsecured debt positions in a firm".
Bernanke: "The Federal Reserve is authorized under the Federal Reserve Act to extend credit in various forms, but is not authorized to purchase equity securities of financial institutions."
Bernanke: "We had only one tool, and that tool was the ability of the Federal Reserve under 13(3) authority to lend money against collateral. Not to put capital into a company but only to lend against collateral."
Paulson, referring to the Federal Reserve: "They legally couldn't do preferred. They legally could only make a loan."
"FRBNY General Counsel Thomas Baxter wrote to Federal Reserve General Counsel Scott Alvarez confirming "we agree that there is no power" for the Federal Reserve "to hold AIG shares."
"FRBNY's independent auditor Deloitte: "FRBNY cannot legally control a commercial company, and therefore it is not appropriate for them to consolidate an entity it cannot legally own."
Another Finding eliminates the only other legal conduit for AIG's nationalization. "In September 2008, Treasury had no authority to purchase or hold equity." Some of the many facts that confirm Bernanke, Paulson, and Geithner broke the law. Nay, they trampled our protection from tyranny with jackboots. Facts follow:
"The "Treasury Department as of September of 2008 had no budgetary authority to invest in equities, securities of any financial institution."
"FRBNY counsel to Federal Reserve Board officials on September 17, 2008, concerning 'Issues with regard to the NY Fed/Treasury's equity participation in AIG,' Treasury 'consider[s] themselves legally unable to assume ownership. This leaves the NYFed as Treasury's place to house the equity position.'"
"September 17, 2008 report of Treasury's external counsel at Wachtell: 'Treasury legal is telling, as per doj, that they cannot hold voting shares.'"
"TARP Chief Investment Officer Jim Lambright: In 'September when the Fed extended the credit facility, the government didn't have an equity tool.'"
"Board of Governors Legal Division: "'We understand that the Treasury lacks the legal authority to hold directly voting stock of AIG.'"
"Paulson: 'Q. And prior to TARP's approval, Treasury did not have the authority to purchase equity, either. Right?
Given the cleavage from reason by our policy makers (one last, irresistible Fact: no one from AIG was allowed in the room during its nationalization), consider: (1) interests you may hold in financial institutions and (2) Paul Singer's description of the now legal means to redistribute those interests. Financial firms are more leveraged than is generally understood. Sell their securities.
Frederick Sheehan writes a blog at www.aucontrarian.com