Author: Lawrence Cunningham


“Interim Final Temporary Rule”?

What should regulated persons make of a federal agency describing a binding regulation as an “interim final temporary rule”? That’s the self-titling the Securities and Exchange Commission gives to two (here and here) of its latest in a series of controversial regulations concerning short selling of securities (selling securities one doesn’t own at a current price to be delivered in the future after buying them at an expected lower price).

The strange nomenclature may be due to difficulties the SEC has faced trying to create a sensible policy on short selling as it struggles with a role to play in addressing the credit crisis. It settled on restricting short selling in the name of trying to prop up prices of equity securities. It adopted emergency measures, and amended and expanded these then allowed them to lapse and is now reviving its effort to play a role. Everything it has done has been subject to criticism and second-guessing, with some evidence indicating that its efforts have exacerbated equity market performance rather than helped.

The SEC now adopts these two “interim final temporary rules,” trying to micro-regulate short selling with greater precision. Separately, it also adopted more traditional forms of regulation more in keeping with its longstanding regulatory philosophy, establishing anti-fraud principles.

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Federalized Deregulatory Corporate Law

NYSE Building.jpg Since the country’s founding, states have fashioned most of the regulatory landscape for the incorporation and supervision of corporations in the United States. Many laud the resulting competition among states as they pioneered innovation in laboratories of experimentation to determine the optimal structure of corporate law.

In recent years, that competition abated considerably, Delaware having won, with some newfound competition for it from Washington taking the place of erstwhile state competitors. To many, including Roberta Romano, that state system of corporate regulation appeals and a deep commitment to state production sought, yielding a race to the top; to others, say Lucian Bebchuk, that system fails miserably, being a race to the bottom, and can only be corrected by preempting state corporation law and vesting corporate authorization and supervision in federal law.

The logic of the Treasury Department’s blueprint for changes in US financial regulation offers up yet another alternative that may likely be unappealing to both sides of that debate. State corporate law could be preempted in pretty much the same way that the blueprint imagines preempting state insurance law.

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Caution on Financial Reform

The Council of Institutional Investors yesterday released a white paper it commissioned from me entitled Some Investor Perspectives on Financial Regulation Proposals. The paper critically evaluates Treasury Department proposals to reform US financial regulation, initially made in March 2008 and still the Department’s recommendations for the future.

The paper examines Treasury’s proposals to integrate securities and futures regulation, including merging the Securities and Exchange Commission and Commodity Futures Trading Commission, and to create a single-agency oversight of all financial markets. It also considers SEC proposals to pursue global mutual recognition in securities regulation.

My analysis urges authorities to take a cautious approach to these proposals. The blueprint’s thrust is to consolidate regulatory authority in a unitary way in the executive branch of the federal government, under presidential control, and then delegate much of this authority to self-regulatory organizations in the various financial industries being supervised. As matters of substance, procedure and philosophy, the proposals could considerably weaken critical investor protections in existing US law.

This is important. The Council, an association of pension funds controlling more than $3 trillion in assets for US workers, so suggests in the following from its press release announcing the paper:

The global credit crisis has unmasked weaknesses in U.S. regulation of the capital markets and has badly shaken trust in those markets. A careful analysis of the factors that fueled the crisis is required before regulators, lawmakers and market participants consider ways to strengthen financial oversight and restore confidence in our markets. As they evaluate potential reforms, certain principles should be paramount: Oversight must be independent and reliable; disclosures must be timely and meaningful. Above all, investor protection and enforcement of the rules must be vigorous.

Alternative to Treasury’s proposals appear in the Report, issued earlier this week, of the Group of Thirty. Other comprehensive alternatives likely will be forthcoming. But Treasury’s blueprint will continue to be an important starting point for coming debate on financial regulation.


The SEC’s Failed Cover Up

SEC Seal.gif

SEC officials redacted extensive portions of the agency’s internal watchdog’s report exposing its internally documented failures overseeing failed investment bank, Bear Stearns. But an unredacted version is published by Senator Charles Grassley, Senate Banking Committee Member who requested the study.

The failed cover up is ironic for an agency charged with promoting transparency in corporate America. It makes a mockery of todays’s SEC roundtable on how the SEC can help investors by promoting corporate transparency.

Many of the failed deletions refer to internal SEC documents showing that the SEC knew of problems that it left unaddressed. Also deleted are judgments the inspector makes about SEC performance, including one concerning the existence of ignored red flags.

It is not obvious why it is appropriate for SEC officials to delete these materials. Indeed, Senator Grassley obviously believes there is no basis for doing so. Below I highlight differences between the SEC’s redacted version (available in full here) and Senator Grassley’s published version of the original (available in full here).

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Dick Pierce on Alaskan Energy Policy

[Poster’s Note: Alaskan energy policy is now a subject of national interest. Expert insight into that policy and its history appears in the following note by my colleague, George Washington University Law Professor Richard J. Pierce, Jr. A leading authority on law and public policy in a wide range of fields, including energy, Dick lived in Alaska for years in the 1960s, tried the case that authorized construction of a gas pipeline from Alaska to the lower 48 states in 1978, and more recently testified as an expert witness in cases involving the value of Alaskan oil and gas. Thanks to Dick for allowing me to post this note, which I’ve edited slightly for length.]

Alaska pipeline map.jpgEnergy policy in Alaska is much more like the United Arab Emirates than the United States. Almost all Alaska’s revenue comes from state taxes on oil produced at Prudhoe Bay. Every Alaskan citizen gets an annual state check for a share of oil revenue.

When oil was discovered at Prudhoe Bay in the 1960s, the reservoir contained lots of gas, plus oil. The producers began to construct both oil and gas pipelines to the lower 48. With difficulty, and at a cost ten times the original estimate, they built the Alyeska line to transport oil.

The gas line is more difficult. Laying a chilled, high pressure gas line in permafrost raises daunting geotechnical, metallurgical, and environmental issues that the oil line did not . A gas line would be some three times longer because of the difficulty of transporting gas by tanker. A gas line also requires a certificate of public convenience and necessity from the Federal Power Commission (now the Federal Energy Regulatory Commission) under the 1938 Natural Gas Act.

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More on Accounting as Policy Lever

Debate intensifies on the topic of my Monday post: accounting as a policy tool. (David Zaring captures divergent views.) The intensity shows in today’s NYT column by Floyd Norris, a columnist noted for accounting acumen. I usually agree with Mr. Norris, but have quibbles with today’s column, excerpts of which follow (emphases added):

banks and legislators are pushing for a change in accounting rules to end mark-to-market accounting for financial assets. They are sure that market values are too low, so why not just assume they are really higher? That illogic has caught on [as (1) both of this week’s intervention bills encourage the SEC to consider suspending those rules, in a] push for bad accounting [and (2) the SEC this week issued a statement giving issuers considerable flexibility in measuring fair value amid distressed market conditions].

The American Bankers Association concluded that [the SEC] had slapped down auditors who were forcing banks to unreasonably reduce the value of assets no one was buying. . . . Auditors cringed, awaiting appeals of clients to let them value assets as they please. [Still, the SEC statement] could persuade Congress not to make things worse, and not really give the banks new permission to fudge their books.

It is possible, perhaps probable, that many mortgage securities are undervalued now, amid [prevailing] uncertainty and fear . . . [Pending legislation] calls for the government to buy securities from banks for more than current market value but less than the government hopes they will be worth someday. Whether it will succeed depends in part on whether banks conclude that other banks are solvent after the money arrives and the dodgy securities depart. . . .


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Personal Investing Now

Buffett 2 ed cover for Co Op Blog.jpgPeople are wondering about personal finance. Many ask me: is now a good time to apply time-tested principles of value investing, buying stocks at low prices compared to long-term value? Maybe, but one must be cautious as a practical matter; curious persons may also be interested in a bit of value investing history.

The most famous value investor, Warren Buffett, wrote to his fellow Berkshire Hathaway shareholders in 1986:

“Occasional outbreaks of those two super-contagious diseases, fear and greed, will forever occur in the investment community. The timing of these epidemics will be unpredictable. And the market aberrations produced by them will be equally unpredictable, both as to duration and degree. Therefore, we never try to anticipate the arrival or departure of either disease. Our goal is more modest: we simply attempt to be fearful when others are greedy and to be greedy only when others are fearful.”

[The quote appears on p. 157 of my collection of Buffett’s letters, The Essays of Warren Buffett: Lessons for Corporate America (2nd ed. 2008).]

Recent Buffett investments may suggest he is attempting to be greedy now amid prevalent fear, with recent large capital allocations to Goldman Sachs ($5 billion) and Constellation Energy ($5 billion) and a smaller one in BYD, the Chinese battery maker ($230 million). But he said that the prudence of his Goldman investment depends on Congress passing legislation authorizing government intervention in the crisis. Congress failed to do so yesterday but promises another try.

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Accounting’s Role as Cause and Cure of Crisis

Green Eyeshade.jpgCongress is signaling belief that accounting standards are a cause and may be a vital component of the cure for the current credit crisis. Slipped into Congress’s bailout bill is a short but potentially pivotal authorization to the Securities and Exchange Commission to suspend accounting standards applicable to many of the troubled assets at the heart of the credit crunch.

Those assets are reported at current market prices, which have declined precipitously and resulted in freezing credit markets. The bill envisions the SEC allowing these troubled assets to be reported at values higher than current market price, such as their value if held to maturity and collected in accordance with contractual terms. If the assets can be reported at higher values, banks face less pressure maintaining capital required by counterparties or regulations. But if reported at lower values, current pressures may continue or worsen.

Government transactions in these assets will be a basis for determining market value and thus how they are reported under fair value accounting standards. Government will wish to reflect lower prices in the name of protecting taxpayers; but higher valuations, by increasing apparent capital strength of enterprises continuing to hold related assets, may promote chances that the program succeeds in stabilizing credit markets. If fair accounting standards are suspended, it won’t matter what prices government support reveals. The upshot is that accounting standards may play a pivotal role in this policy discussion. Should they?

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Agreement on Principles

US treasury_department_4.jpgFollowing is the full text of an Agreement on Principles circulated today at 2:24 pm EST by Senate Banking Committee:

1. Taxpayer Protection

a. Requires Treasury Secretary to set standards to prevent excessive or inappropriate executive compensation for participating corporations

b. To minimize risk to the American taxpayer, requires that any transaction include equity sharing

c. Requires most profits to be used to reduce the national debt

2. Oversight and Transparency

a. Treasury Secretary is prohibited from acting in an arbitrary or capricious manner or in any way that is inconsistent with existing law

b. Establishes strong oversight board with cease and desist authority

c. Requires program transparency and public accountability through regular, detailed reports to Congress disclosing exercise of the Treasury Secretary’s authority

d. Establishes an independent Inspector General to monitor the use of the Treasury Secretary’s authority

e. Requires GAO audits to ensure proper use of funds, appropriate internal controls, and to prevent waste, fraud, and abuse

3. Homeownership Protection

a. Maximize and coordinate efforts to modify mortgages for homeowners at risk of foreclosure

b. Requires loan modifications for mortgages owned or controlled by the Federal Government

c. Direct a percentage of future profits to the Affordable Housing Fund and the Capital Magnet Fund to meet America’s housing needs

4. Funding Authority

a. Treasury Secretary’s request for $700 billion is authorized, with $250 billion available immediately and an additional $100 billion released upon his or her certification that funds are needed

b. The final $350 billion is subject to a Congressional joint resolution disapproval


Where’s the SEC?

SEC Seal.gifCredit market dramas have put the Securities and Exchange Commission in the background, where Chairman Chris Cox is being stung by rebuke for his neglect of investor interests and capital market safety, while fiddling away with luxury items few care about like high-tech financial reporting called XBRL. Now stalled yet again, despite earlier exuberance, is the SEC’s proposal to switch the US from its own accounting standards (GAAP) to new international financial reporting standards (IFRS).

Mr. Cox formally began to back this initiative aggressively early last year. He staked much of his legacy on it. Auditors and managers favor it and benefit from it. Investors and auditing standard setters express serious reservations about the plan, which many say has been rushed. Even the SEC seemed to accept this criticism, most recently saying it would propose a longer timetable for the shift than Mr. Cox and the SEC initially imagined.

Still, the SEC promised a month ago, on August 27, that a Release outlining milestones on this road would be forthcoming shortly. As of today, the SEC has issued no such Release, despite the SEC Chief Accountant, Conrad Hewitt, and Corporate Finance Chief, John White, describing its contents and assuring the public one would be forthcoming “this summer.”

Why not?

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