Author: Lawrence Cunningham


Rating Agencies: Disease and Cure

Today Congress put credit rating agencies on the hot seat during intense hearings. Rating agencies, including Moody’s and Standard & Poor’s, gave top grades to debt the credit crisis is now showing everyone was junky. Scholars have long berated the rating agencies, especially Frank Partnoy. The fundamental problem is that securities issuers pay the rating agencies their fees. The proverbial result: whose bread I eat, his song I sing. Also, law requires very little of rating agencies and essentially insulates them from liability to investors harmed by irresponsible ratings.

As Congress turns hearings into policymaking, Members should consider new scholarship from Jeffrey Manns forthcoming in North Carolina Law Review. He proposes that investors, not issuers, pay rating agencies. The so-called user fee system is coordinated mainly by investors, those owning rated bonds, with a government agency coordinating the system in the pre-issuance stages of a rated debt offering. In addition, rating agencies would have to certify their ratings much as auditors certify their audits. Also like auditors, agencies would be required by law to disclose discovered fraud or illegal acts at issuers whose securities they rate.

The proposal is timely and sensible. Inevitably, it contains elements worthy of debate as well. In particular, the proposal contemplates applying a standard of gross negligence for investor recovery for rating agency violations. The standard for auditors generally is the tougher one of recklessness. In addition, the proposal caps rating agency damages measured in relation to earnings from the botched rating. Despite decades of campaigning by auditor lobbyists for such a cap on their damages, they have not been able to win this victory. Also, alas, auditors continue to be paid by the clients whose financial statements they audit (which I’ve proposed addressing by using financial statement insurance or capital market funding to prevent destroying the auditing industry).

Those interested in preliminary diagnosis of causes and cures for the current crisis should read Manns’ new article. My guess is that everyone who has written or thought about the rating agency’s role in our corporate finance system will consider the piece must reading.


Rescue Plan Relies on Accounting Finesse

Green Eyeshade.jpg Treasury’s latest plan to address the credit crisis by direct investment of $250 billion in US banks has politicians telling Americans one thing and firms telling investors another. Politicians tell Americans the investments are temporary, no threat to private market capitalism in a democracy; thanks to deals brokered by Treasury and the Securities and Exchange Commission this weekend, firms will tell investors the investments are permanent, necessary to account for them as increasing firms’ permanent capital and minimizing dilution of common stockholders.

The tension is finessed by imaginative design and classification of the two components of the government’s investment: preferred stock and warrants to buy common stock. As to the preferred stock, the solution is designing terms to exploit a gray area in accounting dividing debt from equity. Borrowed funds a firm must repay are debt (liability); permanent funds a firm need not repay are equity (capital). Preferred stock is a liability if the firm must repay it and equity otherwise.

Critical to the Treasury’s plan is boosting firms’ equity capital, which means making the securities look as permanent as possible. But if they look too permanent, that would impeach the political story. The result is a term sheet negotiated this weekend calling the preferred perpetual while incentivizing firms to repay it within five years, without an explicit obligation to do so. Examples include a spike in the dividend rate at year five from 5% to 9%, forbidding firms to pay dividends on common stock unless dividends are first paid on preferred and limiting firms’ right to repurchase common stock while the preferred is outstanding.

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“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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