Eye On Regulation

This is a commentary on recent regulatory developments from our Director of Compliance, Moshe Silver, an industry expert who has held senior positions at major asset management and brokerage firms and brings a wealth of experience and insight to our team. Moshe has agreed to share his thoughts with our audience in a regular weekly report.

We believe in a collaborative network of thought. We believe that everyone that works in the industry can benefit from his insights.

Keith McCullough & Andrew Barber
Research Edge LLC
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Regulatory tidbits for the week ending Friday 14 November 2008

Last weekend’s Wall Street Journal featured a story (page B4) headlined “SEC Won’t Discipline Its Enforcement Chief”, which puts to bed the flap over allegations of misconduct by Linda Chatman Thomsen, head of the SEC’s Division of Enforcement. The problem is, the bed appears to have been short-sheeted.

The short version is: (Paragraph 3 of the Journal’s story) – “One report by the [SEC office of the] inspector general found Ms. Thomsen had improperly released information about an insider-trading investigation involving hedge fund Pequot Capital Management and John Mack, a well-known Wall Street executive. The inspector general concluded Ms. Thomsen improperly relayed information when she told lawyer Mary Jo White, who was working for Morgan Stanley’s board and vetting Mr. Mack as a potential chief executive, that there was smoke but not fire in the investigation.”

The Financial Times on-line edition – FT.com – writing on Sunday 8 November, reports that SEC chief administrative law judge Brenda Murray ruled last Friday that Ms. Thomsen did not deserve to be disciplined for her actions. In a revealing paragraph, the story says that Judge Murray found Enforcement Chief Thomsen’s actions to be exempt under the SEC’s code of conduct, because her remarks to attorney White were in the context of activity, in which Ms. Thomsen was discharging “other official responsibilities.” Just what were those “other official responsibilities”? Again, according to the FT.com story, Judge Murray found that, in view of the important position in the financial markets occupied by Morgan Stanley, Ms. Thomsen was properly discharging her responsibilities by providing the information.

Ms. Thomsen had been accused of improper conduct relating to her role in the 2001 investigation of a windfall $18.9 million profit at a firm whose CEO was a business partner of John Mack, and the subsequent termination of the SEC staff attorney who sought to subpoena Mr. Mack in connection with the transaction.

The New York Times reports, on 10 November, that a Senate investigation agreed with the 191-page report issued by the SEC’s Inspector General H. David Kotz, who found “serious questions about the impartiality and fairness” of the Pequot investigation, and recommended that the Commission consider disciplinary action against Linda Thomsen, as well as against Mr. Aguirre’s direct supervisor, Robert Hanson, and assistant director of enforcement Mark Kreitman. For the record, we note that Judge Murray’s findings exonerated both Ms. Thomsen and Mr. Hanson, but that no determination has yet been reached regarding Mr. Kreitman. This sounds like someone may be retaining a spare goat, just in case a sacrifice is called for.

It is interesting to note that the SEC’s own legal process finds that it is appropriate for the Enforcement Chief to be tipping off the private sector as to the status of an ongoing investigation. Mind you, we make no value judgment on this determination. It has long been a commonplace of the US economic system that “Free Markets”, in AmeriSpeak, really means “Regulated Markets,” and more often than not, “Manipulated Markets”. And who better to manipulate a market than that market’s own regulatory authority?

Of course, now the vultures are coming home to roost. Morgan Stanley, headed by Mr. Mack, is the recipient of a Federal banking charter, and a large dose of taxpayer largesse with which to stuff its internal ATM (“Avarice Titillation Machine”). This means that Mr. Mack, who is so above reproach that he doesn’t even need to be investigated, now gets to go back to the tables where he can continue to pay himself handsomely for continuing to place losing bets on black, this time both paying his own compensation and placing his wagers with my money and yours.

Let us not be needlessly ironic. If the Feds believe there are entities in the market that are so important that the “official” position of the law enforcement agencies should be to shield them – if the Feds believe the Morgans and Goldmans and Bears of the world are too important to the global financial system to be permitted to fail – then this is a truly appropriate use of taxpayer dollars. We should rally in our thousands to show our support for the embattled Messrs Mack and Blankfein, Kohlberg and Schwartzman. God bless America, and God bless our Chief of the SEC Division of Enforcement!
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In other news…

The SEC and the CFTC are engaged in a high-stakes turf war over who will get to regulate the market in Credit Default Swaps (CDS). Why would anyone in their right mind want to be put in charge of toxic waste cleanup? Two possible answers spring to mind.

First, whoever steps in now can only be a hero. Like the closer who is called to the mound for the ninth inning with his team down by two runs: all he has to do is hold the other team. He cannot lose the game officially; and if his team scores, he will be the winner of record. Here, no regulator can possibly do a worse job of regulating the now-unregulated marketplace. Anything at all will be seen as major progress, and the turmoil in the rest of the world will probably ensure that the mere fact of putting someone visibly in charge will mean that this vast market will drop its Red Alert status in favor of the next emergency du jour.

Oh, and second… Chairman Cox, in his testimony before Congress last month mentioned that this is a $58 trillion notional market. According to a report in NSCP Currents (January/February 2008) SEC civil fines and disgorgements are actually down year-over-year, from $3.3 billion in fiscal 2006, to a paltry $1.6 billion in 2007 – a 52% decline. The article goes on to observe that recent years have seen an increase in the number of small fines, and a “dramatic decline in the number of large sanctions”. We are sure that tackling the CDS market will give its new regulator ample opportunity to shake a tree or two, where even the low-hanging fruit is going to be very juicy indeed. Which agency is going to get first crack at this new honey pot? We surmise that the size of the kitty itself may be sufficient to force the merger of these two agencies into a single Uber-regulator. Stay tuned.
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In other news…

We were impressed by the position of Acting (and outgoing) CFTC Chair Walter Lukken. Speaking on 11 November at the FIA Futures and Options Expo in Chicago, Mr. Lukken made the unusual observation that rules-based regulation doesn’t work and called for the creation of a new regulatory system to stand firmly on three legs: a Systemic Risk Regulator, a Market Integrity Regulator, and an Investor Protection Regulator. Bit by bit, we seem to be getting the notion that principles-based regulation makes sense.

There was an old saying in the brokerage business: a lawyer is someone you go to after you break the law; a compliance officer is someone you go to before you break the law. Meaning that the job of the compliance officer is to tell you how to break the rules without getting caught. How many times in the course of my career have I been told in all seriousness – by the owners and senior executives of firms, by the top producing traders and salesmen at firms – indeed, by the outside counsel of firms –we want to operate in the Grey Area.

Rules are signposts. Like trees on a ski slope, you don’t want to crash into them. But as long as you can steer around them, there is nothing to prevent you from tearing down the trail. In the financial services industry (an odd appellation – who gets “served”? not the investors!) is to use the rules as an early-warning system which enables participants to channel their unrestrained greed into areas where regulators have not yet figured out how the money is made. As rules proliferate, the clever players migrate to uncharted waters. In mathematical terms, they move out of the fat part of the distribution and into the statistically-insignificant tails. Rules are by their nature conservative, and rule-makers tend to be backward-looking. Rules are always made to prevent yesterday’s violations and yesterday’s disasters. Thus, as new rules fill up the already highly populated center of the bell curve, the creative professionals move farther out along the tails. Where more money is to be made, at the cost of more risk to the system. And, the more risks that get regulated away as they come to light, the more extreme are the new risks that the whiz kids and Masters of the Universe create. As we point out in every macro call: everything important in our world happens at the margins. At the margin of financial markets regulation lies an abyss of risk. On ancient European maps of the world, the unexplored regions were represented by the legend “Here be dragons.” Did you not get what is wrong with this system? Do you get it now?

Thanks to Acting Chairman Lukken for spelling out a sensible approach to a regulatory structure. Mr. Lukken leaves out the sticky bit about implementation. There is so much embedded bureaucracy, so many careers that have been built on the rules-based hierarchy, that Mr. Lukken’s recommendation turns out to be a generational change. In order to make anything like this work, lots of people in government will have to be fired.

Sounds like a good idea to us.

Moshe Silver
Director of Compliance
Research Edge LLC

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