January 11, 2012
By Cindy Galli
Montana farmers have filed a class action suit against former New Jersey governor Jon Corzine, charging that the failed financial firm run by Corzine stole millions from their accounts to pay off its spiraling debts, and that Corzine’s “single-minded obsession” with making MF Global a big player on Wall Street led to the firm’s collapse.
MF Global’s clients included 38,000 wheat farmers, cattle ranchers and others who “hedged” their crop prices by placing millions in MF Global accounts. Those accounts were supposed to be “segregated and secure,” according to the federal suit, meaning MF Global could not draw on those funds.
The lawsuit, filed on behalf of all 38,000 customers, alleges that when MF Global made a series of bad investments — notably in European debt — it began “siphoning funds withdrawn from segregated client accounts” to cover its debts.
“This is a suit by the real victims of MF Global,” said plaintiff’s attorney Mark Baker of the law firm Anderson, Baker & Swanson. “The missing funds were not investments in MF Global, or loans to MF Global, but rather the customer’s own money as collateral to guaranty their contracts. They were not to be used by others – let alone their own broker – to speculate on risky and exotic securities.”
December 15, 2011
By Kevin Brekke
A new polysyllabic term has entered the Wall Street lexicon and is sweeping through the investing world like a brush fire through a dry canyon: “hypothecation.” With its connection to the MF Global bankruptcy and aftermath, it engenders the kind of fear a homeowner might feel while monitoring the approaching flames.
The rise of hypothecation as the lead suspect in the MF Global tragedy has caused a fair bit of confusion about what, exactly, it is – and is not. Proving the idiom that nature abhors a vacuum, the blogosphere has weighed in with all manner of explanations, many of which have been less than accurate.
In an attempt to help our readers get to the heart of the matter, we will briefly review hypothecation – what it is and how it is used – and do so in plain English.
There is considerable ground to cover here, so we will get right into it, starting by defining the term, then discussing the role hypothecation played in the demise of MF Global before turning our attention to the question in the minds of many gold investors – was MF Global re-hypothecating gold bullion? Finally, we’ll have some closing thoughts on the potential implications for us as individual and institutional investors going forward.
The Two Faces of Hypothecation
At its most basic level, anyone who has traded on margin (borrowing money from a broker to purchase stock) or shorted a stock (borrowing shares through a broker that are sold today in the hope of replacing them with shares purchased at a lower price tomorrow and pocketing the difference) has participated in hypothecation.
Hypothecation is a legal term that means “to pledge something as collateral.” In the financial world of stockbroking, to hypothecate shares of stock means they are pledged against a loan from a broker for money to complete a transaction. For the investor, hypothecation necessitates a margin account.
Opening a margin account requires that a broker obtain a signed agreement from the investor. The margin agreement can be part of a standard account-opening agreement, or it might be a completely separate document. It is this agreement that opens the door for the assets in your account to be used for re-hypothecation purposes. Without such an agreement, you will not be able to open a margin account. In other words, if you have a margin account, you are in the game. If you don’t have a margin account, you are strictly an innocent bystander with no legal skin in the game.
It is important that you as an investor understand the terms of trading on margin. Once you trade on margin, any common stock, cash, or securities in your margin account can be considered as collateral for the money you borrow. And if the terms of the margin agreement allow it – almost universally the case – the broker can borrow or loan shares in the investor’s account up to the value of the amount borrowed (the margin).
March 1st, 2011
China’s holdings of US bonds reached $1.16 trillion at the end of December, almost $270 billion more than previously estimated, new data showed Monday.
Beijing, which has converted much of a huge trade surplus with the United States over the past two decades into buying up US treasuries and other securities, held 26.1 percent of the total of $4.44 trillion held by foreigners, the Treasury said.
The figures came as the US government recalculated its data on foreign holdings of US securities from June 2010.
Chinese-held Treasuries have fallen since hitting a high of $1.18 trillion in October, under the revised figures. Japan remained by far the second largest holder of US government debt, with $882 billion in December, around $1.3 billion less than original estimates.
Britain was third at $272.1 billion.
November 15th, 2010
By: John Melloy
There might not have been a second round of quantitative easing, if Federal Reserve Chairman Ben Bernanke shopped at Walmart.
A new pricing survey of products sold at the world’s largest retailer showed a 0.6 percent price increase in just the last two months, according to MKM Partners. At that rate, prices would be close to four percent higher a year from now, double the Fed’s mandate.
The “inaugural price survey shows a small, but meaningful increase on an 86-item grocery basket,” said Patrick McKeever, MKM Partners analyst, in a note. Most of the items McKeever chose to track were every day items like food and detergent and made by national brands.
On November 3, the Fed announced its much-anticipated purchase of $600 billion in Treasury securities. An effort to keep market rates low since the central bank’s benchmark rate is already at zero. The Federal Open Market Committee’s statement said, “Currently, the unemployment rate is elevated, and measures of underlying inflation are somewhat low, relative to levels that the Committee judges to be consistent, over the longer run, with its dual mandate.”
But since that statement, interest rates have actually gone up, backfiring on a Fed chief who wants his quantitative easing to spark inflation of 2 percent annually. A moderate amount of inflation would be considered good for the economy. The problem is that inflation is already running well above a healthy level, investors said, Bernanke is just not looking in the right place, like a Walmart.
“I suspect that when the Chairman thinks about reflation he has a difficult time seeing any other asset besides real estate,” said Jim Iuorio of TJM Institutional Services. “Somehow the Fed thinks that if its not ‘wage driven’ inflation that it is somehow unimportant. It’s not unimportant to people who see everything they own (homes) going down in value and everything they need (food and energy) going up in price.”
Next week, the government is expected to say its official measure of inflation, the Consumer Price Index, increased at a 0.3 percent annual rate, according to economists’ consensus estimate. Core CPI, excluding food and energy, is expected to climb just 0.1 percent.
The biggest dollar increase in McKeever’s survey was on a jug of Tide Original laundry detergent, manufactured by Procter & Gamble. Both P&G and Kimberly-Clark gave tentative forecasts for this quarter on concern they won’t be able to pass rising input costs on to the consumer. They may have no choice.
Prices of cotton, silver wheat, soybeans, corn are all up big this year. Cotton futures are up the most, climbing 90 percent so far in 2010. The price of silver is up 63 percent.
The purpose of McKeever’s note was actually not to be a commentary on Fed policy. The retail analyst is just trying to find out if Walmart is subtlety-increasing prices without decreasing foot traffic. A process he would deem bullish the stock.
“If the pricing dynamic is shifting, as our survey suggests, this would lend some upside bias to our sales and earnings expectations,” said McKeever.
Bernanke keeping interest rates artificially low is sparking outrage among central bank chiefs around the world, who feel the U.S. is essentially exporting inflation.
China’s CPI surged 4.4% in October, according to figures released Thursday, higher than economists’ expected and up from a 3.6 percent annual reading in the month prior.
Said EmergingMoney.com Founder Tim Seymour, “Bernanke definitely must not shop at WalMart in China.”
October 12th, 2010
By: Melly Alazraki
Pay on Wall Street is on pace to break a record high for a second consecutive year, according to a study conducted by The Wall Street Journal, growing 4% in 2010 at nearly three dozen of the top financial institutions.
The 35 top publicly held securities and investment-services firms are set to pay $144 billion in compensation and benefits, up from $139 billion in 2009, according to the Journal survey. Compensation was expected to rise at 26 of the firms.
The study also found that revenue was expected to rise at 29 of the 35 firms surveyed, but at a slower pace than pay. Wall Street revenue is expected to rise 3%, to $448 billion from $433 billion, despite a slowdown in some high-profile activities like stock and bond trading. Overall, Wall Street is expected to pay nearly a third — 32.1% — of its revenue to employees.
The Wall Street Journal also notes the differences among companies. For example, at Citigroup (C), which remains about 12% government owned, revenue is projected to increase this year by about 4%, but pay will be down about 8%. At Goldman Sachs (GS), on the other hand, revenue is expected to decline by 13.5% this year to $39.1 billion, while compensation is projected to be 3.7% higher at $16.8 billion.
Most of the companies have paid the government back the financial aid they received during the financial crisis and therefore have come out from under the Treasury Department’s rules about pay. However, they’re still benefiting from low interest rates courtesy of the Federal Reserve’s stimulative policy and strong international markets.
In Europe, regulators last week backed tougher than expected draft rules on bankers’ pay. If they are implemented, cash bonuses would be capped at 30%, and large bonuses at 20%. Also, 40% of normal bonuses would be paid over several years, and 60% of big bonuses postponed. Finally, the regulations include a clawback mechanism that would allow for company’s to reclaim bonuses.
In the U.S., there will be some restrictions on pay in the upcoming Dodd-Frank financial regulatory bill, but the specifics aren’t clear yet. Also, tougher new capital rules may also restrict compensation. But until the focus in financial firms changes to creating more shareholder value, some say, current compensation packages will remain.
Experts say, however, that Wall Street banks are unlikely to pay 2010 bonuses until after the end of the year, even though this could hurt employees’ tax bills, according to Reuters. Early bonus payments would be a public relations disaster for a sector already blamed for much of the financial crisis.
July 29, 2010
By: Dunstan Prial
So much for transparency.
Under a little-noticed provision of the recently passed financial-reform legislation, the Securities and Exchange Commission no longer has to comply with virtually all requests for information releases from the public, including those filed under the Freedom of Information Act.
The law, signed last week by President Obama, exempts the SEC from disclosing records or information derived from “surveillance, risk assessments, or other regulatory and oversight activities.” Given that the SEC is a regulatory body, the provision covers almost every action by the agency, lawyers say. Congress and federal agencies can request information, but the public cannot.
That argument comes despite the President saying that one of the cornerstones of the sweeping new legislation was more transparent financial markets. Indeed, in touting the new law, Obama specifically said it would “increase transparency in financial dealings.”
The SEC cited the new law Tuesday in a FOIA action brought by FOX Business Network. Steven Mintz, founding partner of law firm Mintz & Gold LLC in New York, lamented what he described as “the backroom deal that was cut between Congress and the SEC to keep the SEC’s failures secret. The only losers here are the American public.”
If the SEC’s interpretation stands, Mintz, who represents FOX Business Network, predicted “the next time there is a Bernie Madoff failure the American public will not be able to obtain the SEC documents that describe the failure,” referring to the shamed broker whose Ponzi scheme cost investors billions.
“The new provision applies to information obtained through examinations or derived from that information,” said SEC spokesman John Nester. “We are expanding our examination program’s surveillance and risk assessment efforts in order to provide more sophisticated and effective Wall Street oversight. The success of these efforts depends on our ability to obtain documents and other information from brokers, investment advisers and other registrants. The new legislation makes certain that we can obtain documents from registrants for risk assessment and surveillance under similar conditions that already exist by law for our examinations. Because registrants insist on confidential treatment of their documents, this new provision also removes an opportunity for brokers, investment advisers and other registrants to refuse to cooperate with our examination document requests.”
Criticism of the provision has been swift. “It allows the SEC to block the public’s access to virtually all SEC records,” said Gary Aguirre, a former SEC staff attorney-turned-whistleblower who had accused the agency of thwarting an investigation into hedge fund Pequot Asset Management in 2005. “It permits the SEC to promulgate its own rules and regulations regarding the disclosure of records without getting the approval of the Office of Management and Budget, which typically applies to all federal agencies.”
Aguirre used FOIA requests in his own lawsuit against the SEC, which the SEC settled this year by paying him $755,000. Aguirre, who was fired in September 2005, argued that supervisors at the SEC stymied an investigation of Pequot – a charge that prompted an investigation by the Senate Judiciary and Finance committees.
The SEC closed the case in 2006, but would re-open it three years later. This year, Pequot and its founder, Arthur Samberg, were forced to pay $28 million to settle insider-trading charges related to shares of Microsoft (NASDAQ:MSFT). The settlement with Aguirre came shortly later.
“From November 2008 through January 2009, I relied heavily on records obtained from the SEC through FOIA in communications to the FBI, Senate investigators, and the SEC in arguing the SEC had botched its initial investigation of Pequot’s trading in Microsoft securities and thus the SEC should reopen it, which it did,” Aguirre said. “The new legislation closes access to such records, even when the investigation is closed.
“It is hard to imagine how the bill could be more counterproductive,” Aguirre added.
FOX Business Network sued the SEC in March 2009 over its failure to produce documents related to its failed investigations into alleged investment frauds being perpetrated by Madoff and R. Allen Stanford. Following the Madoff and Stanford arrests it, was revealed that the SEC conducted investigations into both men prior to their arrests but failed to uncover their alleged frauds.
FOX Business made its initial request to the SEC in February 2009 seeking any information related to the agency’s response to complaints, tips and inquiries or any potential violations of the securities law or wrongdoing by Stanford.
FOX Business has also filed lawsuits against the Treasury Department and Federal Reserve over their failure to respond to FOIA requests regarding use of the bailout funds and the Fed’s extended loan facilities. In February, the Federal Court in New York sided with FOX Business and ordered the Treasury to comply with its requests.
Last year, the network won a legal victory to force the release of documents related to New York University’s lawsuit against Madoff feeder Ezra Merkin.
FOX Business’ FOIA requests have so far led the SEC to release several important and damaging documents:
•FOX Business used the FOIA to obtain a 2005 survey that the SEC in Fort Worth was sending to Stanford investors. The survey showed that the SEC had suspicions about Stanford several years prior to the collapse of his $7 billion empire.
•FOX Business used the FOIA to obtain copies of emails between Federal Reserve lawyers, AIG and staff at the Federal Reserve Bank of New York in which it was revealed the Fed staffers knew that bailing out AIG would result in bonuses being paid.
Recently, TARP Congressional Oversight Panel chair Elizabeth Warren told FOX Business that the network’s Freedom of Information Act efforts played a “very important part” of the panel’s investigation into AIG.
Warren told the network the government “crossed a line” with the AIG bailout.
“FOX News and the congressional oversight panel has pushed, pushed, pushed, for transparency, give us the documents, let us look at everything. Your Freedom of Information Act suit, which ultimately produced 250,000 pages of documentation, was a very important part of our report. We were able to rely on the documents that you pried out for a significant part of our being able to put this report together,” Warren said.
The SEC first made its intention to block further FOIA requests known on Tuesday. FOX Business was preparing for another round of “skirmishes” with the SEC, according to Mintz, when the agency called and said it intended to use Section 929I of the 2000-page legislation to refuse FBN’s ongoing requests for information.
Mintz said the network will challenge the SEC’s interpretation of the law.
“I believe this is subject to challenge,” he said. “The contours will have to be figured out by a court.”
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January 19, 2010
New York Times
By Eric Dash
Wall Street’s main lobbying arm has hired a top Supreme Court litigator to study a possible legal battle against a bank tax proposed by the Obama administration, on the theory that it would be unconstitutional, according to three industry officials briefed on the matter.
In an e-mail message sent last week to the heads of Wall Street legal departments, executives of the lobbying group, the Securities Industry and Financial Markets Association, wrote that a bank tax might be unconstitutional because it would unfairly single out and penalize big banks, according to these officials, who did not want to be identified to preserve relationships with the group’s members.
The message said the association had hired Carter G. Phillips of Sidley Austin, who has argued dozens of cases before the Supreme Court, to study whether a tax on one industry could be considered arbitrary and punitive, providing the basis for a constitutional challenge, they said.
Administration officials and other legal experts have called those claims dubious.
Indeed, President Obama urged the financial lobby to stand down when he introduced the tax proposal last week: “Instead of sending a phalanx of lobbyists to fight this proposal or employing an army of lawyers and accountants to help evade the fee, I suggest you might want to consider simply meeting your responsibilities.”
A spokesman for the lobbying group, Andrew DeSouza, confirmed on Sunday that Mr. Phillips was working with the group on a series of regulatory and legislative matters, including the tax. But because no formal tax legislation has been proposed by Congress, Mr. DeSouza said it was “premature to speculate on any potential actions beyond opposing the proposal itself as both punitive and counterproductive to increasing lending.”
A court challenge would open a new front in the banking industry’s assault on additional financial regulation. It might also further splinter the powerful financial lobby. The issue has already pitted smaller banks, which would be exempt from the tax, against their less popular Wall Street peers, and it has even stirred debate within the large banks over whether such an aggressive legal strategy would be politically wise.
Privately, executives at several large banks said they believed a legal battle was doomed to fail in Washington and risked escalating public rage over the bailouts of the banks. These executives say the industry may be better off pushing for a watered-down version of the tax. Most banks are just beginning to consider how, or whether, they would oppose it.
This political tug of war is centered on Wall Street bonuses, which have already returned to precrisis levels. The banks have tried to head off criticism by starting new charitable programs and by structuring executive bonuses in line with principles set by the federal pay adviser, like paying bonuses mostly in stock instead of cash and deferring the payout of some bonus money in case business declines again.
Administration officials hoped their proposed bank tax would serve much the same purpose. Democratic leaders in Congress have welcomed the plan, which could raise up to $117 billion to recoup projected losses from the bank bailout program.
Republicans have remained unusually silent on the tax, hoping to avoid a choice between supporting a tax increase and defending big bankers. Meanwhile, some liberal Democrats have gone further than the administration has, proposing a heavy tax on bank bonuses. Political analysts expect the bank tax to pass easily in the House but face resistance in the Senate.
There may be room for compromise. Administration officials hope to keep the proposed tax limited to major financial institutions with more than $50 billion in assets but consider that a difficult line to draw. For example, the proposed tax would not apply to large hedge funds; the mortgage finance giants Fannie Mae and Freddie Mac; or the carmakers Chrysler and General Motors.
“We believe the lines we have drawn are sound and sensible,” said Gene B. Sperling, a senior Treasury Department official. “We understand these are the type of things we will need to keep an open mind on in negotiations with Congress.”
The financial lobby has insisted that it is unfair for banks to cover the cost of losses tied to nonbank bailout recipients like the automakers and the American International Group, the giant insurer that is now majority-owned by the government. In an appearance on CNBC on Thursday, Representative Barney Frank, chairman of the House Financial Services Committee, called the argument over including the automakers legitimate.
At the lobbying group, the selection of Mr. Phillips of Sidley Austin raised eyebrows because it suggests that Wall Street may be spoiling for a fight. Davis Polk & Wardwell, another white-shoe law firm, has been advising the same lobbying group on legal matters tied to new financial regulation.
Mr. Phillips, who was an appellate lawyer in the Justice Department during the Reagan administration, brought his first case in front of the Supreme Court when he was just 29 years old. Since then, he has appeared before the court more than 60 times. Mr. Phillips declined to comment about his work for the industry, referring all questions to the lobbying group.