Saturday, July 9, 2016

The Nuns With Guns

Credit: Zerohero

Recently the Wall Street Journal ran a series of articles on the present state and potential future of banking.  One of the most intriguing articles in the series was one entitled: Nuns With Guns: The Strange Day-to-Day Struggles Between Bankers and Regulators

"The sobering reality of banking in 2016 is that lenders are awash in new regulations; and growing armies of rule-interpreters and enforcers -- for good or ill -- are bringing striking changes to banks' internal cultures."

The article goes on to note the significant hiring of new staff on the part of both banks and bank regulators to deal with the flurry of new regulations.  It also explores some of the psycho-dynamics that occur between front-line bankers and their own bank's internal compliance staff; and further, between both of those groups and the examiners from the multiple government regulators that may have jurisdiction over the bank or some segment of the bank's operations.  

Reportedly, in an exercise conducted during one Barclays PLC employee town hall, front-line bankers and bank compliance executives shared images of how each group thinks of the other.  Front-line bankers were viewed as "cowboys on horses with guns", while compliance executives were viewed as "nuns carrying guns".

The article was a public airing of an often unspoken and usually cloaked aura of tension that suffuses many of the relationships between these three groups today.  The Journal gave us all a quick peek at several internal banking business cultures that are characterized by anxiety, wariness, guarded comments, and over-cautiousness.  Business cultures which, in turn, exhibit a lamentable (and costly) hypersensitivity to both formal and informal communications with government regulators and internal bank compliance staff.

One particular sentence from the article speaks volumes about the situation: "Bank executives largely avoid publicly voicing frustrations with the regulatory regime, and most wouldn't comment on the record for this article."

This backdrop of hypersensitive preoccupation goes well beyond the set of bank operating deficiencies that rise to the level of being cited as Matters Requiring Attention (MRAs) by examiners.  MRAs are "must-do" priorities that obviously must be rectified in a timely manner by the bank.

No, that hypersensitivity even kicks in when there are informal recommendations and off-the cuff observations made by bank examiners.  Chalk it up to free-floating anxiety alluded to in the Journal article.  That anxiety results in resigned acquiescence by front-line bank staff which then prompts "abundance of caution" remedial actions on the part of the bank (with their associated financial expenditures).  These "nice-to-do" remedial actions, in turn, drive up industry-wide compliance costs much further than is really necessary.

And if that, by itself, was not enough; fanning the flames even more are my colleagues in the bank consulting tribe:

"You think compliance costs are high?  Well, they pale in comparison to the civil fines and costs to your reputation of non-compliance!"

This aura of tension and banker hypersensitivity seems, to me at least, to be the inevitable fallout from the fervid bank regulatory agency enforcement postures spawned by the 2008 financial crisis.  

The Evolution of Enforcement Postures

I lived through the financial crisis as a regulator and as part of the team that set up the initial operations of the U.S. Treasury Department's Troubled Asset Relief Program (TARP).  And I fully appreciate that the public's vocal demands for accountability, for both regulators and bankers, forced a re-evaluation of historical banking agency enforcement practices.  Agency enforcement activities moved from a policy of patient, calibrated escalation (beginning with moral suasion), toward a less tolerant, incident-driven policy of  "you've got one bite of the apple".

At the same time, the banking agency enforcement action decision-making process was being moved further from field offices and progressively centralized in geographically-remote district, regional, or headquarters locations in a trend that conflated the industrial concept of uniformity with the more custom-tailored concept of consistency.

Remote decision-makers, who have not had direct connection with the banks (and bankers) involved, tended to avoid the risk of giving bankers the benefit of the doubt on the close calls.  That's just a natural distance bias.  Plus, at the end of the day, regulators rarely get criticized for being too tough or conservative in their decision-making.

Like Agatha Christie's Murder on the Orient Express, where no one person committed the murder in question; no one or two items are expressly responsible for the evolution of the internal bank cultures explored in the Journal article... but the two I mentioned above are strong contributors.

But I will say this, unequivocally.   The enforcement environment has succeeded in frightening community bank boards of directors.   More often than not, community banks choose the costlier path of least resistance: "just do what the examiner suggests."

It is difficult to broad-brush this issue as many talented individuals, in both bank compliance departments and in the bank regulatory agencies, use their exceptional people skills to successfully manage through this issue and promote positive and productive relationships.  These people really mean that a "recommendation" is truly a recommendation, and a voluntary action... not a stealth requirement.

The Dangers of Regulator-focused Banking

I've explored the dangers of regulator-focused banking a few years ago:
" Historically, as a bank regulator and bank examiner, your job was to calmly officiate in the marketplace for banking services.   As a member of a rule-making body, subject to statutory guidance and notice-and-comment rule-making, you helped establish the dimensions of the ball field and rules for player behavior.
 In your day-to-day job as a bank examiner, you were also an umpire or referee on the field who monitored player behavior, called out-of-bounds play, and penalized some for personal fouls.  And as a corollary part of the job of officiating, you sometimes had to sideline someone from the field of play or, in grave situations, ask the Federal Deposit Insurance Corporation (FDIC) to carry an ailing player off the field on a stretcher.  
The game itself, though, was played by teams of bankers, doing what bankers do well --- making a visible contribution to a safe, sound, and prosperous banking system that is earnestly attending to the legitimate credit needs and healthy growth of the most powerful economy on Earth.
Like any sports competition, the fans show up to the game to applaud the performance of the players on the field and appreciate the quality of the game play.  Every fan knows that when the game's center of attention becomes the officiating, there is something grossly wrong with the game." 

Banking Industry Responses

Owing to the increased regulatory overhead and this notable hypersensitivity to communications from bank regulators, we are seeing at least a couple of reactions.

First, all across the United States, bank boards of directors are being stocked with former regulators to help boards navigate the psychology of the regulatory and bank supervisory process.  The practice is becoming more and more common.

Second, banks are steering their consulting needs toward consulting firms whose staff roster contains a healthy number of former regulators, particularly those higher-profile ex-regulators, who walked the beat in their respective agency's Washington, D.C. headquarters.

We have seen a similar phenomenon in the defense-industrial complex, where former executives of the Department of Defense join the upper echelons of large defense contractors in order to help them understand the "process" and to leverage previous personal relationships so as to better compete for lucrative government contracts.

But the big difference between this phenomenon as it is manifest in the defense industry, versus the banking industry today, is that in the defense industry, it is in the pursuit of financial gain, not the avoidance of pain.

Friday, March 11, 2016

An Added Option for
 CRA Investment Test Credit

March 1995 - Used with permission

It was 1989 when the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) amended the Community Reinvestment Act of 1977 (CRA) and required the federal bank regulatory agencies to publicly issue CRA ratings (using a new 4-tiered rating system) and disclose written performance evaluations that outlined facts and data to support the agencies' ratings conclusions.  It was a very controversial statutory provision, as it was the first time in history that Congress "opened the kimono" on one facet of the otherwise confidential bank examination process and mandated that CRA examination ratings and CRA performance evaluations be made public as a matter of routine.  

In 1990-91, I was Deputy Comptroller for Compliance Management at the Office of the Comptroller of the Currency (OCC).  All of the federal banking agencies at the time were tasked with making the FIRREA statutory mandate operational by updating the CRA regulations; designing the form and content of these new CRA performance evaluations; testing the revised process with sample CRA examinations; and then training bank examiners nationwide on how to prepare the new CRA public disclosures.  We worked very hard to get it right under some very tight deadlines.

It was during that challenging process that I first met Dr. Ken Thomas.  He was (and still is)  America's foremost expert on the formal requirements and the important nuances of the Community Reinvestment Act.  Over the years, Ken has consulted with numerous banks and thrifts on CRA matters.  That's him standing to the left of former Senator William Proxmire.  Senator Proxmire was widely-credited with being the Father of the Community Reinvestment Act of 1977.  

Ken was in the OCC's public documents room, making copies of all of the CRA Performance Evaluations from the first round of CRA examinations done by the OCC under the new mandate.  He was checking to see how the examiners' final work product comported with the new FIRREA requirements and how consistent the CRA ratings and performance evaluations were among examiners (and among agencies).  I found him to be both a knowledgeable professional and an amiable fellow.  We have stayed in touch over the 26 years that have passed since that time.

He called me last year to ask if I would be willing to serve as one of the independent trustees of a new CRA mutual fund whose investment objectives are to invest in debt securities deemed to be qualified under the Community Reinvestment Act so that financial institutions subject to the CRA could receive Investment Test or similar credit with respect to their shares in the fund.  The new mutual fund is called The Community Development Fund.  I won't talk about the fund itself as legally all of the talking needs to take place through the Fund's prospectus.  I have no financial interest in the Fund beyond the Fund's established trustee fees and reimbursement of any travel expenses to attend Board of Trustee meetings.

I knew that there are already a couple of  CRA mutual funds in this space, so I asked what distinguishes The Community Development Fund from the others.  There was an awkward silence as if I had asked a stupid question (which I immediately realized I did).  You see, as the fund advisor, fund investors have direct access to Ken's consulting support (and the benefit of his CRA credentials) regarding earmarked CRA investments in the fund.  As an additional plus, Ken is a director of a community bank and has been for many years... so that means he has experienced the real-life challenges of CRA compliance for banks and thrifts.

Over my 37-year career as a federal bank regulator,  I had met many accomplished and outstanding bank consultants, like Ken, and I had also seen my share of consultants who were, like Texans are fond of saying, "all hat and no cattle".   Knowing him for 26 of those years, I could confidently say "yes" to his offer.

Monday, January 25, 2016

Thank you for bearing with me during this long period of radio silence on this blog.  A wonderful family Thanksgiving weekend in Miami was marred when I took a spill while walking with my wife and shattered the bones in my right forearm and wrist... rendering me unable to write or type until recently.  A thousand thanks go to a superb hand surgeon, Dr. Benjamin J. Cousins, and the excellent staff at the Mt. Sinai Hospital in Miami Beach... and of course, to my wife Tara, who is living the vow "for better or worse", and doesn't like it one bit!

Playing the Island Green

14th Hole - Coeur d'Alene Resort (Idaho)

I always liked the concept of the "island green" in golf.  It encapsulates, in one picture, the psychic dynamics of risk management in banking these days.  A narrowly-defined field of play, with a pin (flag) in a cup, surrounded only by hazards.  The objective?  Put(t) a 1.68-inch golf ball into a 4.25-inch golf hole cup from a long ways away.

There is no neatly-clipped grass fairway to ease your forward progress, only the faint ovoid shape of the island putting green in the watery distance.  In some of those surrounding hazards, you lose your ball (in the water), and in others, your job is made harder (rough grass, sand bunkers, and obstructions, like trees).  Even a clear line to the pin requires the marshaling of absolute concentration, total situational awareness, and the precise muscle memory that comes from long periods dedicated practice and experience.

Today's risk management environment for banks stands in stark contrast to the "golden years" for the banking industry from the 1950's to the early 1980's when the old 3-6-3 rule prevailed.  Pay 3% on deposits, loan those deposits out at 6%, and then get to the golf course by 3 p.m.  That banking industry Elysium was besieged in 1980, when the Depository Institutions Deregulation and Monetary Control Act was enacted into law.  One piece of which was the phasing-out of government-administered price controls on deposit accounts.  Then, in 1982, another deregulation initiative, the Garn-St. Germain Depository Institutions Act, roughly leveled the competitive playing field between banks, savings and loans, and (by introducing money market accounts) money market mutual funds.

Given our collective experience since then, whether you judge the financial services deregulation of the early 1980's a net societal benefit (which I still do), you can surely agree that financial services deregulation significantly changed the existing landscape of the industry at the time.  We can also probably agree, that we created a bright-line tipping point or pivot point for the banking industry that defined a critical epoch in the industry's evolution.

But by removing price controls and increasing marketplace competition, we introduced "wobble" and uncertainty into the inertia of the industry; forcing changes in its momentum and trajectory.  Wobble which may likely have eventually reached some sort stable-state adaptation (as bankers got their new sea legs) if not for the destabilizing influences of economic events such as the Fed's inflation-fighting policy of stratospheric interest rates (and the resulting Recession of 1981-1982), the pesky Texas oil-patch crash, or the unwelcome real estate crisis in the New England states.

Instead of things getting less "wobbly" over time, things got even "wobblier", the big wake-up call coming with the declared insolvency of the Federal Savings and Loan Insurance Corporation (FSLIC) in 1987.

The legislative remedy to the industry's instability came in the form of  the systemic risk reduction and accountability measures in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) and the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA).  Then came the Financial Services Modernization Act of 1999 (also known as the Gramm-Leach-Bliley Act [GLBA]).  Though rolling back the provisions of the Depression-era Glass-Steagall Act for a small group of megabanks and securities houses, GLBA imposed significant new regulatory requirements on all banks (regardless of size) related to customer financial privacy, information security, and anti-pretexting.  Later, after America was attacked, came the USA PATRIOT Act of 2001, strengthening Bank Secrecy Act anti-money laundering and anti-terrorist financing requirements.

All these pieces of legislation, and their implementing regulations, created new legal obligations for banks and bankers.  These new, and stricter, rules of player behavior were overlayed onto an already challenging game.  The game's fairways, now made narrower by these new rules, also became minefields, subjecting banks and their officers and directors to escalating levels of legal liability.

Fast forward to today.  From the smoldering ruins of the financial markets meltdown and the Great Recession, the Dodd-Frank Act rolls out a foundation-shaking increase in financial services regulation.   The control of industry "wobble" is now called macroprudential banking supervision and new regulatory policy goals are "financial stability and resilience".   Larger capital buffers, the Volcker Rule, the too-big-to fail fixes... all remedies targeted to the problems we experienced during the Great Recession.

In addition, there is a new Sheriff in town, called the Consumer Financial Protection Bureau (CFPB), aggressively policing both old and new consumer compliance rules and establishing evolving standards of fair play.

Dodd-Frank, like the deregulatory legislation of the 1980's, may also have brought us another new, epoch-defining, bright-line regulatory tipping-point for the industry... but a flip-side version of it... with all the uncertainty and unintended consequences to financial services market structure and competition that accompanied the earlier tipping point.

This epoch may be seen by banking historians as the time when, with good intentions and reacting to our legitimate and painful experiences, the American republic began a period of over-engineering banking regulation.  Even senior financial services regulators have admitted to not being sure how the interconnectedness of the 390 required Dodd-Frank Act rulemakings will play out in terms of impacts, implications, market distortions, unintended consequences, and undesired results.  So much also depends on how bank examiners, while in the banks, interpret and apply the rules (and whether they are applied consistently).  Those bridges, we all assume, will be crossed when we get to them.

But the danger is:  Is it being over-engineered in a manner similar to what we see with ponderous Pentagon weapons systems?  Having to accommodate so many desirable specifications, that the final product is prohibitively expensive and does few of its mission-critical functions well.  The Pentagon's Zumwalt-class Destroyer program is instructive in this respect.

Dodd-Frank is accelerating a trend that was already slowly, but steadily, gaining traction and momentum.  While chartered banks are dutifully trying to integrate these new regulations and with most being squeezed by suboptimal profitability, heirloom system platforms, and legacy thinking; the players in the shadow banking arena are attracting capital, gaining yardage, and spreading their wings (at least relatively speaking) in less restrictive airspace.

The robust growth in fintech and shadow banking is a dashboard warning indicator for regulatory over-engineering.  Anyone who has been a parent of teenagers knows that the excessive restriction of a natural inclination breeds circumvention.  It's an immutable Law of Nature.

A near-zero tolerance, over-engineered banking regulatory environment that ties the hands of the "business entities presently legally defined as banks" threatens to pretty much take away the banking game's metaphoric golf fairways altogether.  So that, at every hole, bankers, when they tee-up, are playing to an island green.

I have no doubt that the banking industry will rise to this occasion, as it always has.  You see, there is an additional aspect to the game of golf that provides a virtuous lesson for everyone who plays it.  The game is always played forward, never backward.

Tuesday, October 6, 2015

The Missing Volkswagen Moment

Image result for volkswagen logo

This discussion applies to those offending large banks operating primarily out of New York, Charlotte, London, Frankfurt, and Zurich; their insurance company accomplices, shadow bank allies, credit rating agency enablers; and the (thankfully only a handful) of their regional bank understudies... all of whom formed the nucleus and spawned the genesis of the financial crisis that ultimately brought on the Great Recession.  

When it comes to the reputation of banking and bankers in the U.S. today, the general public has a bifurcated perception of the banking industry.  They hold generally positive views of community and regional banks, but continue to hold distinctly negative views of our nation's largest banks as a group.  A perception that is likely to linger indefinitely until the previously bad-acting banks create their own "Volkswagen Moment".

By Volkswagen Moment, I mean a purposeful emulation of Volkswagen's frank public response thus far to the deception it perpetrated on unsuspecting diesel engine car owners and government environmental regulators when it was revealed that its engineers purposely installed "defeat devices" in those cars.  The Volkswagen CEO at the time, Walter Winterkorn, admitted to the misconduct; apologized to its customers, employees, and the public; committed to cooperate fully with the authorities; and pledged to make amends for its actions in order to rebuild trust in the company:

“The irregularities that have been found in our Group’s diesel engines go against everything Volkswagen stands for. At present we do not yet have all the answers to all the questions. But we are working hard to find out exactly what happened. To do that, we are putting everything on the table, as quickly, thoroughly and transparently as possible. And we continue to cooperate closely with the relevant government organizations and authorities. This quick and full clarification has the highest priority. We owe that to our customers, our employees and the public. Manipulation and Volkswagen – that must never be allowed to happen again.

Millions of people all over the world trust our brands, our cars and our technologies. I am deeply sorry that we have broken this trust. I would like to make a formal apology to our customers, to the authorities and to the general public for this misconduct. We will do everything necessary to reverse the damage. And we will do everything necessary to win back trust – step by step.

In our Group, more than 600,000 people work to build the best cars for our customers. I would like to say to our employees: I know just how much dedication, how much true sincerity you bring to your work day after day. Therefore, it would be wrong to cast general suspicion on the honest, hard work of 600,000 people because of the mistakes made by only a few. Our team simply does not deserve that."

Now let's look at the role of large financial institutions in the origination and/or distribution of low-doc/no-doc/fake-doc subprime mortgages prior to the Great Recession.   Many of those loans were made to NINAs (borrowers with No Income/No Assets) then packaged into complex and toxic CDO (Collateralized Debt Obligation) securities with integrated or attached derivatives and then marketed to mostly institutional investor chumps.  It was like the Volkswagen "defeat device" deception and misconduct, except that Volkswagen's misconduct is unlikely to drag down the world economy.

While we've had dribs and drabs of muted individual apologies mentioned in passing during press interviews from the Captains of Finance in the major banking centers around the world, there has been no unified, publicly cathartic, apology from the major players involved.  Certainly none as definitive and forceful as that made by Volkswagen.

Instead, the Captains of Finance (and their lawyers) have chosen to fight a long, numbing war of attrition with their checkbooks, forcing regulators and injured customers to spend money and time to flush out their wrongdoings before they ultimately settle things out of court.  This behavior has been wittingly abetted by a U.S. Department of Justice which has held only a handful of small-fry individuals accountable and boasts not a single high-profile banker prosecution.

As the New York Times noted in a 2011 story:

"This stands in stark contrast to the failure of many savings and loan institutions in the late 1980s.  In the wake of that debacle, special government task forces referred 1,100 cases to prosecutors, resulting in more than 800 bank officials going to jail. Among the best-known: Charles H. Keating Jr., of Lincoln Savings and Loan in Arizona, and David Paul, of Centrust Bank in Florida."

Even former Federal Reserve Chairman Ben Bernanke has been recently critical:

  "...but it would have been my preference to have more investigation and individual action, since obviously everything that went wrong or was illegal was done by some individual, not by an abstract firm."

So all that brings me to a much more pleasant part of the discussion, a recent speech by Sabine Lautenschläger, Member of the Executive Board of the European Central Bank and Vice-Chair of the Supervisory Board of the Single Supervisory Mechanism.  The title of her September 28, 2015 speech was: Reintegrating the banking sector into society -- earning and reestablishing trust.

The speech is a must-read for anyone who has thought about this issue, as it presents an excellent analysis of the topic and a useful road-map of recommended actions for bankers (and regulators) to use, going forward, to help rebuild the trust of the public.

However, the effectiveness of these actions will fall well short of their potential in the absence of a critical prerequisite:  a public admission of prior misconduct; an apology to customers, shareholders, and the public; and a commitment to both make amends for the past misconduct and take steps to ensure that it doesn't happen again.

We won't be able to sweep away the lingering public suspicions and the empty feeling of incomplete justice without some kind of collective emotional closure on the painful and costly events of the past.  In other words, the parties involved still owe everyone a Volkswagen Moment.

Thursday, July 2, 2015

The Sacrifice of Virtue

Credit: Darren Walsh

On May 20, 2015, five multinational banks agreed to collectively pay roughly $5.6 billion in fines and penalties to regulators and law enforcement agencies in the United States and the United Kingdom.  Four of those banks (Citicorp, JPMorgan Chase & Co., Barclays PLC, and The Royal Bank of Scotland PLC) agreed to plead guilty to felony criminal charges of foreign exchange price manipulation between December 2007 and January 2013 (varies according to bank).  One bank, UBS AG pleaded guilty to wire fraud in relation to another matter, but was granted conditional immunity from the foreign exchange price manipulation charges because it was first to report it.  The banks also agreed to three years of corporate probation.

In keeping with the post-Enron C-suite tradition of using one's employees as human shields (by invoking memories of the 2002 demise of the public accounting firm Arthur Andersen) and by frightening regulators with hypothetical systemic apocalypse scenarios; these guilty pleas weren't even signed until the U.S. Securities and Exchange Commission (SEC) provided assurances that certain capital markets waivers would be granted to the banks involved.  Now, the U.S. Department of Labor is being heavily pressured to issue its own waiver as to whether these banks should be allowed to manage retirement accounts.

For the purposes of discussion, let's set aside the accountability that comes from government law enforcement and the inevitable follow-on civil litigation (as being one thing) and focus on our own collective behavior as consumers of financial services (as being another thing).

One would tend to think that in living rooms and in corporate boardrooms across the world, people would be reassessing their business relationships with financial services providers that fail to live up to our accepted standards of business ethics... one basic ethical standard being: not violating our criminal laws.

The American Bankers Association (ABA) stayed mum regarding this legal settlement.  Not a word of this in their Press Room and lists of public correspondence.  A policy of silence and disengagement was apparently chosen as the best way to handle family shame.

The energetic and feisty Independent Community Bankers of America (ICBA), on the other hand, sent this letter to U.S. financial regulators expressing sanctimonious outrage and declaring (once again) a regulatory double-standard in this legal settlement.

But surely, the virtuous members of both banking trade associations also scrambled to reassess any correspondent banking and vendor business relationships with the felon banks?

After all, would an employer hire a job applicant with a recent criminal record?  Would investors trust their personal wealth to a broker or financial advisor with a past criminal record?

Add to all that, the ample pool of alternative purchasing choices.  There are many law-abiding banks in the global marketplace that offer similar or identical financial services.

Sadly, you know the answer as well as I.

Scholars have done marketing research on topics like: Is information about whether a firm acts ethically an important consumer concern?  And, if so, will information about a firm's behavior influence their purchase decision?  You would think, in the abstract, that the answer would be an unequivocal "yes".

A research paper in the Journal of Consumer Marketing indicates that, except in the most egregious cases, "consumers do not wish to be inconvenienced, and ethical purchasing will only take place if there are no costs to the consumer in terms of added price, loss of quality, or having to 'shop around' " ...  "The depressing reality is that many ethical abuses can still continue to be carried out by companies without any negative impact on consumer buyer behavior."

I'm a little disappointed by our sacrifice of virtue, but we all get the point. However, there must be, after all, a ceiling (or is it a floor?) on corporate and individual consumers of financial services being numb and lethargic about business ethics?  Does our passivity also make us enablers?

An attorney once told me about a concept called "Does it pass the puke test?"... behavior so contemptible that it makes you want to throw up.  Apparently, at this juncture, we consumers of financial services have opted for living with a free-floating feeling of nausea about the behavior of bad players in the banking industry.  As the colloquial saying goes... we could taste it in our throats, but managed to keep it down.

In today's upside-down world of finance, federal law forbids a person with a criminal record, involving dishonesty or a breach of trust, to work for a bank (without a rare waiver from the FDIC); but, it's OK for a bank with a criminal record to work for us.

Thursday, June 4, 2015

FinCEN's Financial Drone Strike

Image result for "banco madrid"

While in Madrid, Spain a couple of weeks ago on other business, morbid curiosity drove me to pop on over to the city's highly affluent and chic Salamanca District to view (figuratively speaking) the smoldering remains of a U.S. financial drone strike.  As I got off the bus, I saw over there by the Hard Rock Cafe, tucked away in a corner off the Plaza de Colón, the head office of Banco de Madrid, SA.

A sad sight indeed.  As I walked over to the small plaza in front of the bank, there was evidence of the removal of the bank's large signage from the building's roof-line.  Gilded lettering, identifying the bank, had been pried off of blocks of granite in the pedestrian plaza, leaving just a faint outline of the bank's name where the harsh sun of the Castillan meseta was unable to bleach the stone.  Like a tombstone without an epitaph, the bank's name remained on the transom above the building's main entrance door.

In front of that main entrance stood a solitary security guard, shooing off inquiring passers-by while allowing other building tenants through the door.  Very few people came or went during the time I spent pondering and reflecting on this situation.

You see, Banco de Madrid (BdM) is a bank in liquidation.  Without advance warning, on March 10, 2015, the Financial Crimes Enforcement Network (FinCEN), an arm of the U.S. Treasury Department, fingered its parent company, Banca Privada d'Andorra (BPA), as a "foreign financial institution of primary money laundering concern" for abetting transnational organized crime in Russia and China, as well as corrupt officials in Venezuela.

Andorra, a tiny sovereign principality high in the Pyrenees mountains, has five banks.  BPA is one of them.  From 2009 to 2014, BPA was alleged to have provided assistance to third-party money launderers, "including professional gatekeepers such as attorneys and accountants", by laundering hundreds of millions of dollars through correspondent bank accounts at four U.S. banks.  In return, BPA's high-level managers accepted payments and other benefits from their criminal clients.

The same day of FinCEN's announcement, the National Andorran Finance Institute (INAF) decided to intervene BPA "to guarantee the continuity of its operations."  Andorran authorities also later arrested BPA's Chief Executive Officer on suspicion of money laundering.

Concurrently, the Bank of Spain also seized BPA's 100%-owned banking subsidiary in Spain - BdM.  Shortly thereafter, a crushing wave of funds withdrawals by customers left BdM unable to meet its obligations in a timely manner.  When Spanish authorities refused to bail out the bank, the bank filed for bankruptcy protection on March 16, 2015.

From a human perspective, there is no denying a degree of unfortunate collateral damage from FinCEN's financial drone strike as it impacted BdM's unsuspecting Spanish bank customers and bank employees who were not involved in aiding and abetting money laundering.  FinCEN noted that "BPA's activity of primary money laundering concern occurred largely through it's Andorra headquarters." FinCEN never mentioned BdM in its news release.

Fortunately, most of BdM's bank customer deposits were insured.  But for the estimated 500 clients with uninsured deposits, they get receivership IOUs.  Those bank employees who are unable to secure new jobs at other banks, will join the swollen ranks of Spain's unemployed.

The take-away?  FinCEN can exert brute force with a blunt instrument against any bank in the world.  It gives new meaning to the concept of "U.S. global force projection"... a term usually associated with our warriors at the Pentagon.

Unlike the genteel megabank check writing-for-wrongdoing exercises engaged in by other U.S. banking regulators, the long arm of U.S. law enforcement, as practiced by FinCEN in its PATRIOT Act Section 311 proceedings, ends in a tightly clenched fist, and sometimes a financial mushroom cloud.

So over there in the center of Madrid's Plaza de Colón, standing on a high marble pedestal, is a larger-than-life statue of Christopher Columbus gazing west towards the Americas.  Maybe he should also be scanning the horizon for FinCEN drones.

Wednesday, March 18, 2015

G-SIB Failures: Either Way, You Pay

Credit: Thierry Cheverney

I have been reading the public responses to the November 2014 Financial Stability Board (FSB) consultative document on "Adequacy of Loss-Absorbing Capacity of Global Systemically Important Banks in Resolution"   This consultative document frames the broad outlines of what will eventually constitute the international framework for the bank "bail-in" process.  A process meant to (hopefully) minimize the impact of a bank failure on financial stability, (hopefully) eliminate future bank bailouts by governments, and (hopefully) do away with the "too big to fail" concept.

In its most general sense, the idea of a "bail-in" is to have Global Systemically Important Banks (G-SIBs) maintain a layer of  Total Loss-Absorbing Capacity (TLAC)-eligible liabilities in an amount sufficient to convert (some or all) of the bank's obligations to unsecured and uninsured creditors into a confidence-inducing chunk of bank equity capital.  The debt-to-equity conversion would be triggered should the bank's existing shareholder's equity cushion be depleted by losses.  

Think of the G-SIBs as the supertankers of global banking and their skippers, our Captains of Finance.  Many years ago, changes were made to the structural integrity of our global fleet of petroleum supertankers.  Most of the fleet transitioned from single-hulled vessels to double-hulled vessels in the interest of greater public safety.

TLAC works in much the same way - the first hull (and line of defense) is shareholder capital, the second hull (and line of defense) are the monies owed to unsecured and uninsured creditors that can be converted to equity capital.

It's the intent of the FSB to identify a TLAC of sufficient thickness to help avoid a financial Exxon Valdez disaster - a supertanker that lacked a double-hull at the time of its grounding in Alaska in 1989.

The consultative document proposes a minimum TLAC requirement of approximately 16-20% of risk weighted assets and 6-8% of total assets or at least twice the Basel III leverage capital requirement, excluding any Tier 1 common equity used to meet any applicable capital buffer requirements.

The public responses, which come from banks, trade associations, academia, rating agencies, and others, are supportive of the "bail-in" idea in general, but differ on interpretations of the proper size of the TLAC cushion, eligible TLAC debt instruments, and the issue of pre-positioning TLAC  - both from a home country/host country perspective and from the perspectives of single point of entry (SPE) resolution and multiple point of entry (MPE) resolution.

There are two things that make me uneasy about the proposed bail-in regime.  One is the compartmentalized approach regarding bank insolvency and the other is this annoying hallelujah chorus that is proclaiming the end of costs to taxpayers by eliminating government bank bailouts of G-SIBs.

Bail-ins for G-SIB leviathans will likely shift the costs to taxpayers from one government expense bucket (targeted bank bailouts) to a different government expense bucket (economic stimulus programs).  Because of the immense size of the G-SIBs relative to any measures of GDP (country, regional, global), the losses sustained by a G-SIB failure will likely be destabilizing to real economies. When it comes to a G-SIB resolution, government pays, either way.

A compartmentalized approach

It is important to remember that banks can fail in two ways.  First, there is the classic equity insolvency.  Losses erode the shareholder capital of the bank until the point where government authorities trigger their on-the-shelf resolution plans and wind down the affairs of the bank.

The other bank failure vector is a liquidity insolvency.  A bank is unable to meet funding demands and the central bank (as lender-of-last resort) cannot continue to support the bank's liquidity due to lack of eligible collateral or it unilaterally decides to terminate lifeline funding to the bank.

TLAC deals with the classic equity insolvency.  It doesn't appear to me to deal with the potential of liquidity insolvency.  And most important, it doesn't discuss the calculus of the critical dynamic inter-relationships between capital and liquidity in times of financial stress.  Mandatory liquidity coverage ratios will buy time, but are not themselves a solution.

A key question: Will market participants lend funds (without asset pledges) to a "bailed-in" bank absent government guarantees, when there might be marketplace uncertainty about how deep the bank's capital hole really is?

In the fog of a financial crisis, transparency and truth are always the first casualties.  Information is incomplete, rumors abound, and it always takes some time for the second shoe to drop.  And like all rational players (who tend to prefer pleasure to pain), institutional funds providers, honoring their own fiduciary responsibilities, might just stand on the sidelines.

The paper obliquely hints at these difficulties, when the authors say:
"Resolution is not resurrection.  But nor is it insolvency: the institution or successor institution (e.g., bridge institution) has to meet at least the minimum conditions for authorization in order that supervisors may allow it to continue performing authorized activities, in particular critical functions.  Moreover, the reorganization or solvent wind-down that will be necessary following resolution may require a level of capitalization above that required by supervisors so that counterparties continue to trade with the resolved firm and provide funding to it."

Size Matters

Second, the hallelujah chorus ignores the implications of the total cost of a G-SIB failure.  It's not that living wills, the bankruptcy process, and orderly liquidation authority cannot wind-down one or more of any failing G-SIBs by bailing-in shareholders, unsecured creditors, and uninsured depositors.

But at the bail-in point, how large are the cumulative financial losses sustained by legacy shareholders and those now bailed-in?  And second, how will those cumulative financial losses be subsequently transmitted through the national and global real economies?

Remember the sub-prime Collateralized Debt Obligations (CDOs)?  Risk managers were patting each other on the back because they had sliced and diced these financial instruments and thought they had diversified away the risk by distributing the risk to thousands of investors all over the world.  So instead of a few big losers, the smaller distributed losses dragged down economies all over the globe. Sub-prime lending triggered, not only a recession, but this era's mother of all recessions - the Great Recession.

As a point of reference, a May 2012 working paper produced by the research department of the Federal Reserve Bank of Philadelphia pegs the damage (total write-downs) from sub-prime CDOs at $420 billion.

At year-end 2014, for example, the two most complex G-SIBs, JPMorgan Chase and HSBC Holdings, had total Tier 1 capital of $187 billion and $153 billion respectively.  Just pause and reflect for a moment on the size of these numbers.  These sizable Tier 1 capital numbers, when translated into potential bail-in-able dead-weight losses (not even considering the contagion/propagation effects of investor debt leverage) could, individually or collectively, induce recessions in the real economy.

To paraphrase Ross Perot, what you would likely hear "is the giant sucking sound" of aggregate economic demand dropping due to understandably defensive financial behaviors on the part of the injured legacy shareholders, the new bailed-in shareholders, and some portion of the now understandably frightened creditors in the G-SIB.

So either way, government pays for G-SIB failures.  In a bail-in, TLAC regime, government expenditures will likely be in the form of economic stimulus or rehabilitation programs instead of targeted bank bailouts.  Remember, the world has experimented with the bail-in concept during the banking crisis in Cyprus in 2013.  The deep scars from that country's economic upheaval have yet to heal.

It is the size of the cumulative loss to the bailed-in shareholders, creditors, and uninsured depositors that needs to be reduced in order to limit the impacts to the real economy of G-SIB failure.  That argues for less market share concentration in the market for banking services globally.  If we want to contain the economic damage from the failure of a G-SIB, and limit the costs to government, the smaller the all-in costs of G-SIB failure, the better.  Until G-SIBs get smaller, either way, government will pay.