Regulatory Risk Abounds!
The witch-hunt widens on Wall Street.
The US Department of Justice recently asked hedge fund managers who attended an idea dinner hosted by a boutique broker to document the bets they placed against the Euro, which was one of the 23 themes discussed when they gathered on February 8th.
Ideations are commonplace on Wall Street and thought provocation provides utility when navigating the increasingly complex financial landscape. It's not dramatically different than Minyanville offering our annual themes, or brokers projecting price targets for the mainstay indices; the friction between opinions is where true education resides. See also, Ten Themes for 2010.
Policymakers were swift to respond to the suspected collusion. That same week, the SEC announced they were examining "potential abuse and destabilizing effects" related to the use of Credit Default Swaps. European officials also launched an investigation, with some regulators lobbying for the "fastest possible" implementation of new rules.
I'm not here to defend hedge funds, nor do I believe proper regulatory reform has been achieved following the financial crisis. As a card-carrying capitalist, I'm a buyer of free markets, a seller of obtuse intervention and a believer that those who abuse the system should be held accountable. While desperate times facilitate desperate measures, however, perspective is paramount as we pave the path for future generations.
In 2007, Minyanville opined that that if a Financial Accounting Standards Board could single-handedly sink the entire capital market construct, we must question the stability of the system itself. The same can be said of sovereign defaults -- if a handful of hedge funds can bring nations to their knees, more pervasive issues invariably loom beneath the seemingly calm financial surface.
The request by the Department of Justice speaks volumes about the social mood surrounding free-market capitalism. In this age of Great Divide -- Wall Street vs. Main Street, Red States vs. Blue States, "Have's" vs. "Have Not's" -- it's easy to point fingers and place blame but questions surround the unintended consequences of a regulatory revolt. See also, The Declaration of Interdependence.
The Swap Meet
We recently drew the parallel between the financial crisis that engulfed Bear Stearns (JPM), Fannie Mae (FNM), Freddie Mac (FRE), AIG (AIG) and Lehman Brothers and the emerging risk that sovereign defaults could follow a familiar script of contagion. See A Five-Step Guide to Contagion.
Credit Default Swaps are akin to insurance, although they're not regulated as such; the buyer pays a premium for the right to receive money should a particular credit event occur. In the case of sovereign swaps, the buyer cashes in if a government defaults on a bond payment. Widening spreads indicate a higher likelihood of default while tightening spreads suggest a narrowing probability. As perception vacillates, spreads adjust.
There are a few overlapping dynamics in play, which is why this juncture is particularly tricky. There's the reality that European contagion could manifest despite the austerity measures currently being adopted. While Greece bought itself some time with last week's €5 billion 10-year bond auction, their public debt is roughly €300 billion, with €53 billion due this year -- and €20 billion due by the end of May.
Juxtapose those obligations against the massive counter-party risk in a finance-based global economy tied together with upwards of $500 trillion dollars in notional derivatives and it becomes clear why the European Union is attempting to create an IMF-style bailout fund, which they hope will take shape by midyear.
Let's assume policymakers learned from the first phase of the financial crisis, that they'll be proactive rather than reactive in their efforts to snuff out the next fuse of contagion. Those measures will likely be centered around sweeping regulatory reform of the vehicles that are used to make bets on the outcome they're so desperately trying to avoid.
One potential "solution" is to suspend Credit Default Swaps as speculative vehicles and allow only the institutions that hold the underlying bonds to use them to hedge their holdings. If such regulation is adopted, the knee-jerk reaction could be a "melt-up" in the marketplace, much like we initially witnessed in September 2008 when short sales in the financials were banned. See Martial Law for the Markets.
Given the quest for global financial stability, such legislation wouldn't be a shocker; it would, however, be far from a panacea for a few reasons. First, the chasm between a prolonged political process and the dynamic markets creates implementation risk. Let's remember, capitalism almost flat-lined before a panic-induced plan was finally voted into place.
Second, there will be unforeseen unintended consequences for our intertwined financial world. In addition to the mechanical shifts -- the ever-changing process of shorting stocks, the re-pricing of put premiums and the repositioning of risk -- casualties of war will invariably be linked to other institutions.
Finally, credit default swaps were not the root cause of the financial crisis. While they make for an easy mark -- and to be fair, exacerbate the volatility of the underlying vehicles -- they're not the problem, in and of themselves. This regulation, should it come to pass, will buy time and effect price but it won't alter the prognosis for the global economic condition.
The cumulative imbalances have been building for many years and the true source of stress -- untenable debt, excessive leverage, wildfire derivatives and reactive policies -- won't magically disappear with the wave of a regulatory wand. True medicine that cures the disease -- as opposed to synthetic drugs that mask the symptoms -- will only arrive when we swallow the bitter pill of debt destruction. See also Anatomy of a Recession.
To be sure, a new sheriff should step into the Wild West of CDS; there needs to be a semblance of order, a monitored process and a regulated procedure. A coordinated initiative to reign in speculative bets will achieve the desired near-term outcome but it has profound implications for the future of free markets, or the traditional definition thereof.
The options being weighed are in many cases a choice between the least of many evils. Given the destination we arrive at pales in comparison to the path we take to get there, bulls and bears alike would be wise to respect the potential effect of this sweeping regulatory reform.
Todd Harrison is the founder and Chief Executive Officer of Minyanville. Prior to his current role, Mr. Harrison was President and head trader at a $400 million dollar New York-based hedge fund. Todd welcomes your comments and/or feedback at firstname.lastname@example.org.
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