GS statement

[lethean46]

Found at TMF BRK board:

 

>>>>>>>>>>>>>

 

It seems like there are a number of folks on the board that think that GS is guilty based on SEC charges. Here is the other side of the story.

 

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Goldman's full statement below:

 

Goldman Sachs Makes Further Comments on SEC Complaint

The Goldman Sachs Group, Inc. (NYSE: GS) said today: We are disappointed that the SEC would bring this action related to a single transaction in the face of an extensive record which establishes that the accusations are unfounded in law and fact.

 

We want to emphasize the following four critical points which were missing from the SEC's complaint.

 

*Goldman Sachs Lost Money On The Transaction. Goldman Sachs, itself, lost more than $90 million. Our fee was $15 million. We were subject to losses and we did not structure a portfolio that was designed to lose money.

 

*Extensive Disclosure Was Provided. IKB, a large German Bank and sophisticated CDO market participant and ACA Capital Management, the two investors, were provided extensive information about the underlying mortgage securities. The risk associated with the securities was known to these investors, who were among the most sophisticated mortgage investors in the world. These investors also understood that a synthetic CDO transaction necessarily included both a long and short side.

 

*ACA, the Largest Investor, Selected The Portfolio. The portfolio of mortgage backed securities in this investment was selected by an independent and experienced portfolio selection agent after a series of discussions, including with Paulson & Co., which were entirely typical of these types of transactions. ACA had the largest exposure to the transaction, investing $951 million. It had an obligation and every incentive to select appropriate securities.

 

*Goldman Sachs Never Represented to ACA That Paulson Was Going To Be A Long Investor. The SEC's complaint accuses the firm of fraud because it didn't disclose to one party of the transaction who was on the other side of that transaction. As normal business practice, market makers do not disclose the identities of a buyer to a seller and vice versa. Goldman Sachs never represented to ACA that Paulson was going to be a long investor.

 

Background

 

In 2006, Paulson & Co. indicated its interest in positioning itself for a decline in housing prices. The firm structured a synthetic CDO through which Paulson benefitted from a decline in the value of the underlying securities. Those on the other side of the transaction, IKB and ACA Capital Management, the portfolio selection agent, would benefit from an increase in the value of the securities. ACA had a long established track record as a CDO manager, having 26 separate transactions before the transaction. Goldman Sachs retained a significant residual long risk position in the transaction

 

IKB, ACA and Paulson all provided their input regarding the composition of the underlying securities. ACA ultimately and independently approved the selection of 90 Residential Mortgage Backed Securities, which it stood behind as the portfolio selection agent and the largest investor in the transaction.

 

The offering documents for the transaction included every underlying mortgage security. The offering documents for each of these RMBS in turn disclosed the various categories of information required by the SEC, including detailed information concerning the mortgages held by the trust that issued the RMBS.

 

Any investor losses result from the overall negative performance of the entire sector, not because of which particular securities ended in the reference portfolio or how they were selected.

 

The transaction was not created as a way for Goldman Sachs to short the subprime market. To the contrary, Goldman Sachs's substantial long position in the transaction lost money for the firm.

 

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>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

 

ML

 

[wiessman]

I thought the editorial in the WSJ this morning was revealing as well.  I'm not a Goldman homer but this is not the deal by which to tar and feather the supposed miscreants.  These were sophisticated investors who acted as principals on either side of the transaction.  The street likes to use the phrase "market makers."  Where I come from, market makers are nothing more than brokers who perform as instructed by principals on either side of the deal.  And job #1 when dealing with brokers is to recognize the following (perhaps cynical) truism - "How does one know a broker is lying?  Answer = his lips are moving."  It's not that simple, I know, but for crying out loud, these were very sophisticated people.

 

Goldman may have done some bad things but it didn't happen on this deal.  Looks like more prosecutorial excess in an attempt to fan the political flames.

 

Is there something I am missing?

[Guest ValueCarl]

Love him or hate him, agree or disagree, Wall Street veteran and maven, Bud Burrell, always offers interesting perspective or "COLOR" for investors and analysts to discern from. I shouldn't dare add to his prolific writing, but Senator, now President, Obama, was NOT MIA in the matter concerning those dubious government tools called Fannie and Freddie! For what it's worth, I love men who call DUCKS, DUCKS, when they see them! imo   

 

Date: Sun, 18 Apr 2010 20:59:07 -0700

 

The Sound Of Thunder, SEC Indictment of Goldman Rips US’ Very Economic Core

--From “Front and Center”, by Bud Burrell—

On Friday, April 16, the SEC announced the civil indictment of Goldman Sachs for securities fraud in the structuring and sale of collateralized debt obligations in connection with a $1 Billion offering of securities it sold in cooperation with the hedge fund Paulson and Company. The charges, which are alleged at this point, appear to be the product of a disgruntled Paulson employee becoming a whistleblower to the SEC, rolling on a mid-level trader at Goldman alleged to have been also involved in the fraud.

The allegations, which may change with the passage of time, are that Goldman executives worked with Paulson persons to construct a portfolio of debt obligations totaling $1 Billion, which was intended to fail from before its sale, and which was purportedly shorted while being structured and sold to buyers. This comes on the heels of industry rumors of similar behavior by Goldman in its sale of Greek Sovereign Debt, also while they hedged with short transactions including the purchase of Credit Default Swaps on Greek credit.

This charge comes at a peak in the market, and it was responsible for a $24 dollar drop in Goldman stock on Friday. This could not come at a worse time for our securities markets, both domestic and international institutional. What happened here to cause the SEC to listen to a single whistleblower, when they ignored Harry Markopolos for over 10 years? Could it have anything to do with the pending legislation on financial regulatory reform coming before the House and Senate beginning this week? Could it have anything to do with the SEC having less than pure motives, after a decade of it denying shorting manipulations of all securities were either existent or material?

Goldman Sachs has always been the financial Bentley of broker-dealers, the crème de la crème of the investment banking industry, a training ground for current and future directors of the Federal Reserve. Accusing Goldman of the kind of behavior that bankrupted Bear Stearns and Lehman Brothers slams a devastating blow to global investor confidence, and even the tone deaf SEC knows that. Would they sell out Goldman for some slimy political gain? No one thinks otherwise who has watched their behavior over the past two decades.

The sub-prime scandal that shattered our markets between 2007 and 2009 could be attributed to a relatively small number of the remaining major investment banking firms, working with corrupt US agencies which were fronted by sleazy originators of this paper. Fannie Mae and Freddie Mac led this ugly charge in which greed overwhelmed and buried proper fiduciary behavior, with the full support of key legislators in our Congress that included Chris Dodd and Barney Frank. Many were lulled into shocked silence as the sheer chutzpah of this fraud became known. This paralysis allowed many other related shorting frauds including abusive derivative practices in the out of control credit default swaps markets threatened the economy of the entire globe.

Where were our regulators on these scandals, ones that were openly discussed and written about for the last six years without break? The answer was that they were nowhere to be seen, ignoring far more than Harry Markopolos’ alarms on Bernard Madoff, allowing wholesale damage to be done to the markets of the World on a much larger scale than even Madoff ever dreamed of.

So why did they listen now to a single voice, when those of hundreds were discounted for decades? Could it be that they finally realized they were cutting their own throats at a credibility level? Could they have seen a golden, yet limited opportunity to give themselves some good press for the first time in the last ten years? Did they consider that doing this in the light might negatively impact an already impaired capital formation process to a crippling point? Do they even understand the implications of the charges they have made and not made for the last decade? Would they sell out America so their institution could survive and thrive?

If you don’t know the answers to these questions, you haven’t been paying attention. The capital formation processes of this country were supported on a level envied the world over, the result of intelligent laws and rule making following the 1929 Crash.  When I entered the securities industry in the early 1970’s, before the Gasoline and Petroleum crisis on 1974, the financial services industry was highly diverse, with more than 150 major broker dealers, and thousands of banks all over the country. Globalization had been a minor element of US activity, but it certainly did not dominate. ERISA was passed in 1974, setting up the first systematic savings programs in US history and creating the modern pension and investment management behemoth that remains the only hope of a Government gone mad economically. Today there are no more than six major national banks and about the same number of brokers, less Goldman if the suits threatened against them for securities fraud materialize.

US currency peaked in value in 1913, and by the early 1970’s, its value had declined versus other currencies by about 50%. It is now 37 years later, and what has happened to the United States on every level has but one set of causes: Profligate government spending and entitlement programs plunging the country into deep debt, grotesque corruption and incompetence on the part of regulators and legislators, decimation of the important Glass-Steagal Act, conflicts of interest between all players, and socialist inroads attacking the fundamental integrity of our system of Government and way of life.

While the dollar has declined another 43%, we have been involved in a series of wars we fight not to win but to end in a twisted draw, we have senselessly supported our most mortal enemies, and we have supported a New World Order without understanding that it is inherently against human nature.

Where does this all stop, and how? There are rational answers to the questions above, and they are about this country returning to the values of its founding fathers that are denigrated at every turn by progressives who think the Constitution was printed on biodegradable pink toilet paper. Those answers to the questions above only provide one set of outcomes, and you don’t have to be a rocket scientist to know what that means. Each and every American will be forced to stand up for what they believe this country stands for, and to overcome the opposition to us sticking to our moral values. No one gets to opt out or vote present in this coming battle. I do not fear conflict, but rather I fear what not facing problems will do to our way of life in this country. Those who don’t believe in American exceptionalism enough to dedicate all they have to preserving it, should not retain their citizenships or their rights in this country. We can build enough boats to send them to their preferred choice of countries. It has to be an up or down vote, and those who opt out genuinely OPT OUT.

 

[Myth465]

I thought the editorial in the WSJ this morning was revealing as well.  I'm not a Goldman homer but this is not the deal by which to tar and feather the supposed miscreants.  These were sophisticated investors who acted as principals on either side of the transaction.  The street likes to use the phrase "market makers."  Where I come from, market makers are nothing more than brokers who perform as instructed by principals on either side of the deal.  And job #1 when dealing with brokers is to recognize the following (perhaps cynical) truism - "How does one know a broker is lying?  Answer = his lips are moving."  It's not that simple, I know, but for crying out loud, these were very sophisticated people.

 

Goldman may have done some bad things but it didn't happen on this deal.  Looks like more prosecutorial excess in an attempt to fan the political flames.

 

Is there something I am missing?

 

I would say the only thing you are missing is the disclosure info to all parties. That alone is probably grounds for some sort of indictment.

 

----

 

I think the administration had a bit to do with the timing and that its a good political move. It has really disrupted the Republican plan of killing financial reform by saying the dems are pro big banks. Im surprised with how this has played. Everyone seems annoyed  with the big banks and few people seem to be on the side of Goldman.

[Parsad]

I don't feel sorry for the investors that lost money, since they put it at risk to begin with.  My problem is with disclosure and with the ethics of being an oversized Wall Street bookie!

 

Let me ask a simple question:

 

Goldman lost $90M on the deal with a $15M fee...how much did they make going short on these deals alongside Paulson between 2007 and 2009?

 

Here's an article I read back in 2007 that concerned me about the ethical dilemma Goldman found themselves in.  It wasn't an issue for anyone back then other than a handful of people.  Today they are involved in a huge civil suit by the Federal Government. 

 

The question asked in the article and the one I continue to ask today is "Why did Goldman continue to peddle CDOs to customers early this year (2007) while its own traders were betting that CDO values would fall?"

 

http://www.huffingtonpost.com/2007/12/14/how-goldman-won-big-on-mo_n_76888.html

 

Cheers!

[Myth465]

Parsad I think people will ignore the merits of your question and will focus on your link - The Huffington Post. Either way its a good question, and its one that hasnt been answered.

 

Why do CPAs and Attorneys have Fiduciary responsibilities to their clients but investment bankers dont? At the very least they should have made disclosures.

[wiessman]

I will state again that I'm not a Goldman homer.  But they play it both ways in all kinds of markets.  Different sides of the house can, will and do play the trade as a principal and/or play it as a broker - at the same time and on the same trade.  There's a law against that?  I read the offering memorandum and there are at least 10 pages of disclaimers.  Among sophisticated market players, I think the issue of disclosure is (or should be) an issue of reputational as opposed to regulatory risk as in "fool me once shame on me, fool me twice shame on you."  In other words, screw me and I'll never do business with you again. Do you really want the SEC to monitor this stuff?  In addition, why is the SEC filing suit instead of the supposedly put out client?

 

Having said all of that, if true fraud is involved, that's a separate matter and it obviously has to be prosecuted but I don't sense that is the case here.

 

The way to solve all this is to reinstate Glass-Stegall which isn't going to happen.

 

All my comments are offered in good faith - I'm not just trying to be argumentative.

[Myth465]

I think this is a backdoor to Glass Stegall honestly. Its meant to show the SEC has teeth, to make the investment bankers think about the types of business they write, and to let them know they cant do what they want. Its also to show the American people the importance of financial reform.

 

It looks like a way to get the investment banks to realize that playing both sides of the trade opens them up to liabilities. I think you can play both sides, but you need to disclose everything done. They should have disclosed there position, Paulson's intent, and who put together the portfolio in the prospectus.

 

Its like me acting as your buying agent and telling you to buy a car I know is shit that's owned by my Brother. I have some liability don't you think. Yes you screwed up by trusting another human, but Agents, Lawyers, Accountants, and even investment bankers personally cant screw over their clients in this manor legally. GS has several different departments doing all types of things, but I think it will be tough to prove that they all act independently without insider knowledge or info.

 

The US taxpayer lost the biggest pile of cash in this whole situation so I have no problem with the SEC looking into this. I also think they should review these transactions and prosecute when there is a lack of adequate disclosures.

 

Have you read a prospectus. It has everything under the sun regarding risks and disclosures. How could they not disclose that Paulson created these to short them somewhere in there.

[scorpioncapital]

This is disingenious at best. Are we to believe that if Paulson didn't recommend some of the bonds in this product, shorters of sub-prime (like Paulson) would have no product to short? That Paulson had some uncanny ability to create a product that was "superior" for shorting? GS's argument that the reference portfolio had the same performance characterisitcs as all the other ones is a good one. Do we really believe Paulson had some amazing ability in 2007 to select the best shortable portfolio? Basically, if this suit works out, we can say that no party can short a product it had some input into creating and if there is no product that exists that you want to short, you are not allowed to create it either!

 

 

[Myth465]

But no one is suing Paulson and few are really talking about suing him aside from a few talking heads on TV.

 

I think Paulson, his actions arent any different than Micheal Burry, or even Watsa (he didnt create the securities though).

[wiessman]

Myth - I can't disagree with the hypothetical - of course that's not right.  But I don't think the situations are similar.  We're talking about heavily traded markets among sophisticated investors where price discovery occurs constantly so to calibrate the views of buyers and sellers as to the constantly changing attractiveness of their positions vis a vis changing market conditions.  And the shorts are there to keep everyone honest as to euphoria.  Moreover, everyone understands the role of the broker, ie, GS - not that they will act fraudulently but that they can, will and do work both sides of the transaction.  Dual agency happens all the time if that's what the lawyers would call this.  ACA relied on the rating agencies - shame on them and they ought to be able to collect on that if the collateral is there.  I like Buffet's view on this - if you're sitting at the table and you don't know who the patsy is, guess what.  You're the patsy.

 

I just don't think fraud was involved and if it was ACA should be bringing the suit not the SEC.  I just loath the idea of some regulator trying to keep up with all of this to protect me - I would rather seek redress myself if I think I'm wronged.

 

Thanks for responding to my thoughts and I guess we'll see how this plays out.

[Myth465]

I see where you are coming from, and agree to some degree. The only problem is the we are all big boys argument doesn't have much sway when the taxpayers eventually have to foot the bill. If AIG failed and didn't pay up to Goldman and Goldman eventually failed due to their open positions on everyone and everyone elses open positions, then that would work. But AIG was bailed out by the taxpayers which basically bailed out all the other banks.

 

The banks and government have to make a decision - more rules or no government support (full receivership if you screw up), or a bit of both. I and most Americans are probably fine with any of those 3 options, but the parties involved want the status-quo. They want implied support and want to be left alone when they are making cash. Right now its heads I win, and if I lose the tax payers bail us out situation wont work. Now post bailout non of the banks are ok with any rules to prevent this type of action. If things go south they will effectively again have the economy / government hostage again.

 

Letting them fail sounds good, but I dont see too many Fed Heads / Treasury Secretaries having the balls to do that. Here is a good non sensationalized interview on the situation thus far. I look forward to the update which should come out in 2 or so days.

 

http://www.charlierose.com/view/content/10969

 

You can act as a dual agent, but it is tricky and requires significant disclosures. It seems like the SEC is saying those disclosures were missing here. - This is for real estate, but I am sure brokers have similar requirements.

 

Dual agents have a responsibility to both the buyer and the seller, and must disclose the relationship to all interested parties. A dual agent cannot disclose to the seller what the buyer is willing to pay and cannot disclose to the buyer what the seller is willing to take. Dual agents must disclose all known material defects.

 

Also keep in mind that this market is completely black. These are derivatives contracts and I don't think they are of the exchange traded variety. Also no one is arguing against shorting, only a lack of disclosure. Prem made me some good money shorting and I cant fault him for that.

 

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It will be interesting to watch the fallout. Goldman may be fighting for the long term viability of their firm.

 

On Monday, the case reverberated around the world. Financial regulators in London and Germany said they would open investigations to see if Goldman's sale of mortgage securities broke local laws.

 

Goldman's domestic legal troubles could be compounded abroad as foreign regulators open probes into the investment. London's Financial Services Authority and Germany's BaFin regulatory agency said Monday that they were coordinating with the SEC. The Royal Bank of Scotland lost an estimated $850 million and the Duesseldorf-based IKB Deutsche-Industriebank lost more than $100 million on mortgage-related securities set up by Goldman. [story, A7.]

[txlaw]

Wiessman, for what it's worth, I've made a somewhat detailed argument against Goldman in another thread.  Not sure if you've taken a look at it.  See http://cornerofberkshireandfairfax.ca/forum/index.php?topic=2254" data-ipsquote-contentclass="forums_Topic" 18533;topicseen#msg18533.

 

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It is important to understand that this is not your typical financial asset transaction with a "market maker" or "broker" in between.  As I understand it, the traditional definition of a "market maker" is an intermediary that quotes a bid and offer on a financial asset for the buyer and seller and makes money off a spread.  The market maker makes no representations regarding the quality or characteristics of the financial asset. 

 

Goldman is analogizing their involvement in the transaction at issue to that of a broker or market maker.  But in reality they were underwriting a new issue of fixed income securities, and they issued marketing material making certain representations about these securities.  That seems to be more than just playing the market maker.  Furthermore, in the real world even people we call brokers (real estate brokers, for example) often have a legal duty not to make misrepresentations or omit certain material facts about the transactions they are involved with.

 

When Goldman made certain representations about these CDO securities in their marketing materials, they omitted info that may or may not have been material -- that Paulson & Co was involved in selecting the underlying reference portfolio for the synthetic CDO.  If this info was material, then it should have been disclosed.  However, whether Goldman had the requisite mental state in failing to disclose this info will be  harder to prove.  The emails certainly make it seem that they knew or should have known they were acting deceptively by failing to disclose Paulson & Co's involvement.  But I don't know what the necessary mental state is in SEC suits of this nature.

 

Note that the synthetic CDO investors were not on the long side of a derivative contract.  Synthetic CDOS are made up of pools of derivative contracts (credit default swaps written on mortgage backed securities) combined with other fixed income assets (treasuries, I believe) in a way that is intended to simulate a cash CDO.  In other words, synthetic CDOs are supposed to be viewed as economically equivalent to cash CDOs, which are structured products that have pools of mortgage backed securities (MBS) as their underlying collateral.   

 

Now imagine that we were just talking about a cash CDO, that American Capital Assurance (ACA) as Collateral Manager had selected the MBSs for the CDO, and that ACA had also agreed to guarantee payments on the senior bonds sold to investors.  Would you not say that the Collateral Manager's incentives were aligned with the investors' in selecting the MBSs since it would have to pay up in the event of default?

 

I certainly would.  It would be incredibly stupid for a financial guarantor acting as Collateral Manager not to select the collateral it guaranteed in a way that would minimize default.  Therefore, as a prospective purchaser, I would take ACA's involvement as Collateral Manager into account before making my ultimate decision on whether or not to buy the CDO securities. 

 

As a prospective purchaser, I would also definitely want to know if the Collateral Manager was being influenced by a hedge fund manager who was praying that the selected collateral would eventually be worthless.

 

Therein lies the problem.  ACA's involvement in selecting the reference portfolio was held out to prospective buyers.  Paulson & Co's involvement was never disclosed.

 

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It now makes sense to me why when the Wall Street investment bankers were called before Congress, Lloyd Blankfein made what then seemed like a very insensitive argument about merely being an intermediary between sophisticated investors.  At the time, I thought Blankfein was being foolhardy.  However, I now believe that he was setting up Goldman's argument for the SEC suit that they saw coming down the pipeline.  Say what you will about Lloyd Blankfein, but he's definitely fighting tooth and nail for his company.

 

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Okay, I promise not to write any more about the SEC suit against Goldman.  I'm sure people are getting tired of my rather long posts.

 

[Rabbitisrich]

Txlaw, ACA possessed the right incentives for a CDO manager and it also carried the appropriate background for the job. As such, Goldman Sachs fairly marketed ACA as the final vetting agent. Any grey areas concerning the quality of information received by ACA were not in GS's purview; the Abacus owners would have assumed that ACA would properly weight such information. Even if Paulson brought insane assets to the mix, if you trust ACA, then you assume that ACA would evaluate the assets independently. 

 

Holding GS responsible for a lack of disclosure is akin to holding them responsible for not disclosing that a very stupid guy advised ACA on some very stupid bonds. The relevant information is ACA's role, and the investors should have based their decisions accordingly.

[SharperDingaan]

 

Underlying this entire suite is the inherent conflict of interest between the different sides of the same deal. ... and the SEC getting a conviction against the most conflicted player in the land, will prove it in modern times.

 

Thereafter the logical outcome is to seperate the underwriting, brokerage, & house account trading functions into different `pillars`each under its regulatory regimes; force each pillar to hold the relevant capital needed, & restrict the % of cross-functional ownership that an entity can have. The gorillas break up into smaller pieces, the pillars are easier to control, & we`ll have market driven consolidation into fewer & healthier firms.

 

Glass-Steagall is not coming back, as it isn`t good enough ... but the idea is almost certainly about to get updated.     

 

SD

[txlaw]

 

Underlying this entire suite is the inherent conflict of interest between the different sides of the same deal. ... and the SEC getting a conviction against the most conflicted player in the land, will prove it in modern times.

 

Thereafter the logical outcome is to seperate the underwriting, brokerage, & house account trading functions into different `pillars`each under its regulatory regimes; force each pillar to hold the relevant capital needed, & restrict the % of cross-functional ownership that an entity can have. The gorillas break up into smaller pieces, the pillars are easier to control, & we`ll have market driven consolidation into fewer & healthier firms.

 

Glass-Steagall is not coming back, as it isn`t good enough ... but the idea is almost certainly about to get updated.       

 

SD

 

Totally agreed!

[txlaw]

Txlaw, ACA possessed the right incentives for a CDO manager and it also carried the appropriate background for the job. As such, Goldman Sachs fairly marketed ACA as the final vetting agent. Any grey areas concerning the quality of information received by ACA were not in GS's purview; the Abacus owners would have assumed that ACA would properly weight such information. Even if Paulson brought insane assets to the mix, if you trust ACA, then you assume that ACA would evaluate the assets independently. 

 

Holding GS responsible for a lack of disclosure is akin to holding them responsible for not disclosing that a very stupid guy advised ACA on some very stupid bonds. The relevant information is ACA's role, and the investors should have based their decisions accordingly.

 

Rabbitisrich, your argument is the most sound argument against finding Goldman liable that I've heard so far on the board.  The other arguments are just rehashes of Goldman's PR/attorney propaganda.

 

The salient question is whether the info about Paulson's involvement was material enough to be disclosed and whether Goldman should have known to disclose it.  You believe that this was not material or that it's too close to call (in the grey area).  That is a legitimate stance on the issue.

[scorpioncapital]

But Goldman itself was the majority shorter of the 25 abacus deals before this one. I'm not sure what the ethical ramifications are, but whether Paulson selected 50% of the securities in this particular deal or not, would have made no difference, as all these so-called model portfolios lost most of their value. The idea that a disclosure would have caused ACA, which was the lead investor to can the deal is weird, considering they are the ones that went with Paulson's selections!

[wiessman]

Txlaw,

 

Thanks for the reference to your other posts which I had not seen.

 

FWIW, I appreciate your long posts - I think I always learn something