On “Too Difficult to Resolve”

Yves Smith quotes Robert Johnson explaining why a resolution authority will fail when “too big to fail” financial institutions are wrapped in a web of complex derivatives.  He calls these unresolvable institutions “too difficult to resolve”:

Yet opaque, complex entangled derivatives exposures would serve to deter the authorities from invoking those powers [granted by the resolution authority] and taking over a failing institution for fear of setting off a system wide calamity of magnitudes that policy officials can dread but not understand or estimate. Complex entanglements through derivatives exposures discourage government officials who are the risk managers on behalf of the citizens of our nation from invoking and using those powers. The spider web of complex opaque derivatives renders enhanced resolution powers impotent.

It is in this respect that complex and opaque derivatives exposures at large financial institutions contributed mightily to a policy of induced forbearance, as we witnessed in the first quarter of 2009. That experience, as we have seen, was very demoralizing to our citizens who have put their faith in philosophies that emphasize the use of markets as a mechanism for achieving social goals. The inhibitions that authorities experience in applying market discipline to large financial institutions and their managements tend to undermine belief in the use of markets.

What makes induced forbearance of TDTR institutions even more troubling is that their potential creditors would understand that they will not have their debts restructured when government officials are deterred by complex derivative exposures from taking a TDTR institution into receivership and restructuring the entity. …

While there is no question that derivatives make the resolution process more difficult, standard procedure (that is, the rules for FDIC receivership) gives regulators a powerful tool:  They have the right to move the failed institution’s derivative portfolio — or a portion of the derivatives portfolio as long as each portfolio that relates to a specific counterparty is kept intact — to another institution or bridge bank.

I commented on this issue over at Naked  Capitalism and I think I overstated the degree to which Yves is correct that derivatives make resolution very difficult. Yves explained her view that the transfer of the portfolio will not work in a comment:

You can’t just “move them [the derivatives] over.” They trade in relationship to cash markets, and most are hedged dynamically, meaning positions are adjusted several times a day. And the derivatives are used to manage risks in the cash books. Banks and financial firms would have to sell a simply enormous amount of cash positions if they could not lay off risks via derivatives.

This would be like trying to remove someone’s colon using a hacksaw with no anesthesia.

You’d need a bigger balance sheet than that of all the banks (ie, this becomes the biggest commitment of the central bank). You also need people to manage the positions, the trading tools, and the computer infrastructure to manage and monitor positions.

As long as regulators prepare carefully, they can deal with all three of these issues.  First, clearly they need to build the structure for the bridge bank which will handle the derivatives well before they have a bank to resolve.  This is a challenge, but hardly insurmountable.  Secondly, they will need to develop  criteria for determining what derivatives the bridge bank will sell to the resolved bank to replace the derivative hedges that have been stripped by the portfolio transfer.  Thirdly, the resolution authority will need to provide temporary liquidity — possibly in the form of a DIP loan — to give the regulators and the resolved bank time to work through all the issues that are sure to arise in such a procedure.

Would the process be complicated and awkward?  Absolutely.  But that’s not the question we need to answer.  The real issue is:  Would it be better than simply handing out money to insolvent private institutions?  Rob Johnson is concerned that our regulators won’t use the resolution process, even when it’s available to them.  I, on the other hand, think that once the authority has been passed, public opinion will force regulators to use the resolution authority.

Think of how much better AIG could have been handled with a resolution authority in place.  Counterparties who did not buy poorly capitalized CDO protection from AIG could have had their contracts transferred into a bridge bank.  Then when AIG defaulted on its derivative liabilities only those who faced dramatic losses would have had the right to terminate their contracts.  For domestic institutions, any bank that was insolvent after the AIG losses would be put through resolution itself.  Foreign institutions would be a political matter and might well be addressed by government to government transfers.

Alternatively in an environment where it was clear that all the major derivative dealers were insolvent (which was arguably the case in Fall 2008), a single bridge bank could be used to resolve all the dealers simultaneously, creating a central counterparty for derivative contracts in one fell swoop and flattening out a lot of the complexity in the market.   Once again the problem of liabilities to foreign institutions would have to be dealt with via political channels.

Despite the fact that I think that a resolution authority is a good idea and is essential to help address current financial problems, Rob Johnson makes an important point in calling for “a drastic simplification of derivative exposures”.  I think everyone can agree that the best option would be a financial system where a resolution authority is not needed.

The best way to create a financial system which would not use a resolution authority even after it was enacted is to follow the recommendations made in this series of posts:

(i) Prohibit large financial entities from posting collateral on over the counter derivatives.  Eliminating the reliance on collateral in interbank transactions will force financial institutions to evaluate the credit risk of their counterparties.  Healthy concern for credit risk would do wonders to reduce “interconnectedness” in financial markets.
(ii) Repeal the repo related amendments to the bankruptcy code that were passed in 2005.  Eliminating illiquid assets from the repo trade is the best way to put an end to the type of interbank bank run that took down Bear Stearns and Lehman Brothers.

CDS and systemic risk

As GoldmanSachs’ outstanding earnings and bonus plans ricochet through the news, one refrain is heard repeatedly:  Even though Goldman received more than $10 billion via the government’s bailout of AIG, Goldman did not need the money because it was “fully hedged”.

This is really a perfect illustration of how credit default swaps create systemic risk.  Goldman Sachs has effectively taken the position that it doesn’t matter whether or not AIG (or any other counterparty) is creditworthy — as long as it can find another counterparty who is willing to sell Goldman CDS protection against the event that AIG defaults.

In a world where financial institutions have perfect judgment, this system could not create systemic risk.  In a world, however, with management failures and inattentive or inexperienced traders it is highly likely that someone will be willing to sell too much default insurance on the AIGs of this world.

When a firm like Goldman Sachs — which is generally reputed to have the best risk management on Wall Street — is willing to extend tens of billions of dollars of credit to firms that are not creditworthy on the principle that it is protected by insurance, then the financial system has lost its strongest bulwark against systemic risk.  We need the Goldman Sachs of this world to use their judgment to reject large-scale trades with firms that are likely to default.

I think that most people would agree that there’s not much hope that the financial world can eradicate incompetent and short-sighted traders.  It is precisely for this reason that systemic risk is created when the few financial firms that are well managed act on the theory that it is possible for them to buy insurance against credit risk.

Does Goldman Sachs really believe that, if AIG had gone through bankruptcy court, its counterparties would have been in a position to compensate Goldman for its losses?

Why wasn’t a resolution authority an integral part of TARP?

Remember that the TARP proposal was made after the first rescue of AIG.  It was clear at this time that the real problem in the economy was the fact that regulators did not have the authority to manage a controlled resolution of firms like AIG (i.e. of non-bank financial institutions).  I can understand that regulators would need a big line of cash to aid them in resolving the AIGs of this world, but I can’t understand how the cash is useful – even today – without the legal authority to perform the resolution.

Some might say that the reason that a resolution authority wasn’t included in TARP was that nobody thought it would be necessary before AIG and things were simply happening too fast to create a proposal of that magnitude on the fly.  There’s a huge problem with this argument:  Bear Stearns.  After Bear Stearns’ sudden collapse in March, one of the first priorities should have been to draft a resolution authority for taking over a firm in a similar situation.

Thus, the question remains:  Why didn’t Hank Paulson insist that Congress create an authority to resolve insolvent non-bank financial institutions in September 2008?

Also of note Tim Ryan, CEO of SIFMA, in a FT commentary titled “Wall Street is a willing partner in financial reform” carefully omits support for the one tool that would make it possible for the government to get the too big to fail problem under control.  The message the financial industry seems to be broadcasting loud and clear is this:  we’ll submit to more regulation, but we really, really don’t want to ever have to face the consequences of competing in a real free market environment.