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Scenes From The Ninth Circle Of Financial Bureaucracy

We've been poring over the report -- hit piece? -- on the SEC issued today by the Government Accountability Office, and we're starting to understand why Hank Paulson wanted to shut the place down and put all those "enforcers" out of their Kafkaesque misery. The agency got more tips from FINRA -- the financial industry's self-regulator -- than it had the resources to pursue, it lost 11.5% of its lawyers since 2004, and the staff lacked in-house expertise on pretty much all the fancy financial instruments without which we would not have this crisis (in addition to "government securities" which seems a bit sad, the SEC being a division of the government). The agency's revenues were in a downward spiral, with corporate penalties falling 39% in fiscal year 2006, only to fall another 48% in 2007, only to fall another 49% last year.

But as the Columbo-eseque foil for a cabal of deep-pocketed financiers with $87,000 rugs in an absurdist Office Space comedy about how the crisis happened, the SEC as depicted in the GAO report is ideal. We excerpted some of our favorite bits:

Investigators spend half their days moving boxes and waiting in line at Kinko's:

Investigative attorneys with whom we spoke concurred that having little or no administrative or paralegal support causes them to spend considerable time on non-legal duties such as copying, filing, document-scanning, preparing exhibits, making travel arrangements, soliciting bids for court reporters, and logging and processing documents submitted by respondents. For example, one attorney told us such duties can take 2 to 3 hours daily. Another, who joined the agency from private practice, said that investigative attorneys can spend up to half their time on tasks handled by support staff in their previous position. One attorney told us of plans to spend a day assembling document storage boxes. Because there is insufficient in-house copying capability, confidential documents sometimes are sent to non-secure outside copy shops. Frequent equipment breakdowns mean attorneys must search for working copiers and scanners, a number of attorneys told us.
And 40% of their time drafting internal memos:
Some attorneys estimated that they spend as much as a third to 40 percent of their time on the internal review process, thus making it harder to meet the division's emphasis on bringing cases on a timely basis. A number of attorneys told us that the effect of the intensive review process is to create a culture of risk aversion, an atmosphere of fear or insecurity, or incentives to drop cases or narrow their scope. In one instance, an attorney closed a case rather than go through a review with another division. In two other cases, charges were dropped or reduced because the matters had taken so long that people were unable to recall earlier considerations of evidence. In another situation, it took 2 1/2 months to prepare a paragraph requesting permission to send a Wells notice; in another case, staff prepared multiple drafts of a Wells memo over 3 years before finally closing the case because it was so old. Finally, one investigative attorney told us that a company under investigation offered to pay whatever penalty amount Enforcement asked; 5 months later, the matter still remained open, with an action memorandum in its tenth draft. Some attorneys noted that such delays may encourage violators.
Nice use of understatement!

Once all those internal memos are completed, they have almost no value internally because the system is run on a proprietary case tracking system that is incompatible with all their other computer systems (which are all incompatible with one another) and which no one bothers to update or fix when it's broken, both because their old information technology contractors no longer work there and because it is, in the staffers' own words, "severely limited and virtually unusable." Plus:
While downloading of information from computer hard drives has become a basic evidentiary technique, some investigative attorneys told us there can be lengthy delays for information technology support staff to retrieve the contents from hard drives obtained during an investigation. For example, one attorney told us about a case in active litigation in which Enforcement had to seek an extension of time for discovery because after 6 months, only two of a number of hard drives had been downloaded.
And:
Some investigative attorneys suggested that Enforcement would benefit from a divisionwide system for sharing information, such as litigation documents or legal analyses...
And yeah, those Bloomberg terminals are pricey, but this sounds like it could be a problem.
Several attorneys said that another significant shortcoming is that the investigative staff does not have access to real-time trading information...Currently, when attorneys need such information, they manually query hundreds of broker-dealers, a process that initially produces only incomplete records. Or, they might request data from a regulated entity such as FINRA.
But once you surmount all those little battles, is when the real fun stuff begins:
An attorney told us that a company confessed and was willing to pay the penalty sought, but it still took more than six months to complete the settlement because the commissioners lacked consensus. Another attorney told us that a company agreed to a settlement, announced it publicly, and escrowed money for the payment, but the matter took a year to win Commission approval. One attorney cited a case that went on and off the Commission's meeting agenda eight times...Several Enforcement attorneys told us that even when they presented cases in which a corporation had agreed to pay a penalty, the Commission might lower or eliminate the amount. One attorney described a case in which a company proposed a settlement with a higher penalty than was approved by the Commission, which required the attorney to return to the company and explain that the Commission wanted a lower amount. Another described a case in which the Commission halved a proposed penalty. Yet another described having conducted the required nine-factor analysis, and arriving at a proposed penalty range of $10 million to $35 million.
And you knew there'd be catchy jargon to describe this process:
As described by one attorney, investigative staff sought to identify the "maximum minimum amount" the Commission will approve.
And this might go some way to explaining why the agency chose the most cataclysmic year in financial history to go after billionaire Mark Cuban for an $800,000 insider trading case:
One attorney said there has been relatively more focus on modest cases like small Ponzi schemes, insider trading, and day trading, because such cases were thought to stand a better chance of winning Commission approval, compared to more difficult and time-consuming cases like financial fraud.


25 Comments

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There is ominously little talk about regulation of the financial markets now.

The game plan : re-inflate the financial bubble and get the game fired back up the way it was before we went in the ditch.

To pretend everything is fine because stocks are rallying is not going to work for our Republic. It will make fortunes for a small number of traders and financiers.

The guys that made all the trouble are being rewarded with Treasury money, borrowed from China, handed out in staggering heaps.

Without new laws the same guys will pull worse stunts to make off with even more money that the Treasury would have to borrow.


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I'll tell you what's even sadder. I'm the second commenter on this story.

Chris Cox is far and away the worst Chairman of the SEC in it's 75 year history. There is enough on him to ruin him personally and professionally. He is chiefly responsible for the largest and most destructive asset bubble in American history. This clown belongs in jail.

And yet, because "Big Money" is involved, it takes a GAO report to bring a tenth of a ray of sunshine to his malfeasance. No surprise whatsoever that the report took six months after the destruction of the bubble. You can bet the last dollar in your 401(k) that this story will have zero traction in the media.

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You are right to be alarmed, colleague ...

The Treasury is not only empty, its credit line is tapped out for a great deal of the future ... and not many Americans are aware of this fact.

I was in a taxi with a Somali driver, chatting about the financial crisis ... he asked me how much was in the Treasury - I told him it is empty, more or less, that the money has to be borrowed - he was startled and looked at me in the mirror, the way people do when they are alarmed ... I think he believed me but was trying to fathom the idea ...

Folks : you were ROBBED and there is not a damn thing being done about it.

Why are people not making an uproar ?

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But the SEC has a nice shiny new building behind Union Station, with a lovely law library, lovely leather furniture and soaring architecture. Are you saying all for naught?

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1st, let me say that I am an ignorant smuck as far as to the financial institutions in this country.
BUT, I do know that the system has to change and somehow the government has to be convinced that the system has to change. The CEOs, CFOs, officers and management of these various institutions have never shown any remorse for their actions, only that they got caught. The few apologies I heard, rang about as true as a rubber ball. Hedge funds seem to be nothing more than legal ponzi schemes. The bush admin has repeatedly trashed or de-fanged every agency that had any real regulatory powers over business. That includes the sec.
It is so frustrating to hear year after year promises for cleaning up corrupt government, only to have corrupt government rear its ugly head year after year.

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This definitely qualifies for a "heckuva job, Brownie".

(I know TPM has made awards before; do you think you could make a pot brownie with heckuva job in pink icing to be awarded for governmental incompetence?)

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This was NOT the result of Governmental incompetence. It was an intentional and deliberate transfer of wealth from ordinary Americans to the already fabulously rich.

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I agree. Intentional transfer of wealth.

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The deliberate understaffing could have been a result of Cox's incompetence.
I have my doubts, preferring to believe he was in collusion.

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What we should do (in my opinion) is pay off campaign contributers by giving them cushy jobs they are not qualified for, but which done improperly, could devastate the common folks of this nation as well as the entire financial structure of the world... then allow these same folk to play without oversight, accountability or rules....

Then, when it comes to a head, blame everyone else, let the victims pay the consequences, and ensure no laws preventing this in the future are passed...

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My understanding is that fines go into the general fund, not into the SEC and although these are often levied, there is little follow up to see if the fines are paid. The consequences for criminal activity are limited. First the bad boys and girls have to be caught.. this is a sieve where a few get caught, then the SEC either dinks around with a case until the statute of limitations runs out or the case is dropped, with a few high profile cases being brought for PR, and then the fines are not collected.

The report is no surprise. Cox should have been lobbying Congress for more funds, but instead threw a monkeywrench into the Enforcement Division by insisting that the Commission review everything. He spent his time on updating some computer programs and hamstrung the agency.

The most positive thing that has happened at the SEC was the hiring of the latest IG, but the mentality of the agency is such that they scoff at his suggestions.

The agency is a a revolving door for Wall Street and part of the career path for security defense lawyers.

This video from deepcapture delves into what appears to be a cover up of the fraud because the enforcers know that if the truth got out, nobody would invest in the markets. http://www.deepcapture.com/naked-short-selling-redefining-systemic-risk/

The SEC is window dressing and gives the appearance of regulation. It was originally designed to restore confidence in the market. Initially, Cox went around the world calling the SEC "the gold standard" of enforcement. That certainly was a confidence game. It would be better to have no SEC rather than the pretense of enforcement. At least people would have a true picture of how little protection of the market place exists and would not be taken in by the pretense.

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Thanks for that link.

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Whatever government oversight of the markets remained intact after 30 years of deregulation became moot by staffing its chief enforcement apparatus with Michael Palin and Eric Idle, under direction of John Cleese's Minister of Silly Walks. This would be hilarious Sept. 14. Now, it's painful. Sad, even. But the anger is there, too. Growing. And it will explode. Nothing can stop it now.

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Shorter version of the report: the SEC was working exactly the way that the GOP wanted it to.

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Link at GAO to the report http://www.gao.gov/new.items/d09613t.pdf

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As a member of the Chicago Board Options Exchange for three decades, I can confirm that everything you say about the SEC is absolutely true. Their sole mission is to stifle investigation into, and competition against, the NYSE and its member firms. Anyone who invests in the stock market or financial instruments believing that the SEC has his or her back deserves to lose all of their money

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Here is some nonfinancial expertise advice for the wise amongst you.

1) If the stock markets rise above 8000 and stay on an upward path, look out for another truly devestating crash within four years. Why, answer this then. From the year 1900 to 2000, how many years did the market take to break the 2000 mark?
ANSWER: Eighty seven, 1986 is when after the S&L scandle junk bonds became the fad, and legal though prior to that the laws implimented in the 1930's had made them illegal along with derivatives.

2) If new regulation is not enacted prior to October of this year it won't ever be, because markets will be "adjusting" and the excuse to leave things the way they are now is that "the markets are too fragile and volitile to risk harsh undue rule changes (meaning the rich didn't get enough and need more).

3) The "change" we were promised was only a change of faces without any real reform. Think I am being harsh? Let's see torturers are allowed to escape prosecution, there has been no change in domestic survielance laws, health care reform is in the hands of the Senate Finance Committee which only allows it's lobbyist "experts" to testify regarding health care reform. I could go on but I would I am sure far exceed word length for comments. Show me the change please?

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The most egregious example of criminal neglect by the SEC: September 10, 2001 - Near the close of trading on the CBOE, huge orders to buy puts, (a bet that the stock will go down,) came into the United Airlines trading crowd. I worked on the trading floor long enough to know that it is relatively easy to trace an order back to the customer. To my knowledge, this has never been pursued by the SEC, despite the fact that these orders telegraphed the attacks the next day. This is not an obscure case, and the money lost is irrelevant in relation to the fact that so many lost their lives. This is a smoking gun. Where the f**k is the SEC on this?

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You are right - the airline ( United and American ) puts trades have never been explained to the public.

The brokerage that handled the trades is known : Alex. Brown; now owned by Deutsche Bank.

Someone made about five million dollars on these trades.

I wonder who ?

A link - for what it is worth :

http://www.fromthewilderness.com/free/ww3/10_09_01_krongard.html

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Funny that you and I know this, but the SEC doesn't. But then, that's the point of this article! Somebody, somewhere has to get to the truth of this. Where's the justice for the three thousand dead and their families?

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Alot of people have been aware of the pre-9/11 put options for a very long time. It's really appalling that we still don't have an answer, and likely never will.

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Here's another example for your list: The SEC was investigating Dick Cheney at Halliburton before he chose himself as vice president. He got out of one job where he was being investigated and into another where he could stay one step ahead of the investigators. And that was all pre-9/11. Where did that investigation lead?

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The options activity pre 911 was much more widespread than I was aware of. A good link:

http://911research.wtc7.net/sept11/stockputs.html

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SEC is not to blame.
At least not entirely.
A proper follow through of blame in the story should follow the money. In this case, the money that was repeatedly denied to SEC for doing its job. Hobbled by budget cuts in a time when financial engineering made the job significantly more difficult, the blame lies with the Republican Congress for turning a deaf ear to funding needs of SEC.
Throughout W. Bush's administration, the SEC worked without a full committe of commisioners. And it's no surprise that the Republican dominated commisioners committe during this time repeatedly reduced fines on companies.
It will take years for this country to recover from the war on Government that Republicans have carried out for the past ten years.

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Past TEN years, ha! Reagan's "I'm from the Government.." quote was delivered May 28, 1986. Twenty Three years ago, but Republicans started tearing things apart long before that.

It'll take many decades to fix what they've destroyed. All for the sake of money and power.

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