Everyone also knows that some of the key culprits behind this financial mess were the credit-rating firms like Standard & Poor’s and Moody’s Investors Service, which assigned top-tier “AAA” ratings to investments that were actually backed by subprime mortgages and other toxic debt.

Whether it was collusion or incompetence almost didn’t matter: The firms claimed that the credit ratings they issued were constitutionally protected free speech. With this First Amendment shield, S&P, Moody’s and others said they were protected from lawsuits or other liabilities.

But that’s about to change.

A federal court judge in New York last week stripped the ratings firms of that defense, a decision that could expose the companies to billions of dollars worth of liabilities from investors who were burned by the faulty ratings.

Let’s legal case involved three specific firms – two firms that rated collateralized debt securities, and an investment bank that sold the debt. Those three companies were:

• Standard & Poor’s, which is owned by The McGraw-Hill Cos. Inc. (NYSE: MHP).
• The Moody’s Investor’s Service unit of Moody’s Corp. (NYSE: MCO), which is 19% owned by Warren Buffett’s Berkshire Hathaway Inc. (NYSE: BRK.A, BRK.B).
• And Morgan Stanley (NYSE: MS).

This particular case had been brought against Moody’s and S&P by Abu Dhabi Commercial Bank PJSC and Washington State’s King County. The case involved losses suffered from an investment in a structured investment vehicle (SIV) called Cheyne Finance. Although the debt securities Cheyne issued were backed in part by subprime mortgages, they received ratings as high as “AAA.”

In return for the high rating, the companies received higher-than-normal fees.

The $5.86 billion Cheyne Finance SIV went bankrupt in August 2007. The plaintiffs claimed fraud. The suit is seeking class-action status on behalf of investors who were burned when Cheyne was forced to dump securities it had issued between October 2004 and October 2007.

Since lawyers for the plaintiffs say the ruling could be applied to any deal involving SIVs, it could have a substantive impact. Before the financial crisis caused the value of these asset pools to plummet, experts estimate there were $350 billion to $400 billion worth of SIVs in existence.

“There certainly will be other cases filed – that’s the future impact of this decision,” San Diego attorney Patrick Daniels told The Wall Street Journal.

Moody’s and S&P had sought a dismissal, citing their First Amendment protections. But U.S. District Court Judge Shira Scheindlin ruled on Sept. 2 that securities ratings that were distributed to a small group of investors don’t warrant the same First Amendment protections that are afforded to the widely circulated ratings of corporate bonds.

Judge Scheindlin acknowledged that ratings constituting “matters of public concern” are typically protected from liability. That’s especially true when the ratings are distributed to the general public. But it wasn’t the case here.

“Where a ratings agency has disseminated their ratings to a select group of investors rather than to the public at large, the ratings agency is not afforded the same protection,” Judge Scheindlin ruled.

The ruling will likely be appealed. And it could end up in front of the U.S. Supreme Court.

The case spotlights the biggest problem with the business of rating securities: The ratings firms are paid by the issuers to rate them.

When you get right down to it, ratings firms are in business not to rate but to make money for themselves by rating issuers and their securities. The surprise isn’t that the obvious lack of objectivity fostered abuses in the credit-rating process – it’s that the problem took so long to come to a head. The complexity of mortgage-backed securities (MBS), collateralized mortgage obligations (CMOs) and collateralized debt obligations (CDOs) only exacerbated the investor risk.

The decision received widespread media attention. But it’s only half the story.

And the media missed the other half.

In an ironic twist that transforms the credit-rating firms into legal sacrificial lambs, the U.S. Securities and Exchange Commission (SEC) has in recent weeks acknowledged its own failure to protect the public from the same ratings firms that the federal agency mandates that investors rely upon.

This admission – combined with the legal assault on the constitutional protections ratings firms are used to hiding behind – could threaten the ratings firms’ very existence. It not only will further fuel investor ire, it could also provide litigants with additional needed legal ammunition. The ratings involve tens of billions – if not hundreds of billions – of dollars of failed securities.

A series of internal reviews by the SEC – one reaching back to last year – has highlighted some of the abuses.

About a year ago – in July 2008, to be exact – the SEC concluded a 10-month examination of the ratings industry that uncovered “poor disclosure practices and procedures guiding the analysis of mortgage-related debt and insufficient attention paid to managing conflicts of interest.”

According to the report, there was an obvious degree of knowledge and complicity in playing the ratings game.

E-mail exchanges between analysts at “unnamed” ratings firms back this up. In one, an analyst said the firm’s ratings model didn’t capture “half” of the deal’s risk, but said that the security “could be structured by cows and we would rate it.” In a Dec. 15, 2006 missive, a manager wrote that the ratings industry was creating “[an] even bigger monster – the CDO market.”

Confided the manager: “Let’s hope we are all wealthy and retired by the time this house of cards falters.”

In July of this year, in testimony to Congress, SEC Chairwoman Mary Shapiro said she supported proposals to impose liability standards that would make it easier for investors to sue credit ratings firms. That’s a bit ironic given that the SEC is charged with supervising the ratings firms.

According to the internal investigation conducted by the Office of Inspector General, the SEC failed to exercise its duties as the nation’s watchdog of the same credit ratings firms that many large investors are forced to trust.

By law, certain investors must rely on the ratings of a handful of companies, known as  “Nationally Recognized Statistical Rating Organizations,” or NRSROs. In many cases, the NRSROs determine what are “eligible” or “appropriate” investments. And it’s the SEC that determines who is, or who can be, an NRSRO.

For instance, most state insurance regulators say that insurance companies can only invest in assets that carry one of the top four credit ratings. And it’s the NRSROs that certify those ratings.

Similarly, money-market funds can only invest in the highest NRSRO-rated securities.

Countless institutions – public and private, domestic and international – rely on rules that determine what assets are acceptable investments. And that acceptability is determined by financial due diligence and the resulting credit ratings – as determined by SEC-certified rating agencies.

It’s not clear that any of this is really protecting investors, according to a Feb. 15, 2008 “Review & Outlook” piece in The Journal. Drexel University Finance Prof. Joseph Mason took a look at CDOs that were “Baa” (an investment grade rating) by Moody’s. His finding: They were 10 times more likely to default than equivalently rated corporate bonds.

In that same article, an S&P spokesperson was asked if they actually examined the mortgage debt that made up the investment pools that make up a CDO.

The spokesperson’s answer was not confidence-inspiring: “We are not auditors; we are not accounting firms.”

Source: The Credit Rating Firms Are Running Scared – It’s About Time

Source: Investment News Briefs Thursday, July 9, 2009

“The bank has raised the possibility that there is a danger that somebody who knew how to use this program could use it to manipulate markets in unfair ways,”

Of course, Goldman isn’t the only group out there using high-frequency program trading. If Goldman’s code could manipulate the market, couldn’t other codes do the same? Of course they could. And here’s what the SEC had to say about it…

The Securities and Exchange Commission believes institutional money managers are “sophisticated” enough to trade against the machines without further regulation.

“We don’t want to curtail liquidity,” said Gene Gohlke, associate director for the SEC. Gohlke said it’s up to the managers themselves to make sure other traders aren’t manipulating their models.

The SEC, tasked with preventing market manipulation from destroying the retail investor, is turning a blind eye to what’s happening in the market in the name of “liquidity”.

What bastards.

During the entire market fall the SEC has given the appearance of actually caring about you and me. They banned short selling and are on the verge of reinstating the uptick rule.
But that’s not where the money is. The money is in program trading. Program trading alone could move the markets far more easily than a few short sales.

Of course, the members of the SEC don’t have you and I buying them box seats to the Yankees games or bottles of Dom just for being “nice”. The loyalty of the SEC has already been bought by those with money – institutions like Government Sachs.

We like to give issues of The 5 a theme once in a while. You might recall our “commodity issue” last week or “the everyman’s issue” earlier this month. We’ve got a theme for you today, but it doesn’t exactly roll of the tongue. Oh well, it needs to happen:

Welcome to a “hot-button issues we can no longer avoid” edition of The 5 Min. Forecast.
First up, climate change. We’d love nothing more than to leave this debate to Al Gore and Wall Street Journal editorialists. And for the most part, we will. But as you know, the House passed their climate change bill late Friday, and the entire energy industry is targeted for reform. Here’s the rundown in case you didn’t get to read its 1,200 pages — as all of our representatives in Washington surely did:

• Greenhouse gasses must be cut 17% by 2020 and 80% by 2050. Emissions from factories, power plants, refineries and energy distributors will make up most of the cut. The infamous cow fart emission cap was taken out
• A cap-and-trade system will cut these emissions. The government will issue a limited number of 1-ton permits each year, which companies will have to obtain if they wish to emit greenhouse gasses. Each year, the government will issue fewer permits. Thus, companies will have to clean up operations, use more green alternatives or invest money in “offset projects” — like a paper mill planting more trees
• 12% of power from electric utility companies must be from renewable resources by 2020
• New office buildings must be 30% more efficient by 2012
• The Congressional Budget Office expects the current rendition of this bill to cost U.S. households $175 a year. We’ve heard alternative estimates as high as $2,000.

“Rome is burning,” says our energy man Byron King. “Well, maybe not. This could alter our culture’s use of the metaphor. Burning Rome? Sorry, not without your carbon permit.

“After a millennium of merely tossing sticks and logs into burn pits, the Industrial Revolution was when mankind finally figured out how to use ancient forms of stored energy — coal, oil and natural gas — to build and maintain a vast manufacturing economy. In consequence of the carbon-fuelled revolution in productivity, the earth went from a population of about a billion, to near seven billion today.

“And now, per the House bill, our government has started on the way to reversing THAT Industrial Revolution. The new Big Idea is that there will be another, ‘carbon neutral’ Industrial Revolution, based on harnessing solar, wind and geothermal energy. Carbon is sooooo 20th century. Carbon neutral is the new black.

“The House legislation is 1,200 pages of special deals and giveaways, grafted onto a Soviet-style 40-Year Plan. (I should note that even the Soviets, for all their ambitions, worked in 5-year plans.) Cap and trade will be the largest tax increase in U.S. history. It’s the triumph of the tax raisers, central planners and controllers, and an arrow into the chest cavity of free market capitalism.

“So with higher energy costs throughout the economy, plus an immense new level of state control over economic activity, can the U.S. — at least as we know it — make the transition to that mythical carbon-neutral energy economy? My hunch is no. Cap and trade will breed more problems, which will lead to more taxes and even more regulations. There’s never just one cockroach. And while we live through the consequences of what’s going to happen, there will be a lot of misallocation of resources throughout the economy.

“I hope your subscription is current to Outstanding Investments, because that’s where I’ll be showing you how to invest your way around the consequences of our national hubris.”
Oil futures haven’t been fazed by the climate change bill.After all, it still needs to slither its way through the slimy halls of the Senate. Oil’s up $2 today, to $71 a barrel.
Unrest in Iran could accelerate a global energy breakthrough, reports our tech analyst Patrick Cox. We’ve been avoiding Iran’s issues lately as well. While fascinating, and certainly dynamic, it’s just not our beat… or so we thought:

“The central tension in the Iranian situation is the nuclear issue,” Patrick tells us. “That country’s autocracy is dead set on getting nuclear capabilities — and not without reason. Iran does need nuclear energy to promote economic growth. Contrary to popular wisdom, the country’s petroleum is not a good source of electrical power.

“The problem, of course, is that the technology being pursued by Iran can also be used to create nuclear weapons. This, naturally, worries a lot of people who fear the regime’s threats to destroy both Israel and America might actually lead to war. Many Iranians, in fact, are unhappy about the nuclear plans of the country’s rulers. Israel and Iran’s Sunni Arab neighbors are also plainly anxious.

“Iran’s relationships with the rest of the world would be an order of magnitude less stressful if it were not producing weaponizable fuels. This is why my sources tell me that thorium is enjoying a significant increase in interest lately. As we’ve discussed, thorium is not only a superior nuclear fuel from the technical and economic perspectives, but it solves the proliferation problem because it produces no waste products useful in weapons.

“Like every other sector, energy development has taken a big hit during this downturn… Ultimately, I believe, the superior nuclear technology will win out. In some ways, the financial meltdown has made pragmatism even more important than it was when tax revenues were flowing far more freely.”

Want to learn about Patrick’s favorite thorium play, along with the rest of his breakthrough technology picks? Check out Breakthrough Technology Alert.
“Iran has a bigger place in the global economy than most people know,” adds Chris Mayer

“The first thing that I don’t think many people appreciate is how big the country is. The population of Iran is 66 million. That makes it the 19th most populous country on the planet — more populous than France, the U.K., Italy and South Korea. Iran is in the top 10 in terms of contributing to population growth.

“Economically, Iran is an important link in the New Silk Road, that growing trade relationship between Asia and the Middle East. Iran is a big market for Asian exports. Take a look the next chart, which shows the sharp growth in trade:

“Iran has plenty of oil and gas, which it exports to pay for Asian imports of cars, clothes and other goods. Increasingly, Iran is turning to Asia for these goods, rather than Europe.

“Iran is the third largest supplier of crude oil to China. It makes up 12% of China’s total annual oil consumption. As Ilan Berman notes in a recent issue of the Far Eastern Economic Review: ‘Iran has become an engine of Chinese economic growth, and an indispensable part of Beijing’s energy plans.’

“No surprise that China will help Iran finance its $3.2 billion expansion of its mammoth South Pars natural gas field. I am sure the Chinese are watching what happens in Iran with great interest. It makes for a complicated political situation.”
The world’s rank and file of millionaires are in for quite a shake-up. Here’s some takeaways from our latest read: The 2009 World Wealth Report, by Merrill Lynch and Capgemini.

First, the number of global millionaires fell at a record rate in 2008, led by North Americans. The credit crisis wiped out 15% of the world’s millionaire population, now at just 8.6 million “high net worth individuals (HNWI),” as Merrill puts it. The total worth of the world’s wealthy fell about $7 trillion last year, to $32.8 trillion.

North America was the greatest victim of 2008, shedding 600,000 millionaires and roughly $2.8 trillion in HNWI wealth. Of course, we’re still at the top… but for how long? Check out this chart:

We should hedge this chart a bit: First, it’s from Merrill Lynch… need we say more? They use some rosy projections for global economic and market recovery for the next few years. Expecting the coffers of HNWI to grow at an annualized rate of 8.1% over the next four years is the same kind of Ivy League MBA thinking that caused Merrill’s collapse and subsequent fire sale to Bank of America.

That being said, we wouldn’t be surprised if their forecast comes true. Simple ratios alone make an Asian takeover seem inevitable: One out of every 195 North Americans are millionaires. Only one in about 1,700 Asians can say the same.

(This would be one of many reasons we’re burning the midnight oil on a BRIC report, just for you… stay tuned.)
Five banks failed this weekend, bringing the 2009 running total to 45. The five failures this weekend cost the FDIC another $264 million.

And what’s up with Georgia? Two of the weekend’s failures were there, bringing the Peach State up to 14 for the year — the most of any state. We’ve been told the lending market in Atlanta was hit exceptionally hard by the housing bust… if you’re from the area, let us know what’s going on.
Stocks are cautiously rising today after their first weekly loss since early May. The S&P 500 fell 2.6% last week, but as we write, it’s up about 1%.
The dollar index is right were we left it on Friday, just under 80.
Another sign of the times: Warren Buffett’s annual charity lunch sold Friday for 20% less than 2008’s price. Last year, a Chinese fund manager proudly bought the lunch for $2.1 million. This year, a currently anonymous Buffett disciple picked it up for $1.68 million.
No economic data to speak of today, but the next three days of this shortened trading week are jampacked with juicy numbers. We’ll see new consumer confidence and Case/Shiller home price index details tomorrow. Then there’s ADP’s employment count, construction spending, the ISM manufacturing index, pending home sales and auto sales on Wednesday. Then Thursday — the infamous Labor Department jobs report, where the unemployment rate is expected to reach 9.6%.

All interesting stuff… stick around — we’ll keep you in the loop.
Last today, one more issue we love to avoid: Bernie Madoff. He was sentenced to 150 years in jail today. CNBC spent most of their morning debating whether the 71-year-old should get 25, 50, 100 or 150 years in prison and recounting the sob stories of his victims… those fools whose mothers never told them, “Don’t put all your eggs in one basket.”

Our take: Why not park the cameras outside the SEC, instead of the ninth-floor courtroom in lower Manhattan? Where’s the outrage toward a government arm that scams us all — our tax dollars in exchange for financial security… the kind that routinely arrives too little, too late. Not only is there no blood in streets in front of the SEC, but they’re on track to get more funding… crazy.

Source: The Hot Button Issue: Climate Change, Iran, Madoff and More!

• The U.S. Federal Reserve has opted to hold the federal funds rate at 0% to .25% and “continues to anticipate that economic conditions are likely to warrant exceptionally low levels of the federal funds rate for an extended period,” the central bank said in a statement yesterday (Wednesday). Information the Fed received since its last meeting in April suggests “the pace of economic contraction is slowing. Conditions in financial markets have generally improved in recent months.”

• As unemployment in the United States is expected to keep rising, the world’s largest economy may need another stimulus package, billionaire Warren Buffett said in a Bloomberg Televisioninterview. “It looks like we’re going to need more medicine, not less,” Buffett said. “We’re going to have more unemployment. The recovery really hasn’t got going.” Buffett, who like many economists sees the unemployment rate surpassing 10%, said the economy “hasn’t turned yet. There’s no telling how long it will take. It will happen.”

• The Methodist University Hospital Transplant Institute in Memphis, Tenn. confirmed a weekend Wall Street Journal reportthat said Apple Inc. (Nasdaq: AAPL) Chief Executive Officer Steve Jobs had a liver transplant. The confirmation came with the permission of Jobs, who has an “excellent prognosis.” The hospital did not say when the transplant took place, but The Journal puts the procedure at sometime in April, citing an unnamed source. Billionaire investor and Berkshire Hathaway Inc. (NYSE: BRK.A,BRK.B) Chairman and Chief Executive Officer Warren Buffett weighed in on the controversy on whether Jobs should have revealed his condition to investors in an interview with CNBC: “If I have any serious illness, or something coming up of an important nature, an operation or anything like that, I think the thing to do is just tell the American public, the Berkshire shareholders about it. I work for ‘em. Some people might think I’m important to the company. Certainly Steve Jobs is important to Apple. So it’s a material fact.”

• Although gas prices are significantly lower than they were at this time last year, fewer Americans will be traveling on July Fourth weekend, according to a survey by AAA. The auto club expects 37.1 million travelers, or 12% of the U.S. population to take a trip of 50 miles or more from home this year, a decrease of 1.9% from last year and a 12% decrease from 2007, months before the recession began. Factors such as the rising unemployment rate and sagging personal incomes are to blame for the drop in travel, AAA said.

• The world’s largest seed maker suffered a 14% drop in profit and disclosed plans to cut 900 jobs, blaming the deteriorating performance of its mainstay revenue source. Monsanto Co.(NYSE: MON) reported a net income of $694 million, or $1.25 per diluted share on revenue of $3.1 billion for the third quarter. That compares to a net income of $811 million, or $1.45 per share on revenue of $3.5 billion in the same quarter last year. Executives were not expecting a drop in performance of the herbicide Roundup, once a primary revenue source for the company. Several generic products hurt the prices for Roundup and profit on the product is expected to drop by half this year, Monsanto said. Shares for the company closed yesterday (Wednesday) at 76.16, down 3.9%.

• The Securities and Exchange Commission (SEC) voted unanimously to institute tough new rules for money market funds to help avoid a repeat of what happened when the collapse of the Reserve Primary Fund triggered a flurry of redemptions in the $3.6 trillion market. The proposal will prohibit money market funds from buying illiquid securities and requiring them to hold at least 5% in liquid securities such as cash. “These proposals are designed to increase the ability of money market funds to weather future economic storms,” said SEC Chairman Mary Schapiro. “The stability of money market funds in times of turmoil is enormously important both for investors and for the securities markets. The proposals also would improve the operations of money market funds and oversight of their investments during calmer times, which can further protect funds and increase public awareness of potential risks.”

• The worst recession in 60 years has taken its toll on everyone, including the millionaire’s club. According to a report from Merrill Lynch Global Wealth Management and consulting firm Capgemini, the number of people with assets of between $1 million and $30 million fell by 14.9%, BusinessWeek reported. The drop in millionaires represents the largest decline in the report’s 13-year history, said Ileana van der Linde, a principal with Capgemini. “We’ve never seen such a decline in all the years we’ve been doing the report,” she said. The recession has now reduced the cumulative wealth of the world’s millionaires by 19.5% to $32.8 trillion.

Source: Investment News Briefs Thursday, June 25, 2009

• In spite of tense geopolitical situations in the Middle East, light sweet crude for July delivery yesterday (Monday) fell $2.62, or 3.8%, to settle at $66.93 a barrel on the New York Mercantile Exchange (NYMEX). Large and violent protests in Iran over the outcome of its recent election would normally raise concerns about supply disruptions and drive up the price of oil. Instead, the market is looking past this tense backdrop in the world’s No. 4 oil producer because of a large supply worldwide, Alaron Trading energy analyst Phil Flynn told CNN Money.

• The Securities and Exchange Commission (SEC) charged a brokerage firm and several individuals with raising money from investors to feed Bernie Madoff’s Ponzi scheme. Cohmad Securities Corp., its chairman Maurice Cohn, Chief Operating Officer Marcia Cohn and representative Robert Jaffe have all been charged with securities fraud, CNN Money reports. The Cohns and Jaffe allegedly courted investors for Madoff’s grand scheme, which may get Madoff up to 150 years in prison and $170 billion in restitution.

• The chief executive officer and president of the world’s largest third-party video game publisher fired a shot over Sony Corp.’s (NYSE: SNE) bow, taking the electronics giant to task over the high price of its PlayStation 3 console and going as far to say his company may pull its support if a price drop doesn’t happen soon. Activision Blizzard Inc.’s (Nasdaq: ATVI) Bobby Kotick said his company paid Sony $500 million in royalties and other goods last year, according to the Times Online. “They have to cut the price, because if they don’t, the attach rates [the ratio of games purchased to a console] are likely to slow. If we are being realistic, we might have to stop supporting Sony,” Kotick said. “When we look at 2010 and 2011, we might want to consider if we support the console – and the [PlayStation Portable] too.” Activision is the company responsible for the some of the sector’s largest franchises including “Guitar Hero,” “Call of Duty” and the “Tony Hawk” series of skateboarding games. A loss of support from Activision would be a huge blow for Sony’s gaming arm, which lost $597 million last year. Sony’s PlayStation 3 is currently third in a three-horse video game race behind Nintendo Co. Ltd.’s (ADR OTC: NTDOY) Wii and Microsoft Corp.’s (Nasdaq: MSFT) Xbox 360.

• In a sign that may show investors have let their guard down, technology stocks have significantly outperformed the broader market, according to MarketWatch.com. Since its March low, the tech-heavy Nasdaq Composite Index is up more than 40% and nearly 13% for the year. “Technology tends to be a leader in the early stages of an economic turn.,” said Marc Pado, U.S. market strategist at Cantor Fitzgerald. “That’s what we look for as confirmation of a sustainable rally — money rotating into a sector that historically is seen as consumer- and business-sensitive, and requiring more leverage in terms of borrowed money, because it is more sensitive to the economy.” Still, Nasdaq’s notorious volatility was on display yesterday (Monday), as it fell 3.35%, more than both the Dow Jones Industrial Average and the Standard & Poor’s 500 Index.

• Restructuring costs and merchandise markdowns contributed toWalgreen Co.’s (NYSE: WAG) declining profit, which fell by 8.7% in the quarter ended May 31. The drugstore chain reported a net income of $522 million, or 53 cents per share on $16.2 billion in revenue. That compares to a net income of $572 million, or 58 cents per share on revenues of $15 billion in the same period last year. Wall Street was expecting Walgreens to earn 56 cents per share. The company’s shares closed at $29.64 yesterday (Monday), down 5.7%.

• Ford Motor Co. (NYSE: F) and General Motors’ (OTC: GMGMQ) Chevrolet division are close to eliminating a long-criticized quality gap with Toyota Motor Corp. (ADR NYSE: TM), according a closely watched J.D. Power and Associates survey. The top three spots in the survey went to luxury brands, while Chevrolet, Ford and Toyota were in what amounted to a statistical dead heat further down in the rankings, Reuters reported. “Have the leading domestic nameplates caught up with Toyota? The answer is almost,” Dave Sargent, vice president for auto research at J.D. Power said. Toyota’s Lexus brand took the top spot, while Porsche and GM’s Cadillac were Nos. 2 and 3 respectively.

Source: Investment News Briefs Tuesday, June 23, 2009

The truth is that U.S. regulators believed the American public couldn’t handle the truth that what had been allowed to happen, on their watch, was actually happening.

Unfortunately, we now face the same situation with credit default swaps, a derivative security that has the ability to destroy otherwise healthy companies with the virulence of a full-blown plague.

Until the American public understands this, and forces the government to take action, the odds of a repeat performance of what we refer to as the global financial crisis remain very high.

This is not an “Origin of the Species” seminal epic. Rather, it is a short story about the failure of evolutionists to recognize that, while creationism actually starts somewhere, it is actually the failure of regulators to evolve as institutions and markets change that makes monkeys of us all.

Let’s start by looking at the Federal Housing Finance Authority (FHFA), the current regulator of Fannie Mae (NYSE: FNM) and Freddie Mac (NYSE: FRE), two players who were central to the start of the U.S. housing crisis, which became the contagion that grew into a full-blown global crisis.

It’s bad enough that the regulators who came before the FHFA were inept, but what is happening now under the FHFA is far worse, and actually has the potential to exacerbate a crisis that most taxpayers believe is being resolved.

For more than six months, the U.S. Justice Department and the Securities and Exchange Commission (SEC) have been investigating the accounting practices of the two mortgage behemoths. And now the FBI has gotten into the act. It seems that, not long ago, the FHFA hired renowned investigative firm Kroll Inc. [One of the powerful, one-named, spook-like firms – not unlike Blackwater Security Consulting – Kroll is a unit of New York-based insurance powerhouse and “risk advisor” Marsh & McLennan Cos. Inc. (NYSE: MMC)].

Kroll’s confidential report to the FHFA concluded that “inappropriate application” of accounting rules “enabled Freddie to defer billions of dollars of losses incurred from 2001 through 2004.” The source of those losses, according to a Wall Street Journal article, was derivative contracts based on interest-rate swaps.

What’s the big deal you ask? While it’s no surprise that Freddie used an inappropriate set of rules – known as “hedge accounting” – to stretch out losses over several years, rather than just take immediate hits to its profit-and-loss statement, what is frightening is that the FHFA, after hiring Kroll and uncovering the accounting inaccuracies, said it had decided “not to take issue with the accounting,” the Journal reported.

The FHFA labeled it as a “disagreement among the experts.” Call it what you want, but I call it fraud.

Here’s the problem. Fannie and Freddie are incredibly “fragile” right now (the correct financial term is probably “insolvent”). That means that the very two institutions being used by government to halt the catastrophic slide of the U.S. housing industry are so crucial to the bailout of the mortgage industry that to force these two institutions to write off more losses would only spook the financial markets even further.

As large as Freddie and Fannie are in the U.S. housing and mortgage markets, even their combined portfolio value – estimated at about $13 trillion – is dwarfed by an exponentially larger and even more insidious monster running over regulators like they’re not there. I’m talking about the $40 trillion stranglehold that the credit default swap market has on corporations all around the world.

Credit default swaps brought insurance giant American International Group Inc. (NYSE: AIG) to its knees. It was also one of the key catalysts that helped transform a housing bubble into a full-blown global financial crisis.

But here’s the rub: After all that, credit default swaps still aren’t regulated.

Of course that doesn’t mean that regulators don’t try and insert a hand here and there, it just means that the hand they insert has been feeding the monster rather than taming it. But, just recently, a good faith public relations effort was made to show the new interest the revitalized SEC has in reining in the monster from Hades.

In what amounts to a minor case with major worldwide implications, the SEC has brought insider trading allegations against a credit default swap trader and his source of inside information. It is alleged that Renato Negrin, formerly a trader at hedge fund Millennium Partners LP, received inside information from Jon-Paul Rorech, a salesman at Deutsche Bank AG (NYSE: DB). Supposedly, Rorech provided inside information to Negrin about the potential value of certain credits of VNU NV, a Dutch holding company that owns Nielsen Media and other media businesses

It doesn’t matter that Negrin no longer works at Millennium, or that both men say they are innocent, or that the alleged ill-begotten gain was a measly $1.2 million, or that the two men’s lawyers say the SEC has no jurisdiction over derivative contracts, period – let alone derivative contracts tied to European bonds.

What matters is that the SEC has finally put its toe into the muck. According to ABC News, it’s the first insider-trading case involving credit default swaps

Nothing may come of it. But I, for one, will be watching.

It strikes me as tragically ironic that after the credit-default-swap market has been allowed to grow from a few wispy hairs into the tail that wags the dog, the SEC is just now trying to be more than a flea on the tail of this monster.

The real reason we are not hearing more about the catastrophic systemic danger unleashed by credit default swaps is that even the regulators who would like to be overseeing this huge market – if for no other reason than for the regulatory-driven fee income these securities could generate – are afraid to admit this market is still poised to unleash a capitalist plague unlike any that’s ever been seen.

Just as we saw with the role Fannie and Freddie played in the housing market, the credit default swap market has gotten so large and out of control that to admit there is a problem is to admit that the problem is so big and will be so difficult to unwind that the threat can’t be thwarted anytime soon.

But until the public recognizes that credit default swaps can be used to manipulate the credit characteristics, ratings and creditworthiness of corporate borrowers – and also be used to intentionally push down stock prices in a way that destroys good companies, this derivative security will continue to hang over Corporate America and the U.S. stock market like a capitalist sword of Damocles.

It happened with AIG. And it can easily happen again.

The tarnish dulling the prospects of America’s recovery needs to be wiped clean and in its place clear transparency into the workings of the U.S. financial markets needs to be implemented. It’s bad enough that we are in this mess and afraid to admit how deep the hole is. But one thing is for sure, if we don’t create a level playing field, if we don’t expose fraud, if we don’t rein in swashbuckling traders slicing and dicing up America’s corporate backbone, we will discover that this particular hole is bottomless.

But if we’re honest about the problems we still face – as well as what needs to be done – we will find that everyone can see a clear path to steer, and will navigate our way back to economic high ground.

Our leaders might be surprised, if they would only accept one basic fact: We can handle the truth – if we know what it is.

Source: How Credit Default Swaps Could Reverse the Economic Recovery

[Editor’s Note: Uncertainty will continue to be the watchword in the months to come. R. Shah Gilani – a retired hedge fund manager and a nationally known expert on the U.S. credit crisis – has predicted five key financial crisis “aftershocks” that he says will create substantial profit opportunities for investors who know just what these aftershocks are, and how to play them. In the Trigger Event Strategist , trigger events,” as gateways to massive profits. To find out all about these five financial-crisis aftershocks, and about the trigger-event profit strategy they feed into, The Trigger Event Strategist check out our latest offer.]

]]> http://www.contrarianprofits.com/articles/how-credit-default-swaps-could-reverse-the-economic-recovery/16741/feed 0 http://www.contrarianprofits.com/articles/investment-news-briefs-thursday-may-14-2009/16646 http://www.contrarianprofits.com/articles/investment-news-briefs-thursday-may-14-2009/16646#comments Thu, 14 May 2009 12:30:31 +0000 Money Morning Staff http://www.contrarianprofits.com/?p=16646 Intel Dealt $1.45 Billion Fine; WSJ: Gov’t Wants Financial Sector Pay Overhaul; Verizon Divests Access Lines for Stock; AIG Says 5 Years to Pay Back Gov’t; Foreclosures Jump to Record High; Geithner: Small Banks to Get TARP Funds; Auto Dealers Get The Axe; Ford Raises $1.4 Billion From Stock Sale

• European Union legislators smacked Intel Corp. (NASDAQ: INTC) with a record 1.06 billion euro ($1.45 billion) fine for using illegal rebates to push competition out of the market. The verdict and fine is the culmination of an eight-year investigation on the tech titan, Bloomberg reported.

• The Obama administration is talking about changing compensation practices in the financial-services industry, including banks that did not receive bailout money, The Wall Street Journal reported. The talks…

To sum it up, on April 23, 2009, New York Attorney General Andrew Cuomo sent a letter to Chairman of the U.S. Senate Committee on Banking, Housing, and Urban Affairs Chris Dodd; Chairman of the House Financial Services Committee Barney Frank; SEC Chairwoman Mary Schapiro; and Chairwoman of the Congressional Oversight Panel Elizabeth Warren.
The letter outlined how former Treasury Secretary Paulson and Fed Chairman Ben Bernanke forced Bank of America’s acquisition of Merrill Lynch – even though Bank of America CEO Ken Lewis and the board of directors tried to pull the plug on the deal after it turned out that Merrill Lynch was far deeper in debt than it had admitted.
In the words of Attorney General Cuomo himself:
Immediately after learning on December 14, 2008 of what Lewis described as the “staggering amount of deterioration” at Merrill Lynch, Lewis conferred with counsel to determine if Bank of America had grounds to rescind the merger agreement by using a clause that allowed Bank of America to exit the deal if a material adverse event (“MAC”) occurred. After a series of internal consultations and consultations with counsel, on December 17, 2008, Lewis informed then-Treasury Secretary Henry Paulson that Bank of America was seriously considering invoking the MAC clause. Paulson asked Lewis to come to Washington that evening to discuss the matter.
Bank of America’s attempt to exit the merger came to a halt on December 21, 2008. That day, Lewis informed Secretary Paulson that Bank of America still wanted to exit the merger agreement. According to Lewis, Secretary Paulson then advised Lewis that, if Bank of America invoked the MAC, its management and Board would be replaced.
Meanwhile Ken Lewis has been sacked as chairman of the board at Bank of America… even though he might well have been the only conscientious and honest player in this scheme. And now the sharks have started to turn on each other: according to Cuomo, Paulson “largely corroborated Lewis’s account” and informed the attorney general’s office that he “made the threat at the request of Chairman Bernanke.” The latter has so far chosen to keep his mouth shut.

The key factor here is not that the Devious Duo forced Bank of America into a merger it didn’t want to commit to. Granted, that’s an unheard-of interference of government in the free market, but we’re quite sure that the Powers-That-Be could sweep it under the rug by invoking the “greater good.”
No, the part of the story that could really break Al Paulson and Don Bernanke’s necks is the failure to inform the Securities and Exchange Commission, as well as Bank of America’s shareholders, of the extent of toxic waste Bank of America was forced to accept. That’s fraud, pure and simple.
And that’s a pretty good sign that this is not going to go away. Some of the Casey Research editors – yes, we do have bets out – think it’s going to be huge, especially since the scandal happened on President Bush’s watch and the Democrats are in control of Congress. Chances are that either Paulson or Bernanke is going down, depending who cuts a deal with prosecutors first. Their “friends in high places” may be able to keep the Justice Department out of it, but they won’t be able to control ambitious state officials like Cuomo. There’s blood in the water, and this is a career maker for a prosecutor.
So what happens when the highest financial officials in the U.S. government are unmasked as crooks? Will there be riots in the streets? Will the average American pick up his torch and pitchfork and march on Washington D.C.? Probably not. But it may happen at some point as we are moving deeper into the Greater Depression, a term coined by Doug Casey, our resident contrarian investment guru. Read Doug’s FREE, 13-page special report about what will happen when social unrest breaks out in the United States, and what you should do to prepare your assets for that time. Click here to read it now.

Source: Bigger Than Watergate?

With that in mind, here are three tools to help you find the best small-cap and penny stocks for your portfolio:

No. 1:  Stock Screeners

A stock screen is one of the most effective ways to pick up on the best stock plays the market has to offer. Brokers and analysts on Wall Street use screens to cut through the noise and find some of the best investment opportunities available.

Stock screeners are applications that look through a list of every stock on the market, and find you the ones that meet your specific criteria. For example, when you ask for a stock with a price-to-earnings (P/E) ratio of less than 14, the screener searches the database and only returns the stocks whose P/E ratio is less than 14.

Once you get comfortable with some financial terminology, you can combine metrics to have your stock screen whittle down the broader market to just a few stocks that you think are worth checking out…

You don’t have to be a Wall Street hotshot to run a screen. There are tons of free stock screeners out there that anyone can use. You can find screeners online at financial sites like Google Finance or Morningstar, or you can download desktop screeners like the aptly named Stock Screener Lite.

No. 2: The SEC Database

The Securities and Exchange Commission is the first resource you should tap when you’re ready to research a specific stock. Almost all public companies — large and small alike — are required to file quarterly and annual reports, financials, insider trading information, and more with the SEC.

All of this information is available to anyone with an internet connection. Just go to http://www.sec.gov and click “search for company filings” under the Filings & Forms section. From there, you will navigate to a user-friendly database. It’s completely searchable by company name and/or ticker symbol.

No. 3: What’s everyone else saying?

So you’ve run a screen. Then you have picked out what you believe to be the best stocks to research. You’ve checked with the SEC database — and printed out the companies’ most recent 10-Qs. Now, it’s time to find out what everyone else is saying.

Search the web to see what analysts and other investors think of the stock. Don’t just read message board posts written by cheerleaders who only want to boost the share price. Gather a variety of opinions and forecasts.

One great way to do this is through the social networking site Twitter. Traders and investors alike use Twitter to communicate market information to anyone who wants to follow them. On the Penny Sleuth Twitter feed, we post daily stock updates on big movers and other helpful market information you won’t find in our daily columns.

You can sign up for a free account and follow us here.

Source:  Three Tools for Picking Penny Stocks