CLE Materials for Panel #1 - George Washington University Law ...

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WILMARTH 4/1/2011 1:11 PM 966 OREGON LAW REVIEW [Vol. 89, 951 financial system’s aggregate exposure to the risks of securitized loans by using pools of CDS to create synthetic CDOs. Synthetic CDOs were generally constructed to mimic the performance of cash flow CDOs, and synthetic CDOs issued yet another series of tranched, structured-finance securities to investors. 42 By 2007, the total notional amounts of CDS and synthetic CDOs written with reference to securitized loans, ABS, MBS or cash flow CDOs may have exceeded $15 trillion. 43 Thus, based on available estimates, approximately $25 trillion of structured-finance securities and related derivatives were outstanding in the U.S. financial markets at the peak of the credit boom in 2007. 44 Eighteen giant LCFIs, including ten U.S. and eight foreign financial institutions, originated the lion’s share of those complex instruments. 45 Structured-finance securities and related derivatives not only financed but also far exceeded about $9 trillion of risky private-sector debt that was outstanding in U.S. financial markets when the credit crisis broke out. 46 The combined volume of MBS, Manns, supra note 40, at 1036–37 (noting the use of CDS as “speculative instruments”); Michael Lewis, Betting on the Blind Side, VANITY FAIR (April 2010), http://www.vanityfair.com/business/features/2010/04/wall-street-excerpt-201004 (“In the beginning, credit-default swaps had been a tool for hedging . . . . Very quickly, however, the new derivatives became tools for speculation . . . .”). 42 Wilmarth, supra note 4, at 993–94, 1030–32. 43 Id. at 994 n.126, 1032 (citing estimates indicating that, at the peak of the credit boom, $1.25 trillion to $6 trillion of synthetic CDOs were outstanding and that about one-third of the $45 trillion of outstanding CDS were written to protect holders of CDOs, CLOs, and other structured-finance instruments). 44 See supra notes 38–39, 43 and accompanying text. 45 During the credit boom that led to the financial crisis, the eighteen leading global LCFIs (the “big eighteen”) included the four largest U.S. banks (Bank of America, Chase, Citigroup, and Wachovia), the five largest U.S. securities firms (Bear, Goldman, Lehman Brothers (Lehman), Merrill, and Morgan Stanley), and the largest U.S. insurer (AIG), and eight foreign universal banks (Barclays, BNP Paribas, Credit Suisse, Deutsche, HSBC, RBS, Société Générale, and UBS). The big eighteen dominated global and U.S. markets for securities underwriting, securitizations, structured financial products, and OTC derivatives. See Wilmarth, supra note 4, at 980–84, 989–90, 994–95, 1019–20, 1031–33; Wilmarth, supra note 6, at 721, 721–22 n.45; see also Dwight Jaffee et al., Mortgage Origination and Securitization in the Financial Crisis, in RESTORING FINANCIAL STABILITY, supra note 34, at 61, 69 tbl.1.4 (showing that eleven of the “big eighteen” LCFIs ranked among the top twelve global underwriters of CDOs between 2004 and 2008); Anthony Saunders et al., Enhanced Regulation of Large, Complex Financial Institutions, in RESTORING FINANCIAL STABILITY, supra note 34, at 139, 142 tbl.5.2 (showing that all of the “big eighteen” LCFIs, except for AIG, ranked among the top twenty-three global providers of wholesale financial services in 2006 and 2007). 46 About $6.3 trillion of nonprime residential mortgage loans, credit card loans, and CRE loans were outstanding in the U.S. market in 2008. Of that amount, about $2.8
WILMARTH 4/1/2011 1:11 PM 2011] The Dodd-Frank Act 967 cash flow CDOs, CDS and synthetic CDOs created an “inverted pyramid of risk,” which enabled investors to place “multiple layers of financial bets” on the performance of high-risk loans in securitized pools. 47 Consequently, when the underlying loans began to default, the leverage inherent in this “pyramid of risk” produced losses that were far larger than the face amounts of the defaulted loans. 48 B. LCFIs Used Inflated Credit Ratings to Promote the Sale of Risky Structured-Finance Securities LCFIs made structured-finance securities attractive to investors by paying large fees to credit rating agencies (CRAs) in order to secure investment-grade ratings (BBB- and above) for most tranches of those securities. 49 CRAs charged fees for their ratings based on an “issuer pays” business model, which required an issuer of securities to pay fees to one or more CRAs in order to secure credit ratings for its securities. The “issuer pays” model created an obvious conflict of interest between a CRA’s desire to earn fees from issuers of securities and the CRA’s stake in preserving its reputation for making reliable risk assessments. Structured-finance securitizations heightened this conflict of interest because LCFIs often paid additional consulting fees to obtain advice from CRAs on how to structure securitizations to produce the maximum percentage of AAA-rated securities. 50 trillion of loans were held in securitized pools, and many of the securitized loans and other loans were referenced by CDS. See Wilmarth, supra note 4, at 988–94, 1024–41. In addition, about $2.5 trillion of LBO loans and high-yield (“junk”) bonds were outstanding in the U.S. market in 2008, and a significant portion of that debt was securitized or referenced by CDS. Id. at 1039–43; see also CHARLES R. MORRIS, THE TWO TRILLION DOLLAR MELTDOWN: EASY MONEY, HIGH ROLLERS, AND THE GREAT CREDIT CRASH 123–26, 134–39 (2008). 47 Wilmarth, supra note 4, at 991–94, 1027–32. 48 See MORRIS, supra note 46, at 73–79, 113–14, 123–32; Michael Lewis, The End, PORTFOLIO.COM (Nov. 11, 2008), http://www.portfolio.com/news-markets/national-news /portfolio/2008/11/11/The-End-of-Wall-Streets-Boom. Hedge fund manager Steve Eisman explained that Wall Street firms built an “engine of doom” with cash flow CDOs and synthetic CDOs because those instruments created “several towers of debt” on top of “the original subprime loans,” and “that’s why the losses are so much greater than the loans.” Id. 49 Manns, supra note 40, at 1050–52; Timothy E. Lynch, Deeply and Persistently Conflicted: Credit Rating Agencies in the Current Regulatory Environment, 59 CASE W. RES. L.REV. 227, 244–46 (2009); Frank Partnoy, Rethinking Regulation of Credit Rating Agencies: An Institutional Investor Perspective 4–6 (Univ. San Diego Sch. of Law Legal Studies, Research Paper No. 09-014, 2009), available at http://ssrn.com/abstract=1430608. 50 See, e.g., Lynch, supra note 49, at 246–48, 256–61; Manns, supra note 40, at 1052; Partnoy, supra note 36, at 3–7; David Reiss, Rating Agencies and Reputational Risk 4–8
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