Andrew Cuomo To File Fraud Charges Against Ernst & Young For Lehman Repo 105 Involvement
It was only a matter of time: back in March, following revelations of the Lehman Repo 105 scam, we speculated that the days of Ernst & Young are numbered. Back then we said "we are confident that (again, with the assumption that we live in some
semblance of a sane/ration world), E&Y's Financial Services Office
and quite possibly the entire firm. Integrity is the number one
currency for an auditor, and just like Anderson, E&Y's just went out
in a puff of green-colored smoke." Today we learn that Andrew Cuomo is about to make E&Y's life a whole lot more difficult. Per the WSJ "State Attorney General Andrew Cuomo is close to filing the case, which
would mark the first time a major accounting firm was targeted for its
role in the financial crisis." Too bad - E&Y was surely hoping that just like everything else in this corrupt country, out of sight would mean out of mind, and soon everyone would forget about the firm's involvement in the biggest bankruptcy in history. Better luck next time...
Per the WSJ:
The suit, led by Mr. Cuomo, New York's governor-elect, could come as early as this week. It is part of a broader investigation into whether some banks misled investors by removing debt from their balance sheets before they reported their financial results to mask their true levels of risk-taking, a person familiar with the case said. The state may seek to impose fines and other penalties.
Mr. Cuomo's office has sought documents and information from several firms, including Bank of America Corp., which earlier this year disclosed six transactions that were wrongly classified. Jerry Dubrowski, a Bank of America spokesman, said the bank's practice is to cooperate with any inquiry from regulators.
It is possible that Ernst & Young will try to settle before any suit is filed. The firm declined to comment. A spokesman for the Lehman Brothers estate also declined to comment.
The transactions in question, known as "window dressing," involve repurchase agreements, or repos, a form of short-term borrowing that allows banks to take bigger trading risks. Some banks have systematically lowered their repo debt at the ends of fiscal quarters, making it appear they were less risk-burdened than they actually were most of the time.
And for those who wish to be reminded of just how far-reaching the E&Y involvment was, and who the key actors responsible for this gross and potentially criminal breach of duty were, below we recreate our March 14 post...
Ultimately the biggest loser from the whole Repo 105 scandal may not be the perpetrators, i.e., Fuld, the firm's numerous CFOs, Tim Geithner and Mary Schapiro, but the alleged "fact-checkers" - auditors Ernst & Young. Just like Enron's Star Wars-based off balance sheet accounting gimmicks brought down Arthur Anderson, so "Repo 105" may likely be responsible for the downfall of E&Y. Although while in Enron's case, it was just the accounting that brought the firm down, in Lehman's case the confluence of numerous factors will render each individual one relatively less critical, potentially to the point of irrelevance. And while book cooking was just as big of an issue for Lehman as it was for Enron, the fact that the bank did pretty much every other borderline illegal thing possible, will take away focus from just the Repo 105 fiasco, or just the liquidity misrepresentations, or just the commercial real estate book mismarking, and so forth. So to facilitate a decision on E&Y culpability, we present a candid look at Ernst & Young's Financial Services Office, the company's presentation on Paragraph 10 of IAS 39 overseeing Repo agreements, E&Ys analysis of FAS 140 "Accounting for Financial Transfers and Repurchase Financial Transactions", the Examiner's conclusions on the firm's breach of conduct, the firm's soon to be dwindling banking client base, and last, and most certainly least, a snapshot of E&Y's Lehman co-lead partner, Hillary Hansen, against whose negligent actions, as part of the Lehman E&Y practice, the Examiner concludes "that sufficient evidence exists to support a colorable claim for malpractice."
Follows a presentation of E&Y's Financial Services Office.
In the United States, Ernst & Young LLP is the only public accounting firm with a separate business unit dedicated to the financial services marketplace. Created in 2000, the New York–based Financial Services Office today includes more than 3,300 professionals in more than 30 locations across the US, as well as in Bermuda, the Bahamas and the Cayman Islands. Key offices throughout the US include Boston, Charlotte, Chicago, Dallas, Los Angeles, McLean, Minneapolis, New York, Philadelphia, San Francisco and Stamford. Our financial services professionals provide high-quality assurance, tax, transaction and advisory services, including operations, risk and technology, to our asset management, banking, capital markets and insurance clients.
In addition, Ernst & Young professionals in our financial services practices worldwide align with key global industry groups, including Ernst & Young’s Global Asset Management Center, Global Banking & Capital Markets Center and Global Insurance Center, which act as hubs for sharing industry-focused knowledge on current and emerging trends and regulations in order to help our clients address key issues.
The group's key contacts are listed in the attached presentation. Note the name of Bill Schlich, one of the two E&Y people named by the Examiner as responsible for the negligence colorable claim against the firm in the Lehman case.
E&Y was quite aware of the concept of traditional Repos, as can be ascertained by the following company presentation:
Furthermore, E&Y was certainly quite aware of the nuances of SFAS 140, the accounting board's green light of what would, with Linklaters' blessing shortly, become known as Repo 105. In essence, SFAS 140 is what allowed the accounting of repos as true sales. Some complications, as E&Y itself notes, arising from SFAS, are that "in saome cases it may not be possible for attorneys to provide true sale opinions under U.S. bankruptcy law when the transactions are combined and integrated." The full E&Y SFAS 140-associated education session is presented below.
A brief tangent here, which goes toward disclosure. Surely the use of SFAS 140 in Lehman's operations should have merited some mention in the firm's public filings, which after all would need E&Y's blessing. Yes and no. As the examiner points out, Lehman did not follow through on full disclosure requirements:
In a few of its financial statements, Lehman stated that “The Company accounts for transfers of financial assets in accordance with SFAS 140” and followed this statement with a summary of SFAS 140’s three criteria for recognizing the transfer of financial assets as sales (LBHI 10?Q, filed July 15, 2002), at p. 8; see also id. at p. 42 (discussing SFAS 140 in the context of securitizations and special purpose entities). In these instances where Lehman made the general disclosure regarding SFAS 140: (1) the SFAS 140 disclosure was listed under “Consolidation Accounting Policies” along with a disclosure regarding Special Purpose Entities or was part of a “Securitization activities” disclosure; (2) Lehman did not state that it treated some repo transactions as sales under SFAS 140; and (3) the financial statement contained other disclosure(s) stating that Lehman treats repo transactions as secured financings (i.e., not as sales) and/or regarding securities owned and pledged as collateral (as described above) (LBHI 10?Q (filed July 15, 2002), at pp. 8, 14; LBHI 10?Q (filed Oct. 15, 2002), at pp. 9?10, 17; LBHI 2002 10?K, at pp. 69, 71, 91; LBHI 10?Q (filed Oct. 15, 2003), at pp. 10?11, 12?13, 20; Lehman Brothers Holdings Inc., Quarterly Report as of Feb. 28, 2007 (Form 10?Q) (filed on Apr. 9, 2007), at pp. 11?12 (“LBHI 10?Q (filed Apr. 9, 2007)”); LBHI 10?Q (filed July 10, 2007), at pp. 11?12; LBHI 10?Q (filed Oct. 10, 2007), at pp. 11?12).
Back to E&Y - where things get really bleak for Ernst & Young is the following disclosure of a whistleblower arising from Lehman's soon to be ashes, and E&Y's treatment of his brand new information.
On May 16, 2008, Matthew Lee, then?Senior Vice President in the Finance Division responsible for Lehman’s Global Balance Sheet and Legal Entity Accounting, sent a letter to certain members of Lehman’s senior management identifying possible violations of Lehman’s Ethics Code related to accounting/balance sheet issues. Lehman involved Ernst & Young in its investigation of the concerns raised in Lee’s May 16, 2008 letter.
Subsequently, less than a month later, on June 12, 2008, Ernst & Young – Schlich and Hillary Hansen – interviewed Lee. Hansen’s notes of the interview reveal that Lee made certain statements to Ernst & Young about Lehman’s Repo 105 practice, including, most notably, the volume of Repo 105 activity that Lehman engaged in at quarter?end (May 31, 2008). Hansen’s notes specifically recount Lee’s allegation that Lehman moved $50 billion of inventory off its balance sheet at quarter?end through Repo 105 transactions and that these assets returned to the balance sheet approximately a week later.
Hansen’s notes indicate that Lehman’s “Rates [and] Liquid Markets” businesses engaged in “Repo 105/Repo 108 [to] reduce assets by 50B [by] moving off B/S [i.e., balance sheet] in Europe & back in 5 days later.” Hillary Hansen, Ernst & Young, Handwritten Notes (June 12, 2008), at p. 1 [EY?LE?LBHIKEYPERS 5826869]. This is consistent with the Examiner’s conclusions that at quarter?end in second quarter 2008, Lehman reduced its balance sheet by slightly more than $50 billion through Repo 105 transactions.
Amusingly, while yesterday we discussed the interorganizational scapegoating, today we arrive at the intra-version. Bill Schlich, the partner named above, is quick to make thing Hansen's fault.
When interviewed by the Examiner, Schlich did not recall Lee saying anything about Repo 105 transactions during that interview, although he did not dispute the authenticity of Hansen’s notes from the Lee interview. In spite of Hansen’s notes, Schlich maintained that Ernst & Young did not know that Lehman engaged in the following Repo 105 activity during the listed time periods: $49.1 billion at first quarter 2008 (Feb. 29, 2008); and $50.38 billion at second quarter 2008 (May 31, 2008).
Now Hillary Hansen, unwilling to be thrown under the bus without some token defense, also comes out with a scapegoating excuse. Left with little recourse, she blames incompetence.
During the Examiner’s interview of Hansen, Hansen recalled that while Ernst & Young questioned Lee about his May 16, 2008 letter, Lee “rattled off” a list of additional issues and concerns he held, one of which was Lehman’s use of Repo 105 transactions. Ernst & Young had no further conversations with Lee about Repo 105 transactions. Prior to her interview of Lee in June 2008, Hansen had heard the term Repo 105 “thrown around” but she did not know its meaning; according to Hansen, Schlich described Repo 105 transactions to her shortly after they met with Lee.
It is good to know that a head auditor on a top 5 investment bank was unfamiliar with its business practices, and the implications of SFAS 140, even though the firm, as presented above, was edumacating its partners about such things.
We are not sure, however, who Schlich and Hansen will be able to scapegoat this on. Full summary of key events follows:
On June 13, 2008 – the day after Lee informed Ernst & Young of the $50 billion in Repo 105 transactions that Lehman undertook at the end of the second quarter 2008 – Ernst & Young spoke to Lehman’s Audit Committee but did not inform the committee of Lee’s allegation, even though the Chairman of the Audit Committee had clearly stated that he wanted every allegation made by Lee – whether in Lee’s May 16 letter or during the course of the investigation – to be investigated. Ernst & Young met with the Audit Committee on July 8, 2008, to review the second quarter financial statements and again did not mention Lee’s allegations regarding Repo 105. On July 22, 2008, Ernst & Young was also present when Beth Rudofker, Head of Corporate Audit, gave a presentation to the Audit Committee on the results of the investigation into Lee’s allegations.
Ernst & Young did not disclose to the Audit Committee – either during the meetings or in private executive sessions after – that Lee made an allegation related to Repo 105 transactions being used to move assets off Lehman’s balance sheet at quarter-end. Cruikshank told the Examiner that he would have expected to be told about Lee’s Repo 105 allegations. Similarly, Sir Gent told the Examiner that the alleged volume of Lehman’s Repo 105 transactions mandated disclosure to the Audit Committee as well as further investigation...Ernst & Young did not follow?up on either Lee’s allegations regarding Lehman’s Repo 105 activity or Reilly’s claim that he had no knowledge of Lehman’s alleged $50 billion Repo 105 usage figure. Ernst & Young signed a Report of Independent Registered Public Accounting Firm for Lehman’s second quarter 2008 Form 10?Q on July 10, 2008, less than four weeks after Schlich and Hansen interviewed Lee.
Not to beat a dead horse, but E&Y was at fault: as the Examiner points out:
Disclosure of the agreement to repurchase component of Repo 105 transactions was required in the MD&A. Lehman’s repurchase of the securities was a known event that was reasonably likely to occur and would have had a material effect on the company’s financial condition or results of operations. Lehman’s disclosure in the Liquidity and Capital Resources section should have included a discussion of what was known with respect to the timing and/or amounts of the cash flow created by the repayment of the Repo 105 cash borrowing in the first seven to ten days after quarter-end, specifically: (1) the availability of cash as a result of the repayment of the Repo 105 cash borrowing; (2) the ability to borrow more capital because of a reduction in debt rating or deterioration in leverage ratio due to the repayment of the Repo 105 cash borrowing; (3) the effect of the repayment of the Repo 105 cash borrowing on the cost of capital/credit rating; and (4) the economic substance and business purpose of the Repo 105 arrangements.
Indeed, there was a "duty to report":
SEC Rule 12b?20 requires that all filings contain such additional information necessary to make the information contained in the filing not misleading. Moreover, “Once defendants choose to speak about their company, they undertake a duty to ‘speak truthfully and to make such additional disclosures as…necessary to avoid rendering the statements misleading.’”
And here is why the plaintiff bar is really hung over today. The lawsuits are coming:
An investor reviewing Lehman’s 2007 Form 10?K and two 2008 Forms 10?Q would not have been able to discern that Lehman was engaged in Repo 105 transactions. Indeed, Lehman made no disclosures in its Statement of Income, Statement of Financial Condition, Statement of Cash Flows, or MD&A sections (including its section on liquidity) from which an investor could infer that Lehman treated a certain volume of repo transactions as sales under SFAS 140, thereby decreasing its net assets and its net leverage ratio...In addition, even a sophisticated reader of Lehman’s financial statements would not have been able to ascertain from Lehman’s 2007 Form 10?K or its first and second quarter 2008 Forms 10?Q the amount of Lehman’s Repo 105 usage, nor even ascertain the fact that Lehman was engaged in these transactions, by attempting to quantify the amount of liquid securities temporarily removed from the balance sheet, as reported in Lehman’s public financial statements.
We sure hope that Fuld, O'Meara, Callan, Lowitt and all of E&Y are promtly depositing money in their legal representation singking fund:
The Examiner finds that sufficient evidence exists to support the finding of colorable claims against Richard Fuld, Christopher O’Meara, Erin Callan, and Ian Lowitt in connection with their actions in causing or allowing Lehman to file periodic reports that did not disclose Lehman’s use of Repo 105 transactions and against Ernst & Young for its failure to meet professional standards in connection with that lack of disclosure... While there were credible facts and arguments presented by each that may form the basis for a successful defense, the Examiner concluded that these possible defenses do not change the now final conclusion that there is sufficient evidence to support a finding that claims of breach of fiduciary duty exist against Fuld, O’Meara, Callan, and Lowitt and a colorable claim of professional malpractice exists against Ernst & Young.
And focusing again purely on E&Y:
The Examiner concludes that sufficient evidence exists to support colorable claims against Ernst & Young LLP (“Ernst & Young”) for professional malpractice arising from Ernst & Young’s failure to follow professional standards of care with respect to communications with Lehman’s Audit Committee, investigation of a whistleblower claim, and audits and reviews of Lehman’s public filings.
This surely can not be good news to E&Ys current batch of existing banking clients, which are US Bancorp, SunTrust, CapitalOne, Regions Financial, KeyCorp, Comerica, Cullen/Frost Bankers, and Zions Bancorp, among the largest ones. In fact, we anticipate that the termination letters are already in the mail.
Meet Hillary Hansen.
The weakest link in the above presentation is surely E&Y partner, and co-head of the Lehman account, Hillary Hansen. For all of you who would like to get a glimpse of this presumably tireless workhorse which was supposed to be working 24/7 figuring out what the hell was going on with Lehman's books, you may be in for a disappointment. In this Fora TV presentation on the topic of "Women's Networks Help Level the Playing Field" from January, 2009, we get a glimpse into Ms. Hansen's busy lifestyle "I am a woman raising three small children, I commute from far away, I work home two days, usually I am not in on Fridays (laughter), I telecommute and often times I get asked how I fit it all together." Oh yes, Ms. Hansen we are confident you will be getting that question and many others very soon. What we found hilarious is Ms. Hansen's sentiment vis-a-vis her audit client Lehman Brothers. Fast forward to 17:15, where Hansen discloses that "We audit Lehman Brothers, UNFORTUNATELY." Once again prophetic. However in the wrong direction. Something tells us that Lehman's shareholders, despite knowing how great of a woman networker and a terrific partially-stay at home mom M.s Hansen may be, coupled with just how horrendous of an auditor, the lawsuits that are sure to follow will focus on the latter.
Full link of Hansen's brief and uninspired monologue after the jump.
With all this information, we are confident that (again, with the assumption that we live in some semblance of a sane/ration world), E&Y's Financial Services Office is done (even despite such ironically apropos warnings on the firm's website as "Top six liquidity risk management challenges for global banks "), and quite possibly the entire firm. Integrity is the number one currency for an auditor, and just like Anderson, E&Y's just went out in a puff of green-colored smoke. Then again, with America's population broadly distracted by the healthcare debate, by the phantasmagorical market, and by mass scapegoating campaigns in which nobody seems intent on getting to the bottom of the responsibility chain, we will be very much unsurprised if nothing ends up happening, and the well-greased machine of endless corruption keeps chugging along as per usual.
And here, due to popular demand, is E&Y's Global Code Of Conduct.
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