Just a Few Questions for the SEC
Paul Greenberg

 

Maybe only someone woefully ignorant of high finance -- like me -- would still be trying to understand the basis, if any, of the case filed against Goldman Sachs by our suddenly awake Securities and Exchange Commission.

Having slept through the stock market's great boom, the SEC is now leading the hunt for a scapegoat for the great bust. The agency seems to have gone from comatose to frenetic, as if it had no settings in between.

No doubt many questions, relevant and ir-, will be raised at trial. That is, if this lawsuit/vendetta against Goldman Sachs ever gets to trial rather than being settled in the usual, morally murky way with nobody accepting any real responsibility.

Among the many questions the SEC's case raises:

-- If Goldman Sachs was out to commit fraud, how come it wound up investing -- and losing -- some $90 million on this deal? Did it conspire to defraud even itself? And if it's so cunning, how did it manage to lose an estimated $1.2 billion on bad mortgages in 2007 and '08?

No wonder it was looking for ways to balance its portfolio. Among the trove of e-mails released in this dispute, by both sides, there are some from execs at Goldman Sachs -- sent even as the downturn turned into a meltdown -- saying that now would be a grand time to invest in housing, what with prices falling. It seems Goldman Sachs wasn't infallible, either.

-- When Goldman Sachs put this now controversial deal together -- excuse me, assembled this product, or made this market -- was it fraud, or just an attempt to offset risk? Isn't that why hedge funds are called hedge funds? They hedge bets on the market. Here's a metaphor even the densest politician will understand: When some businessmen make campaign contributions to both major political parties, are they being fraudulent or just hedging their bets?

-- The SEC's five commissioners voted to file this lawsuit 3 to 2. Along party lines. As with the storied board of directors that wished its chairman a full and speedy recovery by a vote of 5 to 4, there is something less than whole-hearted about the SEC's decision to pursue this case. If the accusers can't agree that fraud was committed, why should the courts?

-- If fraud was committed, where are the criminal charges? This is only a civil case. Isn't fraud a crime, not just a tort? There are investigations aplenty but no indictments, verdicts but no trials.

-- Is it now fraud to sell a security that could go down in value -- whether stock or bond or, in this case, a "synthetic collateralized debt obligation"? If so, the country's prosecutors are going to stay awfully busy.

-- Is this whole thing less about economics than politics? Is what we have here what used to be called, in the late and unlamented Soviet Union, an "economic crime"?

-- If I decide to switch from blue chips to government bonds in my little 401(k) account because I think the market's going down and I want to run for cover, am I committing fraud? After all, for every stock sold there was a buyer. Did I defraud him?

-- For that matter, every time I go to the grocery store and decide not to buy tomatoes -- or kumquats or kiwis -- because they cost too much now but will surely get cheaper later in the season, am I being one of those evil speculators?

-- Is the real offense here not fraud but the idea of speculation itself? It's an idea, and daily practice, on which so much of any economy depends. At least if it's gone beyond the barter stage. Without speculators to buy things like commodity futures, and no doubt hedge their bets, American agriculture would be set back a century or two. And that's only one sector of the economy that depends on speculators to moderate supply and demand.

Maybe this case should have been styled SEC v. The Modern Economy.

 

 

Just a Few Questions for the SEC

 

(c) 2010 Paul Greenberg