I WARNED YOU ABOUT BITCOINS

Back in June 2011 (and several times thereafter), remember?  So you’ll know they are a disruptive and potentially destabilizing development.  And now they feature in the alleged 1040-napping of Mitt Romney’s tax returns.  Which is all partly hilarious and partly a really good illustration of the many wonderfully illegal uses for non-fiat currency mined from other people’s computers all around the world.

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SO NOW WILLIAM SHATNER CAN SELL YOU STOCKS ON LATE NIGHT TV

My very first post on this blog back in June 2011 (now sadly lost to posterity) speculated on how awesome it would be if the SEC were to lift the prohibition on general solicitation and let William Shatner promote shares on late night TV.  Technically, of course, he could do that now for offerings registered with the SEC, but then you’d have to file him as a free-writing prospectus and accept liability for him and the EDGAR system is just not big enough for the awesomeness that is James Tiberius Kirk.

But now the SEC has proposed (with a short 30-day comment period) to lift the general solicitation prohibition in Regulation D offerings and assuming adoption of final rules within 30 days or so of that and a effectiveness in another 30 days, by Thanksgiving we could see offers aimed at accredited investors in newspapers, on the intertubes and on TV.  Most likely starting place, of course, is the intertubes.  I hope people will realize that statements made on the internet with respect to the sales of securities are subject to Rule 10b-5 liability.  This could be truly amusing.

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ZOMBIE BEAR INDEX: THE PERPETUAL CRISIS MACHINE

See here for the introduction to the ZBI.

Important anniversary while the zombie bears were sleeping.  I always measure the crisis as starting on the date of the crazy Jim Kramer video where some of us went “oh yeah, this is a bit of a different crisis than the Mexico/Russia/LTCM/Asia/SARS crisis, isn’t it?” and forwarded our mates a link to the Kramer video instead of the usual lolcat pushing a watermelon out of a lake.  Some people measure the crisis kickoff to the (earlier) collapse of those Banque Paribas funds instead.  So either way, happy 5th anniversary!  Cake later.  But we’re doomed anyway, so maybe cake in the bunker?  In the meantime, zombie municipalities sue zombie banks.  Who will win and will it make any difference?

1.  Bank provisioning.   Various folks are talking about the LIBOR scandal being huge, but I’m not so sure.  Yes, all the securities in the world, and probably in several universes in other dimensions, are priced off LIBOR, but that’s not quite the point.  I think it may be difficult to establish securities law liability on the LIBOR fixing issues because (a) LIBOR’s an estimate of what someone thinks they could borrow at and (b) all the securities priced off LIBOR usually don’t say anything about how LIBOR is set, which they would kinda need to if you were going to sue, and (c) to sue the folks who fixed LIBOR, they’d need to be either the ones selling the securities or acting in some “primary” capacity in that sale, which they aren’t.  Let’s revisit how LIBOR is set.  This is a transcript of the setting meeting one day back in early 2009:

London, late morning:

Rate-setting dude at BBA: OK, let’s go.  Giles at Colonial Bank, what you got?

Giles (Colonial):  .20005676757576.  Roughly.

Miles (Taxibank): Zzzzzzz.  Huh?  .200045. [Falls asleep again.]

Piers (Takasushi Bank): .199996.  Maybe.

Simon (Posh & Becks): Two pairs and a king.  Oh sorry, .200056.

Nigel (US Heartland Bank): One meeelion percent. [Giggles.] [Texts "naildit" to trading desk.]

Etienne (Banque du Jenesaisquoi): [Sound of champagne cork.] .200045.

Myron (Home Counties Bank):  To be honest I don’t know because really we’re never going to be able to borrow again, are we?  It’s all over, isn’t it? [Sobs.]  [Gunshot heard in background.]

And so forth.  Now of course this is pure fantasy because it’s really done these days on some super-secure electronic system, otherwise Giles and Nigel would have called each other to arrange the price beforehand.  [Oh.  Never mind.]  Point is though, that suing people for selling securities priced by reference to a rate set by other people on the basis of subjective estimates by still other people is always going to be a bit of a long shot.  Maybe it’s common law fraud, wire fraud and who knows, there may even be a RICO case in there somewhere, and for sure the various states are getting their lawsuits lined up but in the end I see all these lawsuits as essentially expensive nuisance suits.  By the time they get sorted, the banks will have gone under because of earlier suits (see my earlier posts), and the only people benefiting will be the defense lawyers.  Yay defense lawyers, especially my friends.  Current rating: 9  zombie bears.

2.  Europe.  I loved the Economist article about breaking up the Euro, which took a somewhat breezy approach to the possibility of bank runs, bank holidays, and needing to eat roadkill for the next century.  (“Well, GDP will drop a trifle [like, all of it] and there may be actual blood in the streets for a weekend but with a stiff upper lip or whatever you Jerries like to stiffen, it’ll all come right in the end and by the way, all the money and all the rich people should come to London.”  I paraphrase.  Slightly.)  Fiscal union, Angela.  Banking regs, Eurozone-bonds, the lot.  It’s the only way.  If the mittelstand had had to export stuff denominated in deutschemarks, nothing would have been exported, so it’s not like Germany hasn’t benefited from one-sided fiscal union.  Now you have to address the other side. And leave off that stupid FTT because it will never work. France introduced its limited FTT this month and if it produces $210m in revenues I will eat your chapeau. (Ooh look, I found this lovely anti-FTT website.)  Meanwhile, “no end in sight,” last year we were on the edge of total collapse (and has anything improved?) and wow, I didn’t realize I was supposed to be that worried about France Current rating:  10 zombie bears.

3.  Actuaries and pensions.   Zombie municipalities suing zombie banks on the basis of LIBOR manipulation?  Zombie cagefight!  More on this next time.  Current rating: 5 zombie bears.

4.  Populist rage and financial illiteracy.   This category used to be called “Congress”.  This time last year Congress was trying to renege on the nation’s debts.  This cost us $1.3 billion in extra borrowing costs, according to a GAO study.  We’ll take that from your paychecks, Representatives.  Well played.    Current rating: 4  zombie bears.

5.  Math/Algorithms.     While I was away Knight Capital tried to break the markets, ironically while the SEC was on the premises.  Is the solution speed limits?  The SEC is going to have another roundtable on HFT.  Because at the last SEC roundtable on HFT people were still saying that everything was fine.  Which they will presumably say again.  There are even rumors that the SEC might require firms to TEST their code before unleashing it on the world.  Heavens, whatever next?  Germany’s even proposing new HFT rules.  One of my crowdfunding buddies says “We can no longer afford to allow machines to dominate the financial markets.”  Current rating: somewhere between one and an infinite number of zombie bears; variable but trending to chaos.

6.  Hackers.    Current rating: 8 sleeping (?) zombie bears; stable.

7.  Cross-border equity custody. Current rating:  one lonely zombie bear.

8.  Bitcoin or something like it.  The GOP wants to look into returning the US dollar to the wampum gold standard.  Bless.  They’ll be thinking about giving ladypeople the vote next.  But Bitcoin is going to make monies irrelevant because instead of digging gold or seashells out of the ground it monetizes numbers dug out of computers (where there are lots of numbers).  Now you can maybe get a Bitcoin-backed credit card.  Oh those intertubes.  Making life easier for purveyors of porno, cats in boxes and money launderers everywhere.  But why bother laundering dirty old money when you can just create shiny new clean money instead?  Especially if you are a gangster in Siberia, say, with access to lots and lots of computers.  Possibly some of them even belonging to you.  Current rating:  if this is true, we are entering a whole new era of financial instability.  If someone can figure out how to do HFT on Bitcoin-backed credit cards we are fracked to the power of a truly infinite number of zombie bears.

9.  Megabank’s Boring Transactions Division.  Current rating: no zombie bears for now.

10.  Commercial Real Estate.  My little start-up rents temporary space in a sad half-empty office strip that was built in the 90s.  The landscaping is mostly dead trees and weeds and there are “for sale” and “for rent” signs outside most of the units.  Also one of the presidential campaigns has an office there, which is a sure sign of a moribund office complex.  I don’t mind the state of it as it’s cheap and I want to be able to stay on a month-to-month rent until the company gets to proof of concept.  But we are in a prosperous area just outside DC.  And we still have this massive overhang of commercial property.  How long will it take to clear this backlog?  Current rating: no zombie bears; we are still pretending they aren’t there.  The fact that I pay rent is permitting someone, somewhere, to keep our building on their books as current.  

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CAPCAP (MOSTLY) REBUILT

Still not clear about the sequence of events that caused me to kill the blog.  All I know is that (a) It should not be that easy for me to kill my own blog, so thanks WordPress/Earthlink interaction for that, (b) I now have the secret to getting rid of those super-embarrassing Facebook photos you wished you could kill when you interviewed with an agency requiring SCI clearance, which I will sell you for ONE MEELION DOLLARS.  I have totally lost three posts from June 2011, including one discussing William Shatner and general solicitation, which is super-relevant this month (discussion to come).  Also all the comments up to now from my learned commentariat.  So sad face.

But now the zombie bears can come out of hibernation and I can assess the state of the financial world again.  Although I don’t know why I bother, cos, really, nothing’s changed.

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ZOMBIE BEAR INDEX: LET’S ALL MOVE TO THE HIGH SEAS

See here for the introduction to the ZBI.

1.  Bank provisioning.  While we are waiting to see what happens to US banks over the long long term, let’s (a) bet on how many MERS lawsuits there are going to be and how many are going to hold that MERS doesn’t work and (b) work on our “zombie bank” definitions.  Yalman Onaran is going with the classic definition, it seems.   Current rating: 9  zombie bears.

2.  Europe.  Meh.  Are we crisis-ed out yet?  I don’t know about y’all but I can’t take any more of this.  I’m proposing that the moment crowdfunding is legal, we all get together and each buy some of the good bits of Greece, Italy or Spain.  I don’t know how you record interests in a country in DTC, but I’m sure we’ll work it out.  And as a crowdfunding bonus (one that institutional investors wouldn’t appreciate) each interest could be accompanied by an unemployed youth to put your towel on the best deckchairs before the Germans get there.  Luckily for sanity, Europe has voted to institute the unworkable Tobin tax.  They think their anti-avoidance provisions (you can’t be sure of owning the security if you don’t pay the tax) work.  Hahahaha.  And ha.  I think most of the folk reading this know at least one way around that.  And if the more obvious ways of avoidance don’t work, howzabout setting up a trading platform outside any national boundaries?  People are envisioning  seasteading as high-tech thing, but I’ve always thought it would be a fine response to some financial regulatory issues.  Who thinks an FTT is a good idea?  Not these guys.  Or The Economist.  Current rating:  10 zombie bears.  Yeah, we’re all doomed but I really can’t care any more.

3.  Actuaries and pensions.  Yesterday’s NYT has a great front-page piece on how fearless and determined actuaries are insisting on pushing down assumed growth rates in public pension funds from a crazy 8% down to an . . . equally insane 7%.  Oh, we’ve got an even chance of making that over the next two decades, they insist.  No, no we haven’t.  Srsly.  Actuaries, pension fund administrators and elected officials are only putting up with this charade because in two decades’ time they’ll all be pulling their own public pensions and they can pretend that it was the next guy’s fault that the city is having to auction off kindergarteners as indentured servants in order to fund their pensions.  Current rating: 5 zombie bears.

4.  Populist rage and financial illiteracy.  The pension thing kinda leads into my next threat neatly.  People only get away with this crap because the populace is so badly informed that it doesn’t have the tools to realize when the financial wool is being pulled over its eyes.  And with some rare exceptions, like most of the NYT team in general and Bethany McLean in particular, the financial press is not much better.  Some random examples of Financial Stupid:  1.  On FINRA’s website, you can take this quiz.  The average correct response is 3/5.  2.  All those companies whose Say on Pay initiatives are being defeated [scroll down to May 22]:  I’m wondering if the compensation committees whose members say “Oh, giving the CEO 51% of the average pay for peer group CEOs sounds like it can’t get us into trouble” realize the cumulative mathematical effect of voting for a tiny bit above average over the years.  3. Matt Taibbi.  And oh dear, we are going to be graded on financial literacy.  Against other countries.  Current rating: 4  zombie bears.

5.  Math/Algorithms.   While I’ve been otherwise distracted algos have been causing problems in India.  But the SEC doesn’t have the ability to oversee most HFT trading.  Did the SEC cause the problem?  (Not on its own it didn’t.)  Current rating: somewhere between one and an infinite number of zombie bears; variable.

6.  Hackers.  OK, so governments (we assume it’s governments) can do stuff like following your instant text messages and turning your computer mic on.  As this kind of thing gets ever more complex, how do we keep code like this out of private hands (assuming it isn’t already in the hands of gangsters)?  All the bad guys might like to hack into the London Whale’s account, but wouldn’t it be easier for insider traders to zombify a whole bunch of computers in some other jurisdiction and use them to cover their trades?  Current rating: 8 sleeping (?) zombie bears; stable.

7.  Cross-border equity custody. Current rating:  one lonely zombie bear.

8.  Bitcoin or something like it. Current rating:  one zombie bear and stable.

9.  Megabank’s Boring Transactions Division. Current rating: no zombie bears for now.

10.  Commercial Real Estate. Current rating: no zombie bears; we are still pretending they aren’t there.  (And actually, maybe they aren’t…)

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RITHOLTZ SAYS ZOMBIE BEARS ARE BEST IGNORED; IS OTHERWISE SOUND ON FUTURE

In yesterday’s WaPo, Barry Ritholtz says “We had the rise of the End of Worlders and the Zombie Bears.  They are best ignored.”

I’m sure he’s not talking about my Zombie Bears, who only exist to give a helpful guide to how close to the end of the world we are.  Oh.  Oh well.

But the rest of his article is spot on.  It’s about the young entrepreneurs who take nothing for granted, who find that when the world guarantees them nothing, they need to forge their own guarantees.  Which they do.  Ritholtz says if you want to feel hopeful about the future, hang around with young entrepreneurs.  I do that on a regular basis, and not only do I feel all warm and fuzzy about young entrepreneurs, but about the Millennial generation in general.  Go to a ski resort, sit at the fire pit, buy the kids there a couple of beers and chat.  Are they different from us?  Amazingly so.  Are they still in their parents’ basements?  Some are.  But their meandering, non-linear career progression, and their emphasis on things other than money have something to teach the Generation Who Broke the World.  So Barry’s right on that, although I still wouldn’t want to turn my back on a zombie bear.

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TAIBBI: TOO BUSY YELLING TO READ?

Earlier this week Matt Taibbi took a swing at the JOBS Act, but missed and missed hard.  Mr. Taibbi asks “how does a law exempting a Silicon Valley startup from independent accounting actually encourage investment?”  Well, it wouldn’t help encourage investment if that’s what it did.  It doesn’t.  No-one is being exempted from independent accounting.    Nor are they being permitted to go to market “without publishing real numbers.”  Still less are they being permitted to “make their projections up on the backs of envelopes.”

Mr. Taibbi is constructing a whole battalion of straw men and stabbing them to death with his Pointy Pen of Outraged but Inaccurate Populism.

Companies that go public still have to produce audited financial statements. That hasn’t changed.   An audit means that accountants go through a company’s financial statements and test the statements made by the company.  If it’s spent money on Vitamin Water coolers and ping-pong tables, an audit will generally bring that to light.  No-one’s saying that auditors are perfect, but no-one other than Mr. Taibbi seems to think they’ve been banished from the process.

Here’s what actually changed.  The provisions of Section 404 of the Sarbanes-Oxley Act of 2002 will not now apply to companies that are in their “emerging growth” phase.  What is this provision?  Well, it says that you have to have your internal accounting controls checked out by your accountants.   An internal control is something that affects a piece of information that goes into a company’s financial statements.  My favorite example is the clock in the loading bay dock.  Let’s imagine your company manufactures jet engines.  The accounting rules say you can count those engines as being “sold” when you load them on the purchaser’s truck.  Let’s imagine it is almost midnight on March 31.  The foreman notes that he slammed the door on the truck at 11:55pm.  But oh no!  The clock is running slow.  And that meant a very expensive item was recorded as being sold in the first quarter, when it should have been in the second quarter.  Your financials are not accurate.  This is the sort of thing that a review under SOX 404 will address and correct.  We all want financial statements to be as accurate as possible; however, having a bunch of accountants scampering around a growing company’s offices fiddling with the clocks is not the best use of the company’s limited resources.

Perhaps my loading bay clock example is specious, but it’s not as specious as Mr. Taibbi’s Vitamin Water coolers.  Essentially, Section 404 is a burdensome provision, and it is expensive to implement.  The SEC gave small businesses a series of exemptions from it for most of the decade after it was adopted, so it’s not like we are losing something we’ve been relying on forever for our information on start-ups.

Some provisions of the JOBS Act do raise genuine issues.  Let’s focus on those and not get outraged about stuff that isn’t happening.

[The foregoing originally appeared in my blog on  CrowdCheck.biz.]

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I CAN HAS JOBS? OR IPOs? OR CROWDFUNDZ?

OK, time for some shameless self-promotion.  Although my first post on this blog was about doing away with general solicitation, and I have also blogged about likely changes to the small business capital raising process, I haven’t posted anything about the JOBS Act as it made its way through Congress.  That’s because the JOBS Act contains authorization for crowdfunding and I have founded a company that is going to do crowdfunding.  Because it’s such a natural segue from multi-billion dollar international IPOs on the NYSE to sub-million dollar start-up funding.  Because the only way I could find to make less money than a gummint job was to launch an internet start-up.  And because (and I’m actually being serious here) crowdfunding, done right, is a new and more democratic, more collaborative, form of capitalism.  CrowdCheck, Inc. (a bunch of business-friendly lawyers) will provide a funding platform for entrepreneurs seeking crowdfunding, provided they are willing for us to do due diligence on them.  We’re going to give crowdfunding investors the tools to avoid fraud (and believe me, there’s gonna be fraud).

Check us out at www.crowdcheck.biz

Like us on Facebook: CrowdCheck, Inc.

Follow us on Twitter: @saracrowdcheck; @crowdcheckbiz

Op-Ed in The Hill: http://bit.ly/GUMDee

Normal zombie service will resume shortly.

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CONFUCIUS WEIGHS IN ON DODD-FRANK

One of the most important things (among many) that the Office of Financial Research is working on is the creation of Legal Entity Identifiers (LEIs).  Which totally makes sense.  Once you know exactly who your counterparty IS, then you can measure counterparty risk, and if you don’t you can’t .  Simples.  Also, as Confucius pointed out many years ago, if you don’t get the names right, your disclosure and risk management processes are going to suck:

 

子路曰:“衛君待子而為政,子將奚先?”

子曰:“必也正名乎。”

子路曰:“有是哉,子之迂也。奚其正?”

子曰:“野哉由也。君子於其所不知,蓋闕如也。名不正則言不順,言不順則事不成,事不成則禮樂不興,禮樂不興則刑罰不中,刑罰不中則民無所措手足。故君子名之必可言也,言之必可行也。君子於其言,無所苟而已矣。”

 

Tsze-lu said, “The ruler of Wei has been waiting for you, in order with you to administer the government. What will you consider the first thing to be done?”

The Master replied, “What is necessary is to rectify names.”

“So! indeed!” said Tsze-lu. “You are wide of the mark! Why must there be such rectification?”

The Master said, “How uncultivated you are, Yu! A superior man, in regard to what he does not know, shows a cautious reserve.

“If names be not correct, language is not in accordance with the truth of things. If language be not in accordance with the truth of things, affairs cannot be carried on to success.

“When affairs cannot be carried on to success, proprieties and music do not flourish. When proprieties and music do not flourish, punishments will not be properly awarded. When punishments are not properly awarded, the people do not know how to move hand or foot.

“Therefore a superior man considers it necessary that the names he uses may be spoken appropriately, and also that what he speaks may be carried out appropriately. What the superior man requires is just that in his words there may be nothing incorrect.”

-          The Analects, book 13

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BOOK REPORT: I’M AFRAID I CAN’T LET YOU DK THAT, DAVE

So yesterday Amazon delivered me “The Fear Index” by Robert Harris.  I was slightly surprised, as I didn’t recall ordering it, but, hey, I had always figured that Amazon would become self-aware at some point and start sending me stuff it just knew I needed, just like my mum.

Boy, was that prescient.  The book opens with the protagonist receiving a book he hadn’t ordered.  And then it gets into some serious HFT algos-gone-wild stuff.  This is just what I’ve been warning you about, folks.  Math will find a way to kill you in the end.  I always knew the Flash Crash was something more sinister that what the SEC said.

Anyway, get the book (new here in the US; it’s been available over the pond for a while).  I read it straight through and then sat up sleepless all night, wondering whether I could truly trust my hair dryer.

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