Money and Power (3 page)

James Cramer, who worked as a stockbroker in Goldman’s wealth management division before starting his own hedge fund and then a new career on CNBC, said it is patently obvious that without the government’s bailout Goldman would have been swept away, along with Bear Stearns, Lehman Brothers, and Merrill Lynch. “
They did not get it and they still don’t,” he said of Goldman’s comprehension of the help the government provided. He then launched into a Socratic exposition. “How did the stock go from fifty-two dollars back to a hundred and eighty dollars?” he wondered. “Is it because they worked really hard and did better? Was it because they had a good investor in Warren Buffett? Or was it because the U.S. government did its very best to save the banking system from going to oblivion, to rout the people who had been seriously shorting stocks, to be able to break what I call the
Kesselschlacht—
the German word for battle of encirclement and annihilation—against all the different banks that had been going on? Who ended that? Was it Lloyd? Was it Gary Cohn [Goldman’s president]? No. It was the United States government.” Cramer said, “It did not matter” at that moment “that Goldman was better run than Lehman.” What mattered was “the Federal Reserve decided to protect them and the Federal Reserve and Treasury made it be known you’re not going to be able to short these stocks into oblivion and we’re done with that phase.”

——

W
HEN, IN
2009, Congress and the SEC started investigating Goldman’s business practices leading up to the crisis and how it had managed to get through it intact, they found much unappealing—and perhaps fraudulent—behavior. In April 2010, Congress and the SEC started making their findings public, and as the slings and arrows of outrageous fortune began to fly, one wound after another opened up on Goldman’s corpus, handing Blankfein a series of Job-like tests that he never anticipated and that, for all his smarts, he may ultimately prove incapable of handling.

Blankfein now had the burden of the firm’s history on his shoulders. He is a somewhat perplexing fellow, whose balding pate and penchant for squinting and raising his eyebrows at odd moments give him the appearance of the actor Wallace Shawn in the 1981 Louis Malle film
My Dinner with Andre
. He has been described as looking “like a chipper elf, with a round, shiny head, pinchable cheeks, and a megawatt smile.” But for a Wall Street titan, he is also surprisingly quick-witted, self-aware, and thin-skinned.
“Of course I feel a huge responsibility to address the
assault on Goldman Sachs’s reputation,” he said recently in the comfort of his spare, fairly modest office on the forty-first floor of Goldman’s new forty-three-story glass and steel $2.1 billion skyscraper in lower Manhattan. “Of course it’s not relaxing. Of course I think about this all the time. Of course it takes a toll. I think it takes a toll on the people around me, which in turn takes a further toll on me.”

——

T
HE FIRST ACID TEST
for Blankfein came on April 16, 2010, when, after a 3–2 vote along party lines, the SEC sued Goldman Sachs and one of its vice presidents for civil fraud as a result of creating, marketing, and facilitating, in 2007, a complex mortgage security—known as a synthetic CDO, or collateralized debt obligation—that was tied to the fate of the U.S. housing market. The CDO Goldman created was not composed of actual home mortgages but rather of a series of bets on how home mortgages would perform. While the architecture of the deal was highly complex, the idea behind it was a simple one: If the people who took out the mortgages continued to pay them off, the security would keep its value. If, on the other hand, home owners started defaulting on their mortgages, the security would lose value since investors would not get their contracted cash payments on the securities they bought.

Investors who bought the CDO were betting, in late April 2007, that home owners would keep making their mortgage payments. But in an added twist of Wall Street hubris, which also serves as a testament to the evolution of financial technology, the existence of the CDO itself meant that other investors could make the opposite bet—that home owners would not make their mortgage payments. In theory, it was not much different from a roulette gambler betting a billion dollars on red while someone else at the table bets another billion on black. Obviously, someone will win and someone will lose. That’s gambling. That’s also investing in the early twenty-first century. For every buyer, there’s a seller, and vice versa. Not surprisingly, plenty of other Wall Street firms were manufacturing and selling these exact kinds of securities.

But in its lawsuit, the SEC essentially contended that Goldman rigged the game by weighting the roulette wheel in such a way that the bouncing ball would have a very difficult time ending up on red and a much easier time ending up on black. What’s more, the SEC argued, the croupier conspired with the gambler betting on black to rig the game against the fellow betting on red. If true, that would not be very sporting, now would it?

Specifically, the SEC alleged that Goldman and Fabrice Tourre, the Goldman vice president who spent around six months putting the
CDO together, made “materially misleading statements and omissions” to institutional investors in arranging the deal by failing to disclose that Goldman’s client—hedge-fund manager John Paulson, who paid Goldman a $15 million fee to set up the security—was not only betting home owners would default, but also had a heavy hand in selecting the mortgage-related securities that the CDO referenced specifically because he hoped the mortgages
would
default. The SEC further alleged that Goldman had represented to ACA Management, LLC, a third-party agent responsible for choosing the mortgage securities referenced by the CDO, that Paulson was
actually
betting the CDO would perform well, when in fact he was betting the opposite.

Adding credibility to the SEC’s argument of fraud was the fact that some six months after the completion of the deal—known as ABACUS 2007-AC1—83 percent of the mortgage securities referenced in ABACUS had been downgraded by the rating agencies—meaning the risks were increasing so rapidly that they would default. By mid-January 2008, 99 percent of the underlying mortgage securities had been downgraded. In short, John Paulson’s bet had paid off extravagantly—to the tune of about $1 billion in profit in nine months.

On the losing side of the trade were two big European commercial banks: the Düsseldorf-based IKB Deutsche Industriebank AG, which lost $150 million, and ABN AMRO, a large Dutch bank that had in the interim been purchased by a consortium of banks led by the Royal Bank of Scotland, which then hit trouble and is now 84 percent owned by the British government. ABN AMRO got involved in the deal when it agreed—for a fee of around $1.5 million a year—to insure 96 percent of the risk ACA Capital Holdings, Inc., an affiliate of ACA Management, assumed by investing $951 million on the long side of the deal. In other words, ABN AMRO had insured that ACA Capital would make good on the insurance it was providing that ABACUS would not lose value. When ACA Capital went bust in early 2008, ABN AMRO—and then Royal Bank of Scotland—had to cover most of ACA’s obligation regarding ABACUS. On August 7, 2008, RBS paid Goldman $840.9 million, much of which Goldman paid over to Paulson.

Goldman itself lost $100 million on the deal—before accounting for its $15 million fee—because the firm got stuck holding a piece of ABACUS in April 2007 that it could not sell to other investors besides ACA and IKB. Nevertheless, the SEC claimed that Goldman and Tourre “knowingly, recklessly or negligently misrepresented in the term sheet, flip book and offering memorandum for [ABACUS] that the reference
portfolio was selected by ACA without disclosing the significant role in the portfolio selection process played by Paulson, a hedge fund with financial interests in the transaction directly adverse to IKB, ACA Capital and ABN. [Goldman] and Tourre also knowingly, recklessly or negligently misled ACA into believing that Paulson invested in the equity of [ABACUS] and, accordingly, that Paulson’s interests in the collateral selection process were closely aligned with ACA’s when in reality their interests were sharply conflicting.” The SEC asked the United States District Court in the Southern District of New York to find that both Goldman and Tourre violated federal securities laws, to order them to disgorge “all illegal profits” they obtained from “their fraudulent misconduct,” and to impose civil penalties upon them.

Goldman at first seemed flat-footed in reacting to the filing of the SEC complaint, in part because it took Goldman almost completely by surprise—itself a highly abnormal turn of events for the ultimate insider firm. Blankfein told Charlie Rose, on April 30, 2010, that he got the news of the SEC’s civil suit “in the middle of the morning” coming across his computer screen. “I read it and my stomach turned over,” he said. “I couldn’t—I was stunned. I was stunned, stunned.”

During the summer of 2009, Goldman had received a so-called Wells notice from the SEC and, in September, Sullivan & Cromwell, Goldman’s longtime law firm, had provided the SEC with lengthy responses to its inquiries in hopes of being able to persuade it not to the file the civil charges against Goldman. But then the SEC stopped responding to S&C and to Goldman, which tried again to contact the SEC during the first quarter of 2010 to see if a settlement could be reached. The next communication from the SEC came with the filing of the complaint on April 16, which happened to be the same day the SEC inspector general issued a critical report about the SEC’s bungling of its investigation into the Ponzi scheme perpetrated by Bernard Madoff.

The news media—understandably—focused on the fraud charges against Goldman, rather than the SEC’s poor handling of the Madoff case, a fact Goldman noted in its communications with journalists. When Goldman eventually responded to the SEC’s complaint, it denied all allegations. “The SEC’s charges are completely unfounded in law and fact and we will vigorously contest them and defend the firm and its reputation,” Goldman said initially. A few hours later, the firm offered a more elaborate defense: its disclosure was adequate and appropriate, the investors got the risks they wanted and bargained for, and, in any event, everyone was a big boy here. Moreover Goldman claimed it “never represented
to ACA that Paulson was going to be a long investor.” Besides, Goldman ended up losing money. “We were subject to losses and we did not structure a portfolio that was designed to lose money,” the firm said.

Goldman also provided some background about the deal. “In 2006, Paulson & Co. indicated its interest in positioning itself for a decline in housing prices,” the firm explained. “The firm structured a synthetic CDO through which Paulson benefited from a decline in the value of the underlying securities. Those on the other side of the transaction, IKB and ACA Capital Management, the portfolio selection agent, would benefit from an increase in the value of the securities. ACA had a long established track record as a CDO manager, having 26 separate transactions before the transaction. Goldman Sachs retained a significant residual long risk position in the transaction.” Goldman’s responses did little to stem the carnage the SEC’s complaint caused in the trading of Goldman’s stock, which lost $12.4 billion in market value that day.

The SEC’s case against Goldman was no slam dunk. For instance, ACA was no innocent victim but rather had transformed itself in 2004 from an insurer of municipal bonds to a big investor in risky CDOs after getting a $115 million equity infusion from a Bear Stearns private-equity fund, which became ACA’s largest investor. Furthermore, documents show that Paolo Pellegrini, John Paulson’s partner, and Laura Schwartz, a managing director at ACA, had meetings together—including on January 27, 2007, at the bar at a ski resort in Jackson Hole, Wyoming—where the main topic of conversation was the composition of the reference portfolio that went into ABACUS. Reportedly, in his deposition with the SEC, Pellegrini stated explicitly that he informed ACA of Paulson’s intention to short the ABACUS deal and was not an equity investor in it. (Pellegrini did not respond to a request to comment and his deposition is not available to the public.) Other documents show Paulson and ACA together agreeing on which securities to include in ABACUS and seem to call into question the SEC’s contention that ACA was misled.

Another e-mail, sent by Jörg Zimmerman, a vice president at IKB, on March 12, 2007, to a Goldman banker in London who was working with Fabrice Tourre on ABACUS, revealed that IKB, too, had some say in what securities ABACUS referenced. “[D]id you hear something on my request to remove Fremont and New Cen[tury] serviced bonds?” Zimmerman asked, referring to two mortgage origination companies then having severe financial difficulties (and which would both later file for bankruptcy) and that Zimmerman wanted removed from the ABACUS portfolio. “I would like to try to [go to] the [IKB] advisory com[m]i[t]tee this week and would need consent on it.” The final ABACUS deal did not
contain any mortgages originated by Fremont or New Century. (Zimmerman did not respond to an e-mail request for comment.) A former IKB credit officer, James Fairrie, told the
Financial Times
that the pressure from higher-ups to buy CDOs from Wall Street was intense. “If I delayed things more than 24 hours, someone else would have bought the deal,” he said. Another CDO investor told the paper, though, that IKB was known to be a patsy. “IKB had an army of PhD types to look at CDO deals and analy[z]e them,” he said. “But Wall Street knew that they didn’t get it. When you saw them turn up at conferences there was always a pack of bankers following them.”

The judge in
SEC v. Goldman Sachs
gave Goldman an extension until July 19 to file its response to the SEC complaint. On July 14, five days early, and as expected, Goldman settled the SEC’s case—without, of course, admitting or denying guilt—and agreed to pay a record fine of $550 million, representing a disgorgement of the $15 million fee it made on the ABACUS deal and a civil penalty of another $535 million. About as close as Goldman got to admitting any responsibility for its behavior was to state that it “acknowledges that the marketing materials for the ABACUS 2007-AC1 transaction contained incomplete information. In particular, it was a mistake for the Goldman marketing materials to state that the reference portfolio was ‘selected by’ ACA Management LLC without disclosing the role of Paulson & Co. Inc. in the portfolio selection process and that Paulson’s economic interests were adverse to CDO investors. Goldman regrets that the marketing materials did not contain that disclosure.” The firm also agreed to change a number of its regulatory, risk assessment, and legal procedures to make sure nothing like the disclosure snafus in the ABACUS deal happens again.