This Week in Barrons – 8-26-2012
What’s Ours is Ours – and What’s YOURS is Ours ... U.S. Government’s 7th Circuit Court of Appeal.
Don’t you ever wonder why any of the Wall Street ‘crooks’ are NOT in jail? I do – so I began to dig into the most recent ones – John Corzine of MF Global. MF Global went bankrupt some time ago (loosing all of their customer’s money) – but it was money that John promised he would ‘keep separate’ from his investments and ‘hold for safe keeping’. So I wondered – how then did he lose the money – if it was just ‘parked’ in a savings account somewhere? Well the following is John’s defense – and subsequently what we ALL need to be worried about.
Back before the Lehman Brothers implosion and the financial collapse of 2008, a story was circulating about Sentinel Management Group (SMG) who had gone bankrupt – loosing over $500 million worth of customer funds. It didn't get a lot of publicity because SMG’s business was a ‘Futures Commissions Merchant’ (FCM). FCM’s are regulated institutions whose sole focus is to give other institutions a place to park some cash now and then and make a decent return. SMG usually made their money with short-term loans, buying and selling paper assets, etc. When SMG applied for their license – they represented that all customer funds would be segregated from the company’s investment funds. Therefore, no customer money would be "lost" due to a bad bet or loan. Well, what ended up happening was that SMG pledged customer money as collateral to secure a loan for Mellon Bank. As the economy began to implode (and no one was buying up their assets), SMG got squeezed and was forced to declare bankruptcy. When the bankruptcy process began to hand out money to the investors, the customers (who were told that they money was safe – because it was SEPARATE from other monies) were forced to the back of the line. The big banks were standing in line first, and when all was said and done, all of the customer money was gone.
Questions were immediately asked of the regulators who said they had audited SMG and didn't find anything out of the ordinary. But upon further questioning, the auditors were forced to admit that they had no idea how SMG actually operated, didn't understand the books, and basically signed off on audits to make it look like they had a clue as to what they were doing. In a nutshell – they lied. They didn't really audit SMG, because they didn't understand it.
As you might imagine there were lawsuits. The customers demanded to be made whole – because SMG had told them that customer funds were segregated and therefore ‘safe’. But SMG didn't keep them segregated, and pledged those monies as collateral on a loan. When all the dust had settled, the court decided SMG had done nothing wrong. So, an appeal was set, and the 7th Circuit reviewed the case, and announced their decision on Aug 9th – basically telling the world that your money is NOT SAFE in virtually ANY financial institution.
According to Reuters: “A federal appeals court on Thursday upheld a ruling that puts Bank of New York Mellon ahead of former customers of SMG in the line of those seeking the return of money lost in the 2007 failure of the futures broker SMG. SMG allegedly pledged hundreds of millions of dollars in customer assets to secure an overnight loan at Bank of New York Mellon, leaving the bank in a secured position but SMG's customers out millions. That SMG failed to keep client funds properly segregated is NOT (on its own) sufficient to rule as a matter of law that SMG acted ‘with actual intent to hinder, delay or defraud’ its customers,” said U.S. Circuit Judge John D. Tinder.
Now it gets a lot better. During the trial, some of the banking testimony was so ‘over the top’ and not even making sense that in the judges opinion: “Instead of finding that the banker testimony justified a finding of egregious banking behavior, the District Court finds that the bank officials were such artless liars that they could not have been concealing deliberate wrong doing.”
So SMG (aka John Corzine and MF Global) told everyone that customer funds were segregated and safe. They then took customer funds and pledged them as collateral. The loan went belly-up and the bank wants the millions of dollars cash collateral. The court gives it to them. The appeals court ruled that SMG was so ‘stupid’ that it couldn’t have committed fraud – so the collateral went to cover the loan and screw the customers.
This opens the door for virtually ANY investing institution to take your 401K (or brokerage) money, and use it as collateral for their gain. If things go badly – well – your money is gone and there is nothing you can do about it. According to the court, what SMG did was exactly what MF Global did – taking a billion dollars in customer money to cover their own bet and loosing it all. At least I now know why John Corzine is not in jail. The courts will rule that this is ‘bad business judgment’ and not fraud or stealing.
The door has been opened for an outright "mad dash for your cash", and you can bet that the bankers are looking at this ruling as their ship that finally came in. I can't say it any clearer, if you have significant 401K holdings, you need to make a decision. Do you keep it where it is (in some fund’s pool) – where one day it could be ‘mingled’ with the firm’s proprietary trading money and lost? Or do you cash out – pay the penalty – and buy up gold and silver? You know my choice.
On Thursday one of the non-voting Federal Reserve members appeared on CNBC to tell the world that in his opinion the economy is doing well enough that more QE is NOT necessary and in fact could hurt things – correspondingly the market plunged 80 points. On Friday The Ben Bernanke himself said words to the effect that the Fed very well could be ready to do more accommodations, and the market soared for 100 points. This market is not moving based upon fundamentals. In fact if it were, we'd be down 4,000 DOW points because very few companies are beating earnings with rising revenues. Companies are beating earnings on cost cutting and ‘aggressive’ accounting. This market is only moving on the hopium of more fiat money out of the Fed.
Each day we tick a bit closer to finding out if the Fed is going to do anything after their Jackson Hole (‘Bankers Gone Wild’) meeting on 8/31 and 9/1. It is expected that if we are going to hear anything, that is when it will come. I would agree with that except for one little twist. The German vote on the constitutionality of Germany going along with the ESM plot to save the Eurozone comes on Sept 12. Could it be that The Ben Bernanke is going to wait to see what comes out of that meeting, before making a statement here? It's possible. The ‘catch’ is that there is so much expectation that he is going to announce QE3 at Jackson Hole – if he doesn’t – the market could easily put in a 300+ point down day. I think he knows this and with the world slowing down, he will announce ‘something’ – and potentially ‘something big.’ No more of this $600 Billion over 9 months stuff. I’m talking $1 Trillion. And if we get something big out of him, AND the Germans lose their mind and go along with the insanity that is Mario Draghi – we’re going to see the world markets explode to the upside.
So this next week is the set-up week. Everyone will be jockeying for position to try and take advantage of what might be coming. The issue of course is if he double crosses everyone and does nothing, or if he decides to wait on the Germans – going terribly long in the market will be a painful mistake.
I think this week the market will walk back up towards the 13,300 level that has been a concrete ceiling for months. But you can bet by Friday afternoon, I will have taken profits in the trading accounts, and be down to some bare minimums ahead of the Jackson Hole meeting. Yes, I do think he will announce something, but if it's not big enough, it might be a "sell the news" event. If it is big enough, the market will run so much that we will have a lot of time to get in and pick up the right stocks.
So the bottom line is: On Sept 2nd, and then again on Sept 12th we are going to see the markets move. Which way – the jury is still out. But, knowing that The Ben Bernanke's getting the squeeze from Obama's camp to "do something", and Romney has repeatedly said this week that he's going to replace The Ben Bernanke if he wins the Election, Bernanke's only hope of remaining the Fed head is to go full guns and hope it carries Obama to a victory.
We made some nice gains and cashed out this week on: PBR, WRES, LSCC, WYNN, IBM, ATI, OVTI and MMM. I’m currently watching: SSRI over 14.15, GDXJ over 22, and NTAP over 34.
Currently I’m holding:
- SPY – in at 135.75 (currently 141.66) – stop at 141.00
- GDX – in at 42.50 (currently 47.55) – stop at 46.50
- SNDK in at 42.51 (currently 43.12) – stop at 42.75
- TTWO in at 10.13 (currently 10.10) – stop at 9.90
- GLD (ETF for Gold) – in at 158.28, (currently 162.20) – no stop ($1,669.80 per physical ounce), AND
- SLV (ETF for Silver) – in at 28.3 (currently 29.86) – no stop ($30.61 per physical ounce).
To follow me on Twitter and get my daily thoughts and trades – my handle is: taylorpamm.
Please be safe out there!
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Until next week – be safe.