News

A Serious Error of Judgment

July 25 2023

Scarcely a day went by in the Investigations Team I ran when we did not receive a request for information about a client’s affairs, trading or other matters from regulators, in the UK and overseas, occasionally the police and sometimes other authorities. And just as regularly we found ourselves informing those authorities that we could only provide this information if they made a request under some legislative requirement or court order, if they had forgotten to do this, because the bank owed a duty of confidentiality to its clients which could only be overridden in certain very clear specified circumstances. And, no, this is urgent / we’re the SEC / do we really have to? / the client won’t know or complain etc., were not those circumstances. Amazingly enough.

Sod’s Law being what it is, if you did forget to insist on this requirement, it would almost certainly happen in the case of a client who would find out and complain. Loudly.

Sod’s Law also having a sense of humour, we come to the story of NatWest, its CEO, Dame Alison Rose, Simon Jack, the BBC’s Business Editor and the case of Mr Farage’s closed account.

There really are only two important things to know about banks. The first is that their job consists of managing risk. The second is that banking confidentiality is at the heart of their obligations to their clients. NatWest, especially in its previous Royal Bank of Scotland incarnation, gave us quite the masterclass for many years in how not to manage risk. Just as that has almost faded from memory (or seems only to afflict Swiss banks – for this was the week Credit Suisse was fined £87 million for “extremely serious” faults “symptomatic of an unsound risk culture”) up pops NatWest to show us how to make a hash of client confidentiality obligations.

Dame Alison Rose has admitted she spoke to Simon Jack at a dinner and was the source of the information he gave the next day about the reasons why the bank had decided to close Mr Farage’s account. She admits this was “a serious error of judgment.”

There are some curious aspects to her explanation.

  • The story was already in the public domain but she seems to have had no prepared answer in the event she was asked anything. Presumably her office knew journalists would (or might) be there and maybe also the seating plan. Was there no briefing?
  • She thought the information she was giving was already public knowledge. Famously journalists are always asking questions about stuff they already know.
  • She says that she was not fully aware of the reasons for the decision as this was taken by others. This may well be true. But then, if you don’t know the full story, why say anything? How hard would it have been, really, to say to Mr Jack, when he asked: “You will understand that I cannot say anything. Mmm, this soufflé is delicious.

It is all too true that, as I recently pointed out here – “If you employ humans, someone somewhere will be doing something stupid. And some of them will be quite senior.” But they are not usually that senior. Well, not always.

It is now for the Board to decide what to do. And the regulators. They might care to remind themselves how the Board of Barclays dealt with its (now ex) CEO, Jes Staley when he got into trouble over a whistleblower. I wrote about it here. The FCA might also remind themselves. It was not – for the reasons set out here – either of their finest hours. They might remind themselves that it will now be their judgment which will be scrutinised.

Meanwhile any CEOs meeting with journalists should remember the words of this song ….. “You say it best when you say nothing at all“.

 

Photo by Alicja Ziajowska on Unsplash

Cuckoo?

March 18 2023

It is a measure of how seriously the Swiss authorities view Credit Suisse’s position that they are, according to weekend reports, orchestrating a UBS takeover or rescue.

The Terrible Two

It is not the first time that a merger of these banking behemoths has been considered. Last time it was Credit Suisse which considered acquiring UBS when it was in serious difficulties after the 2008 Global Financial Crisis. UBS survived, with Swiss government backing, shareholder cash, endless cost-cutting and, eventually, after a revolving door of unmemorable CEO’s for its troubled investment bank, a return to its strengths: wealth and asset management not the chimera of an all-singing, all-dancing full service global bank able to compete with the US. Investment banking was scaled down but focused under Orcel’s leadership. Doing this required not just a reset of its business but its culture, which had underpinned and led to so many of its problems. It took — after some false starts — a decade and a lot of hard work at every level before the changes became effective and properly embedded.

It was not just banks which had to rethink themselves. So did the Swiss financial and political establishment. For the best part of a century, Switzerland’s financial USP was discretion, carefully protected by banking secrecy laws. Or, more bluntly, Swiss banks were where you hid your money, few questions asked. That ended as a result of US fury on discovering how UBS and others, including Credit Suisse (fined $2.6 billion in 2014) had helped US taxpayers evade tax. So the new USP became expertise: put your money in Switzerland not to hide it but because Swiss bankers know how to manage it well.

Credit Suisse’s current travails blow a hole in that. How is it that, despite all the regulatory changes, all the scrutiny, all the lessons learned (surely?), all the training, all the rules, Credit Suisse has got itself into such a mess that its acquisition by its rival is now even in contemplation? And if such a large, important bank can get into such a mess, what does it say about Swiss expertise and, indeed, Swiss regulatory effectiveness?

Blowing the whistle?

One clue may be in the reason for its announcement on 9 March of a delay to its 2022 annual report after a “late call from the US Securities and Exchange Commission” the previous day. Why was the SEC making comments about the “technical assessment of previously disclosed revisions to the consolidated cashflow statements” in 2019 and 2020 and — this is the kicker — “related controls” in March 2023 in a late night call? What or who triggered this? One possibility is that someone escalated this to the SEC because other attempts at escalation and remediation within Credit Suisse had not worked. If correct — if there was a whistleblowing to the SEC — that is very troubling because it suggests either that there were no effective routes for raising concerns within the bank. Or, worse still, that concerns raised were ignored or ineffectively handled. In short, the problem may not just be inadequate financial processes (“material weaknesses in our internal control over financial reporting” and a management failure to “design and maintain an effective risk assessment process” — oops!). It may also be that the bank’s processes — and culture — for identifying, escalating and handling concerns are inadequate too. If that is the case, what other problems are lurking? This will be bothering Credit Suisse, the Swiss regulator (which was very annoyed by whistleblowing failings in UBS in relation to the FX scandal), the Swiss central bank — and UBS — if it does decide to acquire all or part of its rival. What exactly would it be acquiring?

A Bargain or a Pig in a Poke?

What is in it for UBS? Taking out a competitor, its clients, funds under management and its better employees. Yes — all these. But is an acquisition necessary? Clients and staff will make their own decisions, regardless of what Boards decide. Funds are already flowing out of Credit Suisse, as happened to UBS when it was in trouble.

The risks for UBS are considerable. Bigger is not always better. Absorbing a well-run company is hard enough; absorbing one with difficulties something else entirely. There is every likelihood of plenty more nasties lurking under the carpet. The reputational difficulties will stick to UBS’s name, no matter how often the press releases refer to past Credit Suisse problems. The costs of investigating these — as well as the remediation work necessary to put matters right — will be enormous; not just financially but in management time, energy and enhanced regulatory scrutiny. What will the effect be on the share price? UBS shareholders had a lost decade as UBS cleaned itself up. Are they really willing to finance another clean up, another set of potentially unquantifiable liabilities? Will an acquisition be a distraction from UBS’s own plans and for its current senior management, largely new and brought in to build on what has been achieved by UBS not to clean up another bank’s mess?

Conflicts of interest

There have been plenty of red flags (Greensill, Archegos, Mozambique tuna bonds, GFG, for instance) that all has not been well within Credit Suisse. Some parts (the Compliance department) were well able to identify issues with some of the clients the bank was keen to do business with and warn against this. Despite that those concerns were ignored or, more likely, rationalised away. (Why, for instance, did anyone think it sensible to take on Archegos, an entity set up by someone — Bill Hwang — fined a few years earlier by the SEC for insider dealing?) This suggests an institution with no sound way of managing its risks and the conflicts of interest arising from the desire to do apparently profitable business set against the risks of taking on clients whose adherence to rules is more apparent than real. Changing that is not the work of a moment as Ulrich Koerner, Credit Suisse’s CEO (part of UBS’s senior management team 2009–2022) or its new General Counsel (formerly UBS’ General Counsel 2008–2022) will tell you.

It is not a problem confined to Credit Suisse of course. Questions have been raised about Goldman Sachs’ dual role in relation to Silicon Valley Bank. (It’s not for the first time that Goldmans has faced such questions in relation to M&A deals). Barclays has faced endless issues caused by the tensions between its investment bank and its retail bank, its latest problem arising from its appointment of Jes Staley and the judgment shown by its Board when questions about his relationship with Epstein were raised. (If only the Board and the FCA had taken more seriously Staley’s judgment and failure to understand why whistleblowing matters when concerns were raised in 2017–2018.)

Over the last few decades, the creation of ever larger financial institutions has led to multiple conflicts of interest between the interests of the institution, its clients, between different categories of clients and between different parts of the business. Internal Chinese Walls and oodles of rules sought to recreate what had previously been legal barriers in order to manage those conflicts. Self-regulation and — post the Guinness, Maxwell and Barings scandals — light-touch regulation were meant to do the rest. It did not work. Repeated scandals and harm to the ultimate customers of banks and taxpayers led to more intrusive regulation and ring-fencing — the 21st century’s equivalent of Glass-Steagall. Loopholes have been closed or tried to be anyway. Regulators have been playing Whack-A-Mole with financial institutions ever since. But conflicts of interest are at the heart of all financial scandals. As an official of the US’s Financial Crimes Enforcement Team said when the Vatican Bank did a deal with the US in 2013 “large amounts of money sometimes bring out the worst in people.

What about governments?

It is not just large banks which have conflicts of interest. Governments have these too. Finance brings in lots of tax revenue. It can be — for a while anyway — a Golden Goose, ready to be plucked for politicians’ favourite projects: banks make money, bankers get paid extraordinarily large sums and consider themselves very clever and worth all this money rather than lucky, politicians get tax revenues and voters get all the goods those revenues pay for without having to pay for any of it themselves. Win-win. Until it all goes Splat! (For those of a more literary bent, the La Fontaine poem about the frog wanting to be a cow — La Grenouille et Le Boeuf — pithily sums up what went wrong.)

While it is all going well, though, politicians fall over themselves to attract such institutions to their country and take especial pride in having ever larger institutions.

  • Think of Ireland and its International Finance Centre, which became the location of choice for various dubious German entities, which Ireland then decided to support at vast expense.
  • Or Gordon Brown boasting about light-touch regulation for the City in 2004-5.
  • Or Alex Salmond and his support for RBS’s ill-fated over-reaching pursuit of ABN AMRO.
  • Or, more recently, the support by German politicians and the BaFin, the German regulator, of Wirecard, a German — but apparently cutting edge, global and profitable — fintech entity. A German champion to rival those arrogant Anglo-Saxons! Until it turned out to be so much hot air, fraud and money-laundering.

The desire to have a national financial champion can blind even the most sober of governments and regulators to the risks of letting such companies think themselves indispensable and/or grow too big, unwieldy and, effectively, hard to manage and regulate well.

Two risks

There are only two things which matter about financial institutions, whether large or small, whatever sector they are in: –

  1. Do they understand the risks they are managing? This is not a side issue. It is their core work. Managing money — whether it is mortgages, shares, derivatives, loans to business, assets of the wealthy — is all about understanding and managing risk.
  2. The only capital that matters is the trust that customers, staff, counterparties, regulators and others have in such an entity. The amount of capital, its liquidity and all the other measures are simply a way of putting figures on this. Once that trust has gone, a bank is finished.

There are serious doubts about Credit Suisse’s ability to understand and manage the risks it is running. What is not yet clear is whether the trust it needs to have the time to sort itself out is still there. Monday may provide an answer.

What Next?

Whatever that answer is and assuming there is no systemic fall-out, governments and regulators (and voters) need to ask themselves whether it is time to rethink whether such large global institutions, however well-capitalised or regulated, are a good idea. If you have institutions with built-in conflicts of interest, you will always have problems, even if systemic risk is avoided. Maybe smaller, more focused entities are best, ones which understand that finance is a service industry, part of an economy’s plumbing, there to serve others not help itself. Maybe global banks — much like other aspects of globalisation — are an idea which needs challenging and rethinking?

For Want of a Nail ……

April 6 2021

First – a definition.

Lessons learnt: lessons which are never learnt by those who need to learn them.”

Today we learn that Credit Suisse has lost 4.4 billion Swiss francs following Archegos’ failure. This comes on top of its problems with Greensill, now in administration. This will result in a first quarter loss of ca. 900 million Swiss francs and has already led to the departure of its Head of Investment Banking and Chief Risk Officer.

A world of pain awaits.

– There may be more departures. Others will be nervous about the scrutiny now being given to past decisions.
– There will be internal investigators, internal audit, external investigators, lawyers, accountants and regulators crawling over thousands of internal documents.
– The remediation costs will be horrible.
– Clients whose money was invested in these ventures will need to be pacified if legal action is to be avoided.
– Enforcement action from regulators may follow. Scrutiny by them certainly will.
– It will be urgently looking to see where else it has made similar mistakes.

And a number of other banks also involved with these two entities will be undergoing something similar, though with less publicity. They have either had – or will have in due course – their turn in the sun.

Still, it’s not all bad news. The Chief Executive has said that “Serious lessons will be learnt.

Would it be unkind and/or tactless to say that if it had learnt any of the serious lessons that were available to be learnt from the many similar disasters over, ooh I don’t know, the last couple of decades or so, they might not have had to learn them now and that £3.4 billion would still be in the bank?

It would. Oh well. Never mind. Let me update the definition instead.

Lessons learnt: lessons which are never learnt by those who need to learn them, until it is too late.

Photo by Tom Pumford on Unsplash