G20 Truffle Hunters

Oktoberfest Awaits

What better way to ready myself for a long weekend of Germanic excess later this month than to start drinking as much beer as possible in my evenings going forwards? In truth this is going to be one of several legs of my stag do (aka bachelor party), although doubtless the messiest if everything I have heard about Munich is true.

Meanwhile the pace of life has accelerated significantly, hence the lengthening gaps between entries - although with the wedding just a month away now, perhaps that is not too surprising. Bloody hell, there's a thought - I suppose I ought to put some effort into listening to what L's talking about now as it's getting so close.

Bonuses: Political Truffles

The G20 meeting of finance ministers in London last weekend has proven as pointless as I expected, with politicians continuing to mine the rich seam of public resentment around banker bonuses that has always been there - good times or bad. Of course, the fundamental problem with this is that the political focus remains on the symptoms rather than underlying causes.

Bonuses are a small part of the problem that lead to where we are now. Certainly traders need to be deincentivised to ever make short-term decisions, hence the idea of performance assessment relating to any bonuses is a good idea. Additionally if I am being entirely honest (and I can be here), an awful lot of the financial products devised in the last 30 years are not as wonderful or essential to economic growth as bankers would like to pretend.

There is nothing new about packaging up of debt and selling onto multiple counterparties to enable the efficient flow of investment capital to where it is needed. The value of related products that enable speculative trading to take place on such processes is an entirely different point however. Do products that do not create wealth but only transfer it from one party to another serve any real purpose? Arguably they help markets determine value, but in many cases, as with speculative short selling, can instead skew valuations or undermine confidence in otherwise healthy companies.

One of the fundamental issues of the economy is it propensity to the 'boom and bust' cycle. As an asset bubble begins to form, the existence of these speculative trading instruments now enables traders to move in to capitalise on this very quickly. That would be fine if the markets rationally assessed value and pulled back, but instead the ability to hedge such strategies gives traders an incentive to 'bet' on how long the bubble will go on and to make as much profit from it as possible.

My view has long been that government and regulatory failure have actually been the root cause of the situation we find ourselves in. Banks need controls around their behaviour, and it is somewhat naive to expect such a large industry to all have the high level of morals and ethics to make the right decisions at all times if they have a choice not to. The quest to make money is an overriding factor that guides many if not most into finance after all, and unlike in politics at least bankers don't try to pretend otherwise.

What About GGP?
I know, I know - it's not like I could actually go an entry without mentioning it could I? Well, actually nothing visible is going to happen for some time now, so anybody sitting around watching daily charts would find the time better spent looking into other investment opportunities (and holding, I might add).

However there have been a couple of quite interesting commentaries that I recommend taking a look at. This commentary by Goodwin Procter on the GGP ruling provides an interesting expert summary on perceived weaknesses in the SPE structuring exposed by Judge Gropper's ruling last month. The most pertinent of these is that independent directors going forwards should rightly also be considering the interests of the parent entity shareholders, despite the theoretical silo within which SPE's are designed to operate, external from such concerns.

Much more interesting is this detailed critique of Judge Gropper's ruling by Alston & Bird. This is definitely worth some comment, as there are a couple of points I disagree with them on, although the conclusion in particular is excellent.

The commentary firstly notes the "unsettling" impact of the decision on the CMBS market, in particular several assumptions that lenders had previously made. It then moves onto the Court's assertion that its responsibility is to be viewing the issues at the corporate rather than individual entity level. Alston and Bird do not appear to agree with the one-sided slant to Gropper's reasoning, stating:

"The response of a secured creditor (of an SPE) might be to wonder why it suddenly must bear the burden of the parent’s financial difficulties. The court, however, sees an alignment of interests between the parent and the SPEs, asserting — wrongly perhaps — that the inability of the parent to restructure would inevitably impair the financial situation of the SPEs."

They go on to conclude:

"In reaching this conclusion, the court stops short of the full discussion one would expect in applying, and arguably expanding, the 'corporate family' doctrine to the GGP case... the corporate family doctrine should apply when the parts are worth far less than the whole, or, put another way, when the unity of interest protects not just the entities, but more importantly the underlying asset value.

It is not clear that this logic is sound as applied by GGP. The GGP SPEs, while part of a large, complicated corporate structure in one sense, were (or at least could be) operationally distinct, in that the malls could have been operated or managed independently from one another and the parent, either by GGP or another shopping center company or a sophisticated institutional investor. As such, the parts were not worth less than the whole—many healthy performing shopping centers could continue to operate successfully without the corporate parent."

Alston & Bird's analysis ignores several key factors. On the notion that assets could be sold off to rivals, it does not seem to account for a far from normal commercial real estate market. Where valuations of low volume, high value assets cannot accurately be reached, there is a significant scarcity of both credit and confidence, along with an industry wide requirement to deleverage. That being the case, any decision that had lead to a significant number of assets reaching the market in a short space of time would have been very unlikely to secure sufficient buyer interest to attain what could be deemed fair value in a functional market, and instead we would return to the 'fire sale' conditions reserved for companies forced to accept an uncompetitive price on an asset due to extenuating circumstances.

As for allowing the malls to be separately managed - that ignores the centralised management model that GGP operates under, as well as key functions around mall management that presumably the individual mall would have to pay for separately. While that might be coverable by the cashflows generated on that asset, there is no doubt that this would be inefficient and indeed would only ever be taken by creditors with interests unaligned with the underlying asset or wider collective.

"While the emphasis on preserving value for the collective enterprise is clearly the court’s focus, it seems unduly dismissive not even to discuss the contrary position, namely that separate loans to separate entities by separate lenders on separate properties should be treated separately."

I think it is for the reasons I have touched on above that Judge Gropper chose to not even entertain them in the ruling. It was quite intentionally dismissive, because to even hint at this avenue being viable would be to encourage activity that is detrimental to Chapter 11.