Potential losses on Bank of America’s massive $75 trillion book of risky derivative contracts has just been dumped onto the FDIC by the Federal Reserve.
Derivatives, once described by Warren Buffet as “financial weapons of mass destruction” are complex contracts entered into for speculation or to hedge risks linked to a wide variety of other (derivative) financial instruments such as currencies, commodities, interest rates, bonds, etc. In testimony to the Financial Crisis Inquiry Commission in March 2011, Buffett warned that the trillions in derivatives held by major banking institutions could be “disruptive to the whole financial system” and that the risks were “virtually unmanageable.”
Regulators have fought to rein in risky trading in derivatives by banks under the Volcker Rule, but the banks have fiercely resisted and, so far, have been winning the battle. Derivatives contributed to the financial meltdown in 2008 when the government was forced to bail out giant insurance company AIG whose huge derivative bets exploded, putting the entire financial system at risk. Part of the problem is that due to the immense complexity of derivatives, regulators are unable to formulate rules that would effectively regulate them or reduce risks.
Each derivative contract entered into by a bank has counter parties taking the opposite sides of the risk trade. If the credit worthiness of one institution holding a derivatives contract is questioned, the entire complicated interplay of counter parties could quickly morph into a systemic financial crisis. Holders of derivatives who thought they were protected from a certain risk would suddenly discover that the counter party they had expected to pay them is not able to. This would result in a cascade of derivative defaults such as happened with AIG in 2008. In order to prevent multiple collapses of major institutions, the Government was forced to step in with a massive aid package of $182 billion.
Instead of curtailing derivative trading, the major banks have expanded their risky trading. Bank of America, with a massive position of $75 trillion in gross derivatives, suddenly has a crisis on its hands. Nervous counter parties are demanding more cash collateral after downgrades of Bank of America’s credit rating. It’s 2008 all over again, nothing has changed and the risk of losses are once again being transferred to taxpayers as explained by Bloomberg.
Bank of America Corp. (BAC), hit by a credit downgrade last month, has moved derivatives from its Merrill Lynch unit to a subsidiary flush with insured deposits, according to people with direct knowledge of the situation.
The Federal Reserve and Federal Deposit Insurance Corp. disagree over the transfers, which are being requested by counterparties, said the people, who asked to remain anonymous because they weren’t authorized to speak publicly. The Fed has signaled that it favors moving the derivatives to give relief to the bank holding company, while the FDIC, which would have to pay off depositors in the event of a bank failure, is objecting, said the people. The bank doesn’t believe regulatory approval is needed, said people with knowledge of its position.
Three years after taxpayers rescued some of the biggest U.S. lenders, regulators are grappling with how to protect FDIC- insured bank accounts from risks generated by investment-banking operations. Bank of America, which got a $45 billion bailout during the financial crisis, had $1.04 trillion in deposits as of midyear, ranking it second among U.S. firms.
“The concern is that there is always an enormous temptation to dump the losers on the insured institution,” said William Black, professor of economics and law at the University of Missouri-Kansas City and a former bank regulator. “We should have fairly tight restrictions on that.”
Moody’s Investors Service downgraded Bank of America’s long-term credit ratings Sept. 21, cutting both the holding company and the retail bank two notches apiece. The holding company fell to Baa1, the third-lowest investment-grade rank, from A2, while the retail bank declined to A2 from Aa3.
The Moody’s downgrade spurred some of Merrill’s partners to ask that contracts be moved to the retail unit, which has a higher credit rating, according to people familiar with the transactions. Transferring derivatives also can help the parent company minimize the collateral it must post on contracts and the potential costs to terminate trades after Moody’s decision, said a person familiar with the matter.
Bank of America’s holding company — the parent of both the retail bank and the Merrill Lynch securities unit — held almost $75 trillion of derivatives at the end of June, according to data compiled by the OCC. About $53 trillion, or 71 percent, were within Bank of America NA, according to the data, which represent the notional values of the trades.
That compares with JPMorgan’s deposit-taking entity, JPMorgan Chase Bank NA, which contained 99 percent of the New York-based firm’s $79 trillion of notional derivatives, the OCC data show.
Moving derivatives contracts between units of a bank holding company is limited under Section 23A of the Federal Reserve Act, which is designed to prevent a lender’s affiliates from benefiting from its federal subsidy and to protect the bank from excessive risk originating at the non-bank affiliate, said Saule T. Omarova, a law professor at the University of North Carolina at Chapel Hill School of Law.
The Fed’s approval to move derivatives from Bank of America’s holding company to the depository unit directly puts the U.S. taxpayers on the hook. The FDIC cannot handle any large banking failure with its depleted Deposit Insurance Fund and would have to immediately tap its line of credit with the U.S. Treasury.
The Dodd-Frank attempt to end “To Big To Fail” by giving the FDIC resolution authority has been a failure. In another crisis, the FDIC does not have the resources to absorb potentially huge losses from Bank of America’s derivative bets. Furthermore, without massive government guarantees, there would be no buyer for a failed Bank of America given the open ended risks involved. To prevent complete panic by the public from a looming failure of Bank of America, the Fed, FDIC and US Treasury would again have to provide virtually unlimited financial support, courtesy of the U.S. taxpayer.