NYT Muffs Merrill/Magnetar Piece (Corrected and Updated)

By Yves Smith and Tom Adams, an attorney and former monoline executive

Update and correction 4:45 PM:

We owe an apology to readers and to Louise Story of the New York Times, for an apparent error in our analysis. We have been informed that, remarkably, there were two separate Pyxis vehicles which were issued in the 2007 time frame, one of which was a CDO and the second a structure which some sources classify as a CDO and others describe differently. The Pyxis 2007-1 transaction which we discussed in the post was a CDO but did not have any Merrill involvement. The Pyxis deal referenced in the NY Times article that was issued by Merrill, Pyxis Master Trust, Class 2007, was an entirely different vehicle and was underwritten by Merrill, as the Times story indicates.

The brief description of the Merrill-devised transaction in the NY Times article included references to “notes” being issued, which we took as an indication that it was an external transaction with investors and corresponded to the Magnetar-sponsored CDO, since there was no evidence of any other deal named “Pyxis” being marketed during this time period. It appears that the Merrill transaction was actually an internal transaction. Back to the original post:

Louise Story has penned what presents itself as an important story at the New York Times, one that charges Merrill Lynch with misrepresenting the size of its subprime, specifically, collateralized debt obligation exposures, in the runup to the global financial crisis. The ruse the article depicts is a CDO called Pyxis., which purportedly served as a dumping ground for exposures Merrill could not unload. Initially, Merrill was able to escape reporting these positions because it claimed to have hedged the risk. In fact, the hedges failed, the bank was ultimately on the hook and was later forced to ‘fess up to the magnitude of its holdings. This revelation sounds juicy in that Citigroup and some of its recent senior executives paid fines to the SEC for similar, albeit less convoluted-sounding, misconduct.

But in fact, the story is astonishingly incomplete, to the point of being misleading. While Merrill’s probable accounting improprieties are noteworthy and merit investigation by the authorities, they are not the most important element of this episode. CDO abuses amounted to accounting fraud to enable employees and executives to loot their companies. Moreover, they were not perpetrated by isolated actors, but were part of what Bill Black calls a criminogenic environment.

To put it more simply, if you think Merrill’s misrepresentations to investors are a big deal, they are only a small aspect of the bigger, and frustratingly largely untold, tale of the role of CDOs in the crisis. CDOs were the epicenter of the upheaval, the device that magnified a what otherwise would have been contained subprime bubble into an economy-wrecking meltdown. When the music stopped, it was the dealers themselves that wound up holding much of the toxic paper they’d created. AAA rated CDOs went from haircuts of 2-4% in early 2006 to 95% in later 2007. The collapse in CDO valuations and the resulting inability to use CDOs as collateral for repo was a major, if not the major, cause of dealer illiquidity and insolvency which resulted in massive bailouts and backdoor subsidies.

Accounts like Ms. Story’s are blind man and the elephant affairs: at best, they do a good enough job of depicting, say, the trunk, but leave the beast undimensioned.

The New York Times account muffs how the deal works, making it sound as if the only important actors were the bank itself and three Merrill traders (and it isn’t even clear whether they acted as employees of Merrill, or were operating through affiliated vehicles).

Ms. Story somehow completely misses that the critical actor in these transactions was the sponsor of the CDOs, the hedge fund Magnetar, whose name appears nowhere in this article. A simple Google search of “Pyxis” and “CDO” turns up not only the Magnetar connection, provides links to deal lists (ours, recapping and adding to our discussion in ECONNED and ProPublica’s), which show that there was not one Pyxis deal, as the story suggests, but two, a Pyxis 2006-1, issued in October, 2006 with Calyon as the underwriter (that deal is not the subject of this article), and the deal in which Merrill provided assets, Pyxis 2007-1, issued in March 2007, with Lehman as the underwriter. She also fails to mention Putnam, the CDO manager for the Pyxis deals, anywhere in the story or indicate that Magnetar’s CDO deals were being put together by an analyst they hired from Putnam.

Why did Ms. Story not contact either of the two groups that own the Magnetar story, or at least review their work? The bizarre failure to mention Magnetar, which is integral to understanding this deal, suggests Ms. Story was going to some lengths to present the story as a new account, at the expense of reader understanding.

A key illustration of the shortcomings of the New York Times reporting: the description of the deal is so muddled as to be incomprehensible, which suggests not onlydid she not understand it, she did not consult anyone with expertise in the CDO market.

Nevertheless, the article does serve to provide some pieces of a mystery of sorts: how and why did Merrill manage to wind up with so much CDO dreck on its balance sheet when the bubble burst? But as you will see, it missed the context and the implications.

The conventional account is that Merrill’s head of its CDO business, Chris Ricciardi, who had a history of trading out to a better paid job at the peak of a market (and his timing was again accurate), quit in early 2006. Merrill, determined to keep its leadership position, set a very aggressive transaction volume target, which resulted in it underwriting three times as many CDOs in 2006 as 2005. The amount Merrill was stuck with looked, superficially, like a pipeline problem: Merrill was making CDOs faster than it could sell them.

While the subprime market had gotten wobbly at the end of 2006, it went serious distress in February 2007. Everyone in the market knew that Merrill was long a ton of subprime paper, at least $10, perhaps as much as $20 billion. Thus the critical parties – investors and bond guarantors – knew that Merrill needed badly to lighten up on its exposures, and the fastest route would be CDOs, but since Merrill was expected to be putting a lot of supply into the market, their deals were certain to be bid wide (meaning at prices unfavorable to Merrill).

To make matters worse, it is likely that Merrill was even more long subprime exposure as of February 2007 that the Street surmised. Merrill had an active relationship with Magnetar, whose massive CDO program (named after constellations like Pyxis) has taken Wall Street by storm (industry sources and our own analysis suggest Magnetar’s CDOs drove the demand for at least 35%, but more likely 50%-60% of subprime demand in 2006). The role dealers like Merrill played for Magnetar, among other things, meant that they served as the long side of the CDOs Magnetar created. So Merrill, as of February 2007, desperately needed to unload a ton of CDOs, both to offload residential mortgage backed securities exposures, and to bundle up tranches of unsold CDOs on its balance sheet (even first gen mezzanine CDOs contained up to 10% of other CDOs; so called “high grade” were as much as 30% CDO by early 2007).

Between March 1 and September 1 of 2007, Merrill issued just under $23 billion of CDOs – a record setting level. But in early March, the market was still wobbly, everyone knew Merrill was long, and there was no assurance it would be able to dump as much dreck as it wanted to (even this $23 billion was short of what Merrill needed to offload). So using another outlet, in this case, pushing some of its exposures out through a Magnetar deal underwritten by another firm, would have been a very appealing idea.

During this timeframe, even more remarkably, MBIA insured $10.8 billion of the Merrill CDOs, a phenomenal amount of new CDO exposures in a short window. This, plus the 2007 Pyxis deal (insured by FGIC), would explain why Merrill thought they had hedges in place which ultimately turned out to be worth less than they thought. Merrill was an investor in ACA. It appears likely that Merrill used ACA as an additional insurer for CDOs it was dumping in 2007 to get out of its massive pipeline. ACA blew up by the 4th quarter of 2007, which would be another reason Merrill’s “hedges” on its exposures had failed.

So what is troubling about this transaction? Two issues stand out.

First is the way some critical parties are unlikely to have operated on an arm’s length basis. One of the critical assumptions of a bond guarantor (and Pyxis 2007-1 was insured) is that the manager who is selecting the bonds, in this case Putnam, in an independent party. During this frenzied stretch of activity, Merrill underwrote one deal in March for Magnetar, the notorious Norma, which a Wall Street Journal makes clear the manager was not even remotely independent. Just like ACA in the Goldman 2007 Abacus trade, the manager of a Magnetar-sponsored trade took its marching orders from the supposed sponsor (in the Abacus case, the famed subprime short John Paulson, although curiously he never stepped up to actually play that role, but participated solely on the short side). It is even more likely that Magnetar had considerable influence over what exposures went into the CDO if the objective of Pyxis 2007-1 was, as it appears, to allow Merrill to dump CDO and RMBS exposures through a hidden channel.

How is it possible that Merrill’s MBS exposure ended up in a Lehman led, Putnam managed Pyxis CDO if not for Merrill’s connection to Magnetar? And if this is so, how plausible is Magnetar’s previous denial that they played any role in influencing the bond selection process in deals on which they were the equity sponsor?

Second is the motivation for Merrill to get itself into this mess, which is bonus fraud. For the most part, the firms that wound up with a lot of CDOs on their balance sheet were Eurobanks (Citibank is a special case, in that it was the biggest player in SIVs and had to take those transactions back). The Eurobanks, thanks to an unfortunate interaction of Basel II rules and internal metrics that rewarded managers and traders who found ways to use less capital in their businesses, incentivized dealers to engage in the so-called “negative basis trade.” If a trader bought or retained an AAA tranche of a CDO and hedged it (at some banks in full, in others, merely in part), the difference between the income on the CDO and the cost of the hedge over the life of the trade was discounted and included in the trader’s P&L. In what other business is it legit to be paid bonuses on yet-to-be received profits?

Ms. Story alludes to bonuses as a driving factor in the alleged disclosure fraud, but this is merely an aside, when it should be a central issue. No one, in particular regulators, seems willing to look at how firms paid particular actors and executives for deals that went bad, particularly ones that were questionable even at their inception.

With this as background, the supposed revelation is framed, per the title, as “How Regulators Unearthed Merrill’s Dodging of Risk Disclosure” (later revised to “Merrill’s Risk Disclosure Dodges Are Unearthed”). This is laughable. The regulators certainly did not unearth this story. But given Ms. Story (and Gretchen Morgenson’s) close connection with the SEC, the agency is probably a significant source for this story. The SEC appears to be eager to show progress on pursuing bad behavior during the crisis and has latched onto the failure of various dealers to make proper disclosure of their subprime exposures.

But the real story is about the widespread corruption in CDOs and about Magnetar. The SEC appears reluctant to pursue this angle and is using Ms. Story to focus on a different, narrow aspect. It is embarrassing that the Times cites the widely derided Citi settlement as a strong precedent. But this is consistent with SEC patterns – extolling their success with Citi (such as it is) to show the advances they are making. The SEC’s strategy is evidently to limit its effort to the narrow issue of adequacy of disclosure, which is the common thread among the Goldman, Citi, and Merrill cases. Appallingly, that blinkered approach means the agency is likely to give Magnetar a free pass, since the SEC apparently regards Magnetar to have made adequate disclosure of conflicts of interest. But presenting CDO managers as working on behalf of all the investors when they were in fact serving the interests of the sponsor, whose true interests were opposed to all the other investors, is a separate basis for investigation and action, but one the SEC has evidently decided not to pursue.

Thus what the SEC tries to publicize as progress is grossly inadequate and misses the drivers of crisis- of widespread fraud throughout the CDO market, which involves price manipulation, inadequate disclosure of parties and intentions, and tying among transactions, in addition to corporate level misleading statements regarding mortgage exposure.

The SEC, via Ms. Story, appears to display a desire to get credit for investigating financial crisis issues without addressing the problem with the CDO market head on and almost seems afraid to capitalize on the progress they made with Goldman on the Abacus deal. Are they afraid what they will uncover (might it implicate Deutsche Bank, which would undermine the credibility of SEC enforcement chief Ray Khuzami, who was General Counsel for Deutsche Bank in the US, which along with Goldman, was a leader in synthetic CDOs)? Or is it simply that they felt these CDO cases are too much work and they’d rather go back to the usual SEC low hanging fruit of insider traders? Given how central abuses in the CDO market were to the crisis, neither of these is good enough reason for the SEC to punt.

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  1. Gerald Muller

    It seems to me absolutely unbelievable that a case that has been published in a book (having read ECONNED, I understand the Magnetar deal) darws absolutely no interest from the Agency, whose sole business is to investigate these malconducts.
    In other words, in the US, it seems that you could write

  2. Robespierre

    “But this is consistent with SEC patterns – extolling their success with Citi (such as it is) to show the advances they are making. The SEC’s strategy is evidently to limit its effort to the narrow issue of adequacy of disclosure, which is the common thread among the Goldman, Citi, and Merrill cases.”

    It is all about the “appearance” and not the real enforcement of the law. What is really telling is that neither party is trying to force the administration to bring these people to justice. IMO there is a tacit agreement between the big banks and the government to forgive and forget. Corruption is just so widespread now that there will be no solution in the near future. The looting will continue at the expense of the American public. In the mean time lets go to Spain on vacation

  3. john

    Capture pure an simple. Our government works for the banks and will do so until the Rubinites are chased out.

    Politically, only those who have extracted huge sums of money from the markets have standing to speak on the markets. This disqualifies anyone interested in markets as a distributive system to balance supply and demand from speaking in favor of people who view markets as an extractive resource.

    But now that money is protected political speech it is hard to see how the kind of investigative journalism in Yves’ text above will ever get an audience to compete politically with the bull horn of propaganda blasted out by the banks and the disinformation industry they fund.

    Two years ago I thought it was probably right that Paulson didn’t let the markets completely destroy themselves. As I watch how the subsequent administration has used the full power of fiat money to preserve the asset valuations of the industry that sponsored the collapse while abandoning everyone who depends on the real economy for income, I start to think that a collapse, panic and riots would have a much more fun way to destroy the country than the tortuous slow bleed being used to demoralize the rest of us into oblivion.

    1. readerOfTeaLeaves

      Agree that politically, those who extracted money are viewed as ‘experts’, whereas those who thought it was sketchy (and possibly criminogenic) stayed out.

      But this:

      Thus what the SEC tries to publicize as progress is grossly inadequate and misses the drivers of crisis- of widespread fraud throughout the CDO market, which involves price manipulation, inadequate disclosure of parties and intentions, and tying among transactions, in addition to corporate level misleading statements regarding mortgage exposure.

      Seems to me to be an open secret among the educated professional classes. I recall that last spring, I’d never heard of ‘Abacus’ (nor Magnetar). Within the space of two weeks, I heard ‘white collar, professionals’ mentioning Abacus and TARP with a level of scorn that I had rarely heard from them.

      Both the NYT and the SEC make themselves irrelevant by failing to go after the roots of the problem. Some people are doing quite well; however, just over the weekend catching up with friends people mentioned amounts of over $150,000 gone from portfolios during the past 24 months. And that’s only two families.

      Does anyone around here actually believe that people losing that kind of money, which represents for them several years of retirement savings, are going to settle for namby-pamby not-quite-complete explanations from **any** paper? Or from any government agency?

      From what I’ve observed about human nature, when people lose money they want answers.

      If there were a futures market on sales of Econned, I’d buy.
      The SEC? Sell.
      The NYT? Not sure; I’ll give them a little more time to clean up their act.

      Personally, until the meltdown I never took the time to read books on financial topics; that has changed.
      I am quite confident that I am not the only one looking for answers to WTF happened to some of my ‘investments’.

      If the SEC can’t deal with it, and the NYT can’t discuss it, then the risk is that extremely partisan, paranoid media will gain credibility. Personally, I find that very scary, which is why I wish Story would re-read Econned and then write tougher articles.

      Meanwhile, thanks to Yves and Tom Adams for helping some of us try to fathom what’s happened.

      If nothing else, Magnetar is a glaring example of how bad economic ideas wreak unspeakable havoc in this day and age.

  4. Siggy

    I think it’s charitable to say that NYT ‘muffed’ the story.

    Whether the previous or current administration, the Justice Department needs to be investigated for abrogation of duty to preserve protect and defend the Constitution; let alone uphold the existing laws of the land.

    We have laws, even without FinReg and they haven’t been enforced. Bill Black’s characterization of this environment as being criminogenic is profound.

    I’m all for an inquisition, heads on pikes and flaming torches up an down K-Street and 1600 Pennsylvania Ave.

    Did Mr. Paulson save us from catastrophy? I think not. The expediant cure would have been the cascading collapse of the banking system and a citizen operated guillotine. We have instead elected to be led down path to being a banana republic. And if you ask, are we there yet? I’m inclined to reply that we have arrived in appropriate hairshirts and rags.

    The minions of the NYT didn’t muff the story as much as they played nice with the SEC and the Justice Department. Here we are seing the capture of the fourth estate. It is indeed, criminogenic.

    1. NOTaREALmerican

      Re: The minions of the NYT didn’t muff the story as much as they played nice with the SEC and the Justice Department.

      Yes. The NYT is a sycophant for the Republicrat establishment.

      (Personally, I have no problem with this as the “establishment” throws nicer parties with better food and wine than the populist peasants do. Being a sycophant is a good gig).

  5. Dun Given

    Yves and Tom, you are half right. Pyxis was also an SPV platfrom at merrill to issue CLNS. these CLNS were sold to CDOs as new assets but referenced other CDO tranches as well as mortgages. Additionally, the CLN owned charged asstes…these would super senior notes of CDOs which were TRSed back to Merrill. So each Pyxis notes was composed of a CDS, a TRS, and a SS CDO piece. that TRS then was hedged with CDS to yours and other monolines…PYXIS LTD CLNS provided funding….when the CDS counterpaties incl CDPCs, ACA, and othe rmonlines went away, ML was left with the TRS

  6. Dun Given

    PYXIS Master Trust was the other CLN issuer.

    the Pyxis deals you mention are actually Calyon deals not Merrill

  7. fiscalliberal

    Yves – It is hard to believe all of the fraud and incopetence that exists in the financial industry.

    That said – no one is going to jail like Enron executives did. I thought Sarbanes Oxley was supposed to shine a light on this stuff and it looks like it was completely ignored.

    More light on how SAR-Box did not work would be helpfull

  8. streetman

    Thanks for continuing to draw some badly needed attention to this, and for mostly completing what the inadequate NYT article started (Dun Given gets the nod for explaning the transactions fully). Unfortunately, all these inter-relationships, and there were many in the CDO world, do not rise to the level of fraudulent activity (the ACA/GS/Paulson case was very weak, and really, that’s the best the SEC could come up with?). The trades you reference were a legitimate, if not desperate, attempt to get some sub-prime CDO exposure off the books, and the fact that all of the myriad of sponsors, managers, exposure providers, equity buyers, insurers, etc. involved looked normal merely illustrates how crazy the CDO squared/cubed/synthetic/blahblah market had gotten by early ’07. By this time, the music had stopped, buyer fatigue had set in, and as you correctly point out, the factories kept running, and inventories were building due to the perfect storm of Basel II, ratings, positive carry, and especially, the desire for ROE and the bonuses implied. It didn’t work very well (what if it had???). And yes, it may well constitute bonus fraud, but that is really, really tough to prove.

    What the SEC can but has yet to hang anyone on is material misstatements and ommissions committed by CEO’s (not just Fabulous Fab) of the Ken Lay “everything is ok here” variety, and they DID DO THIS. You can try to move risk off the books, but that’s not the same as not having any risk before you do it, or while you’re trying, or assuming that insurance will pay off at 100%. I submit, though, that this administration will never, ever go after Stan O’Neal (or the board, he should have been fired, not sent off with $100+million) nor will Khuzami go after DB, for reasons you point out. If there are Wells letters out there with these people I have yet to hear about it…

    1. readerOfTeaLeaves

      You may well be correct that this admin will never go after the people who are culpable.

      It is also true that sums like $150,000 which may be a large part of a farmer’s retirement, wouldn’t be noticed on Wall Street. But multiply that figure by 100 families, then by 100 more…. this is still playing out.

  9. Merrill insider

    Tom and Yves, thanks for the correction…there are/were actually 50+ PYXIS CLNs 37 Pyxis Master Trust Notes (~$8billion) and 16 Pyxis Ltds (~$3.7billion)… total notional $11,700,000,000…much of it sold to money markets as well

    These are the deals that the article is referring; not the Putnam deals.

    Nonetheless Merrill’s CDO business was a big ponzi scheme…sell equity to managers, mezz to warehouse, and super senior back to mother merrill…..book fees. Repeat.

    People were well aware internally at Merril that CDPCs and monolines were not legit counterparties. The issue was raised in 2004. Merrill would not even face a CDPC until it got desperate in 2007. great story in WSJ that referes to Ronoline a while back on how it all became frantic…The Super senior guys are now at Morgan Stanley…lets see how that plays out

      1. Merrill insider

        YEP! and guess what Morgan Stanley is trying to do now…..who hire Dimaio to Merrill???? and then Dimaio hires the Ronoline and Super Senior guys for Morgan Stanley!!!!
        Goldmans at any cost or bust….leads to bust!

        1. streetman

          Yeah, and first MER (thank you Dow) and later MS took a piece of DiMaio Ahmad Capital, which was 4-5x leveraged credit, that worked out well. Prob buried in the FrontPoint spinoff by now…

  10. Dr. Girlfriend

    While it is all well and good to track down and explicate the inner workings of the last crisis, I have one major question that I don’t think I’ve seen addressed here or elsewhere:

    Who *exactly* recapitalized the money center banks (allowing them to exit TARP so quickly)?

    I’m talking about the new money equity that went into the banks (not all the other “above-board” government investments/subsidies – Shitibank equity buy, QE, etc.)

    Who would be so stupid (or return insensitive) to front money to individuals/entities that had so eminently (and recently) demonstrated themselves to be both incompetent and corrupt?

    I suppose the question at least suggests a possible answer – the US government (sub rosa).

    If true (and demonstrated) this seems to be an even bigger issue/scandal than the specific details of CDO blowup (until the CDO market gets going again, it would appear that the CDO corruptions cannot repeat themselves – yet).

    Is there any data on the web that ID’s who exactly thought that throwing equity money into a recently uncovered cesspool was a good investment idea?

    Yes, I know the banks have “recovered”/”are recovering”/”will always be bailed out” – I’m just curious if the USG (through some backdoor) more *directly* injected capital into the money center banks than is publicly/commonly known.

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