Chicago Confidential: Lehman Brothers bankruptcy examiner believes lessons not heeded

Anton Valukas says country came close to 'total disaster'

The lessons of Lehman Brothers, Chicagoan Anton Valukas says, haven't been learned.

He would know. As the man charged by the bankruptcy court with getting to the bottom of what caused the largest bankruptcy in history, the Jenner & Block chairman and former U.S. attorney in Chicago oversaw more than 250 interviews and the review of about 34 million pages of records about Lehman's collapse.

The bottom, Valukas said, looked like this. Lehman played shenanigans with its balance sheet, which its board didn't know about and its auditors ignored. And it blew through its own risk limits when it doubled down on commercial real estate in 2006.

The government was oblivious to the balance sheet tricks but knew about the commercial real estate bet. The regulators, who were posted inside the bank's headquarters, just weren't sophisticated enough to understand the consequences of it.

So what's needed now? Valukas wants risk limits that are, in fact, limits. He wants banks to be forced to hold onto more cash. And he wants those fishy things known as derivatives to be traded on open markets.

Of course, all of that is outlined in the financial reform bill Congress passed in 2010.

"But the question is: What are we going to do in terms of the actual regulations which will prevent or make less likely these things from happening again?" Valukas said in an interview. "And that's where the battle is going to take place. Hundreds of millions, maybe billions of dollars, are being spent on lobbying right now to write those regulations because if you take and start controlling the risk issues, then you're going to reduce the ability of Wall Street to make these humongous salaries or income."

Valukas' findings are contained in a 2,200-page volume, known as the Valukas Report. More than 200 attorneys, many of them working in Chicago, helped compile it.

Until recently, Valukas was reluctant to sit for many interviews — because of ongoing litigation and the possibility that criminal charges would be filed against bank executives or its auditors at Ernst & Young.

Now that federal prosecutors are unlikely to take any action, Valukas has distilled Lehman's saga to about 20 pages, which everyone can understand and which he agreed to share. I first heard him give this talk at a recent meeting of the Public Affairs Roundtable, an off-the-record, invitation-only gathering hosted by Ronald Miller of the law firm Miller Shakman & Beem.

Valukas' findings shocked me. They seemed to shock everyone in the room. And they continue to shock him, he said.

"What struck me when I completed the interview with (former Treasury Secretary Henry Paulson) was how absolutely close this country came to a total disaster," Valukas said in an interview. "Once Lehman went down, everybody believed that if the government had not stepped in, we'd be talking, not about a Great Recession, but about a flat-out depression. The markets around the world would have completely seized up. I remember being on the plane coming home (from Washington) thinking, 'My God. This is really scary stuff.'"

Consider that Lehman's bankruptcy was larger than Enron's, Washington Mutual's, WorldCom's, General Motors' and CIT's combined. The bank had $691 billion in assets, according to Valukas.

Valukas found "no misconduct" on the part of Lehman's board. Instead, he said its failure was in not rigorously questioning management's decisions.

Here's how Valukas describes Lehman's unraveling:

Lehman had historically been in the brokerage, or "moving," business, acquiring assets for short-term resale or redistribution and pocketing considerable fees in the process.

But in 2006, with the board's approval, it made three decisions.

It would take on more risk to make more profit, blowing past its own risk limits. It would concentrate that risk in commercial real estate. And it would take that risk on itself — on its own books — rather than as a broker.

Valukas interviewed all 11 board members, only one of whom, Chief Executive Richard Fuld, was an insider. They all bet the subprime mortgage crisis would be just that, a subprime crisis, and not infect everything else. Don't wag your finger at this before considering that Ben Bernanke, the Federal Reserve chairman, publicly shared that same view at the time.

As years passed, management told Lehman's board that the bank was passing its internal stress tests designed to predict what would happen should calamity strike. The problem, Valukas said, was that because Lehman's commercial real estate investments were so complex, it was difficult to design a stress test for them. So it didn't — until summer 2008, when it was too late.

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