Did Lehman Commit Accounting Fraud?

By Stephen Gandel, Time - March 12, 2010

Should accounting tricks be added to the long list of things that caused the financial crisis? I'm not sure. Turns out Lehman was even more leveraged than we thought. A report out on Thursday by a court appointed examiner into what went wrong at Lehman Brothers finds that the firm towards the of its existence regularly employed accounting tricks to gussy up its financial statements at quarter end. The report is 2,200 pages and you can find a good portion of it here. The firm hid as much as $50 billion in loans a quarter in order to look like it was less leveraged than it was.  The transactions were called "Repo 105" by the bank, and were used to move loans off its balance sheet for a few days at time. Conveniently, the days the loans went missing happened to always be the days that the firm had to report its books to the public.

This seems like fraud to me. The examiner calls it "actionable" and he says the moves open Lehman and its executives up to suits from shareholders who could claim, it appears rightly so, that they were mislead. Still I am not convinced accounting played as big a role in this crisis as past ones. Here's why:

Yes, Lehman does seem to have hid some of its loans. And that means other banks were probably using this trick as well. But how much did the trick distort Lehman's books. Not much. In fact, even if Lehman had made all of its loans available for everyone to see it's not clear that any investors would have cared, or the NY Fed would have spent one more minute thinking about the firm's solvency.

That's because the vast majority of its loans and illiquid investments were out there for all to see. In fact, if you add back in the $50 billion the firm was hiding the firm's net leverage ratio moves from 12.1 to a whopping 13.8. Merrill Lynch had a leverage ration of more than three times that.

What the moves did do was to shield the firm from criticism from the likes of short-sellers like David Einhorn who claimed the situation at Lehman was getting worse, but couldn't prove it. On the margin, Lehman's accounting trick made it look like its leverage ratio was either stable or improving. Nonetheless, people like Einhorn didn't need another reason to short Lehman Brothers. They already knew something smelled at Lehman. They just didn't know what they were smelling was slightly worse than they thought.

Perhaps the biggest takeaway from this is that Sarbanes-Oxley has again proven useless in preventing corporate fraud. Accounting fraud is exactly the type of thing Sarbox was supposed to stop by beefing up corporate boards and imposing new accounting oversight all the way up to the board level. But the Lehman examiner's report says the investment bank's executives were able to keep its board in the dark. The examiner says board members appear to have had no knowledge of the "Repo 105" accounting trick. Just another sign that the true failing that caused the financial crisis was at its heart a regulatory one.

First Enron's SPE's, now Repo 105. Figures.

Does it really matter, really? Since the Financial Accounting Standards Board (FASB) suspended mark-to-market (fair value) accounting standards everything looks rosier than reality. After all, the bad assets are STILL on the books. Who are we kidding (other than ourselves)?

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