Goldman Targeted by Investor Complaints of Naked Short Selling

By Pierre Paulden and Caroline Salas
Bloomberg.net
November 17, 2008

Investors in the $591 billion high- yield, high-risk loan market are accusing Goldman Sachs Group Inc. of naked short selling to profit from record price declines.

At least two fund managers complained verbally to officials of the Loan Syndications and Trading Association, saying they believe Goldman helped drive down prices by using the technique, according to people with knowledge of the objections. New York- based Goldman is acting against its clients by trying to profit at their expense, the investors said.

A $171 billion drop in the value of the loans in the past year is pitting banks against investing clients on assets once considered so safe they typically traded at par. The drop exposed flaws in an unregulated market where trades can take from several days to months to settle and banks may have information unavailable to investors. In a naked-short transaction, a firm would sell debt it didn’t already own, betting the price will fall before it purchases the loan and delivers it to the buyer.

“The LSTA is closely monitoring issues of naked short selling,” Alicia Sansone, head of communications, marketing and education at the New York-based industry association, said in an e-mail.

The group, comprising banks and money management firms that trade the debt, plans to tighten rules to ensure transactions are settled more quickly and prices reported accurately, Sansone said. She wouldn’t elaborate or discuss the claims against Goldman.

‘Different Causes’

“Increased volatility in the secondary market has been broadly documented and loan portfolio managers have suffered negative returns since July 2007,” Michael DuVally, a spokesman for Goldman, said in a statement.

“Investors are understandably focused on the many different causes of this volatility, but Goldman Sachs’ trading positions should not be one of them,” he said, declining to comment on whether the firm was short-selling loans.

Goldman rose to the fourth-largest U.S. originator of leveraged loans last year from eighth in 2005, according to data compiled by Bloomberg. The firm helped arrange financing for First Data’s purchase by Kohlberg Kravis Roberts & Co. as well as the $32 billion acquisition of First Energy Holdings Corp., formerly known as TXU Corp. by KKR and TPG Inc.

Most Aggressive

The bank was seen as the most aggressive in recent months in selling loans at prices below other dealers’ offers and taking longer than the LSTA’s recommended seven days to settle the deals, according to the investors complaining to the trade group.

There’s no rule preventing naked short selling of loans. The U.S. Securities and Exchange Commission this year banned the practice for 19 stocks including Lehman Brothers Holdings Inc. and Fannie Mae and Freddie Mac from July 21 to Aug. 12 as share prices plunged. New York-based Lehman, once the fourth-biggest securities firm, eventually went bankrupt and Fannie and Freddie, the two largest mortgage-finance providers, were brought under government conservatorship.

The slump in loan prices during the global seizure in credit markets is causing particular disruption in the loan market because the debt typically trades close to 100 cents on the dollar. Prices never were below 90 cents until February this year. By October they had fallen to a record low of 71 cents, according to data compiled by Standard & Poor’s. The decline, which S&P said equated to losses of about $171 billion, helped drive the complaints from fund managers.

‘Shell-Shocked’

“Investors are shell-shocked” by the decline, said Christopher Garman, chief executive officer of debt-research firm Garman Research LLC in Orinda, California. “In many ways they’re all but wiped out.”

Because prices were so stable, short sales of loans were unheard of until now, Elliot Ganz, general counsel of the LSTA, said at the group’s annual conference in New York last month.

“No one ever shorted loans,” Ganz said. “Prices never went down.”

High-yield, or leveraged, loans are given to companies with below-investment grade ratings, or less than Baa3 at Moody’s Investors Service and under BBB- at S&P. Banks typically form a group to arrange the financing. They then find other investors to take pieces of the debt, helping spread the risk.

Those loan parts can trade through private negotiations between banks and hedge funds or mutual funds. One of the lenders involved in the initial deal remains the so-called agent bank, which keeps track of who owns what piece. Unlike bonds and stocks, the debt doesn’t trade on an exchange and has no central clearinghouse.

Agent Banks

When a loan changes hands, the agent bank must sign off on the transaction, meaning it knows exactly who is buying and who is selling. The rest of the market is in the dark. Getting an agent to sign off, also can delay settlement.

“An agent will have a bird’s-eye view of who owns what and when,” said John Jay, a senior analyst at Aite Group LLC, a research firm that specializes in technology and regulatory issues in Boston. “They have information that no one else has.”

Conflicts within the syndicated loan market have escalated since the credit crisis began. Banks, stuck with more than $230 billion of loans they’d promised to fund leveraged buyouts, tried to renege on some agreements and others broke ranks with the typical banking syndicate.

Bain Capital LLC and Thomas H. Lee Partners LP, the Boston- based buyout firms that bought Clear Channel Communications Inc. sued banks including Citigroup Inc. and Deutsche Bank AG, in March accusing them of refusing to fund the acquisition. The banks counter-sued, claiming they were acting in good faith. The parties reached a settlement in May allowing the purchase to proceed at a lower price.

Tensions Increase

Tensions have also increased between investors that buy debt from banks. As banks ratcheted back credit and loan prices fell, fund managers that use borrowed money to buy loans have been forced to offload assets, further eroding prices and sparking more waves of selling.

Black Diamond Capital Management LLC, a Connecticut-based manager, filed a lawsuit last month against Barclays Plc, the U.K.’s second-largest bank, over derivative agreements tied to leveraged loans. Black Diamond is demanding the lender return $302 million.

The lawsuit is “without merit” and Barclays will fight it, Brandon Ashcraft, a spokesman for the bank in New York, said in an e-mailed statement.

Loans aren’t securities and are not governed by laws covering trading in bonds and stocks. While LSTA standards say a loan should settle within seven days of the trade, there’s no law governing the timing.

The average trade of a loan to a company not classified as distressed took 19 days to settle in the second quarter, according to LSTA data.

Three Days

In the bond market, the standard settlement time is three days following the trade. In a bond short sale, a trader acquires debt by borrowing the security in a deal known as a repurchase contract. The two sides specify how long the bond will be borrowed with the right to renew the pact. Because loans can’t be borrowed through such agreements, any short seller would have to go naked.

While the LSTA doesn’t track the amount of loans currently unsettled, at least 700 trades made by Lehman Brothers Holdings Inc. before it filed for bankruptcy hadn’t cleared, Ganz told last month’s conference.

Emergency Meeting

The strains over settlement prompted LSTA president Bram Smith to call an emergency board meeting on Oct. 20, people with knowledge of the session say. The complaints of Goldman’s trading methods were also discussed, said the people, who declined to be named because the talks were private.

Among those on the call was Lisa Opoku Busumbru, chief operating officer for loan trading at Goldman and a board member of the LSTA. Opoku Busumbru denied on the call that New York- based Goldman was short-selling loans, the people said.

Trading in the market is so opaque that it would be impossible to tell if a firm was short-selling, Jay Katz, managing director of Storm Networks LLC, a New York-based technology company launched in October with backing from Bank of America Corp. Credit Suisse Group AG and Morgan Stanley that helps settle loan trades within three days. A trade could be delayed for many reasons including not owning the debt, he said.

Heightened Concerns

While the delay in settlement had been an administrative issue for years, the tumbling loan prices and heightened concerns about creditworthiness of borrowers, banks and hedge funds have made it pernicious, said Ian Sandler, an executive director at Morgan Stanley and a board member of the LSTA.

A buyer or seller, or even the borrowing company, could go bankrupt in the time it takes for the loan to change hands, causing losses for the firm on the other side of the trade, Sandler said.

“Delayed settlement is a real concern because you have to worry about the loan deteriorating and the failure of the counterparty until the trade is completed,” said Sandler. He wouldn’t discuss the claims against Goldman or the emergency board meeting. “There is a tremendous amount of open trades currently in the loan market.”

Goldman has previously butted heads with investors, who are also clients through borrowing or advisory agreements.

In the early 1990s, the firm created the $783 million Water Street Corporate Recovery Fund to buy controlling stakes in the debt of financially distressed businesses. It was shut a year later when its negotiations upset clients such as Fidelity Investments and Tonka Toys.

While other banks are reining in capital, Goldman raised $10.5 billion last month for a fund run by Thomas Connolly in New York to make loans to high-yield companies.

The firm may write down its leveraged-loan portfolio by $1.3 billion in the quarter, Guy Moszkowski, an analyst at Merrill Lynch & Co., estimated last week.

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