Thursday, March 25, 2010

Understanding our future (UOF):The Dodd Bill and U.S. Competitiveness


Paul Singer

Last week, Senate Banking Chairman Chris Dodd released a bill that proposes sweeping changes to the U.S. financial regulatory framework.
The goal of any financial reform legislation should be to balance freedom and frictionless exchanges of capital with the regulatory oversight that is necessary to ensure systemic safety. The regulatory prescriptions need to be thoughtful, elegant and minimally invasive. Excessive and misdirected regulation is costly and fraught with unintended consequences. It can also hurt the competitiveness of the U.S. financial system and broader economic growth. The Dodd bill promises to do just that. The legislation institutionalizes "too big to fail" and creates an "orderly liquidation authority" that permits the Federal Deposit Insurance Corp. (FDIC) to take over a failing financial institution. Under the new resolution authority, the FDIC, which is not equipped to manage large nonbank financial institutions, has nearly unfettered discretion to manage the distressed firm's assets as well as the resolution process.

For instance, the FDIC is permitted to treat similarly situated creditors differently as long as it maximizes the value of the failing firm or mitigates certain adverse effects on systemic stability. In addition, the FDIC will have the power to move a failing firm's assets and liabilities to newly created bridge financial companies. The transfer rules provide little comfort that creditors will retain access to the assets once the process begins. These and other provisions present such expansive loopholes that every creditor of a failing firm should feel threatened by the possibility of disenfranchisement. The judicial limits on the FDIC's authority are so slim that it is likely that creditors' due process rights would be violated.

We already have an incredibly robust, time-tested "authority" to handle failing companies—the U.S. Bankruptcy Code. With decades of case law and precedent, it is sufficiently flexible to handle almost any type of insolvent company. The markets understand Chapter 11 and have confidence in the process. The bankruptcy proceedings of Washington Mutual, CIT, Enron, Drexel and even Lehman Brothers all attest to the vigor of Chapter 11.
http://online.wsj.com/article/SB20001424052748704117304575137980120672008.html

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