« Finally, WIll We Stop Talking About the Auto Cases? | Main | Learn How to Defeat Debt Collection cases Involving Junk-Debt-Buyers and Other Robo-Signers »

Everything You Always Wanted to Know About CDOs (But Were Afraid to Ask)

posted by Adam Levitin

Bill Bratton and I have a new paper out, called A Transactional Genealogy of Scandal:  from Michael Milken to Enron to Goldman Sachs.  The paper is about the development of the collateralized debt obligation (CDO) and its incessant connection to financial scandal, from its origins in Michael Milken transactions through Enron (who knew that Chewco was basically a CDO?) and then of course Goldman Sachs' Abacus 2007-AC1 transaction.  

The paper is chock full of scandalous transactional detail (my personal favorite is how the Federal Home Loan Bank Board interpreted its 1% junk bond investment limit to mean 11%), but it also has a larger theoretical move: the CDO is a particular type of special purpose entity (SPE) that is often used for regulatory and accounting arbitrage purposes. SPEs are a new form of corporate alter ego. Whereas the traditional alter ego such as the subsidiary or affiliate has equity control, the SPE is nominally independent, but is in fact controlled by pre-set contractual instructions. As a result, SPEs like CDOs that are used in regulatory and accounting arbitrage transactions are particularly prone to scandal even over minor compliance violations whenever there is red ink in a deal because of the mismatch between corporate formalities (protesting separateness) and economic realities (the alter ego).  Accounting treatment has caught up with the SPE, but corporate law has not. Yet because accounting gets incorporated into securities law, in particular, transaction engineers need to be particularly cognizant that liability may track the economic realities, not just the legal formalities of transactions. 

Comments

The comments to this entry are closed.

Contributors

Current Guests

Follow Us On Twitter

Like Us on Facebook

  • Like Us on Facebook

    By "Liking" us on Facebook, you will receive excerpts of our posts in your Facebook news feed. (If you change your mind, you can undo it later.) Note that this is different than "Liking" our Facebook page, although a "Like" in either place will get you Credit Slips post on your Facebook news feed.

News Feed

Categories

Bankr-L

  • As a public service, the University of Illinois College of Law operates Bankr-L, an e-mail list on which bankruptcy professionals can exchange information. Bankr-L is administered by one of the Credit Slips bloggers, Professor Robert M. Lawless of the University of Illinois. Although Bankr-L is a free service, membership is limited only to persons with a professional connection to the bankruptcy field (e.g., lawyer, accountant, academic, judge). To request a subscription on Bankr-L, click here to visit the page for the list and then click on the link for "Subscribe." After completing the information there, please also send an e-mail to Professor Lawless (rlawless@illinois.edu) with a short description of your professional connection to bankruptcy. A link to a URL with a professional bio or other identifying information would be great.

OTHER STUFF

Powered by TypePad