Yet another case from the Office of Special Prosecutor v Kaupthing’s three top managers is up in Reykjavík District Court these days. As in several other cases, the charges centre on breach of fiduciary duty, ultimately causing the bank a loss of €510m. The loans went to two companies owned by Kaupthing clients that used the funds to buy credit linked notes and enter into credit default swaps related to Kaupthing in order to lower the bank’s collateral debt swap spread. Does this sound like market manipulation? Deutsche Bank seems to think it might, strongly denying any involvement in the scheme except as the issuer of the notes though Icelandic sources tell a different story.* – But who made a killing on the other side of the CDS bet? Partly Deutsche Bank, according to the OSP but this part of the CLN saga is still not entirely clear, which is one of the reasons why the court hearings might be interesting.
Soon after the collapse of the three largest Icelandic banks in early October 2008 there were plenty of allegations, also in the Icelandic media, of possible wrongdoing in the banks. One of the stories told centred on Kaupthing funding transactions connected to the bank’s CDS.
At the end of January 2009 former chairman of the Kaupthing board Sigurður Einarsson wrote a letter to friends and relatives explaining his side of the media reports. The first matter he dealt with was the CDS story: it was true that Kaupthing had funded transactions by what he called “trusted clients” of the bank to influence the bank’s CDS spread, following a proposal from Deutsche Bank, DB.
This story was told in greater detail in the 2010 report by the Icelandic Special Investigations Committee, SIC: also here, the idea is said to have originated with DB.
Further information came up in a London Court in 2012: the two BVI companies set up for the transactions, Partridge and Chesterfield, went bankrupt soon after Kaupthing failed. Their administrators, Stephen Akers from Grant Thornton London and a colleague, quickly turned to DB to get answers to some impertinent questions regarding the two companies.
Now, the CDS saga is summed up in the OSP charges (in Icelandic) against Einarsson, Kaupthing’s CEO Hreiðar Már Sigurðsson and head of the bank’s Luxembourg operations Magnús Guðmundsson in a case of breach of fiduciary duty and causing a loss of €510m to Kaupthing, some of it paid out on Kaupthing’s last day of trading.
In orchestrating the loans the three managers took great care that DB would get paid, i.e. the deal would not fall through due to lack of funds at a time when Kaupthing had practically no foreign currency left and was running out of liquidity.
According to the charges DB not only organised the transactions but also took part of the opposite bet. What is still lacking in this saga is who, together with DB, was on the other side of the bet the two companies lost?
Einarsson’s letter 2009 and transactions with “trusted clients”
In his letter to friends and family 26 January 2009 Einarsson pointed out that although the UK Financial Services Authority, FSA, had in the third week of August 2008, ascertained that Kaupthing’s UK operation, Kaupthing Singer & Friedlander, KSF, was well funded the CDS spread on Kaupthing stayed high. Unreasonably so according to Einarsson who claimed having heard from foreign journalist that false rumours on Kaupthing were being spread, even by PR firms. There were also rumours, wrote Einarsson, that the CDS market was being manipulated, not only in relation to Iceland. (The letter was later leaked to the Icelandic media, see here, in Icelandic; excerpts below, my translation).
“Following a proposal from Deutsche Bank it was decided to test what would happen if the bank itself (i.e. Kaupthing) would buy such insurance. This was however not a trivial matter since the bank could not issue insurance on itself. The solution was to get our clients we trusted well and with whom we had had a long relationship, built on trust and loyalty, to make these transactions on behalf of the bank. Of course we would never have entered into these transactions except for the particular circumstances. These transactions were made with the interest of the bank at heart and in full accordance to law and regulations.”
Following Lehman’s collapse September 15 2008 the CDS spread on Kaupthing increased; not only Kaupthing but the international banking system felt under siege, wrote Einarsson.
“As the bonds (i.e. credit linked notes), that we at Kaupthing and our business partners had purchased, were leveraged and had now gone down in price there were only two options. To hand over further funds or give up, have the bonds sold and lose a part of or all the original investment. The latter option was to my mind simply preposterous. Kaupthing enjoyed good liquidity and nothing indicated the bank would not withstand the pressure, just as it had done in 2006 and in spring 2008. If on the other hand the bonds had been sold the bank would have suffered a loss and the risk was that the increased offer of bonds would have undermined the bank and diminished its access to credit lines.”
This had been the rational behind these transactions, wrote Einarsson, made to maintain Kaupthing as a going concern contrary to media reports that funds had been taken out of the bank before it collapsed.
The SIC report April 2010
One of the many interesting stories in the SIC report was the story of the Kaupthing transactions regarding the CLNs. Two BVI companies, Chesterfield and Partridge, were set up by Kaupthing. The former was owned by three companies under the ownership of Antonios Yerolemou, Skúli Þorvaldsson and Karen Millen and Kevin Stanford, respectively owning 32 %, 36% and 32%. Ólafur Ólafsson owned the latter, through another company.
All of the owners were, as Einarsson said in his letter, longstanding clients of Kaupthing. Yerolemou, a Cypriot businessman prominent in the UK Cypriot community and a Conservative donor, had sold his business, Katsouris, to Exista, Kaupthing’s largest shareholder, in 2001 and stayed in touch, i.a. as a board member of Kaupthing in 2007. Stanford had a long-standing relationship with Kaupthing as with the other Icelandic banks and Ólafsson was the bank’s second largest shareholder.
The SIC report traced the origin of the transactions to DB but earlier in 2008 than Einarsson said in his letter. The SIC report states:
“At the beginning of 2008, Kaupthing sought advice from Deutsche Bank as to how it could influence its CDS spreads. In a presentation in early February, Deutsche Bank advised Kaupthing, for instance, to spend all liquid funds it received to buy back its own short-term bonds in an attempt to normalise the CDS curve. In the summer the idea of a credit-linked note transaction appeared in an email communication from an employee of Deutsche Bank. It states that this would mean a direct impact on the CDS spreads rather than an indirect one, as in the case of buy backs of own notes. It also states that this transaction will be financed. The message concludes by stating that the issue has to be timed right to get the ‘most “bang” for the buck’. In e-mail messages exchanged by Sigurdur Einarsson and Hreidar Mar Sigurdsson following this, the two agree that they do not need to involve pension funds, but that there is ‘no question’ that they should do this.
Sigurdur Einarsson said that the initiative for the transaction had come from Deutsche Bank. ‘It involved getting parties to write CDSs against those who wanted to buy them. This was to create a supply of CDSs, of which there were none. Because what we saw was happening on the market, or what we thought we saw, was that the screen price was always rising and there were certain parties, certain funds that put in a specific bid, no transaction, raised the bid, no transaction, raised it, raised it, raised it, raised and raised.‘” (As translated in Akers and Anor v Deutsche Bank AG 2012.)
According to the SIC report the CLN transactions “can be assumed to have actually made an impact on the CDS spreads on Kaupthing.”
Akers v Deutsche Bank
Stephen John Akers works at Grant Thornton in London and has a fearsome reputation as a diligent administrator. On being appointed a liquidator in 2010 of the two BVI companies, Chesterfield and Partridge, together with his colleague Mark McDonald, the two quickly set about to understand the nature of the transactions in the two companies.
They turned to DB with two impertinent key questions: 1) How did the transactions make commercial sense for the two companies? 2) How were the two companies expected to repay the loans from Kaupthing in case the markets moved against them, as indeed did happen?
When answers were not forthcoming from DB Akers sued the bank to get access to documents related to the transactions. In February 2012 a judge ruled DB should hand over the information asked for.
As to the purpose of the companies Akers states in his affidavit that “it seems possible that the Companies were involved in a wider package or scheme, although it is too early to comment definitively on the purpose of such scheme, contemporaneous reports and documents suggest that the purpose might have been to manipulate the credit market for Kaupthing” (Emphasis mine).
In court, DB strongly denied suggestions “it entered into the CLN transactions in order to manipulate the market” and took “issue with the picture painted in the Icelandic report. Among other things, it says that the CLNs were not in any way unusual or commercially unreasonable transactions; that it was not aware that Kaupthing was itself financing the purchase of the CLNs, if that is what happened; and that it did not act as adviser to Chesterfield, Partridge or Kaupthing.”
Further, in a witness statement, Venkatesh (nick-named Venky) Vishwanathan, the DB employee who wrote the email the SIC report quotes, supported the DB position. His interpretation of the “bang for the buck” is: “I say the way to proceed would involve ‘hitting the right moment in the market to get the most bang for the buck’ because an investor investing in a CLN product would want the best return and the coupon available over the term of the CLN, should it run to maturity, is set when the CLN is issued. That was why market timing was important. I was not suggesting, as Mr Akers says, that Kaupthing would get ”bang for its buck” by Deutsche selling CDS protection.”
Thus, Vishwanathan claims the email was not referring to Kaupthing getting the timing right for the most bang but the two companies investing in the CLN.
The OSP charges
According to the charges the first round of loans was made end of August 2008 to the three companies funding Chesterfield, in total €130m. However, these late August loans were issued so the companies could repay an earlier money market loan from Kaupthing Luxembourg, which already in early August had been used to instigate the transaction organised by DB in return for CLN as the company entered into a CDS with DB on Kaupthing; €125m were used on the CLN transaction but DB got €5m in fees. In September 2008 Kaupthing issued further loans of €125m to Chesterfield to meet margin calls from DB.
The Partride loans were issued in September, first €130m, of which €125m were used on the same kind of CLN transactions as Chesterfield though with the difference that DB only got a fee of €3.625.000 with apparently the rest, €1.375.000 left behind in Ólafsson’s company (the charges do not clarify why or for what purpose these funds were left in Ólafsson’s company or why DB settled for a lower fee than on the other transaction for the same amount). Also here there were margin calls from DB, for which Partridge got a further loan of €125m.
In total, Kaupthing lost €510m on these transactions. As Akers pointed out this loss was entirely predictable if the market turned and Kaupthing went out of business – after all, the two companies were unhedged. In other words, the two companies had little or no assets beyond the CLNs meaning that it was, according to the OSP, clear from the beginning that the companies should never have received the loans they got.
Urgency and faulty documentation
The charged Kaupthing managers steered the operations of the two companies and followed closely that the loans were paid to DB. According to emails between Sigurðsson and Einarsson as the scheme was being planned, quoted in the SIC report, the two seemed to have at first planned to ask some pension funds to participate but instead opted for the trusted clients.
The two were adamant that payments should go through to DB no matter what. In one instance, payment was due on 2 October 2008 but the managers made sure it was paid already on 22 September.
The most remarkable part of these loans is that they were being paid to DB literally up to the last hours of Kaupthing. Almost the only un-told saga (my account of this is here) from these last days relates to a rather incomprehensible loan of €500m given to Kaupthing by the CBI at noon on October 6 2008, hours before prime minister Haarde addressed the stunned nation to spell out the catastrophe in view: the banks could all fail, necessitating Emergency Law.
The CBI loan was given, as far as is known, to meet demands by the FSA for funds to strengthen KSF: the funds were ear-marked to prevent the failure of KSF in order to prevent cross-defaults, which would bring down the mother-bank in Iceland. However, nothing indicates the funds were used for that purpose and the CBI does not seem to have made any safeguards as to how the loan would be used.
Sigurðsson has later said that the Kaupthing management was unaware of the imminent Emergency Law as the loan was issued; as soon as he was aware of the Law, later in the afternoon, he knew the banks would not survive.
Yet, next day October 7, €50m were paid to DB in connection with the CLNs transactions, which were based on the premises that Kaupthing would be a going concern in five years time. The OSP charges state that the CBI loan enabled this last payment to DB. – On October 8 the Kaupthing board resigned; the day after Kaupthing in Iceland was taken over by administrators.
Further, the OSP charges show the loan documentation was lacking and the foreign owners were not entirely informed by Kaupthing of the transactions. Ólafsson says Sigurðsson asked him to participate; Sigurðsson claims Ólafsson or his representative asked for Ólafsson to be included.
According to the charges, documents related to these loans were changed twice after Kaupthing went into administration, first a few days after the collapse and again in December 2008.
Apart from this, the choice of clients to lend to was quite remarkably a direct challenge to complaints from the Luxembourg financial services authority, Commission de Surveillance du Secteur Financier, CSSF. In August 2008 the CSSF warned Kaupthing Luxembourg of the precarious position of some of its large debtors and shareholders. Choosing these clients for further loans was a direct challenge to the CSSF warnings, again a sign that the Kaupthing managers were willing to go to a great length to execute this plan.
The bang for the buck-writer – on leave since early 2015
The writer of the “bang for the buck” email, Venky Vishwanatha, later became DB’s head of corporate finance in Asia. Earlier this year he was put on leave, according to Bloomberg, as DB “faces civil court cases over alleged mis-selling of derivatives by a group he helped oversee, the people said, asking not to be named because the information is confidential. … The court cases relate to allegations that Deutsche Bank manipulated the market when it sold 450 million pounds ($700 million) of credit-linked notes in 2008 to two U.K. companies associated with the failed Icelandic lender Kaupthing Bank Hf, said the people. Vishwanathan was involved in the sale of the notes when he worked for Deutsche Bank in London and co-ran the bank’s western European financial institutions group at the time, one person said.”
Bloomberg quotes an e-mailed statement from DB saying the bank entered into credit linked transactions in 2008 with two counterparties, referencing Kaupthing. “Following Kaupthing’s bankruptcy, claims to recover funds have been brought against the bank. We will continue to defend ourselves vigorously against these claims.”
Did it make sense to try to influence the CDS via the CLN transactions?
The Kaupthing managers claim lending to influence the CDS spread was an understandable attempt, given the situation at the time. As mentioned above the BVI administrators could not quite see the sense.
Further, CDS spread is a measure of trust, the high spread indicated low trust. As it were, the transactions seemed to influence the spread for a few days. Considering the cost to Kaupthing and the risk, this was a high-wire act that resulted in losses and made absolutely no material difference to Kaupthing’s situation, except increasing the losses.
Also, these transactions were invisible to the market – of course Kaupthing did not advertise it was itself going into the market to finance the CDS linked transactions. If found out, this would definitely not have looked good, having a negative influence on the trust-factor the bank was trying to influence.
The large sums of money needed, the very little impact and the great risk might show the despair among the bank’s management. A sober scrutiny, also from the technical point of view, does not indicate this ever was a good idea. And then there is the market-manipulation angle DB contests.
The result was that the bank lost €510m by setting up a trade with remarkable little influence on the bank’s CDS spread, which at the same time created a hell of a good deal for those on the other side of the bet.
Who was on the other side of the bet?
As referenced above DB denies all involvement in the CLNs transactions apart from issuing the CLNs. Yet, according to the charges DB was much more heavily involved.
The Kaupthing managers assumed, according to the charges that DB would go into the market to find those willing to take the opposite position but, according to the charges, the managers did not do anything to inquire into the matter.
As it turns out, according to the OSP charges, DB did indeed take part of the position for itself. It is however unclear if DB was the end beneficiary here or if it was possibly acting on behalf of clients. In the end, DB turned out to be one of the largest creditors in all the failed Icelandic banks.
The interesting side saga looming in the coming court case is what role DB did play – and who made the handsome profit from the trades that caused Kaupthing such losses.
*Obs: neither Deutsche Bank itself nor any DB employees are charged in the Icelandic case but the outcome in Iceland might have ramification for civil cases related to the scheme.
The above is not based on accounts at the court case, but as stated above, mainly on Einarsson’s 2009 letter, the 2010 SIC report, the 2012 Aker ruling and lastly the OSP charges in the present case. I will be blogging in the coming days on what has transpired at the court case. – The CDS saga was one of the first cases related to the banking collapse that caught my attention so I’ve been following it for over six years.
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