The Chairman of the Board of Governors of the Federal Reserve, the U.S. Secretary of the Treasury, and the Chairwoman of the Federal Deposit Insur- ance Corporation (FDIC) contend that the Bankruptcy Code is not capable of working effectively for failed systemically important entities. Rather, these regulators argue that the FDIC is best situated to utilize its new orderly liquida- tion authority to avoid government bailouts and the cumbersome Bankruptcy Code process.
This vision seems clouded by reality. With regard to derivatives, banks en- gage in the vast majority of trading. Prior to and after Dodd-Frank, a failed bank’s derivatives portfolio is subject to a one-day stay before counterparties can terminate transactions. In addition, the FDIC’s ability to transfer assets to another entity begs the question of whether an institution actually could be per- suaded to take on a failed institution’s $35 trillion notional derivatives portfolio without sufficient time to conduct due diligence.
Moreover, it is not clear that the FDIC’s orderly liquidation authority would necessarily produce faster results than the bankruptcy process would. In bankruptcy, the administrator has a fiduciary duty to maximize the size of theestate for the benefit of all creditors. In Lehman Brothers’ case, this has meant that each derivatives transaction is considered with this principle in mind. Ac- cordingly, the estate contended that the process was too slow and proposed the settlement framework mentioned above. It is arguable that if the FDIC, operat- ing in its new Dodd-Frank role, transferred a failed bank’s derivatives portfolio to another entity, choices would still have to be made as to each transaction’s value, whether such transaction could be terminated, and, if not, what collateral levels would be required. In contrast, under the current settlement framework, Lehman Brothers’ bankruptcy will be resolved in just over three years—a re- markable timeframe given that Enron’s resolution took a decade.
Policymakers also focused on the wrong entities for failure. Banks, the most likely candidates for application of Dodd-Frank’s orderly resolution authority, have in fact been the least likely to experience failures due to deriva- tives losses, in part because of their efforts to hedge exposures. The largest de- rivatives failures to date involved non-bank entities such as Orange County, the hedge fund Long-Term Capital Management, and AIG Financial Products— entities with fewer risk management and legal resources than banks and which are less likely to hedge exposure. These types of entities are not covered by Dodd-Frank.