Lehman execs 'may have been negligent'

Investment bank Lehman Brothers used accounting gimmicks and had been insolvent for weeks before it filed for bankruptcy in September 2008, but there was not extensive wrongdoing, a court-appointed examiner has found.

In a 2200-page report, examiner Anton Valukas, chairman of law firm Jenner & Block, reported the results of his more than year-long investigation into who could be blamed for the firm's collapse, which deepened the global financial crisis.

The examiner said that while some of Lehman's management's decisions "can be questioned in retrospect" and the firm's valuation procedures for its assets "may have been wanting", those responsible for the firm had used their business judgment and were largely not liable for the firm's collapse.

However, he said that Lehman, which is now liquidating for the benefit of creditors, could have claims against former Lehman chief executive Dick Fuld and chief financial officers Chris O'Meara, Erin Callan and Ian Lowitt for negligence or breach of fiduciary duty.

He said there was also sufficient evidence to support a claim that the firm's auditor, Ernst & Young, had been "negligent" and that Lehman could pursue claims against it for "professional malpractice".

He did not find that Lehman's directors explicitly violated their fiduciary duty, but said that Wall Street played a large role in causing an acute liquidity crisis at Lehman in its final days.

Mr Valukas suggested Lehman may also be able to pursue claims against banks like JPMorgan and Citigroup for taking some US$16 billion in collateral out of Lehman's coffers as it struggled to stay afloat.

The long-awaited report contains explosive allegations about a gimmick, "Repo 105", that was used for the sole purpose of manipulating Lehman's books.

The examiner concluded that the gimmick, which dated back to 2001 and was used without telling investors or regulators, gave the appearance that Lehman was reducing its overall debt levels in 2008 when in reality it was not. Lehman used the gimmick to temporarily remove $50b of assets from its balance sheet in 2008, according to the report.

An attorney for Lehman's former chief executive Richard Fuld said that Mr Fuld "did not know what those transactions were".

"He didn't structure them or negotiate them, nor was he aware of their accounting treatment," attorney Patricia Hynes said, noting the firm's outside auditor and legal counsel had not raised any concerns about the transactions with him.

The examiner also said a claim could be based on Ernst & Young's failure to abide by professional standards in communications with Lehman's audit committee. Claims could also be based on shortcomings in Ernst & Young's probe into a whistleblower claim and reviews of Lehman's public filings.

Ernst & Young said: "Our last audit of the company was for the fiscal year ending November 30, 2007. Our opinion indicated that Lehman's financial statements for that year were fairly presented in accordance with Generally Accepted Accounting Principles (GAAP), and we remain of that view."

Questions about Lehman's accounting had been raised in the months before its bankruptcy, notably by hedge fund manager David Einhorn, who thought the bank was not taking proper write-downs.

The examiner's report could provide ammunition for future lawsuits that would let Lehman recover more funds for creditors.

Lehman's lead bankruptcy attorney, Harvey Miller, said the unsealing of the report came at an "opportune time" as the company is developing a reorganisation plan that will detail how the bank will complete its bankruptcy.

The report, which details the harrowing days of September 2008 before Lehman filed the largest US bankruptcy in history, was compiled from thousands of documents and emails and interviews with such key players in government and Wall Street as Treasury Secretary Hank Paulson, Federal Reserve chairman Ben Bernanke, JPMorgan chief executive Jamie Dimon, British authorities and Lehman executives.

The bankruptcy judge overseeing the case, James Peck, said the report "reads like a best-seller".

The examiner said Lehman could be found to have been insolvent as far back as September 2, 2008, even though it did not file for bankruptcy until September 15.

"Lehman's small margin of equity relative to assets meant it did not need much loss in asset value to render it insolvent," the examiner wrote.

During the third quarter, Lehman entered into new and more onerous collateral agreements with rival Wall Street banks – agreements the examiner suggested could be challenged because Lehman was technically insolvent.

Indeed, the report details increasingly aggressive collateral calls that JP Morgan made in the days before Lehman's bankruptcy filing.

On September 11, for example, JPMorgan executives decided that the collateral Lehman had posted "was not worth nearly what Lehman claimed it was worth". The next day, JPMorgan asked for an additional $5b in collateral.

About that time, JPMorgan discovered that one of the securities posted by Lehman, an asset-backed security known as Fenway, was "worth practically nothing as collateral". In the report, the examiner raised questions about whether JPMorgan had acted "in good faith" but also detailed an interview in which Mr Dimon said he told Mr Fuld in every conversation "that he did not want to harm Lehman". The examiner found Lehman could have potential claims against JPMorgan, which is still holding about $6.9b of Lehman's collateral, and Citi in connection with collateral demands and guaranty agreements that hurt Lehman's liquidity.

"Lehman's available liquidity is central to the question of why Lehman failed," Mr Valukas wrote in the report.

A Citi representative said that while the firm was still going through the report "the examiner has not identified any wrongdoing on Citi's part". JPMorgan declined to comment.

The report described how Bank of America executives backed away from a deal to buy Lehman, lacking US government aid. Bank of America concluded Lehman's commercial real estate valuations were too high, and identified $65b to $67b in assets the bank "would not have wanted at any price" the examiner's report states. Many of Lehman's assets could not even be eligible to be used as collateral by a Central Bank, according to the report.

Mr Valukas found that Lehman could make claims on assets held by Lehman affiliates that were transferred to Barclays Plc when the British bank ultimately bought Lehman's core US brokerage after it filed for bankruptcy.

But the value of those assets, such as office equipment and customer information, "may not be material". Lehman's estate has sued Barclays, alleging it reaped a secret $5b profit from its rushed purchase of the company's US brokerage. Lehman is also entangled in litigation with Bank of America.

Barclays declined to comment and a Bank of America spokeswoman said the company would have no comment until its staff finished reading the report.

Under US bankruptcy law, an examiner can be appointed in any bankruptcy case if someone requests it and the court finds the company's debts exceed $5 million. Lehman had over $600b in assets when it filed for bankruptcy.

- Reuters