University of San Diego School of Law Law and Economics Research Paper No. 08 University of Pennsylvania Law School Institute For Law and Economics Research Paper No. 01-04 USC Law School Sponsored by the John M. Olin Foundation Research Paper No. 01-1 Derivatives on TV: A Tale of Two Derivatives Debacles in Prime-Time Peter H. Huang Kimberly D. Krawiec Frank Partnoy This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/paper.taf?abstract_id=259854 Derivatives on TV Derivatives on TV: A Tale of Two Derivatives Debacles in Prime-Time+ Peter H. Huang,* Kimberly D. Krawiec** and Frank Partnoy*** What do derivatives and television have in common? Most people think derivatives are complex,1 but view television as simple. Our view is the opposite: derivatives are relatively straightforward, but television is multifaceted.2 Because the average person’s knowledge of derivatives is more likely acquired through television or other popular media than through formal training, the depiction of derivatives on television is extraordinarily important. If a juror learns from television that derivatives cause large losses and provide few or no benefits, then her decision in a shareholders’ lawsuit alleging that management violated its fiduciary duty by buying (or not buying3) derivatives may be affected by that coverage. Similarly, if a voter or shareholder learns from television that derivatives solve any financial problem, then she is less likely to monitor derivative usage by her county treasury or by corporations in which she owns stock. During Congressional debates, several legislators and witnesses have cited media coverage of derivatives as support for proposed legislation restricting derivatives use. For example, Senator Edward J. Markey of Massachusetts cited the coverage of Nick Leeson by Newsweek and Fortune magazines in proposing an amendment to the Private Securities Litigation Reform Act of 1995 that would have rendered the Act inapplicable to derivatives transactions.4 In support of that amendment, Mr. Dingell of Michigan quoted “a particularly chilling moment” in a 60 Minutes “expose on” derivatives.5 Similarly, Senator Byron L. Dorgan, in introducing the Derivatives Limitations Act of 1995, cited general newspaper coverage and television reports on derivatives.6 He also cited media coverage of derivatives in proposing amendments to the Financial Services Modernization Act of 1999.7 Finally, Brooksley Born, the Chairperson of the Commodity Futures Trading Commission (CFTC), cited + We thank Hillary Sale for moderating the 2000 Law and Society panel on which this paper is based. Thanks also to Anita Famili and Princeton Kim, USC Law School Class of 2001, for excellent research assistance. * Assistant Professor, University of Pennsylvania Law School. ** Visiting Professor, UCLA Law School; Associate Professor, University of Oregon Law School. *** Associate Professor, University of San Diego Law School. 1 Derivatives are so named because their value is derived from or linked to some underlying asset, reference rate or index. 2 Peter H. Huang, Law and Economics in Xena, Warrior Princess, 2 Whoosh! (1996), available on-line at http://whoosh.org/issue2/huang.html (discussing implications for law and economics of a particular television show). 3 Although no cases hold there is a fiduciary duty to hedge using derivatives, some commentators interpret Brane v. Roth, 590 N.E.2d 587 (Ind. 1992), as doing so. This interpretation, however, is unwarranted. Kimberly D. Krawiec, Derivatives, Corporate Hedging, and Shareholder Wealth: Modigliani-Miller Forty Years Later, 1998, U. Ill. L. Rev. 1039, 1102-04 (1998); George Crawford, A Fiduciary Duty to Use Derivatives? 1 Stan. J.L. Bus. & Fin. 307, 329-30 (1995). 4 141 Cong. Rec. H2818-01 (Mar. 8, 1995), H2826. 5Id. at H2827. 6 Senator Dorgan stated that "[t]he term 'derivative' is not readily understood by most." 141 Cong. Rec. S3889-01 (Mar. 14, 1995), S3889. He also specifically cited a "Washington Post op-ed piece on derivatives called 'Lessons from Barings' in support of his proposed legislation.” 141 Cong. Rec. S3964-01 (Mar. 15, 1995), S3964. 7 Senator Dorgan cited a Wall Street Journal article on Long-Term Capital Management and the Fortune article titled “The Risk That Won’t Go Away, Financial Derivatives Tightening Their Grip on the World Economy, and No One Knows How to Control Them.” 145 Cong. Rec. S483-02 (May 6, 1999), S4840. 1 Derivatives on TV media coverage of derivatives during Congressional testimony.8 There is also evidence that media coverage shapes the views that other people have about derivatives.9 Derivatives went largely unnoticed by television until the Federal Reserve unexpectedly raised interest rates in 1994, causing significant losses and even several bankruptcies by derivatives investors who had made large, leveraged bets that interest rates would not rise. Since then, however, derivatives have so infiltrated popular media that today nearly everyone has some experience with derivatives on television. In this article, we focus our discussion solely on two television programs that covered highly publicized derivative debacles: the March 5, 1995, “60 Minutes” coverage of the bankruptcy of Orange County, California, and the February 8, 2000, NOVA coverage of the near-collapse of Long-Term Capital Management (LTCM). I. What Happened? Orange County and LTCM appear at opposite ends of the spectrum of recent derivatives losses. Orange County’s Treasury was a one-man show, and its now-infamous treasurer, Robert L. Citron, was a seventy-year-old college dropout. In contrast, LTCM was a slick, sophisticated hedge fund,10 led by John Meriwether, whose principals included two Nobel laureates and several “rocket scientists” recruited from the investment bank Salomon Brothers. Notwithstanding these differences, Orange County and LTCM had two things in common: each lost more than a billion dollars on derivatives and each shrouded the details of its operations in secrecy. A. Orange County Citron dominated the Orange County Treasury in the 1980s and 90s.11 He was one of the nation’s best-known municipal treasurers, primarily because his investment strategies produced a very high average return of 9.3%. Yet before 1995, the public was largely unaware of how Citron was generating such high returns. 8 Brooksley Born stated that “many of the regulatory issues identified in the concept release [issued by the CFTC about over-the-counter derivatives] became front-page news last September when a very large hedge fund, Long- Term Capital Management L.P., nearly defaulted on $1.25 trillion in notional value of exchange-traded and OTC derivative contracts." Testimony before the House of Representatives on the Impact of Technology on Banking 1999 WL 170220 (F.D.C.H.) (Mar. 25, 1999); Testimony before the House of Representatives on Technological Trends in the Futures Industry 1999 WL 191046 (F.D.C.H.) (Mar. 25, 1999); and Testimony before the House of Representatives on Reauthorization of the Commodity Futures Trading Commission 1999 WL 313983 (F.D.C.H.) (May 18, 1999). 9 "Bob Whaley, a finance professor at Duke University's Fuqua School of Business, changed the way he taught his derivatives course in 1995 -- after seeing a '60 Minutes' segment on derivatives. I was 'absolutely dumbfounded at the misrepresentations and mischaracterizations' about their supposed evils, he says. But after playing the video on the first day of class, he discovered that students bought into the news show's views. Now at the end of the course, he says, students are 'as dismayed as I was at the show's lack of knowledge about derivatives and derivatives markets.'" Stephen Barr, Incomplete Education, CFO Mag. for Senior Fin. Executives Apr. 1, 1997 30. The law students in one of our securities regulation courses had precisely the same reactions. 10 A hedge fund is an investment vehicle typically restricted to a small number of wealthy or sophisticated investors and established outside of the U.S. For example, although LTCM was a U.S.-registered limited partnership, its positions were held by a Cayman Islands entity and administered by a Dutch company. Nicholas Dunbar, Inventing Money: The Story of Long-Term Capital Management and the Legends Behind It 126 (2000). See also Roger Lowenstein, When Genius Failed: The Rise and Fall of Long-Term Capital Management (2000) (providing an unauthorized history of LTCM). 11 The details in this essay are drawn from Philippe Jorion, Big Bets Gone Bad: Derivatives and Bankruptcy in Orange County 7-18, 30-37, 47-51, 67-83 (1995) and Frank Partnoy, F.I.A.S.C.O.: Blood in the Water on Wall Street Ch. 8 (1997). 2 Derivatives on TV Citron’s strategies consisted primarily of large, leveraged bets that short-term interest rates would not increase. Citron borrowed about $13 billion from various securities firms through arrangements known as reverse repurchase agreements, using Orange County’s $7.4 billion investment pool as collateral. This gave him about $20 billion to invest. Citron used these funds to purchase short-maturity, highly-rated bonds, as Orange County’s investment regulations required. During the early 1990s, short-maturity, highly-rated bonds returned approximately 3%. How did Citron plan to increase his returns to above 9%? This is where derivatives entered the picture. Citron purchased a special type of bond, called a “structured note,” whose payouts were not fixed, but rather were based on one or more formulae. For example, Citron bought large amounts of “inverse floaters,” bonds whose value declines rapidly when interest rates increase. An inverse floater might pay 13% minus a multiple of a short-term floating rate. If the short-term rate remained at 3%, the structured note would pay 10%. But if the short-term rate increased, the payout would decline, and the more it declined the less the notes would be worth.