News Analysis

Tuesday 16 September 2014

Hapless investors were lambs to the slaughter at Anglo

Published 04/05/2014 | 02:30

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The Anglo Irish Bank sign being removed from outside the bank's HQ in 2011. Photo: Damien Eagers

People are really starting to miss the point when it comes to analysing the collapse of Anglo Irish Bank and the criminal events that took place there in the summer of 2008.

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A new narrative is emerging on foot of the fact that two former Anglo Irish Bank executives did not get jail sentences for committing a serious crime. Judge Martin Nolan's stinging criticism of the role of the failure of regulation in those events paints a picture of haplessness and incompetence in which former Anglo executives Pat Whelan and Willie McAteer were led into illegality.

We were told during the trial that the bank had no problem with lending the Maple 10 the money, neither did the regulator, the market, the lawyers. Everything about it seemed fine until the bank collapsed.

I remember back in July 2008 reading the stock exchange statement that Sean Quinn's family was buying a chunk of shares in the bank. Very quickly rumours began to circulate that the Quinns had borrowed the money from Anglo to buy these shares and that Anglo had lent several hundred million to a group of bank customers to buy another large stake.

One of my journalist colleagues told me he had just heard that the Maple transaction had been financed by Anglo itself. Immediately, we both asked each other, "Is that legal?"

We had watched the Anglo share price collapse from over €17 right down to about €4. We were aware of rumours that the bank was in trouble. There were rumours that Sean Quinn was in trouble. Nothing could be proven at that stage.

Anglo's share price shot up on the back of the announcement of the Maple 10 deal that was not only rotten but illegal and criminal. It was a case of job done.

There has been a tendency to portray this transaction as if it were a victimless crime.

After all, this transaction did not bring down the bank – the bad loans to defaulters did that. Plus, the bank would have collapsed with or without this deal anyway.

But this was not a victimless crime. There was an open market in Anglo Irish Bank shares for six months after this transaction took place. Hapless investors bought and sold shares in what was essentially a rigged market in the stock. They were like lambs to the slaughter who were ignorant of the bank's overexposure to property lending, but utterly misled about the market value of the stock and the financing of the ownership of 20pc of the bank.

We now know that senior figures in the financial regulator's office, including Patrick Neary and Con Horan, were aware this transaction would see the bank lend money to the Maple 10 to finance the share price. It is irrelevant whether they thought the loans might be just bridging finance or short term. It was a crime.

Non-executive directors on the board of Anglo, when informed of the share purchase, don't seem to have asked the question of where these 10 guys were going to get the €450m to buy these shares, at a time when investors were abandoning the bank's stock.

Surely, if you pay a serious senior business person €60,000 per year to attend a few board meetings as a director, you expect them to ask a very obvious, relevant and intelligent question.

The problem is this deal stank of a fraud on the market from its inception. Anybody in possession of even half the facts should have smelled the deception and asked the relevant questions to get the remaining facts.

By doing nothing, the financial regulator effectively allowed a fraud on the market to go on for six months.

The Anglo trial was about Section 60 of the Companies Act 1963 which forbids a company to use its own money to purchase its own shares, except in specific circumstances.

Why is this a crime? In some circumstances it could be used as a method for someone to use company funds to enrich themselves by purchasing shares in that very company. For example, they could attain ownership of the company by using not their money, but the company's. Where you have a stock exchange listed company with an open and international market in its shares, the company could use its own funds to boost its own stock market value, thereby fundamentally misleading the market about the real value of the stock. This is a deception and a fraud.

But the deception continued after the Maple 10 deal. We now know from the Anglo Tapes that later that summer, Anglo's David Drumm was telling the financial regulator that the bank needed emergency liquidity of at least €4bn.

"We need the moolah, you have it," was how Drumm described it in technical terms on the tapes.

While this was going on, there was still an open market in Anglo shares. The regulator was hearing that Anglo needed an emergency cash injection of €4bn or it could go under, and it still allowed hapless punters to roll up and buy shares in the bank on a daily basis.

This is a lot more serious than a "sorry affair" as described by Central Bank Governor Patrick Honohan during the week.

We have an arm of the state allowing a deception to occur for months. How many people in financial regulation and the Central Bank were in possession of that information? Surely, the Maple 10 and Quinn loans would have been included in the quarterly returns on large client exposures provided by the bank to the regulator. It should have been obvious.

How many arms of the State were in possession of that information? Presumably it goes into the Department of Finance and government. How high up did it go?

These are all questions that must now rest with our rather lame banking inquiry. It will be too little too late.

Financial regulation has improved since the crash. Some lessons have been learned. The challenge will be keeping up the momentum and avoiding complacency.

Last week Honohan said the Central Bank would not allow another housing bubble to develop. This is progress. I remember requesting an interview with the financial regulator in early 2007 for an RTE programme I was making about a possible property crash.

They declined to participate on the grounds that it was not their role to comment on property prices!

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