CHAPTER 3 THE SOMITOMO INCIDENT
From South Africa we move on to the rest of the world to get an international perspective. On the 28th of March 1998, halfway around the world, a group of traders and executives working for the largest stock broking firm in the world, the London-based Nomura International, tried to drive down the value of a basket of shares listed on the Australian Stock Exchange (ASE) by selling a matching basket of shares totaling USD 600 million a few minutes before the market closed. The USD 600 million represented more than the total trading that normally takes place in one day on the Australian Stock Exchange (ASE) (Hills 1998: 1-3). The concept was simple: Nomura amassed a portfolio of USD 600 million in futures contracts that were expiring on the 28th of March 1998. The futures portfolio would increase in value if the All Ordinary Share (All Ord) index of the Australian Stock Exchange (ASE) fell. The USD 600 million in question was apparently the largest futures parcel ever put together on the Australian Futures Exchange. Selling the matching parcel of underlying securities on the Australian Stock Exchange (ASE) would virtually assure a substantial drop in the ordinary share index, increasing the value of the matching USD 600 million futures portfolio. However, as Greg Blank experienced, sometimes the best laid plans don’t work out. Due to a combination of factors, Nomura were only able to dump +/- USD 450 million worth of shares, and the index only fell 26 points or around one percent in the last 30 minutes of trading on the 28th of March 1996. Although the profits for Nomura were less than expected, it must still have been substantial as the key players, Channon, Moss and Mapstone, reportedly received several million dollars in bonuses. The Australian authorities reacted strongly against Nomura and on the 11th of December 1998 the Sydney Morning Herold reported that in the Federal Court, Justice Ronald Sackville found that Nomura (International) Plc, the oldest and largest financial conglomerate in the world, was “not simply using accepted or standard market techniques to achieve legitimate commercial objectives” and that “Nomura engaged in deliberately misleading conduct designed to achieve illegitimate ends” (Hills 1998: 1-3).
Nomura was, however, no stranger to controversy. In July of 1997 the company agreed to pay USD 84 million to Orange County, California. Orange County suffered a USD 1, 6 billion loss in December of 1994 resulting from speculation in high risk securities (Bruce 2004: 96-101). In June of 1997 Nomura was also making news headlines for all the wrong reasons. In Tokyo charges were filed against two former senior officials of the bank for apparently paying a racketeer to prevent a shareholder meeting from being disrupted, presumably by unhappy shareholders. Its trading privileges on the Tokyo Stock Exchange (TSE) were also curtailed, resultant from payments made to a gangster. The individual in question was apparently compensated for trading losses (Hills 1998: 3). I believe it is safe to say that a culture of extreme opportunism did indeed exist at Nomura – could it also be found in other international firms? The answer is yes.
On the 26th of March 1998, two years and two months after the massive Nomura positions matured Yasuo “The Hammer” Hamanaka (also known as Mr 5%) was sentenced in a Tokyo District Court to an eight-year prison term (Farukawa 1999: 1-2). From around 1984 until his discovery in 1996, Mr Hamanaka engaged in a range of activities that culminated in a loss of more than USD two and a half billion to Sumitomo Corporation (Tschoegl 2000: 103-121). Sumitomo, at the time, was the world’s largest trading firm in physical copper (Weston 2003: 1-5). In the London Metal Exchange forward market for copper, participating firms would normally have a three-month exposure through the buying or selling of an options contract. These positions could, however, be rolled over, whereby losses or profits could be deferred through deferring the settlement date. The trading team, of which Mr Hamanaka later became the head, traded around 500 000 metric tons of copper per year, a figure that represented approximately 5% of the total annual global demand for copper. The firm of Sumitomo was very proud of their position as the dominant player in the copper market and attributed their dominance to their “…expertise in risk management”. In this case study we will analyze the events that culminated in the eventual loss. By analyzing the evidence led and outcomes of court cases and disciplinary action by regulatory authorities in Japan, the United States and the United Kingdom, as well as relevant newspaper and academic articles, we will construct a model of events that will assist us in determining if this loss could be attributed to the actions of a rogue trader at work or to the culmination of other factors and the actions or inactions of other role players involved.
THE TRIAL OF YASAO HAMANAKA
Yasuo Hamanaka pleaded guilty to charges of forgery and fraud and, in March of 1998, he was sentenced to 8 years’ imprisonment with hard labor less the 400 days he had already served at the date of sentencing (Farukawa 1999: 1-2). During his trail, however, it emerged from evidence given by Mr Hamanaka that during 1985 the head of Sumitomo’s copper dealing team at the time, Mr Steve Shimizu, was the one who proposed speculative trading to Mr Hamanaka as a way to recoup pre-existing losses resultant from physical trading activities (Farukawa 1997e: 1-2). Mr Hamanaka testified that Mr Shimizu said that unauthorized futures trading was the only possible way to recoup the copper team’s existing losses. Mr Hamanaka also testified that, at that time, he suspected that his superior, Mr Shimizu, was already conducting speculative transactions to recoup losses, as his volumes of trading were “more than normal”. By March 1986 the losses of the Sumitomo copper trading team rose to around USD 50 million. At that time the decision was made by Mr Shimizu and Mr Hamanaka not to reveal the losses to their superiors, as they were “too great”. At that time fate dealt Mr Hamanaka a cruel blow. Mr Shimizu was to be reassigned to Manila by Sumitomo and he decided to resign, leaving Mr Hamanaka to handle the losses. Mr Hamanaka further testified that, although the task was initially daunting, he was convinced that over time he could make back the losses through careful and cautious futures trading. Mr Shimizu testified that he was well aware of the fact that Mr Hamanaka would be left to shoulder the responsibility for the USD 50 million in accumulated losses. He also suggested a hypothetical limit that would have triggered disclosure to his superiors, by saying that it would probably be around USD 100 million (Farukawa 1997d: 1-2). Another interesting point that emerged from the testimony of Mr Shimizu was his contention that “all data concerning transactions and contracts were entered into Sumitomo’s computer system”(1997d:1), alluding to the fact that with proper oversight and risk management these transactions should have been detected. During the trial it also emerged that Mr Shimizu set up his own firm, Scat Ltd, which conducted business with Sumitomo. As a result of such transactions, Mr Hamanaka was paid a portion of the profits made by Scat. It appears that the court viewed the acceptance of money without company approval as an indicator of the way Mr Hamanaka conducted his affairs.
According to the 1997 testimony of Yoshio Takeuchi, the then assistant general manager nonferrous metal, chemicals and petroleum group of Sumitomo, there were newspaper articles in the British press that claimed that Sumitomo were acquiring massive positions in copper warrants on the London Metal Exchange (LME) (Furukawa 1997a: 1). This, according to Mr Takeuchi’s testimony, sparked an internal investigation by Sumitomo. The internal investigation, aimed at determining if Sumitomo were manipulating the copper market, found that those allegations of market manipulation were unfounded and untrue. A few weeks later, Mr Takeuchi was on the stand again (Farukawa 1997b: 1). This time he testified to the fact that Sumitomo Head Office in Japan had an agreement with its subsidiaries, like Hong Kong, where contracts that exceeded credit lines could only be approved after a process of mutual consultation. This limit was, in the 1980s, set at USD 1million for the Hong Kong subsidiary but was, however, changed in 1994 after Mr Hamanaka regularly exceeded his limits, in one instance by USD 100 million in a transaction with Credit Lyonnais Rouse (CLR). Mr Takeuchi testified that the General Manager of credit and controlling was alerted to this transaction, but took no real action other than rapping Mr Hamanaka over the knuckles. Mr Hamanaka’s defense proved that all the Hong Kong subsidiaries’ transactions were conducted under instructions and with the funding of Tokyo. When confronted with Sumitomo records of numerous transactions conducted by Mr Hamanaka that exceeded his trading limits, Mr Takeuchi responded by saying he could not remember, did not know or that he “…was not in a position to be able to know”. These bouts of amnesia also affected other Sumitomo executives.
During the trial, the former credit manager for Sumitomo Corporation, Mr Hiroshi Nishino, was questioned by Mr Hamanaka’s defense team on how it was possible that all these massive positions remained hidden from himself and senior management at Sumitomo (Farukawa 1997c: 1). During questioning that lasted nearly two hours, Mr Nishino’s standard responses to virtually all the questions that were put to him was either “I don’t remember”, “I have no memory of it” or “I have no recollection of it” and, when he was shown incriminating documents, he responded with “I have never seen it”. Some of the documents related to the huge copper transactions that were shown to Mr Nishino included correspondence between the president of Sumitomo and the president of its Hong Kong subsidiary, clearly indicating their knowledge of at least some of these very large transactions. Similarly, when asked how he as head of credit missed the transactions between Credit Lyonnais Rouse and Morgan Guaranty Trust
& Co, in a regime where all transactions by any subsidiary over USD 20 million needed approval from Tokyo, Mr Nishino’s memory failed him.
Similarly, Mr Hamanaka’s defense also proved that senior management was at least aware of one suspicious transaction of USD 320 million that was detected as an unpaid account during September of 1993. At roughly the same time, credit lines were set for all dealers and brokers with whom Sumitomo was dealing. When questioned on this, Mr Nishino’s response was one of denying that such a document was ever sent by his staff to Tokyo on his orders. In 1994 numerous efforts to obtain letters of approval from Tokyo for extraordinary transactions (one can assume executed by Mr Hamanaka) were fruitless. It is clear from the evidence presented by Mr Hamanaka’s defense that there were numerous occasions when his transactions could have been detected over an extended period of time. It is, therefore, not surprising that in May of 1998 the United States Commodity Futures Trading Commission (CFTC) took action against Sumitomo Corporation for manipulating the copper market. Sumitomo eventually had to pay the FSA GBP 5 million to cover its time and effort and had to pay the CFTC USD 125 million (Verity 1998: 1). A mere slap on the wrist for the multibillion dollar multinational.
US & UK REGULATORY RESPONSES
During 1995 both the US Commodities Futures Trading Commission (CFTC) and the Securities Investment Board (SIB) in the UK initiated investigations into the behavior of the international copper price (Tschoegl 2004). These investigations eventually led to action taken against firms in both the UK and USA. The SIB was later known as the Securities and Finance Authority Limited (SFA).
MERRILL LYNCH INTERNATIONAL, INC AND MERRILL LYNCH PIERCE FENNER & SMITH (BROKERS & DEALERS), LTD.
On the 30th of June 1999 the CFTC announced that an administrative enforcement action had been settled with the two Merrill Lynch companies. Without admitting or denying the allegations, the two companies agreed to the order being entered into the CFTC records (CFTC Release 1999:1-2). The order found that, at minimum, these two firms assisted Sumitomo Corporation and other firms in the following respects:
“by providing more than one half billion dollars of credit and finance to the manipulators, which the manipulators used to purchase and hold a dominant position in futures contracts and London Metal Exchange warehouse stocks of copper; by providing trading facilities, accounts and trading capacity through which the manipulators acquired their dominant position in a combination of futures contracts and warehouse stocks, and through which the manipulators sold or lent a small portion of their holdings at artificially high absolute prices and artificially high backward dated spread price differentials; and by providing trading advice which the manipulators used in the execution of their strategy of withholding their copper from the market.”
The CFTC findings also make it clear that “…Merrill (B&D) and Merrill International possessed the requisite knowledge and intent to find that they aided and abetted the manipulators’ violations. In addition, the Order finds that Merrill (B&D) benefited from the manipulation by providing financing, trading facilities and credit to the manipulators, and by earning profits through its proprietary trading” (CFTC Release 1999:1-2). It is very clear from the wording used by the CFTC that they do not view these actions as a “rogue” event. This was a very clear strategy that was well planned, extensively funded and meticulously executed over an extended period of time. Merril Lynch agreed to pay a USD 15 million penalty to CFTC and a further USD 10 million to the London Metal Exchange (LME). CNN Money (June 30 1999: 1-2) reported that Merrill Lynch claimed they entered into the settlement as it was to avoid the “expense” and “distraction” that a drawn-out court case could entail, after initially dismissing CFTC allegations as groundless.
RUDOLF WOLFF & CO. LTD, TADAYOSHI TAZAKI, WILLIAM HARKER, AND JOHN WOLF
On the first of March 2000 the Securities and Futures Authority in the United Kingdom announced penalties imposed on a number of firms and individuals (SFA 2000: 1-2). These penalties resulted from proceedings instituted during November of 1997, following an investigation into the dealings of these firms with Sumitomo Corporation and Mr Hamanaka, the general manager at the time of the non-ferrous metals department, in particular. Mr Harker and Mr Wolff were both reprimanded and fined GBP 30 000 and GBP 15 000 respectively and had to make contributions of GBP 15 000 and GBP 6 000 to the SFA’s costs. Mr Tazaki lost his SFA registration for a period of seven years, during which he also could not register with the SFA in any other capacity. He was also fined GBP 45 000 and had to contribute GBP 5 000 to SFA costs. Similarly, the firm of Rudolf Wolff & Co. Limited was reprimanded and fined GBP 375 000 over and above a contribution of GBP 125 000 that they had to make towards the expenses incurred by the SFA. In essence, the abovementioned individuals and firms that were penalized admitted to breaching a number of SFA principles. This included failing to “act with due skill, care and diligence” to “observe high standards of market conduct” and to “organize their affairs in a responsible manner” (SFA 2000: 7).
During the SFA investigation it became clear that the relationship between Rudolf Wolff & Company, as a firm, and some of its staff with Sumitomo was essentially corrupt in nature. A large portion of its business consisted of fictitious “cross trades”, which were essentially accounting entries that created a false perception of turnover. It was furthermore found that SCAT, the company owned by Mr Shimizu, was appointed as a consultant to Rudolf Wolff & Company and, on at least one occasion, money from a Sumitomo account managed by Rudolf Wolff & Company was paid to SCAT under instructions from Mr Hamanaka. No-one ever confirmed that these instructions were authorized. Rudolf Wolff & Company also provided Sumitomo with false trading volume confirmations over a 5-year period between April of 1991 and April of 1996. The information used in the confirmations was information supplied by Mr Hamanaka and was never checked. Similarly, Rudolf Wolff & Company staff provided Sumitomo with month-end confirmations of its copper trading activities without actually confirming that the confirmations sought by Sumitomo tied up with actual transactions that were executed. In essence, Rudolf Wolff & Company provided third party confirmation to Mr Hamanaka of transactions that never took place. Similarly, Rudolf Wolff KK, the Japanese subsidiary of Rudolf Wolff & Company, admitted to providing Sumitomo (usually on the request of Mr Hamanaka) with numerous false documents over the 5-year period from 1991 to 1996. These false documents included confirmations of the existence of fictitious copper warrants, confirmations of fictitious transactions, as well as false or incorrect invoices and “difference” accounts (SFA 2000: 1-7). An internal memo from Mr Tsukuda, a director for Rudolf Wolff KK, to Mr Tazaki, the managing director, clearly indicated that confirmations of Sumitomo positions were signed without the supporting documentation attached and that both Rudolf Wolff KK and Mr Hamanaka were aware that the warrant holdings that were confirmed referred to non-existent positions. It also made it clear that Mr Hamanaka’s requests for the altering of trade dates and confirmations for non-existent transfers was done without the knowledge of Sumitomo. One possible explanation for the reasons behind the assistance provided to Mr Hamanaka might be found in his authorization of the use of USD 500 000 of Sumitomo’s funds to invest in TAO, a “fund management vehicle”, established by Rudolf Wolff & Company.
THE JP MORGAN LOAN
In April of 2002, without admitting liability, JP Morgan agreed to pay more than USD 120 million to Sumitomo Corporation. This payment resulted from claims by Sumitomo Corporation that JP Morgan assisted Hamanaka in his activities by providing him with a “loan” of more than USD 150 million during 1994 (Killick 2002: 1-4). Sumitomo argued that the “loan” was disguised as a “series of copper transactions” that had an initial premium (the loan) of USD 154 million payable to Sumitomo attached to it. By structuring it in such a way, Sumitomo argued that it was virtually impossible for their auditors to detect the loan. The effective interest rate charged by JP Morgan was also “hundreds of basis points” more than what Sumitomo would normally pay in the markets for such loans. This led Sumitomo to suspect that those at JP Morgan involved in the transactions had to have guessed that Mr Hamanaka was desperate and acting without authorization. One of the JP Morgan bankers, Ms Kieran Sykes, had done business with Mr Hamanaka at her previous firm, ING. During 1993 she assisted Mr Hamanaka to secure a USD 100 million line of credit from ING. There were, however, one or two oddities around this loan. In the first instance, the banking fees of USD 750 000 for the Sumitomo loan were paid by a UK firm called Winchester Commodities and, secondly, there was no second signature on the Sumitomo request for the loan. When the loan came up for renewal, a senior official from ING was dispatched to Tokyo to secure a signature from a Sumitomo main board director before ING would be prepared to renew the facility. Mr Hamanaka’s response was odd, to say the least, and the official was not allowed access into the Sumitomo building by Mr Hamanaka. In response, ING cancelled the loan, but took no steps to advise Sumitomo of the treatment their banker received. Another interesting twist in this event is the fact that, on the day that the JP Morgan facility was approved, Winchester Commodities made a payment of USD 100 000 to a firm registered in the British Virgin Isles belonging to Ms Sykes. Ms Sykes denied that the two events were tied to one another in any way, thereby denying that she was paid a fee or a bribe.
HOW DID HE LOSE THE MONEY?
The initial losses incurred by Sumitomo’s copper division resulted from the trading of physical copper in the Philippines (Weston 2003:1-5). In order to recoup these losses, Mr Shimizu began speculating on derivatives through the LME. The losses of the copper section had, however, risen in 1987 to USD 58 million and we know that Mr Shimizu had by then resigned.
During 1993 Mr Hamanaka engaged in the unauthorized sale of deep in the money put options, to Morgan Guaranty Trust and lost USD 393 million on the transaction. This method of funding was also used by others, including Mr Leeson and Mr Rusnak, and will be discussed in detail later in this thesis. During 1994 Mr Hamanaka ran out of funds again and this time he started selling a combination of puts and calls in order to raise USD 150 million. Mr Nick Leeson also sold a combination of puts and calls called a straddle. In my interview with him, he confirmed to me that he chose this instrument because of the high premium he could generate out of it. One can only assume that Mr Hamanaka used this combination of instruments for the same reason. In the case of Mr Leeson, his losses resultant from using these instruments greatly contributed to the demise of Barings Bank in 1995. In the case of Mr Hamanaka, the losses that resulted from the sale of these puts and calls amounted to USD 253 million.
In August of 1998 Sumitomo agreed to pay USD 99 million following legal action taken against it in a New York court and followed it up with a payment of USD 42.5 million after similar action in a Californian court. The applicants in these actions alleged that Sumitomo Corporation, with the assistance of a firm called Global Minerals, manipulated the copper market between 1994 and 1996 (Weston 2003: 1-5). In essence, an artificial copper shortage was created through the purchasing of physical copper, by taking delivery of option and future contracts and storing the copper in LME warehouses. Mr Hamanaka resisted speculators like George Soros, who were trying to short the market by selling copper that they didn’t have at lower than market prices, with the hope that they could buy the copper at the time of delivery at even lower prices. Mr Hamanaka, however, used the extensive resources and, more importantly perhaps, credit-worthiness of Sumitomo to buy the other side of these options sold by the speculators, thereby neutralizing the downward pressure created by these sales. When Mr Hamanaka was removed from his position in May of 1995, no-one was countering the short selling and the copper price collapsed. This collapse caused copper prices to drop sharply, causing massive losses resulting from Mr Hamanaka’s positions that were dependent on high copper prices. Total losses to Sumitomo eventually rose to the unprecedented amount of more than USD 2.5 billion.
TABLE OF CONTENTS
CHAPTER 1. A SOCIOLOGICAL APPROACH
1.2 FUNCTIONALIST THEORISING
1.3 SOCIAL AND SYSTEM INTEGRATION
1.4 POLITICAL-CULTURAL APPROACH
1.5 SOCIAL CONSTRUCTION THEORY
1.6 INNOVATION AS A FORM OF OPPORTUNISM
CHAPTER 2. GREG BLANK AND OTHERS: A SOUTH AFRICAN PERSPECTIVE
2.2 THE CASE AGAINST GREGORY LEX BLANK
2.3 THE ENVIRONMENT IN WHICH BLANK OPERATED
2.4 THE GENSEC INCEDENT
2.5 OTHER EVIDENCE
2.6 OTHER OPPORTUNISTIC BEHAVIOR
CHAPTER 3.THE SUMITOMO INCEDENT
3.2 THE TRIAL OF YASUO HAMANAKA
3.3 US & UK REGULATORY RESPONSE
3.4 HOW DID HE LOOOSE THE MONEY?
3.5 WERE THERE ANY WARNINGS?
CHAPTER 4. TOSHIDE IGUCHI AND DAIWA BANK
4.2 HISTORICAL PERSPECTIVE
4.3 THE ROLE OF THE REGULATORS
4.4 THE ROLE OF MANAGEMENT
4.5 THE DAIWA CULTURE
4.6 WHAT MOTIVATED MR IGUCHI?
4.7 WHAT PRODUCTS DID HE USE?
4.8 THE MARKETS HE EXPERIENCED
CHAPTER 5. JOSEPH JETT AND KIDDER PEABODY
5.2 THE CULTURE AND STRUCTURE AT KIDDER
5.3 WHAT DID HE DO AND WHAT PRODUCTS DID HE USE?
5.4 WERE THERE ANY WARNINGS?
5.5 THE LEGAL PROCESS AND OTHER SANCTIONS
5.6 WHO IS TO BLAME?
5.7 WAS HE RESPONSIBLE FOR THE DEMISE OF KIDDER?
CHAPTER 6. NICK LEESON & BARINGS BANK.
6.2 THE BARINGS ENVIRONMENT
6.3 WHAT DID HE DO?
6.4 WAS HE FRONT RUNNING?
6.5 WAS HE EVER MAKING PROFITS?
6.6 THE CHARGES AGAINST HIM
6.7 WHAT INSTRUMENTS DID HE USE?
6.8 EXTERNAL WARNINGS
6.9 INTERNAL WARNINGS
6.10 WHO IS TO BLAME?
6.11 THE ROLE OF SHORT-TERM INCENTIVES
6.12 THE ROLE OF BARING’S CORPORATE AND REPORTING STRUCTURES
6.13 THE ROLE OF THE FORMAL REGULATORY INSTITUTIONS
CHAPTER 7.THE ALLIED IRISH BANK LOSS
7.2 A CULTURE OF HONESTY AND BEST PRACTICE?
7.3 THE MARKET ENVIRONMENT IN WHICH MR RUSNAK OPERATED
7.4 WHAT WENT WRONG?
7.5 THE INDICTMENT OF JOHN RUSNAK 2
7.6 THE EXTENT AND COMPOSITION OF THE LOSSES
7.7 WHY WAS IT NOT DETECTED?
7.8 SIGNS OF ADDICTION?
7.9 WAS THIS LEARNED BEHAVIOR?
7.10 OTHER CONTRIBUTING BEHAVIOR
CHAPTER 8. THE NAB FOUR
8.2 WHAT INSTRUMENTS DID THEY USE?
8.3 HOW WAS THE LOSSES INCURED?
8.4 WHY WAS THEIR ACTIONS NOT DETECTED EARLIER?
8.5 WARNING SIGNS
8.6 THE CULTURE AT NAB
8.7 PRINCIPLE FAILURES
8.8 THE ROLE OF INCENTIVES
8.9 WAS THEIR STRATEGY UNIQUE?
CHAPTER 9. MIKE MILKENTHE US SAVINGS AND LOANS CRISES: IN PERSPECTIVE
9.2 CAUSES OF THE CRISES
9.3 WAS MIKE MILKEN RESPONSIBLE FOR THE CRISIS?
9.4 A PERSPECTIVE ON THE CRIMES AND SENTENCING OF MIKE MILKEN
9.5 THE SHELL “MISSTATEMENT OF RESERVES”
9.6 THE SEC FRAUD CASE AGAINST SHELL
9.7 THE CHARGES AGAINST SHELL
9.8 PENALTIES AND MOTIVATION FOR PENALTIES IMPOSED
9.9 OPTIONS BACKDATING
CHAPTER 10 CONCLUSION
10.1 SOLUTIONS TO PROBLEMS OF EXTREME OPPORTUNISM
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