Friday, July 16, 2010 - 12:26 PM

Your humble blogger is back in the USA, and will be posting with gusto later today about everything he learned while in Europe.
However, I can't resist commenting quickly on Goldman Sachs' settlement with the SEC. Some financial bloggers are already describing it as a huge win for Goldman. Ordinarily, I don't like this kind of frame: settlements should be win-win, because both sides avoid litigation costs. That said, this paragraph from Sewell Chan and Louise Story's New York Times write-up did catch me short:
Though Goldman did not formally admit to the S.E.C.’s allegations, it agreed to a judicial order barring it from committing intentional fraud in the future under federal securities laws.
Really? Really?! REALLY?!
Goldman Sachs requires a judicial order to not commit intentional fraud? If that judicial order wasn't drawn up, fraud is part and parcel of Goldman Sachs' standard operating procedure? Does this mean that, prior to this settlement, defrauding customers was part of its overall corporate strategy?
I can just picture Goldman Sachs' prospectus to investors:
Goldman Sachs has become the world's most profitable institutional investor through an integrated three-part strategy:
1. Maximizing the profit opportunities from financial globalization;
2. Optimizing the core research strengths of Goldman Sachs' legendary research arm;
3. Scamming the living s**t out of investors stupid enough to think that we have ethics.
Seriously, what the f**king f**k? If this counts as a Goldman Sachs "concession," then they just pulled off the best piece of financial statecraft I've ever seen. It's almost as bad as the old Number Six.
Am I missing anything?
UPDATE: Ah, this comment by A.S. does provide some useful context for this provision. Still, writing it up as a Goldman Sachs concession seems like poor reportage.
Injunctive relief like this is almost always included in the SEC's consent decrees. The formal effect of the injunction is that a repeat offender risks, in addition to all the normal statory penalties, being held in contempt of court. (And the injuction is worded broadly, so it covers most violations of the anti-fraud rules.) More informally, injuctions like this are disclosable in all sorts of places, so the offender risks reputational harm. While that isn't a concern for Goldman - everybody knows about the case already - it is an important effect for the 99.99% of cases that nobody otherwise hears about.
I don't know why the newspaper decided to mention it - it is not anything that any securities lawyer wouldn't expect.
Ah, this makes a bit more sense now. I'd never seen anything like that in any newspaper story about a similar settlement.
Is there anything shocking here?
I feel like the really shocking thing is that people believe that these ethics exist anywhere at all. Goldman commits "international fraud," Madoff runs a hedge fund, Apple tries very hard not to recall the iPhone 4 when it clearly needs to be redesigned, Toyota makes bad brakes, BP tries to stop the oil leak with a giant hat, Chinese companies make toys with lead paint...
I can go on. Business is about incentives, and there are no incentives in ethics. Same is true of any other number of things, including politics, but for now let's just stick to business.
Business as usual when your T.B.T.F
Being T.B.T.F means you get the bill when my luck goes stale. As Goldman made ~ $2B on abacus 2007 and paid only $500M in settlement fees, the looting of customers, including YOUR 401K WILL CONTINUE until there is no more money to be extracted. After all, if the SEC is not willing to enforce the law against fraud WHY should GOLDMAN or any of the T.B.T.F respect it?
The United States of Argentina - change you are going to get whether you like it or not.
Daniel W. Drezner is professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University.
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