From the looks of it, the company in question, called Hudson Castle, was set up simply to serve in the traditional role of outside investor in another company’s off-balance-sheet financing vehicle, which is known as a special purpose or variable interest entity to accountants and a conduit or structured investment vehicle in the world of banks.
The arrangement is common enough and there’s nothing wrong with it, strictly speaking, so long as the outside investor is independent of the sponsor of the entity and the arrangements are properly disclosed.
Remember Citigroup’s SIVs? They spawned the first ill-fated bank bailout effort, by former Treasury Secretary Henry Paulson. And they were similar to the entity that Hudson created for Lehman, called Fenway.
The problem with these gizmos, of course, is that sponsors often claim not to be responsible for the assets and yet end up on the hook for them anyway, which is what happened to Citi. But that in itself doesn’t make them fraudulent, at least not according to GAAP.
In Lehman’s case, the problem seems to be that Hudson was controlled by Lehman, if not at the time it was created, then certainly under later rules, according to Charles Mulford, an accounting professor at the Georgia Institute of Technology and an advisor to CFOZone.
At first glance, it seems like the opposite might be the case, since Lehman reportedly dominated Hudson’s board when it was created in 2001. And Lehman’s influence over Hudson diminished significantly in 2004, when its board seats were reduced from five to one, presumably along with Lehman’s equity in the firm.
Just conceivably, that might have been done to conform with the changes in the accounting rules. But Mulford says that might not have been enough to comply, because the new rules require the so-called primary beneficiary of the vehicle to consolidate its assets regardless of how much equity the outside investor has in it. Even after 2004, Lehman remained the single largest investor in Hudson, according to the Times.
“Given changes to accounting for SPEs, one could argue that Lehman had effective control of the Hudson Castle SPEs, even if it didn’t have voting control, necessitating consolidation,” Mulford said in an email to CFOZone.
Of course, the significance of the arrangement remains unclear, as the Times article failed to explain how much of Lehman’s debt was shifted into the Fenway SPE. It looks as if at least $3 billion was shifted into Fenway in this fashion, but that’s a lot less than the $50 billion Lehman shifted off of its balance sheet through so-called Repo 105 transactions in 2008.
Incidentally, while Lehman’s auditor Ernst & Young recently claimed that amounts Lehman shifted in this fashion weren’t sufficient to cause the firm’s failure, since its total assets exceeded $600 billion, I just saw in the bankruptcy examiner’s report that the firm refused to say the amounts weren’t immaterial when it signed off on Lehman’s financial statements. And the examiner’s report insisted that they were indeed material.