#FSA

Coincheck wreck

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Perhaps that was Coincheck’s greatest problem. Bragging rights to being the leading crypto exchange in Asia only made it (pardon the pun) a richer target. 58 billion yen ($560mn) was stolen. While bitcoin trading wasn’t halted many other cryptos were, exposing their fatal weakness. CM has been writing constantly that “hacking” was the biggest threat. Regulators will have to step in at some stage and the global trading element of crypto creates all the nasties of global policing against tax evasion and money laundering.

Coincheck claims it will compensate users of the exchange but at the same time is asking for financial support. The question is how the reactive forces within the Financial Services Agency will cope with protecting investors? Seems like cart before the horse.

Why should investors that willingly traded on an unregulated site be compensated?

Trust in Japan? Strangled by sontaku 忖度

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Trust and Japan used to go hand in hand. It was a hard earned reputation.  A mining executive once told me that “when you sign a contract with the Japanese, that is the contract. When you sign a contract with the Chinese that is the beginning of the negotiations.” Hardly a subtle difference. Yet here we are in the last few years where a plethora of scandals from Japanese companies have come to light. Houeshold names too – Olympus, Toshiba, Kobe Steel, Subaru, Toray, Nissan, Mitsubishi Motors, Takata, Mitsubishi Materials, Asahi Kasei, Obayashi, JR Central, Nomura etc etc. It is almost as if there is a coming-out of sorts so the crimes are somewhat diluted in the midst of others. Syndicated scandals? Expect more to come out. Perhaps the worst part about it is the limp wristed approach by the regulators. ‘Sontaku’ (忖度) in Japanese is a word meaning ‘glossing over’ which is exactly what the regulator is doing over scandals involving household names. Hear no evil, see no evil, speak no evil.

In October I was invited to give a lecture to 70 bureaucrats at the Ministry of Finance’s attack dogs – the Financial Services Agency (FSA) and the Securities and Exchange Surveillance Commission (SESC) on foreign perceptions of Japan’s handling of corporate  crime. In the interests of objectivity the first slide pointed to how no corporate governance system is perfect citing the minefield of foreign corporations caught up in bad behaviour – VW, Petrobras, Parmalat, HealthSouth, Lehman Brothers etc etc. I also highlighted the sentencing of executives who commit crimes – many received lengthy jail sentences, personal fines while the corporates faced eye-watering penalties.

Ironically much of the crime committed by corporates here is at a relatively pithy level. Instead of billions being massaged into or from the books, Japanese corporates tend to commit the equivalent of falsely submitting a $20 taxi receipt to your boss as a business related expense. One almost could conjure up a scenario that if Toshiba was ever able to make back the money to cover the accounting fraud they’d have broken into corporate HQ in the dead of night to put it back in the safe.

I touched on Kobe Steel which conveniently broke the news that it had falsified the true contents of its products to customers. While pointing out such behaviour was regrettable a chart which showed a heavy shorting of the stock on the day it announced it to its duped clients displayed the bigger problem. A question was asked directly to the regulator – “do you intend to investigate the heavy short selling of Kobe Steel stock 3 weeks before the company announced this to market?” No answer.  The following slide showed that a person that was able to short the stock 3 weeks before the announcement would have cleaned up a tidy 60% profit. Again no plans to investigate the insider trading. Why bother having the FSA if it is a toothless tiger?

The following slide showed the types of fines dealt to both the broker (Nomura was a regular feature in the leaks) and the investor (at the time Chuo Mitsui Asset). The fines were the equivalent of $500 and no suspension of license was pursued by the regulator, When the following slide that compared it to the types of fines meted out to foreign banks – lengthy jail terms, lifetime suspensions and monster fines in the the millions and billions jaws didn’t so much drop but celebrate the idea “thank God we live in Japan”. Truth be told the FSA did punish one dying asset manager $150mn but that is an exception. That is the problem. It is too conditional where convenient.

Rolling onto the next slide the discussion looked at how ‘sontaku’ was a problem. Whereas the FSA & SESC heavily pushed for license revocation of foreign investment companies that it found to break rules, it let off all the domestic companies that had ‘brand names’ to protect. What message is the regulator sending if local corporations know they can pretty much get away with anything. In what way is that a fair system? If foreigners will be turfed on a whim then why do the locals get special protection?

When looking at agency funding, the FSA was put up against the US SEC and Australia’s ASIC equivalents. The US was there for illustrative purposes. Yet Australia was the market that made the point clearest. Despite having a total market cap 5x the size of Australia and 30% more listed companies, Japan spends 20% less than the antoipodeans. Even worse it had fewer numbers of staff and its budget was shrinking.

When analyzing market surveillance, in 2014 the Aussie market issued 36,000 speeding tickets (alerts to potentially suspicious trading). The sophisticated systems are designed to catch any wrong doing. The Japanese issued around 180 speeding tickets. I suggested the FSA go cap in hand to ASIC and the ASX and ask if they can buy the software off the shelf. Safe markets attract capital because all actors feel adequate protections are in place to prevent crime. Higher liquidity attracts more liquidity. It is a win win.

Several years ago the fanfare of the Corporate Governance Code was thrust into the faces of the intenational investment community that Japan Inc was changing. After visiting multiple staff inside the FSA and the TSE there is absolutely no pulse of proactively to be seen anywhere. Even my slight nudge to get the FSA to tap the shoulder of the TSE to suggest listed corporates provide English language materials to encourage more transparency for foreign investment met with the response, “it might help if you spoke directly to the Deputy PM & Minister of Finance Taro Aso.”Not a word of a lie.

How can the Japanese authorities look to appropriately handle a slew of corporate scandals if the encouragement of English language documents requires someone (a gaijin no less) outside the agency to ask the Deputy PM to suggest it back down to them. It is an embarrassment.

In closing perhaps we can look to these corporate scandals breaking out as endemic of a greater underlying problem. While the knowledge that the regulator is likely to do next to nothing provides mild comfort, the reality is that Japanese companies have been strangling themselves for decades. The corporate fabric is fraying. The world is far more competitive than it was. For Japan to assert its ‘quality and/or engineering gap’ dominance now means profits likely suffer. In order to  get around that hurdle it seems that to maintain profit margins, corporates now lie about specifications hoping a history of ‘trust’ and ‘time honoured’ traditions can keep the bluff going. As mentioned earlier the scale of the ‘cheating’ is pitiful yet the shame it brings is multiples larger.

Japan’s cultural rigidities are on full display. Unfortunately they couldn’t arrive at a worse time. Clumps of companies confessing crimes to soften the collective blow is only the start of many more. I suggested in my speech that the authorities introduce a 3 month amnesty period for companies to fess up to any wrong doing. That way they can clear the decks and make it clear that any wrong doing after that date will be met with harsh repercussions. Of course it won’t happen but expect the list of companies above to have many join them at the table of shame.

Madoff wasn’t so long ago

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It was just over 9 years ago that Bernie Madoff pleaded guilty to a Ponzi scheme that cost investors over $65bn. While many happily point fingers at greedy banksters we tend to forget that despite Harry Markopolos, handing the SEC (the US regulator) the details of the case in 1999 on a platter it failed to act. His testimony points directly to the kind of problem that exists with government regulators – no track record in the fields they legislate. In the 9 years prior to Madoff pleading guilty, Markopolos caught him at the $6bn stage. The SEC after multiple investigations turned nothing even with a treasure map provided by Markopolos that someone with markets experience would have discovered in 30 minutes. Throw on all the other scandals (ratings agencies etc) that the SEC failed to capture and it cost taxpayers $700bn.

Willful negligence? I gave a speech at the Japanese financial regulator (FSA) on fraud and insider trading  at the time of the Kobe Steel data scandal. When presented with comparable data with other exchanges the blind eye is no less scandalous. So before hanging the financiers out to dry perhaps people ought to question the regulators whose incompetence and inaction is at fault. If you give a child a box of matches unsupervised then don’t be surprised if the whole house burns down.

Kobe Steel 5yr CDS not showing much fear vs history

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Kobe Steel’s 5yr CDS rate showing a 271bps premium above the risk free rate from around 50bps before the scandal broke. During GFC it was around 600bps+.

Kobe Steel scandal may make Takata look like a picnic by comparison

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Actually this could be so much worse than the Takata scandal. Kobe Steel’s data falsification on its products – especially to Subaru Corp – could raise the risk of insolvency of the former. Subaru is responsible for the MOST crucial part of the Boeing 787 – the centre wing box (CWB). While Boeing has assured us that there is no imminent safety risk, the question is one of determining the fatigue of the substandard materials supplied to Subaru by Kobe are part of the CWB. What many fail to realize is that commercial aircraft approval by the regulators makes getting drugs approved by the FDA as easy as shelling peanuts. Every time a plane is in the air it has to be as near as makes no difference 100% safe. Drugs that give you a side effect of drowsiness is not a big deal to the FDA. In fact for aircraft it gives “do not operate heavy machinery” a whole new meaning.

The CWB effectively is the piece that connects the wings to the body. It is without doubt the most important structural piece on the plane. Worse, it is perhaps the most difficult part to replace in terms of man hours. Effectively the plane would have to be broken apart and reassembled. The sheer logistics of this would also be mind boggling. The retrofit (if even feasible) would be a $20-30mn per job including the parts, labour and time out of service (compensation to airlines) and recertification. That’s per aircraft. So that would cost around $10-15bn.

The question then becomes of the 500 odd 787s in service what the FAA decides to do. Perhaps the planes’ useful 25 year life are reduced to 15 years. That would smack residual values and airlines would demand compensation for the gap and the potential for lost revenues. So were 500 aircraft to lose 40% of the serviceable life at $150mn a copy that is $75bn.

While this is worst case scenario analysis for Kobe Steel which would be liable for the lot, we are staring at the risk of a wipe out. Kobe Steel has $1.8bn in cash. Somehow it’s $8bn market cap may fall much further.

Hardly any of this is priced because the FAA doesn’t take things lightly until it has all the facts.

This article is not intended to be sensational rather highlight the potential for a huge weight from the US (not Japanese) regulator to push for a safety recall of epic proportions. We won’t know yet but buyer on dips beware.

Up 100% in one week – where is the speeding ticket?

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While Howa Machinery (6203), Japan’s largest small firearms manufacturer, has had its index weight lifted within Topix on Oct 5, the shares have jumped another 100% since reporting on it last week. Will the JPX issue a speeding ticket to investigate a 100% rise in a stock that has already risen 100% in the last 12 months on zero positive news flow? The answer is no. While ETF inclusion and index buying of an illiquid stock can explain away some of the rise, the fundamentals don’t match the performance. Up another 10% today.

Kobe ‘Steal’ – will the market referee wave a red card at what looks a lot like insider trading?

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If the referee caught Kobe Steel’s (5406) rugby team up to such foul play it is likely that players would be red carded. While unconfirmed speculation at the moment, it would appear that since September 21st Kobe Steel shares came under heavy selling pressure in what a seasoned market punter might suspect looks like insider trading via aggressive short selling. 7 straight negative candle sticks. Kobe Steel spilled the ball on its data manipulation on October 8th.

This would not be the first time that a broker conspired with a fund to short sell a stock ahead of a negative release on insider information where several weeks later news broke and sent the shares collapsing. This is the current action of Kobe Steel shares.

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So excluding borrowing costs or any leverage, if one had managed to short sell Kobe Steel at 1350 (on Sep 21) and brought back at today’s prices a quick fire 53% return would be gained.

The important question is whether the regulator will investigate any potential foul play when looking at the video replay. I will be asking this question directly to the Financial Services Agency (FSA) as I have been invited the regulator to give a speech on ways to improve Japanese corporate governance in a few weeks time.

This won’t be just a beat up of Japan’s corporate governance as foreign corporates have made countless scandals post the introduction of Sarbanes Oxley in 2002.  However it will aim to be a realistic overview of tolerating what seems to be endless preventable insider trading scams with paltry penalties of $500 and a slap on the wrists with a feather duster.

Until serious punishments for flagrant market manipulation are thrust front and centre in front of bewildered and annoyed (foreign) investors, the cynicism will remain that Japan is not a safe place to invest. Remember insider trading is effectively fraud. Perhaps your pension fund owns Kobe Steel in a global portfolio meaning that some shady investor has stolen your retirement to feather his or her nest.

Perhaps I should thank Kobe Steel for getting dirty in the ruck area to help the final presentation draft.

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