What Loopholes Did the New Financial Regulation Law Create?
September 24, 2010
(ChattahBox Business News – Expert Opinion) – After the Civil War, war veterans and their families who wished to look at their military records were made to come to Washington , D.C. to examine them in person. The wait time was intolerable, and in many cases, it took months to locate an individual’s files. They were poorly organized, many being wrapped in giant bundles stacked like a mountain in the government’s warehouse. And they were bound together with red tape.
The new law, despite its many benefits, has plenty of red tape.
“The bill’s laudable ambition is marred by significant omissions and complexity,” said Karl Rubinstein (www.karlrubinstein.com), a retired business litigator who specialized in troubled banks and insurance companies. “Every line of a statute carries weight, and it’s easy to forget for every action there can be an equal and opposite reaction. The financial industry doesn’t consider the fight over just because the law passed. Moreover, the messy litigation we face won’t compare to the mess that the law’s new bureaucracy will generate. I worry it’ll be like the Marx Brothers all trying to go through a door at the same time.”
Rubinstein believes there are trouble spots for the new legislation, including:
- Fannie and Freddie — It totally omits reworking of Fannie and Freddie Mae which hold 40 percent of subprime mortgages. These mortgages were part of the root cause of the financial crisis, so this door was still left wide open by the law. Since the law’s passage Treasury Secretary Geitner has held a closed-door meeting to “discuss” Fannie and Freddie, but nothing concrete has come from it.
- New Agency — The law creates a new consumer protection agency tasked with protecting you and me from financial institution abuses, which is a great idea in concept. The problem is that executing this mission will require a huge new bureaucracy, smacking of Big Brother style government, creating potential conflicts with state law and state administrations. After its passage, SEC Chair Mary Schapiro announced the new legislation requires “dozens of studies,” prior to writing implementing regulations.
- Litigation — Many of the law’s features require the creation of other multiple studies and more complex regulations, a situation that will consume time for those affected in the financial industry to understand. Since the industry is none too happy about the law to begin with, we can expect them to file lawsuits early and often.
- Overreaching — The law probably bites off more than can be chewed, particularly where it seeks to replace state government activities, such as in the insurance industry. The states have always regulated insurance, and they’re not going to like Washington regulators telling them how to run things. And don’t forget the insurance industry is still reeling from hurricanes, floods and the BP oil spill. The approach is like trying to eat a hamburger in a single bite, but cutting your fries up into tiny pieces so they can be better digested.
- Red Tape, Red Tape, Red Tape — Passing a law is one thing. Holding the feet of those who are being regulated to the fire can be a daunting task. Expect any kind of enforcement or real protection to be hobbled by red tape.
“There is no doubt that the U.S. and global financial crisis was the result of a combination of governmental failure to adequately regulate the industry and the irresponsible investment practices of individuals, industry, and government,” Rubinstein added. “I’ve heard they say in Washington D.C. that there are two things you never want actually to witness: How they make sausage, and how they make laws. What started out as a noble and necessary legislative mission has resulted in a law that may or may not actually work, depending on how these issues are addressed. Knowing many, if not most, of our financial regulators come from industry, we have to wonder if they have the will to regulate.”
About Karl L. Rubinstein
Karl L. Rubinstein is a retired business litigator and was the senior partner of Rubinstein & Perry, a firm with offices in Texas and California . His law practice concentrated on troubled financial institutions and he was Chief Counsel for insurance regulators in Texas , California , Arkansas , and Ohio . He also functioned as Special Deputy Insurance Commissioner, Special Insurance Examiner, and/or Chief Deputy Rehabilitator in Texas , California , and Ohio . His cases included several of the largest insurance company insolvencies of the twentieth century. He has drafted and litigated over new legislation. He has successfully dealt with the kinds of issues addressed in the new law. Please go to www.karlrubinstein.com for more information about Mr. Rubinstein