Perfect Pain: Inflation & Deflation

I have spent considerable time discussing the increasing inflationary threat to the economy over the past year. The rapid popping of the asset bubble, however, has worked its way into the rest of the economy and has had an deflationary effect that is beginning to show in core prices.  The most recent Consumer Price Index (for September) has inflation falling under 5% (4.94%) after skyrocketing to 5.6% in in July and 5.37% in August.  The inflation rate for 2008 is still 4.5% – over 1.5% increase over the average rate (3%) since 1992.

The recent “bailout” of $800b of new freshly printed money should serve to increase inflation.  However, according to Tim McMahon on his site Inflationdata.com, the loss of over $7 trillion in value from the NYSE and NASDAQ creates a “net deflationary effect” on the economy:

And that is not counting the value lost in housing prices.  And to make matters worse the mortgage industry took those initial mortgages  and leveraged them using “derivatives” to compound the gains on the upside.  This leverage was by a factor of hundreds of times.  Actually no one even knows the full magnitude of how much compounding went on.  So there could easily be Trillions more of liquidity that evaporated when housing prices stopped going up and began their downward descent.

So how do you reconcile a high inflation rate and net deflation on the economy at the same time?  McMahon explains that the consumer price index considers over 10,000 items that “take into consideration all aspects of the economy.” What is happening in the stock market is based, at least initially, on housing prices.  So, in effect, we get bad news on both fronts:  Our house values are deflating and our cost of living is inflating.

Need it be reiterated the importance of measuring performance?  The boom economy of the past two decades is unfortunately giving way to an as-yet unknown period of economic decline.  We have suffered through two minor recessions during this period, but the extent of this downturn is certain to be more protracted and deeper.  The recession in 1990 was practically non-existent and short and was arguably preventable without the massive tax increases placed on the economy. The recession in 2001 was again short and based primarily on the bust of the tech sector – with not nearly the impact on the majority of Americans as a drop in home values.

The good news for law firms is that regardless of who wins the Presidential election, there will be a rush to enact new reactionary laws to protect consumers that will invariably lead to an increase in lawsuits.  The bad news is that your personal income will be devalued based on the realities of the economy.  Also, those in transactional practices will not be as fortunate, as transactional business typically suffers during recessions.

Next week the government will release 3rd quarter GDP results.  Most expect us to report the first negative growth in seven years. The time to plan for the economic downturn was several months ago – but it is never too late.

Another To Blame: IFRS

Funny that the world markets would be tanking at the same time the US market tanks.  The arrogant American in me just presumes that it is the thrust of our power internationally that we can pull others into financial chaos when we have a large (seismic) correction.  But there is another explanation.  What a surprise – the rest of the world that uses IFRS utilize fair value accounting.  And our adoption of it was to conform better to the world’s accounting standards!

When proposing the adoption of FASB 157 (providing Fair Value Accounting for financial assets and liabilities), Leslie F. Seidman, FASB member and Board collaborator on the project, said

Today’s proposal also helps achieve further convergence with the International Accounting Standards Board, which has previously adopted a fair value option for financial instruments.

Oh my.  We are emulating the international community.  In fact, we are abandoning our own accounting standards for those employed internationally.  The same international group of nations that make up (at least part) of the United Nations, a body not known for its credibility.  Now we face an economic crisis not seen since the 1930′s and we can point to movement from the GAAP to IFRS for at least exacerbating the crisis.

Some have come out for the immediate suspension of the mark-to-market, or fair value accounting, rule. I am amazed that it hasn’t already been done.  In fact, it is surprising that the (unsuccessful) “bailout bill” only reiterated a power that is already in the hands of the SEC:  the power to suspend the rule.

The only reasons put forward are conspiratorial in nature so not worth discussing.   If in fact the suspension of the rule saves the taxpayers several billion dollars, it is in the best interest of our economy that it be suspended.  If it we do nothing but throw more money at the problem, it is my view that the correction will take much longer and a return to prosperity will be long delayed.

However, if we suspend the rule and our markets recover, then once again we can show the world how free markets prevail – without government intervention – and maybe help them re-think some of their accounting standards.

Keep in mind that even without our current crisis, our economy was already heading into an ugly time period where our growth was minimal and inflation was creeping up.  The prosperity we have enjoyed for many years is likely to end for at least a few years – perhaps more if government intervention doesn’t work or is employed improperly.

A great read on Fair Value Accounting, written by Robert E. Jensen, can be read by clicking here.

How The “Market Meltdown” Affects Your Law Firm

This past week has been a scary time for the financial markets.  According to democrat Senator Chris Dodd last week, “we’re literally maybe days away from a complete meltdown of our financial system, with all the implications, here at home and globally.”  The New York Post reported that traders were “500 trades away from Armageddon on Thursday” with pre-open sell orders inundating the market and forcing the fed to pump $105 billion into the market to avoid a total collapse of the financial system.   There is little question that last week was historical.

I don’t believe that the end of this crisis is near.  The Executive Branch, along with the Federal Reserve, is planning a “bailout” (or what I would rather call a “clean out”) of the albatross of bad mortgage debt that is seriously deprecating the value of bank collateral and causing institutions to stop lending to each other.   Some are saying upwards of $1 trillion.  You can add another trillion to that (UPDATE:  Try $30 trillion).  And this is to just keep our financial system from collapsing.

The damage has already been done.  Our economy will be feeling the effects of the past week well into next year – and perhaps for several years to come (and I am not counting the effect of the massive printing of money to pay for the bailout).

What caused this to happen?  And how does it affect your law firm?  

In the Friday (September 19th) Wall Street Journal, William M. Isaac, chairman of the Federal Deposit Insurance Corporation from 1981-1985, wrote an opinion piece titled “How To Save The Financial System“.  Mr. Isaac compared the current crisis with the one he faced when chairman of the FDIC – at that time, the prime rate was 21%, the savings bank industry was insolvent more than $100 billion, “the S&L industry was in even worse shape, the economy plunged into a deep recession, and the agricultural sector was in a depression.”  3,000 banks and thrifts failed.  However, if the rules that are in place now were in place then, Isaac argues, it could have been much worse:

The country’s 10-largest banks were loaded up with Third World debt that was valued in the markets at cents on the dollar. If we had marked those loans to market prices, virtually every one of them would have been insolvent. Indeed, we developed contingency plans to nationalize them.

The economic conditions of the current crisis were nowhere near as bad as it was then.  What caused an estimated 20% loss to mortgage debt to institutions that held them to bring our financial system to the brink of collapse?  Isaac believes “[t]he biggest culprit is a change in our accounting rules that the Financial Accounting Standards Board and the SEC put into place over the past 15 years: Fair Value Accounting.”  

Fair Value Accounting dictates that financial institutions holding financial instruments available for sale (such as mortgage-backed securities) must mark those assets to market.

The rule can be a boon for an asset when times are good.  However, a company must also “mark the assets to market even though there is no meaningful market”.  Even though the value of the assets are depressed because of market conditions, not actual value of the asset, regulators have still required that accountants continue to mark down assets as the market tanks.  This has led to heretofore financially secure banks to go to the brink of bankruptcy within days of bad news.  Isaac argues that regulators must suspend such rules when the health of the industry is at risk.  

On November 15th, 2007, Fair Value Accounting was officially enacted by the FASB in rule FAS 157.

Isaac also argues that regulators should suspend the “naked selling” (or short selling a stock without possessing it).  Late last week it was announced a ban on short selling altogether.  This sweeping measure was met with opposition by options traders, who argued that the ban was “a draconian measure that will result in the sudden and severe removal of liquidity from the marketplace.”  The argument is that disallowing short selling altogether prevents investors from learning the real value of a company – in essence, taking away information from investors – and thus will discourage investment.  Isaac only argues for the ban of “naked selling”, not all short selling.

Finally, Isaac argues that the new Base II regulations, though perhaps too new to have caused this crisis, must be suspended before they make matters worse:

Basel II requires the use of very complex mathematical models to set capital levels in banks. The models use historical data to project future losses. If banks have a period of low losses (such as in the mid-1990s to the mid-2000s), the models require relatively little capital and encourage even more heated growth. When we go into a period like today where losses are enormous (on paper, at least), the models require more capital when none is available, forcing banks to cut back lending.

Contrary to the rhetoric coming from both Presidential campaigns, the problem hasn’t been lack of regulation – but the regulations (and regulators) themselves.  At this point it is academic, and any remedy will not undue the damage done.  What firms need to do is prepare for cash flow problems in the near and long term.

As with any economic slowdown, transactional practices will suffer and litigation will do well.  However, if lending dries up, firms need to confront the possibility of losing significant numbers of corporate clients.  They also need to confront the high probability of clients having difficulty paying their bills.

As law firms are typically the bottom of every client’s stack of invoices (due to the lack of late fees and interest – unless you are one of those who actually charge for lack of payment), it may be a good idea to consider retainer billing your corporate clients.  Retainer billing simply requires a certain amount to be paid up front and set off against work performed.  When the retainer goes below a certain amount, a letter is sent to replenish the funds.  This ensures cash flow and, in coordination with setting budgets for services, can provide clients with some cost certainty – something corporate clients will be requiring with more and more frequency.

If your firm hasn’t addressed receivables that are over 90 days and don’t have a coherent, consistent, and reliable collections process, the time is now to develop and implement one.  It may be the difference between your firm managing a difficult economy and becoming a victim of it.