Update on MF Global: Interview with James Koutoulas of he Commodity Customer Coalition

"When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle."

Edmund Burke

James Koutoulas is CEO of Typhon Capital Management and recently founded the Commodity Customer Coalition (CCC), comprised of over 7000 customers of MF Global. As an attorney and spokesperson for the CCC, Koutoulas has an inside persective on the legal maelstrom that has erupted in the wake of the MF Global bankruptcy scandal -- he's leading the charge for the commodities trading community. We asked him for an update on the case.

You can listen to the Benzina radio interview here.

What is the latest from the proceedings?

I think JP Morgan realizes we made some really good points in our objection to their motion, and they are stalling the hearing on this as much as they can. As of Tuesday, they had continued that hearing from the 15th to the 22nd. They've gone ahead and continued that again, so our objection has been pushed back to the 30th.

It's our guess that they are probably going to throw $20 million at lawyers to figure out a way to beat our little grassroots coalition on it.

They are allowing MF Global Holdings to continue to use this $8 million, but they haven't gotten the "super-priority" liens that they have sought. From our perspective, let them stall as long as they want and let them throw $20 million worth of lawyers at us. It's our goal to have this situation resolved in two weeks.

Can they get the money back?

If they commingled funds with their own money, then customers would have clawback rights, similar to the Madoff case. So, that would be a fraudulent conveyance.

Customers, in my opinion, would have rights of recovery from the $1.2 billion in excess equity that sits in the holding company, which is why we are fighting to get on the creditor's committee, so we have a say in protecting recoveries on the holding company assets.

Moreover, if there was a crime committed, that opens up Corzine, MF Global directors, the $200 million directors and officers insurance policy--that opens all of that up to potential customer recoveries, and we will aggressively be going after all of those sources so that customers are made whole.

This seems like the kind of thing that could be dragged out for years.

It is a mess, and I think it definitely had that potential before we got involved, but I think the world has never seen an organization like ours, that has been put together so quickly--over 7,000 people in under two weeks, with some very experienced lawyers who are actually motivated by helping customers instead of collecting $891 an hour in legal fees.

We've gone in there and stopped the train for the moment on the JP Morgan cash collateral use. We've gotten the judge to realize the timeliness of the situation, and the judge is an honorable man. He is putting the pressure on the trustees to speed up the process.

I also think we've put a lot of pressure on CME. I've reached out to the CME. I told them, "Look, there are cases where you could (1) be liable for this," due to the way that they have advertised the sanctity of seg [related] funds in order to drive business through their exchange. I've said, "Look, your stock is down something like $2.5 billion in market cap this week, which makes the $600 million look like a drop in the bucket."

The CME could take this major problem that they are having and turn it into an opportunity for goodwill by going out and just putting up the rest of the shortfall. The customers get their money, everybody feels safe, they restore confidence to the futures market, and they get volume going through their exchange again.

I've offered to the CME vice chairman that I will go to court and recommend that the judge grant a lien to the CME on the holding company assets should they put up a temporary fund to cover the shortfall. That way, the CME would be pretty well-protected there. Essentially, they'd be putting up a loan rather than just giving away $600 million.

It seems like the CME is one of the parties with the most at stake here.

I think that is 100 percent accurate. Look, if I'm the CME, I don't look at this as a morality play. They are a publicly-traded company. It's good business to make customers whole as fast as possible, and it's not like they are going to cut a check they are never going to get back.

They could go in and get liens on holding company assets, pay people out, and get them trading ASAP. It's a great business decision.

The CME board is a big board. There is a lot of old-school people there, so I think it takes some time to form a consensus, but I think within a couple of days they are going to have to cave and step up to the plate here for the full amount.

That makes our job easier, it makes the customer's job easier, it deprives the trustee of being able to hold this thing up for three years. It makes them have to get the money out now, and everybody except the trustee and probably JP Morgan and Bank of America win. Guess what? I'm OK with that.

Is the CME big enough to win out over entities like JP Morgan?

"Honestly, it doesn't matter who is big enough if you have people on your side who know the law. The law favors the customers. The problem that normally happens is the customers don't have the quality legal representation they need to fight the big guys.

We're working with Barnes and Thornburg as co-councel and they've assigned some brilliant partners, both on the litigation side and on the bankruptcy side. We have Sam Tenenbaum, head of Northwestern Investor Protection Clinic, who has been litigating for 35 years. He has gone toe-to-toe with Goldman Sachs and won several times.

And you've got me, who truly understands the futures business, but is also an attorney, an organizer, and a good spokesman. And I think that legal team poses a challenge that these high-priced bank lawyers have never seen before."

What's going to happen next?

"I honestly think the CME is going to step up and make customers whole. If they don't do that, we're going to proceed with our plans. Yesterday we met with the Trustee at the judge's orders and we proposed a plan for distribution of partial customer assets that would move about 6-12 months faster than the Trustee's plan.

At this point, we're still open to working with the Trustee; I offered to work with them to implement this. They thus far have not been receptive to that, so unless there is a change of heart there, we're going to come forward and put our plan in front of a judge on Tuesday.

We're also going to continue our efforts to have the Commodity Customer Coalition represented on the creditors' committee in the holdings companies case to protect customers against [Bank of America, JP Morgan, and others] who, in addition to being on the committee, are trying to set up vulture funds where they can buy customers' claims for pennies on the dollar and then get paid out once this whole thing is resolved - which I think is a conflict of interest.

We're going to support Tim Butler's motion on Tuesday. Attorney Butler has filed on behalf of his brother to push for the release of 85 percent of funds now, since the stated shortfall is only 11.6 percent.

We also want to see Corzine in court, under oath, and we want to hear his answer to where he thinks the money is and give him the option to be honorable and forthright, or to be a coward and take the Fifth.

I want to show the American people that no matter how connected you are, no matter if you were the Governor of New Jersey, no matter if you were a senator, if you break the law you should go to jail. And quite frankly, I think it's a disgrace that no one went to jail over the crisis in 2008.

All the people who gave triple-A credit ratings to essentially junk securities, none of them went to jail, none of the people who sold those went to jail, none of the people who committed mortgage fraud went to jail - I think it's ridiculous. If [Corzine] did commit a crime, I want to see him behind bars."

James Turk Interviews Eric Sprott About Gold and Silver

Gold Daily and Silver Weekly Charts - Brother, You Ain't Seen Nothing Yet

"In a society built largely on confidence, with real wealth expressed more or less inaccurately by pieces of paper, the entire fabric of economic stability threatened to come toppling down."

New York World, October 25, 1929


"In economics, things take longer to happen than you think they will, and then they happen faster than you thought they could."

Rudy Dornbusch

Next week is a Thanksgiving Holiday week in the states, as the markets will be closed on Thursday and a light session on Friday.

Metals Option Expiration is next Tuesday. December is a big delivery month.

Several people have mentioned that the bankruptcy of MF Global takes a lot of large specs out of play for this delivery, with their positions trashed and funds frozen in both gold and silver.   And the failure of MF Global was a 'hit' or some ploy by the Wall Street wiseguys to break the speculative longs in the metals and take down the biggest retail futures firm that arranges physical delivery.  Talk about going the extra mile.

I don't know about that one, but wait until a major exchange defaults on some commodity like silver, and then forces cash settlements on the position holders at a price the big exchange members dictate.  And maybe not even in cash, but some kind of paper markers. If you don't think this can happen then you have not been reading enough about US market history.

That should set a few more minds free of their illusions about fair and efficient markets..

The Super-Committee has its deadline next week and a good resolution seems unlikely, which is what most expect. Obama helped to set this impasse up by extending the Bush tax cuts at the beginning of 2011, which are now a major sticking point.

I have an open mind to the theory that this is a bit of chess, with Defense Department cuts being set up by default if no resolution is reached, although they will only start in 2013. 

Most politicians are loathe to put military spending cuts on the table and take responsibility for them. A failure by the Super-Comm makes the cuts 'automatic.'

Headline risk in European sovereign debt remains very elevated.

I remain in a paired trade of short stocks and long bullion.

Have a pleasant weekend.

SP 500 and NDX Futures Daily Charts

Some decent swings but overall a quiet stock option expiration today.

Next week is a holiday shortened week in the US.

It will be marked by a metals option expiration on the Comex, and the results of the Congressional 'SuperCommitte' on the US budget deficit.

Headline risk from Europe is very high.

US Corporate Taxes As a Percent of Corporate Profits

"Once upon a time, the corporate income tax generated a significant share of tax revenues; now, it’s bumping along in the 2%-of-GDP range. Yes, the marginal rate of corporate income tax is high, at 35%. But US companies are extremely good at not paying that.

But at least we know the aggregate amount that corporations pay in taxes. What we don’t know — because they won’t say, and no one’s forcing them to say — is how much any given public company pays.

Allan Sloan has a very good column on this today. Companies already report 16 different tax metrics; they should simply be required to add a 17th — the amount they pay the IRS in taxes — which in many ways is most important. The companies already file tax returns; the number’s right there, on lines 31 and 32. They just refuse to say what it is."

Charts of the day, Corporate Income-tax Edition, Felix Salmon

One thing that is true is that the US has a high 'headline' corporate tax rate at 35%. This was used to justify the distribution of corporate profits as dividends that were made tax free.

But like most things in America, the headline numbers are one thing, and the reality behind the headlines is a very different picture. Some of the loopholes that allow 'offshoring profits' are eating like acid into the real economy. Why is this? As Jack Abramoff recently admitted, Congress is a willing vassal to the monied interests.

"During my years as a lobbyist, I saw scores of congressional staff members become the willing vassals of K Street firms before soon decamping for K Street employment themselves. It was a dirty little secret. And it is a source of major corruption in Congress."

And nothing will make this more clear than the discussions about the US budget. All politicians will work for tips and favors and campaign funds. But if you cannot spot who is on the full-time payroll of the 1 percent, then you might need to change your news channel.

The corporate propagandists do a good job of managing the American people. As one of the more pre-eminent of the pigmen once privately told me: 'Old people are the easiest to handle. You just scare them.'

Greed draws people in, and fear keeps them in line. Its a well-worn script. It is the basis for most ponzi schemes and financial frauds. It is the well-spring of a credibility trap.

The reporting on NYC financial TV was particularly repugnant this morning, as they called the OWS movement over, with nothing left but a few professional agitators.

They contrasted its lack of strict purpose and organized ideology with the much more compliant Tea Party Movement, that allowed itself to be reorganized around corporate advertising principles. It morphed from a financial reform movement into obedient lobbyists for the Koch Brothers and the monied interests.

And it angers the Wall Street demimonde that the loose organization of OWS does not permit an easy foothold with a few influential leaders that can be easily bought and scripted.

Poll Results: What People Are Thinking

These are the top six themes from our poll.

There was a huge drop off in votes after number six.

There was a pleasant understanding of the role of money and corporations in the readers' selections.

Gold Daily And Silver Weekly Charts

"Never argue with a fool, because they will only drag you down to the level of stupidity, and then beat you with their experience."

Michel de Montaigne

Today was December Option Expiration Metals Takedown Part Deux. As you know the actual expiration will be next Tuesday.

The pampered princesses of Bloomberg TV spent most of the morning alternatively frothing and tittering about the protesters outside the NYSE.

And having been short stocks, expecting a hit on the metals, it actually was a fairly boring day.

So what next.

The shorts cannot possibly deliver the silver on the Comex to cover all the options and contracts, but that has not fazed them before. I have a running theory that says the Comex will default in an event or a scandal. I almost thought MF Global was it, but apparently not.

"Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity."

Lord Acton

Let's see how we go into the weekend. After Tuesday the adults on the US exchanges will be taking off for a long Thanksgiving weekend. That leave it up to Asia and Europe to carry on.

SP 500 and NDX Futures Daily Charts

Tomorrow is option expiration on stocks.

The sell off today seemed a little 'technical' to me. Although the symmetrical triangle has broken to the downside, I don't count it ahead of an option expiration unless they can take it and book it into the weekend and hold it on Monday.

Next Tuesday is metal expiration on the Comex.