Despite regulatory pronouncements to the contrary, some industry observers fear the $10 million of fines imposed on Bankers Trust New York Corp. are the first step toward tightening a regulatory noose on the swaps industry.
The Securities and Exchange Commission and the Commodity Futures Trading Commission imposed the fines as part of a settlement with the banking company. Although Bankers Trust admitted no wrongdoing, regulators said they had found evidence of securities fraud and improper disclosure in the bank's sale of derivatives to Gibson Greetings Inc.
In a statement, Dennis Klejna, CFTC enforcement director, said the action was brought under the agency's enforcement authority only.
"This action does not affect in any way the legality or enforceability of swaps transactions," he said, "nor does it announce any new regulatory action with respect to swaps."
The SEC released a similar statement last week.
But Heinz Binggeli, managing director of the Irvington, N.Y.-based Emcor consultancy, said the action cast doubt on previous assurances that regulators would take a hands-off approach to the swaps market.
"I found it strange that the CFTC said it would look at swaps. Last year, they said they didn't have jurisdiction over the swaps market," Mr. Binggeli said.
He pointed out that the industry has been lobbying hard to persuade regulators to limit their probes to Bankers Trust. The concern is that regulators will start meddling in the derivatives market at large, needlessly adding to the costs of doing business.
The International Swaps and Derivatives Association said in a statement that it was troubled by the imposition of a fine on Bankers Trust as part of an enforcement proceeding. "In reaching these agreements, the CFTC and SEC are asserting their jurisdiction over these transactions in the context of enforcement proceedings, without the opportunity for review and public comment that accompanies traditional rulemaking and legislative processes on decisions which may have broad impact."
The trade group said it would review the agreements to make sure they comply with the legal foundation established for privately negotiated derivatives transactions.
The settlements with the regulators do not require Bankers Trust to admit guilt, which would have defeated the bank's purpose in agreeing to a settlement, lawyers said.
But Procter & Gamble Co., which also has sued Bankers Trust over derivatives investments gone sour, said the settlement -- and a recent agreement between the Federal Reserve and Bankers Trust that imposed sales guidelines -- could only bolster its case against the bank.
"The sales tactics outlined in both the media reports on the SEC and CFTC settlement as well as the Federal Reserve agreement with Bankers Trust all closely parallel P&G's situation as outlined in our legal complaint," P&G said in a statement.
"The conclusions in these orders cannot be used in the P&G civil suit," said Frank Puleo, partner in the New York law firm Milbank Tweed Hadley & McCloy. "But it creates a context that weakens Bankers Trust's position."
Still, some feel that Bankers Trust will fight the P&G case all the way. "I'd be surprised if Bankers Trust wants to settle with P&G," said Robert W. Viets, a partner in Emmet, Marvin & Martin in New York. "They'll probably contend that P&G understood the transactions entirely."
Emcor's Mr. Binggeli said that each time Bankers Trust pays a fine or is censured by regulators, it opens the door a little wider for other customers to sue.
"It may encourage others to sue," he said. "It's surprising that it's only been Bankers Trust so far. By now, one would assume we would have heard of some others suing other banks."
