Let us discuss this hypothetical case.
1. An investment bank was able to buy several credit default swaps (CDS) and collateralised debt obligations (CDOs) from the market to produce a return of 50% over 5 years.
2. It introduced an "innovative product" that pays an interest rate of 5% a year over 5 years, totalling 25%. It set aside 10% to pay a top legal firm to draft the prospectus and pay distributors to sell the products to its retail customers. The investment bank was able to keep a profit margin of 15% to sell the product. It planned to sell $100 million of the product, yielding a profit of $15 million to the investment bank.
3. The prospectus was drafted to be legally correct, but totally incomprehensible, even to the knowledgable people. The prospetus was "registered" with the regulatory authority, giving the impression that the product has been approved by the regulator.
4. The "genuis" who created this product wrote in the prospectus that the issuer had the right to choose the underlying assets after the launch of the product. This allowed the investment bank to select riskier assets (so long as they fit the credit rating) that produced a higher profit margin for the invsetment bank.
Does this hypothetical product sound familiar to you? Was the investment bank cheating the public?
Are these actions considered as "cheating"?
a) writing a prospectus that does not fairly describe the product or the underlying assets to the retail customer?
b) failing to disclose the expenses and profit margin, which are relevant for an analysis of the product?
c) giving a misleading description of the product in the advertisements?
d) knowing that the distributors (who are ignorant) are giving incorrect verbal statements of the product?
We do not know the real yield of the underlying assets and the profit margain made by the product issuer. If the profit margin is excessive, then the intent to cheat is more credible. If the profit margin is fair, the intent is harder to prove.
Only the regulatory authority, with the power to investigate and get evidence, can find out. "Lesser mortals", like the misguided investors and me, do not have this power. So sad.
Tan Kin Lian
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