Regulators put indemnification costs in spotlight

New rules could place costs on balance sheets, affect securities lending

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Paul Sachs said no one thinks about the costs now because they are not singled out.

The cost of indemnification — insurance against counterparty default — might have to be carried on bank balance sheets under possible domestic and international regulations, and that could spur asset owners to make changes in their securities lending programs.

Regulators are still considering whether such costs must be accounted for as part of Basel III recommendations and the Dodd-Frank Wall Street Reform and Consumer Protection Act. “The ultimate resolution of the Dodd-Frank regulations plus potential harmonization with Basel III is a huge issue,” said Paul Sachs, principal, Mercer Sentinel Group, Philadelphia. “Even though the final regulations aren't set yet, it could be that any guarantee, including indemnification, has to be backed by balance sheet capital.”

Generally, potential regulations apply to indemnification for all counterparty default risk, including derivative or swaps trades, but the impact will be on the securities lending agreements specifically, while derivatives are affected more by moves to central clearinghouse exchanges, sources said.

Indemnification costs in recent years have been paid for as part of bundled services agreed to by lenders and their agents. “Right now, no one ever sees it, so no one thinks about it,” Mr. Sachs said. “But regulations could require indemnification costs to be disclosed, which leads to the questions, "Will indemnification be offered? What will it look like?'”

Colin Rainbow, senior investment consultant at Towers Watson & Co., Reigate, England, said that if the cost of indemnification is spun out, clients will need to consider whether they want to indemnify or not and will need the information necessary to make that call. “In fact, they might have to look at if they even want to do securities lending,” he said. “They'll need to look at the revenue coming from their lending program, and how much in fees they're paying out; will it be worth it?”

Josh Galper, managing principal at consultant Finadium LLC, Boston, said the prospective rule changes could have several results. Securities lending agents might assume the cost of indemnification; those agents might pass on the costs to clients; asset owners could choose to forgo indemnification entirely; or some combination of all three depending on the final regulations and what agents and asset owners decide about the costs.

Clearly, asset owners favor keeping indemnification. In a survey by Finadium released last month, 81% of North American institutional investors said indemnification was important to their securities lending programs.

“For investors, counterparty default indemnification is a critical component to a securities lending program,” Mr. Galper said. “In many cases, it's required by pension funds” and included in their governance rules.

The potential regulatory changes are “not a front-burner issue today, though everyone knows it's coming,” Mr. Sachs said.

Will that mean an exodus by pension funds and other institutional investors from securities lending? “That's a good question. The jury's still out,” Mr. Sachs said. “But to me, it's a macro issue. Personally, I think the answer is still, yes, there's still a place for securities lending. How do you have efficient markets without securities lending? You can't short stocks without securities lending. When someone shorts a security, they need to borrow the security so that they can make the delivery to settle the trade. Without securities lending, there is no borrowing; hence, a short sale could not be settled.”

Watchful eye

Officials at the $28.6 billion Indiana Public Retirement System, Indianapolis, are maintaining both the pension fund's securities lending program and a watchful eye on possible regulatory changes. “Right now, nothing has changed regarding our securities lending agreement” with the retirement system's agent, Bank of New York Mellon (BK) Corp. (BK), said David Cooper, INPRS' CIO. “The latest update we received is that it is still not clear how regulations might impact indemnification within securities lending. ... We are waiting for more certainty on how the new rules will affect indemnification within securities lending.”

Mr. Cooper added that “in talking with BNY Mellon, we anticipate no changes to our program.”

INPRS' had 9.5% of its portfolio in its securities lending program as of Jan. 31, Mr. Cooper said.

Officials at BNY Mellon, State Street Corp. (STT) and Northern Trust Corp. were unavailable for comment.

Mercer Sentinel officials are telling pension fund and other investor clients that securities lending has risks and rewards even without any regulatory change. “We talk about clients' risk preference. Some lend, some do not lend,” Mr. Sachs said. “It's still a money stream today. Some say that might be diminished in the future, but we deal with the facts and the regulations that are out there today. We can't react to regulations until we know what they are. Right now we don't have anyone thinking of getting out of securities lending because of any regulatory changes. They'll deal with that when and if the regulations change.”

As for Towers Watson clients, Mr. Rainbow said, “they're not changing their programs now. It's still an investment decision for them, one that always needs a lot of thinking. (Changes because of regulations) will be something additional they'll have to consider in the future.

“All clients will have to look at their risk-return profile, their governance costs, external management costs,” Mr. Rainbow added. “If their income from securities lending is already low, then one has to ask whether they'll still want to do this if new regulations are imposed. We'd do that on a client-by-client basis.”

How lending agents respond once the rules change is a matter of “the complexity of determining the rules,” Mr. Sachs said. “I'm not a lending agent, but our perception is that (agents) are all pursuing business opportunities in the meantime and disclosing that there will be regulatory changes in the future and they don't know what those changes will be, but lenders can still get their current earnings yield from securities lending right now.”

Mr. Rainbow said he expects custodians and lending agents to make the adjustments in their fee spreads once the regulations have been finalized. “Clients might not pay more,” he said. “Right now they don't know what they'll pay.” n

This article originally appeared in the March 3, 2014 print issue as, "Regulators put indemnification costs in spotlight".