Democrats led by Bernie Sanders and Elizabeth Warren are still complaining that bankers did not go to jail for the 2008 banking crisis. That is despite, as previously written about in this column, the crux of the problem was the federal government. Likewise, that is despite the fact the government let well-connected Democrat Jon Corzine slide for actual crimes at MF Global Holdings, also previously written about. Yet they nailed Eric Bloom with highly questionable charges and conduct at trial by the prosecution.
After a four-week trial and only three hours of deliberation by the jurors, Eric Bloom, CEO of Sentinel Management Group, Inc., was convicted of mail and investment fraud. He was sentenced to 14 years in a federal penitentiary. The company, founded by his father in 1980, was destroyed. Bloom filed to overturn his conviction, but lost the appeal.
To understand how such a miscarriage of justice could occur, one must query as to the ability of a jury to intelligently comprehend what Bloom did for a living. In addition, the jury was burdened with understanding the complexity of the government regulation under which Sentinel operated. Sentinel was in the business of managing short-term cash investments for futures commodities merchants. The jury needed to understand a business few ever become familiar with and the immensely complex laws established by the Commodity Futures Trading Commission (CFTC) to oversee the business. It is no wonder they took three hours to head for the hills, leaving Bloom and his company shattered.
Here is an explanation from an industry trade association of the business Sentinel does investments for: “A futures commission merchant (FCM) is an entity that solicits or accepts orders to buy or sell futures contracts, options on futures, retail off-exchange forex contracts or swaps, and accepts money or other assets from customers to support such orders.” So most likely you are already confused, and you can imagine sitting for four weeks in a jury panel trying to comprehend what was being thrown back and forth by the attorneys, that they themselves barely understood about the business they were prosecuting.
The idea of the Blooms' business is that they invest funds principally for FCMs, but the funds are available for short-term cash calls from the customers. Sentinel guaranteed same-day liquidity. Despite assertions otherwise by the feds, the funds in question were invested in CFTC-approved investments (U.S. government securities and high grade bonds). Commodity Futures Trading Commission or CFTC is just like the SEC for commodity futures. There were no regulatory violations by Bloom or Sentinel regarding the use of customer funds. Ignoring those facts. The feds charged Bloom with making risky investments.
The feds asserted the funds were guaranteed to be bankruptcy proof. That is highly misleading. The funds were supposed to be segregated from Sentinel accounts if Sentinel went bankrupt. The government provided no evidence that Sentinel did not maintain the customer funds separately. Despite that, the jury apparently was led to believe otherwise. Ultimately, whether an asset is included in a bankruptcy claim is left to the control of a bankruptcy judge. Unlike Corzine, where he had used customer funds illegally at MF Global, but had skated, Bloom had not used customers’ funds to cover his own shortcomings.
The government next asserted that Sentinel reconfigured the reported interest they received on a daily basis to show the customers were earning at a higher rate than the actual amount. I reviewed the spreadsheets provided to the jury and could not figure out what the feds were stating. It is highly unlikely the jury was able to understand this point. Paul Bjarnason, who I interviewed and was previously a regulator and deputy director with the CFTC, could not fathom these spreadsheets either. Sentinel actually paid the interest as far as the customers were concerned until the market collapsed in 2007. Bjarnson stated “In looking through the spreadsheet evidence presented at trial, I could not find where the government showed that there was a systematic and material misstatement of interest allocation.”
Lastly, probably the most false and misleading thing the government stated to the jury at trial, was that Bloom was operating a “Ponzi scheme.” He was taking in funds daily until the market collapsed on August 13, 2007. Unfortunately, Bloom could not predict exactly when there would be a market collapse so he was in the proverbial Catch-22. If he stopped taking in funds for the company his family had operated for 38 years, everyone in the industry would think he was going out of business and he would have a run on his accounts. If he operated as normal like everyone else, he would be subjected to the whims of the market which in this case collapsed.
On August 9, 2007, the financial markets across the world seized up. BNP Paribas suspended three funds holding U.S. backed securities because they were impossible to value because of “a complete evaporation of liquidity.” As stated by Alan Greenspan to the Wall Street Journal “Virtually overnight the seemingly insatiable desire for financial risk came to an abrupt halt as the price of risk unexpectedly surged.”
On August 13, 2007, Sentinel sent a letter to their account holders telling them that they had requested from the CFTC the right to halt redemptions until the tail-spinning market returned to a more normal status. This was to prevent sales of securities at deep discounts that would cause the account holders heavy losses.
Matters moved quickly after the time of the correspondence to the Sentinel client base. The National Futures Associations (NFA) visited Sentinel’s office and made some questionable accusations regarding the books and records of the company that were never later proven. On August 17, 2007, the Bank of New York called a loan that was secured by some of the assets.
The company went into bankruptcy on August 17, 2007, and that is where the trouble really started. The bankruptcy trustee started an unnecessary and untimely unloading of the assets feeding into a very weak market and lost $700 million. Of course, Bloom got blamed for that.
In the closing statement, the lead prosecutor told the jury that Sentinel’s assets were “gone,” suggesting that Bloom had stolen the assets. In fact, the assets were turned over to the bankruptcy trustee. No cash or securities had been misappropriated or used improperly for company purposes.
What Bloom was mainly guilty of was not being well-connected enough politically -- or “Too Big to Fail” -- so that he could receive underwriting by the government with an injection of temporary funds. If you were Chase or Goldman Sachs, you did not have to dump your assets at a huge loss. If you were Sentinel, in a collapsing market, all factors worked against you.
The government once again unjustifiably pushed a private company into ruination, harming its account holders and then pointed the finger at someone to protect themselves. Bloom’s only recourse now is the U.S. Supreme Court, if his team decides to push forward. Hopefully, the nine justices will see their way to saving a good man after the government destroyed his family business.