No Crimes? That’s The Biggest Lie of the New Century

The Biggest Lie of the New Century
The list of wrongdoing by banks is too long for senior executives to credibly claim that they were unaware of what was going on within their companies.
Bloomberg, September 10, 2014

Yesterday, we looked at why bankers weren’t busted for crimes committed during the financial crisis. Political corruption, prosecutorial malfeasance, rewritten legislation and cowardice on the part of government officials were among the many reasons.

But I saved the biggest reason so many financial felons escaped justice for today: They dumped the cost of their criminal activities on you, the shareholder (never mind the taxpayer).

Corporate executives theoretically work for the owners of the company, namely, the shareholders. But there is an agency problem in that owners can’t closely manage and object to the actions of these executives. Collective owners, such as mutual funds, seem to have no interest in doing so. What we end up with is a management class that works for itself instead of on behalf of the owners of the publicly traded banks. Many of these executives committed crimes; got big bonuses for doing so; and paid huge fines using shareholder assets (i.e., company cash), helping them avoid prosecution.

As for claims like those of white-collar crime defense attorney Mark F. Pomerantz, that “the executives running companies like Bank of America, Citigroup and JP Morgan were not committing criminal acts,” they simply are implausible if not laughable. Consider a brief survey of some of the more egregious acts of wrongdoing:

Foreclosure fraud: Of all the crimes committed during the financial crisis and in its aftermath, this is one that should have been the easiest to identify and prosecute.

Any bank that owns a mortgage with the debtor in default must follow a simple set of legal steps in order to foreclose. The procedure is time consuming, specific to each state’s laws and involves lawyers, so foreclosures are expensive. Hey, it is the cost of issuing credit, and a simple reality of the rule of law. There are no shortcuts.

Except the banks took many short cuts and did so on purpose and with the goal of improperly expediting the process. They failed to review the documents of the mortgages they were foreclosing on, then told courts they had. They didn’t verify information, but claimed to have done so in sworn affidavits. They hired $8 an hour burger-flippers to “robosign” these documents, pretending the underlying legal work had been done. They knowingly used falsified records, some of which they bought en masse. They were aided by a company called DocX, which had a price list of fabricated documents for use in court. (DocX, by the way, was eventually indicted on charges of mortgage fraud).

After creating phony dossiers on borrowers, the banks signed and notarized affidavits stating they had taken all of the legal steps. In many cases, even the notarizations were fakes. Submitting a falsified notarized affidavit to a court is perjury and fraud.

Of course, the burger-flippers who did the paperwork didn’t think up the whole scheme — someone much higher did. Somewhere between these low-level workers and the chief executive officer were managers who masterminded robosigning. So far, just one midlevel executive has been convicted at Bank of America, while scores of others have gone untouched.

Mortgage underwriting: Then there are the crimes committed in mortgage underwriting, where defects were knowingly ignored. TheFBI investigated these cases early on, but investigators never moved forward with prosecutions.

Maybe the scale of the financial penalties bank agreed to pay had something to do with this inaction. Bank of America, for instance, using shareholder money, paid $16.65 billion to settle allegations of fraudulent mortgage originations, securitizations and servicing. One can’t help think that this money bought immunity from prosecution for executives.

Money Laundering: Banks have been laundering staggering sums of money for drug dealers and terrorists. Hey, there are big bucks in high net worth narco-terrorists. Awash in cash, drug cartels relied on big banks to launder their ill-gotten money. Apparently, it was just good business to grab a slice of that pie. However, these are deeply offensive, very illegal activities, and deserve not just penalties, but jail time.

How much of this dirty money made its way through the banks? Oneanalysis estimates that $1.6 trillion of tainted proceeds has been laundered through major money-center banks around the world.

A U.S. Senate report linked HSBC to drug lords and terrorists, leading to a record $1.9 billion fine. The Federal Reserve faulted Citigroup over its controls, allowing money laundering to go on. And Wells Fargo admitted to laundering money for Mexican drug gangs.

• Market manipulation: We haven’t even gotten to the manipulation of markets in violation of U.S and international law. Whether it was aluminum or Libor rates, prices were either improperly manipulated or illegally rigged, with knowledge of the bank executives and the traders they employed and supervised. Let’s not forget manipulating the multitrillion dollar derivatives market.

• Fraud, skimming and bid-rigging: Then there is just good old-fashioned fraud and bid-rigging: State Street Bank was accused of skimming money off of the pension transactions it handled whileBNY Mellon was accused of skimming money for “fictitious” foreign-currency costs for pension funds.

• Accounting fraud: We could spend months discussing how some executives at banks cooked their books, but really, this is so well known that it hardly merits mention.

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I originally published this at Bloomberg, September 10, 2014. All of my Bloomberg columns can be found here and here.