Dirt Diggers Digest

Violating the Norm at Deutsche Bank

Layout 1 Corporate annual meetings and the publication of company annual reports usually come off like clockwork. Deutsche Bank, however, has found itself in the awkward position of having to call an extraordinary general meeting and delay the issuance of its annual financial documents until after that event.

These unusual measures are symptoms of the disarray of the giant German financial institution as it copes with a series of legal complications stemming from its own ethical shortcomings.

The special meeting was necessitated by a court ruling that invalidated votes that had been taken at last year’s scheduled shareholder gathering. That ruling came as the result of a legal challenge brought by the heirs of German media tycoon Leo Kirch, who blame the bank for forcing his company into bankruptcy.

There’s a silver lining in this for Deutsche Bank management, since the delay in the publication of the annual report (and the 20-F filing with the U.S. Securities and Exchange Commission) means that it will have more time before it needs to give more details about the various legal messes it is in.

It’s not easy keeping track of them all. Deutsche Bank’s reputation has been tarnished in a variety of ways. This is not to say that the bank’s image started off spotless. It did, after all, actively collaborate with the Nazi regime, helping appropriate the assets of financial institutions in conquered countries.

The sins were not all in the distant past. In 1999 Deutsche Bank acquired New York-based Bankers Trust, which was embroiled in a scandal over its diversion of unclaimed customer assets into its own accounts; it had to pay a $60 million fine and plead guilty to criminal charges.

Deutsche Bank itself was then the subject of wide-ranging investigations of its role in helping wealthy customers, especially those from the U.S., engage in tax evasion. The bank was featured in an investigative report on offshore tax abuses issued by a U.S. Senate committee and was eventually charged by federal prosecutors. In 2010 it had to pay $553 million and admit to criminal wrongdoing to resolve allegations that it participated in transactions that promoted fraudulent tax shelters and generated billions of dollars in U.S. tax losses.

That did not put an end to Deutsche Bank’s tax evasion woes. It is currently reported to be the subject of an investigation by German prosecutors of tax dodging through the use of carbon credits. In December, the bank’s German offices were raided by some 500 police officers seeking evidence for the probe.

Deutsche Bank is also widely reported to be under investigation for its role in the manipulation of the LIBOR interest rate index. There has been speculation that the bank’s co-chief executive, Anshu Jain, might lose his job over the issue. Lower-level employees of the bank have already been disciplined.

There’s more. Deutsche Bank is one of the firms that were sued by the U.S. Federal Housing Finance Agency for abuses in the sale of mortgage-backed securities to Fannie Mae and Freddie Mac (the case is pending). Last year, the U.S. Attorney for the Southern District of New York announced that Deutsche Bank would pay $202 million to settle charges that its MortgageIT unit had repeatedly made false certifications to the U.S. Federal Housing Administration about the quality of mortgages to qualify them for FHA insurance coverage.

In January Deutsche Bank agreed to pay a $1.5 million fine to the U.S. Federal Energy Regulatory Commission to settle charges that it had manipulated energy markets in California in 2010.

Deutsche Bank’s misconduct goes beyond the realm of finance. The bank is being targeted by labor activists in Las Vegas, where it owns two casinos. Members of UNITE HERE have been picketing the bank’s Cosmopolitan casino over management’s insistence on weakening standard industry work rules during negotiations on the union’s first contract at the site. As part of its organizing drive, UNITE HERE created a website called Deutsche Bank Risk Alert to highlight the negative issues surrounding the casino’s parent. It has not lacked for content.

Note: This piece draws from my new Corporate Rap Sheet on Deutsche Bank, which can be found here.

The Golden Gag and Other Sins of Novartis

vasella Novartis raked in more than $12 billion in profits last year, but it was a planned expenditure of $78 million that prompted an uprising by the Swiss drug giant’s shareholders and compelled the company’s management to make an embarrassing about-face. The reason is that the $78 million was an unwarranted giveaway to the retiring chairman.

In January, Novartis announced that Daniel Vasella (photo) would leave the company after serving in top positions for the past 17 years. Vasella had already been granted more than $12 million in retirement benefits after he gave up the chief executive’s post in 2010 while staying on the board of directors as chairman with another $12 million in additional annual compensation. That payout was highly controversial, coming after years of fat CEO paychecks for Vasella.

It also set the stage for the current scandal, which grew out of a plan to pay Vasella not to work for another pharmaceutical company for the next six years. The non-competition agreement is referred to in the European press as a “golden gag” arrangement.

The pent up anger against Vasella was obvious in the reaction to the announcement. The corporate accountability group Ethos called on shareholders to withhold their support for the re-election of members of the board’s compensation committee. One Swiss official denounced the payment, saying “it does huge damage to the social cohesion in our country.” A lawyer in Zurich filed a criminal complaint against Novartis, the compensation committee and Vasella for breach of trust and lying to shareholders. A public statement by Vasella that he would donate the money to charity did little to quell the uproar.

The subsequent decision by Novartis to drop the plan was a significant victory for corporate accountability activists and critics of excessive executive and director pay, who have been targeting bloated compensation not only at Novartis but also at other large Swiss companies.

What’s ironic, however, is that this planned parting payment to Vasella generated a lot more controversy than other, arguably more serious sins of the company during his tenure, especially those committed in its U.S. operations.

For example, in 2010 Novartis had to pay $422 million to U.S. authorities to resolve criminal and civil liability arising from charges that it engaged in illegal marketing of its epilepsy drug Trileptal, including the payment of kickbacks to doctors to get them to prescribe the medication for off-label and potentially dangerous purposes.

That same year, Eon Laboratories, a Novartis subsidiary, agreed to pay $3.5 million to settle allegations that it violated the U.S. False Claims Act by submitting inaccurate reports to the federal government that obscured the fact that the Food and Drug Administration had found that the company’s Nitroglycerin Sustained Release capsules lacked substantial evidence of effectiveness.

In 2005 a Novartis U.S. unit, OPI Properties, had agreed to pay $49.2 million in civil and criminal fines and be excluded from federal healthcare contracts to resolve charges relating to its improper marketing of nutritional products to the Medicare and Medicaid programs.

In 2005 a group of women who had worked as sales representatives for Novartis in the United States filed a lawsuit against the company, saying they were discriminated against in pay and promotions, especially after becoming pregnant. In 2010 a federal jury ruled in favor of the women, awarding them $3.3 million in compensatory damages and $250 million in punitive damages. Novartis appealed and then settled the case for $152 million.

Novartis has also been at the center of a worldwide controversy over the pricing of its cancer medication Gleevec (Glivec in Europe), a year’s supply of which in the early 2000s was priced at about $27,000. Novartis sought to quiet the criticism by promising to give the drug away to many of those who could not afford it, but in 2003 it was reported that the effort was falling far short of expectations.

Novartis later found itself in a battle with the Indian government, which rejected the company’s patent application for Gleevec as part of its effort to encourage the production of low-cost generic drugs for poor countries. A wide range of non-governmental organizations, such as Doctors Without Borders and the Interfaith Center on Corporate Responsibility, called on Novartis to drop its suit, which was heard by the Indian Supreme Court in 2012.

Novartis was right to cancel its big giveaway to Vasella, but the company has a lot more to answer for.

Note: The latest addition to my Corporate Rap Sheets collection is dossier number 41, describing the track record of another ethically challenged Swiss company, Credit Suisse.

UBS’s Ill-Fated Quest for Financial Glory

UBS UBS seems to be in the news these days more often in connection with its legal problems than in its role as a major financial services company.

This is a result both of some dubious cases brought against it and numerous instances of serious misconduct on the part of the Swiss company. UBS, after all, a corporation that not long ago had to pay $1.5 billion to settle charges that it helped manipulate the LIBOR interest rate index.

In the dubious category is a case brought by a group of its U.S. customers who tried to collect damages from the bank after it had revealed their secret accounts and they had to pay hefty penalties to avoid tax evasion charges for unreported income. A U.S. appellate court in Chicago recently upheld a lower court’s dismissal with a ruling that was, in more than one sense, dismissive. U.S. Circuit Court Judge Richard Posner wrote that UBS “has no duty to treat [the plaintiffs] like children or illiterates, and thus remind them that they have to pay taxes on the income on their deposits.” Posner went on to state: “This lawsuit, including the appeal, is a travesty. We are surprised that UBS hasn’t asked for the imposition of sanctions on the plaintiffs and class counsel.”

This is not to say that UBS was blameless. The lawsuit came after a former UBS banker turned whistleblower had revealed how the bank actively assisted wealthy Americans seeking to hide income from the IRS. Federal prosecutors targeted UBS, which in 2009 had to pay $780 million and sign a deferred prosecution agreement to settle criminal charges of having defrauded U.S. tax authorities.

The feds then pressured UBS to hand over account information on more than 50,000 U.S. customers. UBS and the Swiss government, seeking to retain the country’s tradition of bank secrecy, resisted but in the end agreed to spill the beans on a smaller group of depositors. Using that information, the IRS went after a bunch of those tax dodgers, some of whom then foolishly thought they could use the courts to get UBS to cover their tax bills.

UBS recently prevailed in another lawsuit filed in response to a different instance of its misconduct. In 2004 the U.S. Federal Reserve fined the bank $100 million for violating U.S. trade sanctions by engaging in currency transactions with parties in countries such as Iran and Libya. Based on that, a group of Americans who had been injured in Hamas and Hezbollah attacks while in Israel sued UBS in 2008 under the Anti-Terrorism Act, arguing that the bank was liable for damages in light of its dealings with Iran, which is said to back those groups. The U.S. appeals court in New York has just upheld a dismissal of the case, though it ruled that the trial judge was wrong in holding that the victims lacked standing to bring the action in the first place.

UBS’s success in these two cases pales in comparison to the damage that its reputation has suffered both from the larger matters that prompted them and from a series of other scandals that have embroiled the company through most of the 15 years since it was created from the merger of two of Switzerland’s three big banks: Swiss Bank Corporation and Union Bank of Switzerland.

After the deal was completed, UBS’s chief executive at the time, Marcel Ospel, set out on an ambitious mission to make the company the world leader in investment banking. It was an ill-fated quest.

When UBS sought to increase its U.S. presence with the acquisition of brokerage house PaineWebber, it inherited a slew of legal problems relating both to PaineWebber’s own deceptive practices in the sale of limited partnerships and those the U.S. firm in turn took on when it bought Kidder Peabody, including a scandal in which a trader fabricated $350 million in trading profits to hide what were actually huge losses.

UBS’s U.S. operation was later caught up in the controversy over conflicts of interest between research and investment banking (UBS paid $80 million as its share of the settlement) and was sued by several U.S. state governments relating to its sale of auction-rate securities. UBS settled the actions by agreeing to pay a total of $150 million in penalties to the states and buy back more than $18 billion of the securities.

After getting bailed out to the tune of some $65 billion by the Swiss government during the financial meltdown in 2008, UBS had to pay $160 million to settle federal and state charges relating to bid-rigging in the municipal securities market. Just after that, UBS was sued by the Federal Housing Finance Agency in an action seeking to recover more than $900 million in losses suffered by Fannie Mae and Freddie Mac from mortgage-backed securities purchased through UBS. (The case is pending.)

UBS faced criticism in 2011 after it came to light that a young trader named Kweku Adoboli working in the bank’s London offices had racked up more than $2 billion in losses. Adoboli was later found guilty of fraud and sentenced to seven years in prison, while UBS was fined £29 million by British regulators for supervisory failures.

And late last year, there was the resolution of the LIBOR manipulation case. In addition to the $1.5 billion in penalties, a Japanese subsidiary of UBS pleaded guilty to a charge of felony wire fraud in U.S. federal court. (By having a foreign subsidiary take the fall, UBS shielded its U.S. operations.) The repercussions of the LIBOR case did not disappear. During a subsequent hearing on the matter in the British Parliament, several former UBS executives were accused of “gross negligence and incompetence.” So much for the dream of financial glory.

Note: This piece draws from my new Corporate Rap Sheet on UBS, which can be found here.

Prosecuting Ratesters and Banksters

DOJ_S&P The U.S. Justice Department’s action against Standard & Poor’s is a welcome, if long overdue, step in the prosecution of the rating agencies, which were some of the key culprits in the financial meltdown of 2008 and the ensuing economic slump.

There are both encouraging and disheartening aspects of the case. DOJ is making use of a law enacted in the wake of the savings & loan scandals of the 1980s—the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA)—which permits it to seek penalties up to the amount of the losses suffered as a result of the alleged violations. During the period covered by the complaint, federally insured financial institutions suffered an estimated $5 billion in losses from the collateralized debt obligations that S&P is charged with giving inflated ratings. In other words, S&P may very well face a multi-billion-dollar hit.

On the other hand, despite the statement by Attorney General Eric Holder (photo) that the firm’s conduct was “egregious,” this is a civil rather than a criminal case, which means that no S&P executives will go to prison and S&P will be able to return to business as usual after it absorbs the financial blow. This is a repeat of the approach taken in the cases filed against the big banks.

At the press conference announcing the case, the head of DOJ’s civil division, Stuart Delery, noted that FIRREA allows prosecutors to seek civil penalties even though many of the underlying offenses are criminal in nature, including mail fraud, wire fraud and bank fraud. This, Delery emphasized, means that DOJ will have a lower burden of proof in making its case.

That’s convenient for prosecutors, but it lets S&P off a very large hook. Why couldn’t DOJ have brought civil and criminal charges?

Another limitation of this case, along with previous ones filed by DOJ, is that the rating agencies and the banks and investment houses that exploited their inflated ratings to peddle toxic assets are not being prosecuted at the same time. The use of separate cases means that the collusion between the groups—which can be called banksters and ratesters—is less likely to come to light.

A more aggressive approach was taken in a private suit filed back in 2008 against both a major investment house—Morgan Stanley—and the leading rating agencies—S&P and Moody’s. The case, which is still making its way through federal court, alleged that Morgan worked closely with the agencies to be sure that the large package of risky mortgage-backed securities it was selling to institutional investors received a better rating than it deserved. The plaintiffs allege that Morgan paid the agencies three times their usual fee to, in effect, guarantee that the securities would be highly rated.

To try to get around the clear implication of conflict of interest and collusion, the agencies fell back on the far-fetched claim that their ratings are a form of speech covered by the First Amendment, while Morgan tried to pin the blame on the agencies. As Gretchen Morgenson of the New York Times noted in a piece about the case last July, documents that emerged in the case showed that Morgan bullied the agencies to raise the grade they attached to the securities.

It is no surprise to learn of Morgan’s behavior. The investment house has a long history of arrogance and insistence on getting its own way. It also has a long record of cutting corners when it comes to the protection of the interests of its customers, as can be seen in the frequent fines it has paid to industry and government regulators. For example, in 2007 Morgan had to pay $7.9 million to settle SEC fraud charges relating to its failure to get retail investors the best prices possible on more than 1 million over-the-counter transactions. In 2009 Morgan was fined $3 million and ordered to pay more than $4.2 million in restitution to resolve charges that its brokers persuaded employees of Eastman Kodak and Xerox to take early retirement based on misleading investment projections.

Morgan, which once dealt exclusively with the country’s largest corporations, later got caught up with predatory lending by purchasing Saxon Mortgage Services. In 2011 Saxon had to pay $2.35 million to settle charges that it violated federal law by foreclosing on the homes of active duty military personnel without first obtaining required court orders. Last month, Morgan agreed to pay $227 million to settle other charges of loan servicing and foreclosure abuses by Saxon (which it no longer owns).

The inescapable conclusion is that the investment houses, the banks and the rating agencies all have a high degree of culpability for reckless and fraudulent practices. Prosecuting them together as criminal co-conspirators will be the only way to bring some justice to the financial sector.

Note: This piece draws from my new Corporate Rap Sheet on Morgan Stanley, which can be found here.

Will Breuer’s Departure Finally Expose Banksters to Criminal Liability?

breuer President Obama’s choice of former prosecutor Mary Jo White to head the Securities and Exchange Commission is, despite her more recent work defending white-collar miscreants, being touted as a sign that the federal government will get tougher on corporate misconduct. Yet perhaps the more important issue, given that the SEC can bring only civil cases, is who will be chosen to replace Lanny Breuer as head of the Justice Department’s Criminal Division.

Breuer is planning to leave his post at the beginning of March. The announcement of his departure comes right after a PBS Frontline documentary called “The Untouchables” made him the symbol of the Obama Administration’s failure to bring criminal prosecutions of executives at the big banks responsible for the reckless practices that led to the financial meltdown of 2008 and the resulting economic slump from which the country is still struggling to recover.

Frontline’s Martin Smith put Breuer on the spot, confronting him with claims by sources from within the Criminal Division that when it came to Wall Street there were “no subpoenas, no document reviews, no wiretaps” and that at indictment approval meetings “there was no case ever mentioned that was even close to indicting Wall Street for financial crimes.” Smith also criticized Breuer for not working more closely with whistleblowers.

Near the end of the program, Smith asked Breuer about a speech he had given before the New York Bar Association in which he seemed to be saying that concern over the financial impact on individual banks influenced his decision not to pursue criminal prosecutions—implying that they are too big to prosecute. Amazingly, Breuer stood by that position.

Throughout the interview, Breuer insisted that he was pursuing justice against the banks, pointing several times to the civil cases that DOJ has filed. There have indeed been quite a few such cases brought by DOJ, the SEC and others. In the past few issues of this blog I’ve recounted the ones brought against Citigroup, Bank of America and JPMorgan.

I don’t want to leave out Wells Fargo, which is the smallest of the four giant institutions that now dominate U.S. commercial banking but has a record that is no less checkered.

In the same way that Bank of America assumed a slew of legal problems from its acquisition of Merrill Lynch and Countrywide Financial, and JPMorgan Chase did the same with regard to Bear Stearns and Washington Mutual, Wells Fargo has had to deal with numerous cases relating to the past sins of Wachovia, which it took over in 2008.

These have included: a $4.5 million fine imposed by industry regulator FINRA for violations of mutual fund sales rules; a $40 million settlement of SEC charges that the Evergreen Investment Management business Wells Fargo inherited from Wachovia misled investors about mortgage-backed securities; a $160 million settlement of federal charges relating to money laundering by customers; a $2 billion settlement with the California attorney general of charges relating to foreclosure abuses; an $11 million settlement with the SEC of charges that it cheated the Zuni Indian Tribe in the sale of collateralized debt obligations; and a $148 million settlement of federal and state municipal securities bid rigging charges.

Wells Fargo also had problems of its own making. In 2009 it had to agree to buy back $1.4 billion in auction-rate securities to settle allegations by the California attorney general of misleading investors. In 2011 it agreed to pay $125 million to settle a lawsuit in which a group of pension funds accused it of misrepresenting the quality of pools of mortgage-related securities. Soon after that, the Federal Reserve announced an $85 million civil penalty against Wells Fargo for steering customers with good qualifications into costly subprime mortgage loans during the housing boom. And then Wells Fargo agreed to pay at least $37 million to settle a lawsuit accusing it too of municipal bond bid rigging.

Wells Fargo was one of five large mortgage servicers that in February 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. In July 2012 the Justice Department announced that Wells Fargo would pay $175 million to settle charges that it engaged in a pattern of discrimination against African-American and Hispanic borrowers in its mortgage lending during the period from 2004 to 2009. In August 2012 Wells Fargo agreed to pay $6.5 million to settle SEC charges that it failed to fully research the risks associated with mortgage-backed securities before selling them to customers such as municipalities and non-profit organizations.

In October 2012 the U.S. Attorney for the Southern District of New York filed suit against Wells Fargo, charging the bank with engaging in a “longstanding practice of reckless underwriting and fraudulent loan certification” for thousands of loans insured by the Federal Housing Administration that ultimately defaulted. And in January 2013 Wells Fargo was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve claims of foreclosure abuses.

The sad truth is that settlements such as these are regarded by Wells Fargo as simply affordable costs of doing business. The same goes for Citi, BofA and JPMorgan. And unless Breuer gets replaced with someone tougher on financial crime, these banks have nothing to worry about.

Note: This piece draws on my new Corporate Rap Sheet on Wells Fargo, which can be found here.

Bluster Under Fire at JPMorgan Chase

Most chief executives use the World Economic Forum in Davos, Switzerland as an opportunity to solidify their relationships with other members of the global power elite. Jamie Dimon of JPMorgan Chase treats it as an occasion to strike back at critics. At the 2011 gathering he said he was sick of “this constant refrain—bankers, bankers, bankers.” This year he has been at it again, declaring that “we’re doing the right thing,” while regulators are “trying to do too much, too fast.”

What makes Dimon’s bluster all the more ridiculous is that it comes only a short time after he and other top executives at JPMorgan were reprimanded by a report produced by their own colleagues at the bank. The internal investigation was prompted by the ongoing scandal surrounding more than $6 billion in losses the bank experienced as the result of aggressive trading by its unit in London led by an individual nicknamed the London Whale.

For a document of this kind, the report is pretty blunt. It notes that during a conference call with analysts at an early stage of the controversy Dimon had agreed with a characterization of the matter as a “tempest in a teapot.” It goes on to accuse the bank’s chief investment office (CIO) of poor judgment and execution while alleging that the trading program in question had “inconsistent priorities” and “poorly conceived” strategies. The bank did not, the report says, “ensure that the controls and oversight of CIO evolved commensurately with the increased complexity and risks” of its activity. Such failings were behind the recent decision by the JPMorgan board to cut Dimon’s compensation in half.

Actually, the internal report and the pay cut are not the worst of Dimon’s problems. A variety of federal agencies are doing their own investigations of the trading losses, and it is likely that the bank will face civil if not criminal charges.

All this does not come as a surprise. JPMorgan—which represents the consolidation of several of the most powerful New York and Chicago money center banks as well as the investment house founded by the legendary financier and robber baron J.P. Morgan—has a long history of aggressive business practices, including ones that cross the line into outright misconduct.

For example, the bank was charged with abetting the accounting fraud perpetrated by Enron, and in 2003 it had to pay $135 million to settle SEC charges. Two years later, the bank agreed to pay $2.2 billion to settle a suit brought by Enron shareholders. That same year, it agreed to pay $2 billion to settle a suit related to its role in underwriting bonds for a company, WorldCom, at the center of another accounting scandal.

In 2003, JPMorgan’s securities arm was part of a $1.4 billion settlement by ten firms with federal, state and industry regulators concerning alleged conflicts of interest between their research and investment banking activities; its share was $80 million. In 2006 it agreed to pay $425 million to settle a lawsuit charging that its securities operation misled investors during the dot com boom of the 1990s.

During the financial meltdown in 2008, federal regulators got JPMorgan to take over two failing institutions—investment house Bear Stearns and mortgage lender Washington Mutual—that brought with them a variety of legal problems stemming from their reckless practices.

For example, in 2010 the Federal Deposit Insurance Corporation announced that Washington Mutual and JPMorgan had agreed to settle claims relating to the bank’s failure. The agency did not cite the size of the settlement, but it was later reported to be about $6 billion. The following year, WaMu agreed to pay $105 million to settle an investor lawsuit relating to its collapse. Three former WaMu executives later agreed to pay $64 million to settle with the FDIC, but most of the money was to be paid from insurance policies the bank had purchased for them.

In 2012 New York State Attorney General Eric Schneiderman, acting on behalf of the U.S. Justice Department’s federal mortgage task force, sued JPMorgan, alleging that Bear Stearns had fraudulently misled investors in the sale of residential mortgage-backed securities. The following month, the SEC announced that JPMorgan would pay $296.9 million to settle similar charges.

JP Morgan has also faced legal travails of its own making. In 2009 the SEC announced that J.P. Morgan Securities would pay a penalty of $25 million, make a payment of $75 million to Jefferson County, Alabama and forfeit more than $647 million in claimed termination fees to settle charges that the firm and two of its former managing directors engaged in an illegal payment scheme to win municipal bond business from the county.

In 2011 JPMorgan found itself at the center of a controversy over improper foreclosures and excessive interest rates in connection with home loan customers who were members of the military. The bank agreed to pay $56 million to settle charges of having violated the Servicemembers Civil Relief Act.

Also in 2011, the SEC announced that JPMorgan would pay $153.6 million to settle allegations that in 2007 it misled investors in a complex mortgage securities transaction. The following month, the SEC said that J.P. Morgan Securities would pay $51.2 million to settle charges of fraudulently rigging municipal bond reinvestment transactions in 31 states. The agreement was part of a $228 million settlement the firm reached with a group of federal regulators and state attorneys general.

Documents made public in a lawsuit against JPMorgan by a court-appointed trustee in the Bernard Madoff Ponzi scheme case suggested that senior executives of the bank had developed doubts about the legitimacy of Madoff’s investment activities but continued to do business with him. The lawsuit was later dismissed.

JPMorgan was one of five large mortgage servicers that in February 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. In April 2012 the Commodity Futures Trading Commission imposed a penalty of $20 million on JPMorgan for failing to segregate customer accounts being handled on behalf of Lehman Brothers prior to that firm’s collapse.

In July 2012 JPMorgan agreed to pay $100 million to settle a class action lawsuit charging it with improperly increasing the minimum monthly payments charged to credit card customers. And in January 2013 JPMorgan was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve charges relating to foreclosure abuses.

One journalist in Davos reported that Dimon was wearing FBI cufflinks. Given this track record, FBI handcuffs might be more appropriate attire.

Note: This piece draws on my new Corporate Rap Sheet on JPMorgan Chase, which can be found here.

Bank of America Returns to the Scene of the Crime

BofA Home buyers beware: Bank of America is returning to the home loan market. According to the Wall Street Journal, BofA is “girding for a new run at the U.S. mortgage business.”

It apparently wants to reclaim a share of the fat profits that rivals such as Wells Fargo have been enjoying from a mortgage refinancing boom sparked by low interest rates. Those profits are particularly tantalizing given the other recent news about BofA: it reported a 63 percent decline in fourth-quarter net income.

Ironically, that plunge in earnings was caused by BofA’s previous screw-ups in none other than the mortgage market, specifically the billions of dollars it has had to pay Fannie Mae to settle charges that it sold the housing finance agency large quantities of faulty mortgage loans it had originated.

In the most recent settlement with Fannie earlier this month, BofA agreed to pay $10.3 billion while also agreeing to sell off about 20 percent of its loan servicing business. The New York Times front page article on the settlement was headlined: “Big Bank Extends Retreat from Mortgages.”

If two major newspapers are to be believed, in the course of just one week BofA went from retreat to advance. By all rights, BofA should not be allowed to perform this about-face.

BofA, including two companies it acquired in 2008, has done so much harm in both the mortgage market and the mortgage-backed securities market, that banishment would be the most appropriate punishment.

Let’s look back at the record. In July 2008 BofA completed the acquisition of the giant mortgage lender Countrywide Financial, which was becoming notorious for pushing borrowers, especially minority customers, into predatory loans and was growing weaker from the large number of those loans that were going into default. Later that year, amid the financial meltdown, BofA was pressured to take over the teetering investment house Merrill Lynch.

Merrill came with a checkered history. In 1998 it had to pay $400 million to settle charges that it helped push Orange County, California into bankruptcy four years earlier with reckless investment advice. In 2002 it agreed to pay $100 million to settle charges that its analysts skewed their advice to promote the firm’s investment banking business. In 2003 it paid $80 million to settle allegations relating to dealings with Enron. In an early indicator of the problem of toxic assets, Merrill announced an $8 billion write-down in 2007. Its mortgage-related losses would climb to more than $45 billion.

BofA participated in the federal government’s Troubled Assets Relief Program (TARP), initially receiving $25 billion and then another $20 billion in assistance to help it absorb Merrill, which reported a loss of more than $15 billion in the fourth quarter of 2008. In 2009 BofA agreed to pay $33 million to settle SEC charges that it misled investors about more than $5 billion in bonuses that were being paid to Merrill employees at the time of the firm’s acquisition. In 2010 the SEC announced a new $150 million settlement with BofA concerning the bank’s failure to disclose Merrill’s “extraordinary losses.”

In 2011 BofA agreed to pay $315 million to settle a class-action suit alleging that Merrill had deceived investors when selling mortgage-backed securities. The following year, court filings in a shareholder lawsuit against BofA provided more documentation that bank executives knew in 2008 that the Merrill acquisition would depress BofA earnings for years to come but failed to provide that information to shareholders. In 2012 BofA announced that it would pay $2.43 billion to settle the litigation.

The Countrywide acquisition also came back to haunt BofA. In 2010 it agreed to pay $108 million to settle federal charges that Countrywide’s loan-servicing operations had deceived homeowners who were behind on their payments into paying wildly inflated fees. Four months later, Countrywide founder Angelo Mozilo reached a $67.5 million settlement of civil fraud charges brought by the SEC. As part of an indemnification agreement Mozilo had with Countrywide, BofA paid $20 million of the settlement amount.

In May 2011 BofA reached a $20 million settlement of Justice Department charges that Countrywide had wrongfully foreclosed on active duty members of the armed forces without first obtaining required court orders. And in December 2011 BofA agreed to pay $335 million to settle charges that Countrywide had discriminated against minority customers by charging them higher fees and interest rates during the housing boom. In mid-2012 the Wall Street Journal reported that “people close to the bank” estimated that Countrywide had cost BofA more than $40 billion in real estate losses, legal expenses and settlements with state and federal agencies.

BofA faced its own charges as well. In 2010 it agreed to pay a total of $137.3 million in restitution to federal and state agencies for the participation of its securities unit in a conspiracy to rig bids in the municipal bond derivatives market. In 2011 BofA agreed to pay $2.8 billion to Fannie Mae and Freddie Mac to settle charges that it sold faulty loans to the housing finance agencies.

BofA was one of five large mortgage servicers that in early 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. Six months later, an independent monitor set up to oversee the settlement reported that BofA had not yet completed any modifications of first-lien mortgages or any refinancings.

Earlier this month, BofA was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve claims of foreclosure abuses. Finally, as noted above, BofA agreed to pay $10.3 billion in a new settlement with Fannie Mae.

BofA claims that it has cleaned up its act, but it is difficult to believe that a bank so closely identified with predatory lending and investor deception has truly changed its ways.

Note: This piece draws from my new Corporate Rap Sheet on Bank of America, which can be found here.

Jack Lew’s Citigroup Baggage

For the past four years, the presence of Timothy Geithner as Secretary of the Treasury has been a blight on the Obama Administration.

In keeping with his weak performance as president of the Federal Reserve Bank of New York, Geithner has allowed Wall Street culprits to enjoy lavish assistance from taxpayers as they avoid any serious consequences for having brought on the financial crisis from which the country is still trying to recover.

Now that Geithner is departing, Obama had a chance to take Treasury in a new direction. His choice of White House chief of staff Jack Lew for the post is not a good sign. As a deficit hawk, Lew will reinforce the president’s regrettable inclination to take seriously the wrong-headed notion that the country has a spending problem.

Yet perhaps even more troubling is Lew’s background, particularly the fact that he is a veteran of one of the leading financial-sector miscreants: Citigroup. Unfortunately, it is not unusual for presidents to turn to Wall Street for their Treasury secretaries. Ronald Reagan brought in Don Regan from Merrill Lynch; Bill Clinton got Robert Rubin from Goldman Sachs; and George W. Bush turned to Goldman again when he chose Hank Paulson to be his third Treasury head. The difference is that Lew is the first Wall Street veteran to be chosen for Treasury since the financial meltdown of 2008 exposed the pernicious behavior of the giant banks.

While Lew is not a Wall Street lifer and is not coming straight from the private sector, his time at the bank (2006-2009) was not long ago. Moreover, he was personally involved in some of Citi’s dubious practices. In 2010 the Huffington Post reported that when Lew served as chief financial officer of Citi’s Alternative Investments operation his portfolio included investments put together by hedge fund manager John Paulson that made a killing by correctly betting that the housing market would tank. This was the same Paulson who helped Goldman Sachs put together a similar notorious deal that led to SEC charges and a $550 million settlement.

Actually, Lew’s dealings with Paulson are just the beginning of why it wrong for Obama to be selecting a veteran of Citigroup to such an important position in his administration. It is well known that Citi was bailed out by the federal government to the tune of $45 billion while also getting loss protection for some $300 billion in toxic assets. What some may have forgotten is the absolutely abysmal track record of Citi before and after the bailout, including the following:

It was the merger of Citibank and Travelers Group—technically illegal when it was announced in 1998—that played a key role in bringing about the disastrous policy of financial deregulation.

Citi gave a boost to predatory lending and subprime mortgages when it purchased Associates First Capital. In 2001 Citi had to pay $215 million to settle charges brought by the Federal Trade Commission in connection with Associates’ abusive practices.

In the wake of revelations that it helped Enron conceal its massive accounting fraud, Citi had to pay $2 billion to settle lawsuits brought by Enron investors. It later paid another $2.65 billion to settle lawsuits brought by investors in WorldCom, another perpetrator of accounting fraud, alleging that Citi failed to perform due diligence when underwriting the company’s bonds.

In 2010 the SEC announced that Citi would pay a $75 million penalty to settle allegations that it misled investors about its exposure to subprime mortgage-related assets. The following year, Citi paid $285 million to the SEC to settle charges that it defrauded investors in a $1 billion collateralized debt obligation tied to the U.S. housing market.

The settlement amount in the latter SEC case, which was far below the $700 million in losses suffered by the defrauded investors, was roundly criticized by the federal judge, Jed Rakoff, who was overseeing the case. Judge Rakoff also challenged the SEC’s willingness to let Citi get off without admitting guilt in the matter, calling the deal “neither reasonable, nor fair, nor adequate, nor in the public interest.” He rejected the settlement, but the SEC filed an appeal, which is not yet fully resolved.

Citi was one of five large mortgage servicers that in February 2012 consented to a $25 billion settlement with the federal government and state attorneys general to resolve allegations of loan servicing and foreclosure abuses. That same month, U.S. attorney’s office in Manhattan announced that Citi would pay $158 million to settle charges that its mortgage unit fraudulently misled the federal government into insuring thousands of risky home loans. In August 2012 Citi agreed to pay $590 million to settle lawsuits charging that it deceived investors by concealing the extent of its exposure to toxic subprime debt. And just this month, Citi was one of ten major lenders that agreed to pay a total of $8.5 billion to resolve claims of foreclosure abuses.

Lew, of course, was not personally responsible for all these offenses, but his association with this rogue bank is strong enough to disqualify him from a top economic policy position.

Note: This history draws from my new Corporate Rap Sheet on Citigroup, which was just posted here.

The Goldman Sachs Rogue Money Machine Keeps Humming

While Congress and the Obama Administration were busy with their fiscal cliff negotiations on New Year’s Eve, Goldman Sachs quietly submitted a batch of filings to the SEC about its own tax initiative. The rogue investment banking firm said it would accelerate the payment of $65 million in stock awards to ten executives, including CEO Lloyd Blankfein, so that they would be subject to 2012 tax rates rather than the expected higher 2013 levels.

Goldman is not the only firm to use the calendar as a form of tax avoidance. Wal-Mart did the same for its shareholders by speeding up the payment of dividends—a boon worth an estimated $180 million for the controlling Walton Family.

Yet there is something particularly galling about this behavior on the part of Goldman, which played such a large role in the financial crisis that, much more than the federal deficit and debt on which Washington is fixated, brought about our current economic problems. Despite facing various federal prosecutions and investor lawsuits, Goldman continues to reward its top people lavishly while begrudging a bit of extra money to Uncle Sam. That is the same the federal government which provided $10 billion in bailout aid and virtually interest-free borrowing to help Goldman get through the crisis (and declined to bring criminal charges against it).

I came across the news about the timing of Goldman’s stock awards just as I was finishing my first Corporate Rap Sheet of the new year, which is about none other than Goldman. I thought I would use this week’s Dirt Diggers to summarize the sordid track record of the firm.

Goldman Sachs, once lionized as the premier “money machine” of Wall Street has in the past few years become synonymous with greed and duplicity. A firm that long prided itself on putting the interests of its clients first was revealed to have repeatedly sold securities that it fully expected to plunge in value. Rolling Stone reporter Matt Taibbi’s depiction of Goldman as “a giant vampire squid wrapped around the face of humanity, relentlessly jamming its blood funnel into anything that smells like money” and Greg Smith’s reference to Goldman as “toxic and destructive” in a New York Times op-ed announcing his departure from the firm are two of the most frequently quoted phrases about the financial crisis.

Goldman’s reputation was beginning to unravel even before the financial crisis:

In 2003 it paid $110 million as its share of a global settlement by ten firms with federal, state and industry regulators concerning alleged conflicts of interest between their research and investment banking activities.

In 2005 the SEC announced that Goldman would pay a civil penalty of $40 million to resolve allegations that it violated rules relating to the allocation of stock to institutional customers in initial public offerings.

In 2006 Goldman was one of 15 financial services companies that were fined a total of $13 million in connection with SEC charges that they violated rules relating to auction-rate securities. In another case relating to auction-rate securities brought by the New York State Attorney General, Goldman was fined $22.5 million in 2008.

When the crisis erupted in 2008, Goldman gave in to pressure from federal regulators to convert itself into a bank holding company and received a $5 billion capital infusion from Warren Buffett’s Berkshire Hathaway. Goldman also received $10 billion from the federal government’s Troubled Assets Relief Program (TARP). During this period, Goldman profited from subprime mortgages through its ownership of Litton Loan Servicing, which it sold in 2011 in the wake of numerous abuse allegations.

The forced restructuring of Wall Street took place largely under the direction of Treasury Secretary Hank Paulson, who resigned as Goldman’s CEO in 2006 to take the post at the request of President George W. Bush. Although Paulson was required to liquidate his sizeable Goldman holdings before moving to Treasury, his actions during the 2008 crisis were widely criticized as working to the benefit of his former firm. Chief among these was the allegation that he allowed Lehman Brothers to collapse while taking pains to bail out insurance giant A.I.G., which had extensive dealings with Goldman and which used its federal support to pay off its obligations at 100 cents on the dollar. In the case of Goldman, this amounted to $12.9 billion.

Goldman soon became the leading symbol of the excesses that led up to the financial meltdown. The Taibbi quote was the most colorful of many unflattering depictions of the firm. Blankfein initially responded to the criticism by making the far-fetched claim that Goldman was doing “god’s work.” When that did not go over well, he issued an apology for the firm’s mistakes and vowed to spend $500 million to help thousands of small businesses recover from the recession. That did little to rectify the situation.

In April 2010 the SEC accused Goldman of having committed securities fraud when it sold mortgage-related securities to investors without telling them that the investment vehicle, called Abacus, had been designed in consultation with hedge fund manager John Paulson (no relation to Hank Paulson), who chose securities he expected to decline in value and had shorted the portfolio. The Goldman product did indeed fall in value, causing institutional customers to lose more than $1 billion and Paulson to make a bundle. Paulson was not charged, but the SEC did name Fabrice Tourre, the Goldman vice president who helped create and sell the securities.

In July 2010 the SEC announced that Goldman would pay $550 million to settle the Abacus charges. The settlement also required Goldman to “reform its business practices” but did not oblige the firm to admit to wrongdoing. In January 2011 Goldman announced that an internal review of its policies in the wake of the SEC settlement had found that only limited changes were necessary. Others apparently saw matters differently:

In November 2010 FINRA fined Goldman $650,000 for failing to disclose that two of its registered representatives, including Fabrice Tourre, had been notified by the SEC that they were under investigation.

In March 2011 the SEC announced that it was bringing insider trading charges against former Goldman director Rajat Gupta. He was accused of providing illegal tips, including one about Warren Buffet’s $5 billion investment in Goldman in 2008, to hedge fund manager Raj Rajaratnam. (Gupta was later convicted and sentenced to two years in prison.)

In April 2012 the SEC and FINRA fined Goldman $22 million for failing to prevent its employees from passing illegal stock tips to major customers.

In July 2012 a federal appeals court rejected an effort by Goldman to overturn a $20.5 million arbitrator’s award to investors in the failed hedge fund Bayou Group who had accused Goldman of helping to perpetuate a Ponzi scheme.

That same month, Goldman agreed to pay $26.6 million to settle a suit brought by the Public Employee’s Retirement System of Mississippi accusing it of defrauding investors in a 2006 offering of mortgage-backed securities.

Some good news for Goldman came in August 2012, when the Justice Department decided it would not proceed with a criminal investigation of the firm’s actions during the financial crisis and the SEC dropped an investigation of the firm’s role in a $1.3 billion subprime mortgage deal. All in all, Goldman has emerged largely unscathed from these controversies. Its reputation may be in tatters, but its rogue money machine keeps humming.

The full Corporate Rap Sheet for Goldman can be found here.

The 2012 Corporate Rap Sheet

Corporate crime has been with us for a long time, but 2012 may be remembered as the year in which billion-dollar fines and settlements related to those offenses started to become commonplace. Over the past 12 months, more than half a dozen companies have had to accede to ten-figure penalties (along with plenty of nine-figure cases) to resolve allegations ranging from money laundering and interest-rate manipulation to environmental crimes and illegal marketing of prescription drugs.

The still-unresolved question is whether even these heftier penalties are punitive enough, given that corporate misconduct shows no sign of abating. To help in the consideration of that issue, here is an overview of the year’s corporate misconduct.

BRIBERY. The most notorious corporate bribery scandal of the year involves Wal-Mart, which apart from its unabashed union-busting has tried to cultivate a squeaky clean image. A major investigation by the New York Times in April showed that top executives at the giant retailer thwarted and ultimately shelved an internal probe of extensive bribes paid by lower-level company officials as part of an effort to increase Wal-Mart’s market share in Mexico. A recent follow-up report by the Times provides amazing new details.

Wal-Mart is not alone in its behavior. This year, drug giant Pfizer had to pay $60 million to resolve federal charges related to bribing of doctors, hospital administrators and government regulators in Europe and Asia. Tyco International paid $27 million to resolve bribery charges against several of its subsidiaries. Avon Products is reported to be in discussions with the U.S. Justice Department and the Securities and Exchange Commission to resolve a bribery probe.

MONEY LAUNDERING AND ECONOMIC SANCTIONS. In June the U.S. Justice Department announced that Dutch bank ING would pay $619 million to resolve allegations that it had violated U.S. economic sanctions against countries such as Iran and Cuba. The following month, a U.S. Senate report charged that banking giant HSBC had for years looked the other way as its far-flung operations were being used for money laundering by drug traffickers and potential terrorist financiers. In August, the British bank Standard Chartered agreed to pay $340 million to settle New York State charges that it laundered hundreds of billions of dollars in tainted money for Iran and lied to regulators about its actions; this month it agreed to pay another $327 million to settle related federal charges. Recently, HSBC reached a $1.9 billion money-laundering settlement with federal authorities.

INTEREST-RATE MANIPULATION. This was the year in which it became clear that giant banks have routinely manipulated the key LIBOR interest rate index to their advantage. In June, Barclays agreed to pay about $450 million to settle charges brought over this issue by U.S. and UK regulators. UBS just agreed to pay $1.5 billion to U.S., UK and Swiss authorities and have one of its subsidiaries plead guilty to a criminal fraud charge in connection with LIBOR manipulation.

DISCRIMINATORY LENDING. In July, it was announced that Wells Fargo would pay $175 million to settle allegations that the bank discriminated against black and Latino borrowers in making home mortgage loans.

DECEIVING INVESTORS. In August, Citigroup agreed to pay $590 million to settle a class-action lawsuit alleging that it failed to disclose its full exposure to toxic subprime mortgage debt in the run-up to the 2008 financial crisis. The following month, Bank of America said it would pay $2.4 billion to settle an investor class-action suit charging that it made false and misleading statements during its acquisition of Merrill Lynch during the crisis. In November, JPMorgan Chase and Credit Suisse agreed to pay a total of $417 million to settle SEC charges of deception in the sale of mortgage securities to investors.

DEBT-COLLECTION ABUSES. In October, American Express agreed to pay $112 million to settle charges of abusive debt-collection practices, improper late fees and deceptive marketing of its credit cards.

DEFRAUDING GOVERNMENT. In March, the Justice Department announced that Lockheed Martin would pay $15.9 million to settle allegations that it overcharged the federal government for tools used in military aircraft programs. In October, Bank of America was charged by federal prosecutors with defrauding government-backed mortgage agencies by cranking out faulty loans in the period leading to the financial crisis.

PRICE-FIXING. European antitrust regulators recently imposed the equivalent of nearly $2 billion in fines on electronics companies such as Panasonic, LG, Samsung and Philips for conspiring to fix the prices of television and computer displays. Earlier in the year, the Taiwanese company AU Optronics was fined $500 million by a U.S. court for similar behavior.

ENVIRONMENTAL CRIMES. This year saw a legal milestone in the prosecution of BP for its role in the 2010 Deepwater Horizon drilling accident that killed 11 workers and spilled a vast quantity of crude oil into the Gulf of Mexico. The company pleaded guilty to 14 criminal charges and was hit with $4.5 billion in criminal fines and other penalties. BP was also temporarily barred from getting new federal contracts.

ILLEGAL MARKETING. In July the U.S. Justice Department announced that British pharmaceutical giant GlaxoSmithKline would pay a total of $3 billion to settle criminal and civil charges such as the allegation that it illegally marketed its antidepressants Paxil and Wellbutrin for unapproved and possibly unsafe purposes. The marketing included kickbacks to doctors and other health professionals. The settlement also covered charges relating to the failure to report safety data and overcharging federal healthcare programs. In May, Abbott Laboratories agreed to pay $1.6 billion to settle illegal marketing charges.

COVERING UP SAFETY PROBLEMS. In April, Johnson & Johnson was ordered by a federal judge to pay $1.2 billion after a jury found that the company had concealed safety problems associated with its anti-psychotic drug Risperdal. Toyota was recently fined $17 million by the U.S. Transportation Department for failing to notify regulators about a spate of cases in which floor mats in Lexus SUVs were sliding out of position and interfering with gas pedals.

EXAGGERATING FUEL EFFICIENCY. In November, the U.S. Environmental Protection Agency announced that Hyundai and Kia had overstated the fuel economy ratings of many of the vehicles they had sold over the past two years.

UNSANITARY PRODUCTION. An outbreak of meningitis earlier this year was tied to tainted steroid syringes produced by specialty pharmacies New England Compounding Center and Ameridose that had a history of operating in an unsanitary manner.

FATAL WORKFORCE ACCIDENTS. The Bangladeshi garment factory where a November fire killed more than 100 workers (who had been locked in by their bosses) turned out to be a supplier for Western companies such as Wal-Mart, which is notorious for squeezing contractors to such an extent that they have no choice but to make impossible demands on their employees and force them to work under dangerous conditions.

UNFAIR LABOR PRACTICES. Wal-Mart also creates harsh conditions for its domestic workforce. When a new campaign called OUR Walmart announced plans for peaceful job actions on the big shopping day after Thanksgiving, the company ignored the issues they were raising and tried to get the National Labor Relations Board to block the protests. Other companies that employed anti-union tactics such as lockouts and excessive concessionary demands during the year included Lockheed Martin and Caterpillar.

TAX DODGING. While it is often not technically criminal, tax dodging by large companies frequently bends the law almost beyond recognition. For example, in April an exposé in the New York Times showed how Apple avoids billions of dollars in tax liabilities through elaborate accounting gimmicks such as the “Double Irish with a Dutch Sandwich,” which involves artificially routing profits through various tax haven countries.

FORCED LABOR. In November, global retailer IKEA was revealed to have made use of prison labor in East Germany in the 1980s.

Note: For fuller dossiers on a number of the companies listed here, see my Corporate Rap Sheets. The latest additions to the rap sheet inventory are drug giants AstraZeneca and Eli Lilly.