In November 2009, Attorney General Eric Holder vowed before television cameras to prosecute those responsible for the market collapse a year earlier, saying the U.S. would be “relentless” in pursuing corporate criminals.
In the 18 months since, no senior Wall Street executive has been criminally charged, and some lawmakers are questioning whether the U.S. Justice Department has been aggressive enough after declining to bring cases against officials at American International Group Inc. and Countrywide Financial Corp.
Prosecutions of three categories of crime that could be linked to the causes of the crisis — corporate, securities and bank fraud — declined last fiscal year by 39 percent from 2003, the period after the accounting scandals at Enron Corp. and WorldCom Inc., Justice Department records show.
“You need a massive prosecutorial effort,” said Solomon Wisenberg, a white-collar defense attorney at Barnes & Thornburg LLP in Washington and a former federal prosecutor. “I don’t see evidence that it’s happening. If we were talking baseball, it would be at the AAA level.”
The Justice Department and Federal Bureau of Investigation dispute that, saying they are continuing to investigate potential wrongdoing connected to the emergency, and some probes didn’t find criminal behavior. They say they stepped up mortgage-fraud prosecutions, which more than doubled in fiscal 2010 from 2009, the first full year for which there is data.
Hard to Prove
To prosecute fraud, the government generally must show executives knowingly made false statements or omitted the truth about a company’s financial health. Bankers have argued that they broke no laws and can’t be blamed for an industry-wide breakdown in risk controls.
An unsuccessful Justice Department criminal prosecution in 2009 of two Bear Stearns Cos. hedge-fund managers accused of misleading investors about the health of their funds suggests that such cases can be difficult to prove.
Using e-mails as evidence, prosecutors alleged the managers touted their funds while privately saying they were financially unsound. Jurors acquitted the managers and said in subsequent interviews the e-mails were inconclusive.
While prosecutors have struggled to bring criminal cases, there have been civil actions, which require a lower standard of proof. The Justice Department this month filed a civil suit for more than $1 billion against Deutsche Bank AG for allegedly lying repeatedly to qualify risky mortgages for a government insurance program. And as of April, the Securities and Exchange Commission had brought cases against more than two-dozen senior corporate officers for misconduct related to the financial crisis, Chairman Mary Schapiro said last month.
Blaming the Banks
The seizing up of credit markets led to the collapse of Bear Stearns and Lehman Brothers Holdings Inc. and sparked the worst economic slump in the U.S. since the Great Depression.
Much of the blame belongs to banks that profited from selling products that imploded with the housing market, according to an April 13 report by the Senate Permanent Subcommittee on Investigations. Goldman Sachs Group Inc. and Deutsche Bank AG sold collateralized debt obligations, investments backed by pools of bonds and loans, that the banks’ own traders believed would lose value, the report said.
The report found that Goldman Sachs misled clients who bought the securities without knowing the firm would benefit if they fell in value. Goldman Sachs denied it misled anyone, and the Justice Department is reviewing the report. Last year, Goldman Sachs paid $550 million to settle SEC claims it misled investors in CDOs linked to subprime mortgages.
‘Against the Norm’
“Can that many companies have collapsed — large financial firms — and not one criminal case comes out of it?” said Peter Henning, a law professor at Wayne State University in Detroit who previously was a federal prosecutor and attorney for the SEC. “That seems to go against the norm of the savings-and-loan crisis, and the accounting frauds 10 years ago.”
Some of the biggest Wall Street firms rebounded from the crisis stronger than ever. Goldman Sachs’s 2009 profits were a record for the firm and JPMorgan Chase & Co.’s earnings in 2010 and the first quarter of 2011 have been at an all-time high. Still, Goldman Sachs’s stock has fallen 16 percent from April 13, just before the Senate report’s release, closing May 20 at 134.99 in New York Stock Exchange composite trading.
Lawmakers such as Representatives John Conyers of Michigan, the House Judiciary Committee’s top Democrat, and Zoe Lofgren of California have criticized the Justice Department. At a May 3 hearing, Lofgren said prosecutors were more focused on immigration offenses than the financial crisis.
‘Nannies and Busboys’
“The department is spending its resources prosecuting nannies and busboys who are trying to get back to their families,” she said. “And yet we have not brought any prosecutions on the bandits on Wall Street who brought the nation and the world to the brink of financial disaster.”
Holder, 60, told reporters on April 26 his department is reviewing the conduct of Wall Street firms to determine whether crimes were committed. “There is certainly a basis for us to look, as we are, at some actions that were taken by some institutions and by some individuals,” he said. “Whether those will result in prosecutable cases, I don’t know.”
In at least two major cases linked to the financial crisis — those of former AIG executive Joseph Cassano and Angelo Mozilo, former chief executive officer of mortgage lender Countrywide — prosecutors concluded there wasn’t enough evidence to bring charges, people familiar with the matter have said. They spoke on condition of anonymity because the investigations weren’t made public.
The SEC brought a civil case in which Mozilo agreed to pay $67.5 million over claims he misled investors about the firm’s exposure to risky loans.
“It’s not because we didn’t look” at cases related to the crisis, said Kevin Perkins, the FBI’s assistant director overseeing criminal investigations. “If the case is there and it can be made, we’re going to do that.”
The Justice Department has trumpeted other cases involving insider trading, stock manipulation and Ponzi schemes.
Lee Farkas, the ex-chairman of Taylor, Bean & Whitaker Mortgage Corp., was found guilty on April 19 of what prosecutors said was a $3 billion scheme involving fake mortgage assets that duped financial institutions and contributed to the failure of Montgomery, Alabama-based Colonial Bank.
Former prosecutors said one reason for the decline in the fraud prosecutions since 2003 may be that FBI agents were reassigned after the Sept. 11 attacks from criminal cases to national security. In recent years, the FBI has boosted the number of investigators of white-collar crime, Perkins said. An average of 106 agents were working on corporate fraud cases last fiscal year, up from 88 in 2008; 219 worked on securities fraud, up from 150 in 2008, Perkins said.
Still, the prosecution of 131 defendants for corporate fraud in the year ended Sept. 30 was down 58 percent from 2003, the first year the Justice Department tracked the cases. There were 250 securities fraud prosecutions, down 16 percent from 2003. For bank fraud and embezzlement, prosecutions declined steadily, with 1,515 last year, down 39 percent from 2003.
In mortgage fraud, the department pursued 1,197 prosecutions last fiscal year, up from 492 the year before.
“The recent financial crisis is different from what occurred in 2003,” said Robb Adkins, executive director of a financial fraud task force announced in 2009, when Holder pledged the crackdown. “The crisis was multifaceted, and the types of financial crimes that furthered or preyed upon the crisis are broad.”
Alisa Finelli, a Justice Department spokeswoman, said certain prosecutions surged in 2010 from 2008. Those of securities fraud increased 37 percent, and those of corporate fraud increased 77 percent, she said in a statement.
The department won’t say which cases it included in its statistics, citing privacy concerns.
Using government data compiled by Syracuse University’s Transactional Records Access Clearinghouse, a nonprofit research center, Bloomberg News identified cases coded as corporate fraud by the Justice Department last year. Most involve people accused of stealing from companies, not wrongdoing by firms themselves.
They included the president of a roller derby team in Ohio, who skates under the name “Sadistic Sadie” and was accused of manipulating the ticketing system of her employer, United Airlines, to slash the cost of travel for her friends, family and teammates. A Maryland case involved a man who embezzled from his company. In New Jersey, a spa owner was prosecuted for a scheme to avoid paying taxes.
‘Significant Fraud Schemes’
Finelli said there may be “significant fraud schemes” involving executives that weren’t coded as corporate fraud.
Department officials point to prosecutions such as that of Raj Rajaratnam, the hedge-fund tycoon and Galleon Group LLC co- founder, who was found guilty on May 11 by a New York jury in the largest illegal insider-trading case in a generation.
John Hueston, an attorney with Irell & Manella LLP in Los Angeles, said Wall Street’s crunch may not even have been spurred by criminal activity, citing instead government pressure to loosen mortgage lending and a lack of regulatory oversight.
“In Enron, it took years to develop criminal cases,” said Hueston, who represented Mozilo and earlier was a lead Justice Department prosecutor in the Enron case. “It may be that it’s still too early to make the call on the Department of Justice’s initiative.”
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