Tue, Mar 01, 2011 page9

• In the US, ‘too big to fail’ has become ‘too big to prosecute’

  • By Joe Nocera / NY Times News Service, NEW YORK
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  So much for Angelo Mozilo taking the fall for the financial crisis.

  Late last week, word leaked out that Mozilo, who had co-founded Countrywide Financial in 1969 — and who for nearly 40 years presided over its astonishing rise and its equally astonishing fall — would not be prosecuted by the US Department of Justice. Not for insider trading. Not for failing to disclose to investors his private worries about subprime loans. Not for helping to create a culture at Countrywide in which mortgage originators were rewarded for pushing fraudulent loans on borrowers.

  In its article about the department’s decision, the Los Angeles Times said prosecutors had concluded that Mozilo’s actions “did not amount to criminal wrongdoing.”

  Just months earlier, the department concluded that Joe Cassano should not take the fall for the financial crisis either. Cassano, you’ll recall, is the former head of the financial products unit of American International Group (AIG), a man whose enthusiasm for credit-default swaps led, pretty directly, to the need for a huge government bailout of AIG. There was a time when it appeared that there was no way the government would let Cassano walk, but it did.

  Then there’s Richard Fuld, the man who presided over Lehman Brothers’ demise. Though he was the subject of an investigation shortly after the Lehman bankruptcy, it appears that prosecutors are moving on.

  Most of the other Wall Street bigwigs whose firms took unconscionable risks — risks that nearly brought the global financial system to its knees — aren’t even on the department’s radar screen nor has there been a single indictment against any top executive at a subprime lender.

  The only two people on Wall Street to have been prosecuted for their roles in the crisis are a pair of minor Bear Stearns executives, Ralph Cioffi and Matthew Tannin, whose internal hedge fund, stuffed with triple-A mortgage-backed paper, collapsed in the summer of 2007, an event that anticipated the crisis.

  A jury acquitted them.

  Two-and-a-half years after the world’s financial system nearly collapsed, you are entitled to wonder whether any of the highly paid executives who helped kindle the disaster will ever see jail time — like Michael Milken in the 1980s or Jeffrey Skilling after the Enron disaster. Increasingly, the answer appears to be no. The harder question, though, is whether anybody should.

  Aficionados of financial crises like to point to the savings-and-loan debacle of the 1980s as perhaps the high-water mark in prosecuting executives after a broad financial scandal. When the government loosened the rules for owning a thrift, the industry was taken over by aggressive entrepreneurs, far too many of whom made self-dealing loans using savings-and-loan deposits as their own personal piggy banks.

  In time, almost 1,000 savings and loans deposits — a third of the industry — collapsed, costing the government billions. According to William Black, a former regulator who teaches law at the University of Missouri, Kansas City: “There were over 1,000 felony convictions in major cases” involving executives of the thrifts.

  Solomon Wisenberg, a lawyer who writes for a blog on white-collar crime, said: “The prosecutions were hugely successful.”

  That is partly because the federal government threw enormous resources at those investigations. There were a dozen or more Department of Justice task forces. More than 1,000 FBI agents were involved. The government attitude was that it would do whatever it took to bring crooked bank executives to justice.

  The executives howled that they were being unfairly persecuted, but the cases against them were often rooted in a simple concept — theft — and as prosecutors racked up victories in court, they became confident in their trial approach and didn’t back away from taking on even the most well-connected thrift executives, such as Charles Keating, who owned Lincoln Savings and who eventually went to prison.

  Today, Black says, the government does not have nearly as many resources to pursue such cases. With the FBI understandably focused on terrorism, there’s not a lot of manpower left to dig into potential crimes that may have taken place during the financial crisis. Fewer than 150 of the bureau’s agents are assigned to mortgage fraud, for instance.

  Several lawyers who represent white-collar defendants told me that outside of New York, there aren’t nearly enough prosecutors who understand the intricacies of financial crime and know how to prosecute it. It is a lot easier to prosecute people for old-fashioned crimes — robbery, assault, murder — than for financial crimes.

  Which leads to another point, as Sheldon Zenner, a white-collar criminal lawyer in Chicago, puts it: “These kinds of cases are extraordinarily difficult to make. They require lots of time and resources. You have some of the best, highest-paid and most sophisticated lawyers on the other side fighting you at every turn. You are climbing a really high mountain when you try to do one of these cases.”

  Take, again, the one big case that prosecutors have brought, against Cioffi and Tannin.

  The Bear Stearns executives had written numerous e-mails expressing their fears and anxieties as the fund began to sink. Prosecutors viewed those e-mails as smoking guns, proof that the men had withheld important information from their investors. Thanks largely to those e-mails, prosecutors saw the case as a slam dunk, but it wasn’t.

  For every e-mail the executives wrote predicting the worst, they would write another expressing their belief that everything would be OK. Besides, expressing such fears publicly would have doomed the fund, because liquidity would have instantly vanished. Instead of viewing Cioffi and Tannin as crooks, the jury saw them as two men struggling to make the best of a difficult situation. By the time the trial was over, the e-mails, in their totality, made the defendants seem sympathetic rather than criminal.

  It seems safe to say that the government’s failure to convict those two Bear Stearns executives has caused prosecutors to shy away from bringing other cases. After all, the case against Cioffi and Tannin was supposed to be the easy one. By contrast, a case against Angelo Mozilo would have been, from the start, a much harder one to win.

  Although the Department of Justice never filed charges against Mozilo, one can assume that its case would have been similar to the civil case brought earlier by the US Securities and Exchange Commission (SEC). On the eve of the trial date last fall, the SEC blinked and settled with Mozilo.

  One of the SEC’s charges was insider trading — that Mozilo sold nearly US$140 million in stock after he knew the company was in trouble, but the defense countered by pointing out that Mozilo was selling his stock under an automatic selling program that top corporate executives often use, mooting the insider trading accusation.

  Like the Bear Stearns executives, Mozilo had written his share of e-mails expressing worries about some of Countrywide’s loan practices. He called one of Countrywide’s subprime products “the most dangerous product in existence and there can be nothing more toxic.”

  The government argued that Mozilo had a legal obligation to share that information with investors, but this case, too, would have been awfully difficult to make. Countrywide’s descent into subprime madness was hardly a secret. It made all sorts of crazy adjustable rate mortgages that required no documentation of income; its array of products was also well known and disclosed to investors. Indeed, Mozilo was quite vocal and public in saying that the housing market was due to fall and fall hard.

  However, he always assumed that whatever its losses, Countrywide was so strong that it would be one of the survivors and would feast on the carcasses of its former competitors. No internal e-mail he wrote contradicted that belief.

  Was there outright fraud at Countrywide?

  Of course there was. That is a large part of the reason that Bank of America, which bought Countrywide in early 2008, has struggled so mightily with the legacy of all the Countrywide loans now on its books, but most of the fraudulent actions at Countrywide took place at the bottom of the food chain, at the mortgage origination level. It has been well-documented that mortgage brokers induced borrowers to take loans that they never understood and often persuaded them to lie on their loan applications.

  That kind of predatory lending is against the law and it should be prosecuted, but going after small-time mortgage brokers is not nearly as satisfying as putting the big guy in jail, especially a big guy like Mozilo, who symbolizes to many Americans the excesses and wrongdoing embodied in the subprime lending mess. The problem is that Mozilo, though he helped created the culture that made such predatory lending acceptable, never made the fraudulent loans himself. Legally, if not morally, he’s off the hook.

  A few days ago, I listened to a recording of a lengthy interview with Mozilo conducted by investigators working for the Financial Crisis Inquiry Commission and posted recently on the commission’s Web site. It was a remarkable performance — Mozilo expressed no regrets and no remorse.

  He extolled subprime loans as a way to allow lower-income Americans to get a piece of the American dream and “really build wealth” — just like people used to do during the housing bubble. He bragged that Countrywide, unlike the too-big-to-fail banks, never took a penny of government money. He said that Countrywide had helped put 25 million Americans in homes.

  His voice rising passionately, he said finally: “Countrywide was one of the greatest companies in the history of this country.”

  Which is a final reason Mozilo would have been difficult to prosecute. Delusion is an iron-clad defense.
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