SEC Uses "Because I Said So" Tactic With Judge Rakoff
By Matt Levine, Dealbreaker
07 Nov 2011 at 4:39 PM
The quick background: Citi decided to make a big prop bet against some mortgages, so it structured a synthetic CDO with the exposures it wanted to short and sold it to some dopes, keeping virtually all of the short side of the trade on its books. This was a good idea and Citi made $160mm, but it worked out less well for the dopes. The SEC sued Citi for not telling the dopes certain things, like that it had picked the mortgages involved because of their exceptional badness, and they signed up a $285 million settlement.
(T)hese are very silly words. “Scienter-based violations of the securities laws” just means that GS, unlike Citi, was charged with intentionally stuffing dopes with bad CDOs. True! The SEC charged GS with doing that intentionally, and it only charged Citi with doing the same thing “negligently,” i.e., something a little bit north of “accidentally.” But, like, the SEC just decided to charge it that way – and they don’t explain why. It is sort of unimaginable that anyone could accidentally create a mortgage-backed security filled with loans you know are going to fail so that you can sell it to a client who isn’t aware that you sabotaged it by intentionally picking the misleadingly rated loans most likely to be defaulted upon. Like, you have to pay attention in order to do that. You have to pick the loans, and write stuff down, and tell people about the thing, and convince them to buy the thing. The SEC gamely tries to explain how this could in fact all be due to negligence, but it doesn’t really matter – the point is that GS and Citi did pretty much the same thing, so if it’s negligence for Citi it’s negligence for GS. The only explanation of why Citi gets off easier than GS is “because we chose to let Citi get off easier than GS.”
The real explanation is probably much closer to the one Citi’s lawyers hit upon: that Citi is the all-time league table leader in losing tons of money on CDOs. To a lot of people, Goldman really does look like the evil genius who went heavily net short the housing market and made a ton of money. Citi are just some goofballs who lost a ton of money on a ton of CDOs, and half-accidentally made some money on one CDO. That pattern does sort of make Goldman look like they had a diabolical plan to screw everyone, while Citi’s screwing a few people looks, well, negligent.
It’s just that this is a very bad legal theory. Shorting the housing market to your customers when you have no inside information about particular mortgages, but just did better analysis than them of the macro data, is … it’s kind of unpleasant behavior, maybe, but it’s probably not fraud. Being generally long mortgages but short one particular trade because you’ve secretly cherry-picked it to be the single worst CDO you can conceive of with your somewhat limited imagination, that’s – I mean, that’s stupid, but it’s also a lot closer to actual fraud.
Citigroup, SEC Defend $285 Million CDO Settlement as Fair
By Bob Van Voris and Thom Weidlich, Business Week
November 08, 2011, 12:38 AM EST
Rakoff, who in 2009 rejected a $33 million settlement between the agency and Bank of America Corp., asked Citigroup and the SEC to address nine questions about the proposed settlement. The questions included, “Why should the court impose a judgment in a case in which the SEC alleges a serious securities fraud but the defendant neither admits nor denies wrongdoing?”
The SEC argued that the U.S. Supreme Court has endorsed settlements in which the defendant doesn’t admit liability. If Citigroup had admitted fault in the settlement, that could be used against it by private investors suing the bank, the SEC said.
In its own filing today, Citigroup also said the settlement was fair and asked the judge to consider the impact on its shareholders of “any outcome other than a negotiated ‘no admit, no deny’ settlement.”
Promises Made, and Remade, by Firms in S.E.C. Fraud Cases
By EDWARD WYATT, The New York Times
Published: November 7, 2011
Citigroup’s main brokerage subsidiary, its predecessors or its parent company agreed not to violate the very same antifraud statute in July 2010. And in May 2006. Also as far as back as March 2005 and April 2000.
Citigroup has a lot of company in this regard on Wall Street. According to a New York Times analysis, nearly all of the biggest financial companies – Goldman Sachs, Morgan Stanley, JP Morgan Chase and Bank of America among them – have settled fraud cases by promising that they would never again violate an antifraud law, only to have the S.E.C. conclude they did it again a few years later.
A Times analysis of enforcement actions during the past 15 years found at least 51 cases in which the S.E.C. concluded that Wall Street firms had broken anti-fraud laws they had agreed never to breach. The 51 cases spanned 19 different firms.
Senator Carl Levin, a Michigan Democrat who is chairman of the Senate permanent subcommittee on investigations and has led several inquiries into Wall Street, said the S.E.C.’s method of settling fraud cases, is “a symbol of weak enforcement. It doesn’t do much in the way of deterrence, and it doesn’t do much in the way of punishment, I don’t think.”
Barbara Roper, director of investor protection for the Consumer Federation of America, said, “You can look at the record and see that it clearly suggests this is not deterring repeat offenses. You have to at least raise the question if other alternatives might be more effective.”
But prior violations are plentiful. For example, Bank of America’s securities unit has agreed four times since 2005 not to violate a major antifraud statute, and another four times not to violate a separate law. Merrill Lynch, which Bank of America acquired in 2008, has separately agreed not to violate the same two statutes seven times since 1999.
Of the 19 companies that the Times found by the S.E.C. to be repeat offenders over the last 15 years, 16 declined to comment. They read like a Wall Street who’s who: American International Group, Ameriprise, Bank of America, Bear Stearns, Columbia Management, Deutsche Asset Management, Credit Suisse, Goldman Sachs, JPMorgan Chase, Merrill Lynch, Morgan Stanley, Putnam Investments, Raymond James, RBC Dain Rauscher, UBS and Wells Fargo/Wachovia.
In 2005, Bank of America was one of several companies singled out for allowing professional traders to buy or sell a mutual fund at the previous day’s closing price, when it was clear the next day that the overall market or particular stocks were going to move either up or down sharply, guaranteeing a big short-term gain or avoiding a significant loss.
In its settlement, Bank of America neither admitted nor denied the conduct, but agreed to pay a $125 million fine and to put $250 million into a fund to repay investors. The company also agreed never to violate the major antifraud statutes.
Two years later, in 2007, Bank of America was accused by the S.E.C. of fraud by using its supposedly independent research analysts to bolster its investment banking activities from 1999 to 2001. In the settlement, Bank of America without admitting or denying its guilt, paid a $16 million fine and promised, once again, not to violate the law.
But two years later, in 2009, the S.E.C. again accused Bank of America of defrauding investors, saying that in 2007-8, the bank sold $4.5 billion of highly risky auction-rate securities by promising buyers that they were as safe as money market funds. They weren’t, and this time Bank of America agreed to be “permanently enjoined” from violating the same section of the law it had previously agreed not to break.
In fact, the company had already violated that promise, according to the S.E.C when it was accused last year of rigging bids in the municipal securities market from 1998 through 2002. To settle the charges, Bank of America paid no penalty, but refunded investors $25 million in profits plus $11 million in interest. And, the bank promised again never to violate the same law.