Criminal convictions for big banks have become all bark, no bite
IT IS A little hard to believe, but it was only a year ago that we were talking about whether a criminal indictment of a big bank would cause the collapse of that bank, or even of the broader financial system. Here’s a paragraph from Bloomberg News, dated last May, that sums up what a lot of people were thinking:
“Bank clients – including trustees, fiduciaries and pension funds – could be forced to cut ties with a financial institution labelled a criminal enterprise, the lawyers and bankers said, asking not to be named because they were not authorised to talk publicly. Counterparties also might think twice before entering into billiondollar transactions with such firms.
“Damaging a bank’s business could lead to broader fallout across the financial industry, just as Lehman Brothers’s collapse in 2008 prompted investors to withdraw from other firms on concern its exit would set off a wave of losses.”
But Credit Suisse and BNP Paribas did ultimately plead guilty to criminal conduct, and they seem to be none the worse off for it. And here are two more paragraphs from Bloomberg News, dated Friday:
“The US Justice Department is pressing to reach currency-rigging settlements on Wednesday that will include guilty pleas from five banks – one more than previously reported – according to two people with knowledge of the situation.
“The fifth bank was Zurich-based UBS Group, one of the people said, asking not to be identified because the matter had not been made public. The other four – Citigroup, JPMorgan Chase, Barclays and Royal Bank of Scotland – will plead guilty to antitrust charges, people familiar with the matter have previously said.”
Throw in Deutsche Bank’s London Interbank Offered Rate (Libor) guilty plea last month and you’ve got a pretty good sample of the biggest international banks. If you think twice before entering into billion-dollar transactions with such firms, by my count you’ll have to think 16 times before, I mean, you’re going to end up doing your billion-dollar transaction with one of them, right? There are still a few big banks without recent criminal convictions that might be able to take your billiondollar transaction, but the pickings are getting slim. In the space of just over a year, a criminal conviction has become the norm, not the exception.
Which probably means that it’s less scary for banks than it used to be? Not just because the stigma with clients and counterparties seems to be gone, as familiarity has bred a distinct lack of contempt, but also because the official consequences of a criminal conviction are less damaging than everyone thought they would be.
In theory, there are lots of collateral penalties for banks convicted of crimes. In practice, if you take those collateral consequences literally, and apply them to every bank, then you mess with the banking system in a way that no regulator really wants. So negotiating a waiver of those consequences is just part of the deal.
Guilty pleas
Banks entering guilty pleas also need to receive permission from the Securities and Exchange Commission (SEC) to prevent the criminal cases from triggering penalties that would disqualify them from other businesses, including managing unit trusts.
Bank executives have said guilty pleas can topple their operations if they do not first receive such waivers.
They can’t plead guilty until they know it will not hurt too much. This is of course controversial. We talked the other day about well-known seasoned issuer (WKSI) waivers, in which the SEC lets banks continue to issue securities quickly even after criminal convictions that theoretically disqualify them from WKSI status.
SEC commissioner Kara Stein dissented from Deutsche Bank’s waiver, saying that its actions were “a complete criminal fraud upon the worldwide marketplace”. Same, though, for all the foreign exchange (FX)rigging banks.
What, is the SEC going to declare that all of the big banks are no longer WKSIs, and all their securities offerings have to go through SEC review? JPMorgan filed 11 prospectuses for securities offerings last Friday, and 18 on Thursday and 16 the day before. Surely the SEC has better things to do than read all of them.
None of them have anything to do with the FX (or Libor) manipulation, and it’s hard to see how investors would be helped by slowing these offerings down.
But the broader point is that a criminal guilty plea no longer comes with the expectation that it will destroy a bank. Instead, it comes with the expectation that the bank’s business will continue as usual.
A guilty plea is just the particular sort of document that you sign before handing over a big cheque to the Department of Justice, the way a deferred prosecution agreement used to be, and the way a civil settlement is what you sign before handing over a big cheque to the SEC.
The names change, but the sequence of actions does not: You sign the document, you write the cheque, and then you install a monitor for a while to make sure you stop doing the bad thing that you got caught doing. To be fair, the guilty plea comes with a bit more traipsing around to regulators to make sure that there are no collateral consequences, but that path is pretty clearly blazed by now.
When we talked about this a year ago, I suggested that the normalisation of criminal convictions might reduce prosecutors and regulators’ leverage to get banks to settle: If a criminal indictment is no longer a nuclear weapon, then prosecutors can’t threaten it to get the settlements and changes that they want. I have to say that I seem to have been wrong: The FX settlements sound pretty tough, “with units of Citigroup and JPMorgan each expected to pay fines of about $1 billion (R12bn)”, on top of the big fines that they already paid to other regulators.
Prosecutors and regulators seem to have enough threats in their arsenal even without a criminal indictment being a disaster. Criminal convictions are becoming routine, but that isn’t making big fines any less routine, or harder for regulators to get.
Chatrooms
Banks entering guilty pleas need to receive permission from the SEC to prevent the cases from triggering penalties that will disqualify them from other businesses.
The new foreign-exchange-rigging cases are interesting for another reason. From Bloomberg News again:
“Traders used multibank chatrooms to discuss orders and co-ordinate working together to manipulate the market, and the Justice Department was basing the amount of the fines in large part on traders’ level of activity there, said two people familiar with the situation. One chat room that has been central to investigations, known as the Cartel, included traders from Citigroup, JPMorgan, UBS and Barclays.”
When we talked about the Deutsche Bank Libor case, I thought it was kind of lame that Libor-rigging penalties look like they’re indexed mostly to a bank’s dumb use of e-mail and instant messenger, rather than its Libor-rigging culpability. Banks that caused more harm, or made more profits, manipulating Libor aren’t punished more harshly; prosecutors seem to have focused less on the banks’ manipulation and more on their gloating about it afterwards.
But the FX cases are, at their core, antitrust conspiracy cases. (Libor was partially about antitrust, but it was mostly about individual banks’ freelance manipulations). – Bloomberg