On Monday, Citigroup and the U.S. Department of Justice announced a comprehensive settlement resolving investigations and litigation by federal prosecutors and state and federal regulators that focused on the bank’s loan securitizations that helped lead to the real estate crash. In the settlement, Citigroup agreed to pay $7 billion, which was comprised of a $4.5 billion payment to resolve civil claims and a $2.5 billion payment in consumer relief funds that will go to currently struggling homeowners.
Basically, in 2006-07, Citigroup was responsible for issuing residential mortgage-backed securities that bundled high-risk loans together and sold them to investors as low-risk products. The government alleged that Citigroup misrepresented the level of risk to investors, which induced the investors to buy the securities. These alleged misrepresentations formed the crux of the investigations and litigation and led to the settlement.
Seven billion dollars. That seems like a lot. So is the $13 billion that J.P. Morgan Chase paid last year to resolve allegations of the same type of activity. And based on rumors, Bank of America may pay a larger sum once it and the government can agree on a framework.
Recognizing that the risks of getting caught and paying fines may be outweighed by the profit potential of risky activity, U.S. Attorney General Holder struck an immediately defensive tone in his press conference to announce the settlement: “Taken together, we believe the size and scope of this resolution goes beyond what could be considered the mere cost of doing business.” Groovy.
But it is not at all obvious that these settlements will change business behavior.
Put it this way: is anyone paying attention anymore? Are you still banking at J.P. Morgan Chase or Bank of America? Do you still have credit cards issued by Citigroup? Do the settlements change your impression of the companies? Has anyone in the marketplace changed its behavior as a result of the settlements? Have the course corrections in the market dulled the impact of the financial crisis and taken it out of the public eye?
When you look at law enforcement’s goals in resolving criminal allegations, they are usually framed as deterrence, punishment, incapacitation, rehabilitation, and restitution. Put up against the settlement agreement, very few of these goals are actually met. Arguably, in fact, only one such goal – punishment – has occurred. You could argue that restitution is involved, but helping homeowners now does very little for homeowners who lost everything back then.
So what is law enforcement working with here? Part of the problem is that law enforcement is generally – and especially in white collar investigations – reactive. The FBI doesn’t hear from angry investors, competitors, or any other sources of referrals unless and until something has gone horribly wrong. Add to that the delays in investigation, the subpoenas for documents, interviews with witnesses, and litigation time, and law enforcement may be years behind when allegedly criminal activity actually occurred. Like here, with Citibank’s conduct from 2006-07 finally being addressed in 2014. So expecting law enforcement to police the marketplace may get a victim the satisfaction of seeing a wrongdoer punished, but it is generally not going to make the victim whole. That’s really not that helpful for contemporaneous business activity.
But what is helpful are auditors and licensed professionals maintaining their independence of judgment and integrity of purpose in the first place. You see, according to the allegations in the Citigroup settlement, due diligence firms knew that a high percentage of loans that they sampled were at a significant risk of default. Nevertheless, Citigroup employees were able to convince the due diligence firms to change their ratings for those loans and disguise their true volatility. Absent this collusion by the very people entrusted to serve as gatekeepers to the financial system, the mortgage-backed securities could not have made their way into the mainstream and contributed to the market crash.
So what the Citigroup settlement really shows us is that law enforcement may be a little too late in white collar cases and that punishing the offenders may be the only thing it can do. But it is the licensed professionals – whose importance is thus significantly underscored – that must protect the system in the first place.