If you ran a company, would you help participate in a bailout if you thought there was a chance the government might turn around and sue you later for the misdeeds of the company you're helping to save?
"Would I have done Bear Stearns again knowing what I know today?"Jamie Dimon asked almost rhetorically last week at the Council on Foreign Relations in Washington.
"It is really close. What I know today is if they called me again to do something again like that, I couldn't do it. My board wouldn't allow me."
No kidding.
The bailouts during the financial crisis of 2008 may have been unpopular on Main Street, but they are turning out to be just as unpopular in certain corners of Wall Street, and perhaps for good reason.
Some of the strongest firms during the crisis that acquired failing banks at the behest of the government — JPMorgan Chase, Wells Fargo and Bank of America, among them — have found themselves in the cross hairs of lawsuits brought by the government for activities related to deals they made under pressure from the authorities.
Whether you love or hate Wall Street, whether you want bankers to go to jail or not, the recent series of suits brought by the government may have a profound impact on how businesses react to being asked to provide assistance when the next financial crisis arrives. Chances are, they won't.
"As a policy matter, it's going to make it much harder in the future for companies to buy a troubled company," said Dimon, the chief executive of JPMorgan, which bought Bear Stearns in March 2008 in a deal engineered by the Federal Reserve and the Treasury Department.
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Dimon's comments in Washington are in part a response to a recent lawsuit filed in New York State Supreme Court by Eric T Schneiderman, the attorney general, claiming that JPMorgan Chase misrepresented and defrauded investors of certain mortgage securities.
Damages are estimated to be as high as $3 billion.
The only problem is that the "multiple fraudulent and deceptive acts" that the government alleged didn't take place at JPMorgan Chase; they happened at Bear Stearns during 2005 to 2007.
The same Bear Stearns that the United States government practically begged JPMorgan Chase to buy to help avoid a financial panic. The same Bear Stearns in which the initial $2 a share price of the transaction was dictated — literally — by Henry M Paulson Jr, then the Treasury secretary.
Four years on, with less than a month before the election, Schneiderman, who is co-chair of President Obama's Residential Mortgage-Backed Securities Working Group, has filed suit.
"We've lost $5 to $10 billion on various things related to Bear Stearns," Dimon said — and that's before this latest lawsuit.
"Someone said the Fed did us a favour," he continued, referring to the nearly $30 billion in guarantees that the Federal Reserve provided as part of the transaction. "We did them a favour. Let's get this one exactly right. We were asked to do it."
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Dimon is clearly frustrated. Had Bear Stearns filed for bankruptcy, he said, there "would be no money. There would be no lawsuits. There would be no stock-drop lawsuits, there would be no class actions, there would be no mortgage lawsuits because there would be no money. But we bought it."
A cynic could chalk Dimon's outrage up to pure swagger. After all, his purchase of Bear Stearns elevated him and JPMorgan to superstar status with dozens of articles then referring to him as the new King of Wall Street.
And it's hard to believe that JPMorgan didn't come out ahead — or at least close to even — on the acquisition, given that Bear's 43-story headquarters on Madison Avenue was part of the deal.
Nonetheless, it is worth listening to Dimon. The next time a bailout is required, it might not be political pressure that keeps it from happening, but a company's board not willing to accept it.
If you ran a company, would you help participate in a bailout if you thought there was a chance the government might turn around and sue you later for the misdeeds of the company you're helping to save?
When the government helped save General Motors by providing money and guarantees as part of its bankruptcy, "they absolved GM of all prior legal liability," Dimon said in an earnings conference call with investors and analysts on Friday. "So the government's being a little inconsistent here."
Last week, Wells Fargo was sued by Preet S Bharara, the United States attorney in Manhattan, who accused the bank of defrauding the government by lying about the quality of the mortgages it handled under a federal housing programme.
He said the bank had "engaged in a longstanding and reckless trifecta of deficient training, deficient underwriting and deficient disclosure, all while relying on the convenient backstop of government insurance."
The accusations in the suit stretch back a decade. Perhaps ironically, Wells Fargo is considered one of the best lenders in the nation. That status put Wells Fargo in a position to buy the failing Wachovia in 2008 with the encouragement, in part, of Sheila Bair, then the chairwoman of the Federal Deposit Insurance Corporation, who had originally helped orchestrate a deal to sell Wachovia to Citigroup.
That deal, however, would have cost taxpayers billions of dollars. The deal with Wells Fargo most likely saved the FDIC billions of dollars.
Perhaps even stranger, Wells Fargo was one of several of the nation's largest banks to participate in a $25 billion settlement earlier this year over mortgage-related issues, some of which seem to overlap with the new case against it.
And, of course, Bank of America has been involved in a series of civil suits related to its 2008 acquisition of Countrywide and its purchase of Merrill Lynch, struck at the apex of the financial crisis in September 2008.
Earlier this year, Bank of America paid $1 billion to settle charges of civil fraud at Countrywide. But here's the important part: Bank of America acquired the failing Countrywide under some pressure from the government. So much pressure, in fact, that Kenneth D Lewis, then the bank's chief executive, considered it a favor that would later be repaid by the Federal Reserve's lowering the bank's capital requirements to make additional acquisitions.
After the Merrill purchase, which was engineered by the Treasury and Fed, both the Securities and Exchange Commission and investors sued the bank for misleading shareholders about the deal. The bank paid the SEC a $150 million penalty in 2010 and settled with shareholders last month for $2.43 billion, though the Merrill unit has given a boost to the bank's bottom line.
None of this is to suggest that the government should not hold those responsible for fraud or other misconduct accountable. But few of the lawsuits that the government has brought against the banks have anything to do with the culpability of those individuals who were actually responsible for the problems.
Instead, the government is simply holding responsible the company's shareholders, who were unlikely to have been shareholders at the time of the misdeeds.
Does this really offer a deterrent effect? Or is this just a nice way to garner headlines ahead of an election?
The executives responsible, as usual, pay nothing. If there were "deceptive acts," the government could and should bring cases, if not criminal, then civil, against the individuals.
Fraud isn't something a company does; it is something people do.
© 2012 The New York Times News Service