Five Wall Street firms agreed today to pay $1.65 million each to settle allegations that they failed to properly save e-mail.
The fines, levied by the Securities and Exchange Commission and the securities industry's two self-regulatory bodies, the New York Stock Exchange and NASD, are separate from the much larger amounts a dozen Wall Street firms are expected to pay as part of a proposed "global settlement" to end several conflict-of-interest investigations.
Damaging e-mails have been at the center of those investigations, and critics of today's settlement said it sent a message that firms get off easier by not saving e-mail than following the rules and handing over documents.
The $1.65 million fines will be paid by Deutsche Bank Securities Inc., Morgan Stanley, Goldman Sachs & Co., the Salomon Smith Barney unit of Citigroup Inc. and U.S. Bancorp Piper Jaffray Inc. The firms, which did not admit wrongdoing, also agreed to improve their e-mail retention policies and report to regulators within 90 days. Regulators have not alleged that any firm deliberately erased e-mail.
The firms are part of the settlement talks. But only one, Salomon, has had embarrassing e-mails made public. Salomon is expected to pay as much as $500 million as part of the settlement. The other firms are expected to pay $50 million to $75 million each.
Merrill Lynch & Co. and Credit Suisse First Boston Corp., which gave regulators damaging e-mails that later were released to the media, were not fined today. Merrill Lynch earlier agreed to pay $100 million to settle allegations by New York state Attorney General Eliot L. Spitzer that the firm's analysts recommended stocks they privately derided to attract investment-banking business.
Jacob Frankel, a former SEC enforcement lawyer now in private practice, called the $1.65 million assessments "pocket change."
"I would compare it to them dropping several quarters into the tin cup of the annoying homeless man outside their office buildings," Frankel said. "You have Merrill fined $100 million for keeping records and these five firms fined just over $1 million for destroying records. That certainly sends a mixed message."
Executives at firms facing big fines as part of the global settlement also complained. A source at First Boston said the firm had turned over 4 million pages of documents to regulators while Morgan Stanley has said it turned over 400,000 pages. A Morgan Stanley executive noted that the two regulators directly investigating the firm, the SEC and Spitzer's office, have expressed satisfaction with the firm's compliance.
Barry R. Goldsmith, head of enforcement at NASD, said the $1.65 million fines were substantial, particularly for a case involving strictly bookkeeping. "No one is getting off easy here," he said.
Current rules require that Wall Street firms maintain e-mail in a readily accessible manner for two years and for another year in a manner that does not have to be easily accessible. Firms have long complained that the standard for what must be kept is too broad for a time in which millions of e-mails, many of them mundane, are created daily.
Ted Meyer, a spokesman for Deutsche Bank, said, "We are pleased to have resolved the matter, and we are in the process of improving our systems to ensure compliance." He declined to comment on allegations by California regulators that Deutsche Bank deliberately deleted potentially damaging e-mails.
Judy Hitchen, a spokeswoman for Morgan Stanley, said the firm was pleased with the settlement. An executive at the firm said regulators have not found damaging e-mails because Morgan Stanley's highest-profile analyst, Mary Meeker, remained bullish on Internet stocks out of a genuine belief in them, not as a ploy to win investment-banking deals. A Goldman Sachs executive said the firm's problem was not with retaining e-mails but with an inability to provide ready access to them.
In a prepared statement, Piper Jaffray spokeswoman Erin Freeman said the firm's "retention of e-mail and procedures were deemed inadequate." The statement added: "There is no allegation or finding that Piper Jaffray's e-mail practice obstructed or impeded any investigation."
Salomon Smith Barney spokeswoman Arda Nazerian said: "This settlement resolves a complex regulatory issue that has been the subject of much discussion over recent years. We're pleased to have the matter resolved."