The Justice Department plans to use its tentative $13 billion settlement with JPMorgan Chase as a blueprint for reaching similar deals with other banks in probes related to bad mortgages and the 2008 financial crisis, a law enforcement official familiar with the negotiations said Monday.
If such an effort is successful, it could usher in an era of high-priced settlements throughout the banking industry.
Justice Department officials plan to expand the use of a 1980s law that carries a relatively low burden of proof and gives prosecutors 10 years to pursue such cases, twice as long as under standard securities law.
Under this model, the department would also require that some of the settlement money be directed to consumers; in JPMorgan’s case, $4 billion would be set aside for struggling homeowners. The department would also refuse to allow banks to avoid criminal prosecution by paying higher civil penalties.
The strategy will give the Justice Department several more years to extract multibillion-dollar fines from banks eager to rid themselves of crushing legal burdens. Yet the possibility of a criminal component could make some banks wary of doing a deal.
Wall Street has been rocked by the details of the tentative JPMorgan settlement — one of the healthiest banks to emerge from the crisis is facing the largest penalty ever paid by a single firm and could still face criminal charges. JPMorgan was accused of selling mortgage securities that it knew were faulty, many of which originated from its acquisitions of Bear Stearns and Washington Mutual.
Nearly every major bank, including Bank of America and Citigroup, participated in the housing boom, issuing mortgages and bundling them into securities that were sold and traded like stocks. When the housing market crashed, investors lost billions and the banks were accused of selling mortgages that they knew were doomed. Now, many financial institutions are battling a mountain of litigation.
Many cases have been resolved, but many more are pending. And if JPMorgan’s agreement becomes the model for future government deals, the industry could be in for huge fines.
While other banks may not pay as much as $13 billion, Justice Department officials said it is not going to be cheap for firms to settle civil cases, especially since JPMorgan is not considered the worst actor of the financial crisis.
“The industry is worried about the shift in mood from the more cooperative, lenient approach to enforcement actions to this much more aggressive and punitive one,” said Karen Shaw Petrou, managing partner of the Washington-based research firm Federal Financial Analytics.
JPMorgan and Justice Department officials declined to comment on the status of the deal, which has yet to be finalized.
The Justice Department has been routinely criticized for not holding Wall Street accountable for the financial crisis, a perception that may change in light of this new strategy, analysts said.
The agency believes it has developed a model for pursuing similar cases, said the person familiar with the negotiations, who was not authorized to speak publicly.
In the case of JPMorgan, the agency refused to release the bank from criminal prosecution. “If other companies seek criminal relief and that is a sticking point, the Justice Department has demonstrated that [it] will walk away,” the person said. The agency might “be happy to settle on the civil side, but not with a criminal waiver.”
JPMorgan chief executive Jamie Dimon fought hard for the bank’s settlement to include a waiver from criminal prosecution, the person said. But Attorney General Eric H. Holder Jr. repeatedly refused.
The strategy also includes requiring that any future deals include help for homeowners devastated by the housing market’s collapse, the person said. Justice Department officials want JPMorgan to agree to aggressive forms of mortgage relief, including lowering the balances of borrowers who owe significantly more than their homes are worth. The agency wants that help directed to the areas most affected by the troubled housing market, including Detroit, the person said.
But including consumer relief in a mortgage-backed-securities deal has some analysts scratching their heads.
“The parties harmed are not consumers,” said Joshua Rosner, managing director of the research firm Graham Fisher & Co. “They’re investors in mortgage securities, which includes pension plans and union members.”
He added: “Rather than the government taking the opportunity to provide relief for the actual victims, the focus is to provide relief to consumers? This seems beyond reason and logic.”
Another key part of the strategy is the use of a savings-and-loan-era law known as the Financial Institutions Reform, Recovery and Enforcement Act, commonly called FIRREA. Prosecutors in the Justice Department, especially in the Southern District of New York, began using the statute to pursue mortgage cases in the run-up to the crisis.
If finalized, the JPMorgan settlement will represent a watershed moment for the Obama administration’s federal mortgage task force — a team of federal and state attorneys assembled in 2009 to go after crimes related to the financial crisis.
In January 2012, the task force launched a working group to investigate misconduct in the mortgage-backed-securities market. Since then, the group, led by New York Attorney General Eric Schneiderman, has filed cases against Credit Suisse and Bank of America for allegedly misleading investors about the quality of the securities they sold.
The JPMorgan case is a textbook example of what President Obama had in mind when he created the group — bringing different jurisdictions together to leverage all their prosecutorial resources to follow many leads, said a person familiar with the administration’s thinking. It involved the New York attorney general, the Justice Department in Washington, two U.S. attorneys’ offices and the Federal Housing Finance Agency — which oversees mortgage finance companies Fannie Mae and Freddie Mac — each performing its own investigations.
The JPMorgan case came together quickly over the past two months. Federal attorneys in California were set to file civil and criminal charges against the bank last month, when Dimon reached out to Holder, according to a person familiar with the talks. JPMorgan had previously offered to settle several investigations for $3 billion but was willing to raise the offer to $11 billion if the bank could get a waiver from criminal prosecution, Dimon told Holder.
Holder told Dimon that the number was still too low and that the criminal probe was not up for negotiation, according to the person familiar with the talks.
Eleven days later, Dimon pressed the issue again, but Holder refused to budge, the person said. Two days later, on Oct. 10, Dimon called Holder again. Holder reiterated that there would be no criminal-prosecution waiver, but this time Dimon did not push back.
On Friday, the two talked again — the fifth phone call since a face-to-face meeting Sept. 26. This call focused on the dollars and cents. Dimon told Holder that the highest he could go was $11.7 billion —$7.7 billion in fines and $4 billion for consumer relief. Holder said the settlement had to be $13 billion —$9 billion in fines and $4 billion in consumer relief.
“What’s it going to take to get this done?” Dimon said to Holder, according to one person familiar with the talk.
“I think we can get this done,” Holder responded. “But we can’t go lower than $9 billion plus $4 billion.” Dimon told Holder that he needed to call him back. Late Friday, after the markets closed, Dimon called back and agreed to Holder’s conditions.