Tag Archives: prosecution

Protecting Seniors’ Home Equity

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photo by Ethan Prater

The Consumer Financial Protection Bureau has issued and Advisory and Report for Financial Institutions on Preventing Elder Financial Abuse. The Report defines elder financial exploitation as

the illegal or improper use of an older person’s funds, property or assets. Studies suggest that financial exploitation is the most common form of elder abuse and yet only a small fraction of incidents are reported. Estimates of annual losses range from $2.9 billion to $36.48 billion. Perpetrators who target older consumers include, among others, family members, caregivers, scam artists, financial advisers, home repair contractors, and fiduciaries (such as agents under power of attorney and guardians of property).

Older people are attractive targets because they may have accumulated assets or equity in their homes and usually have a regular source of income such as Social Security or a pension. In 2011, the net worth of households headed by a consumer age 65 and older was approximately $17.2 trillion, and the median net worth was $170,500. These consumers may be especially vulnerable due to isolation, cognitive decline, physical disability, health problems, and/or the recent loss of a partner, family member, or friend.

Cognitive impairment is a key factor in why older adults are targeted and why perpetrators succeed in victimizing them. Even mild cognitive impairment (MCI) can significantly impact the capacity of older people to manage their finances and to judge whether something is a scam or a fraud. Mild cognitive impairment is an intermediate stage between the expected cognitive decline of normal aging and the more serious decline of dementia. Studies indicate that 22 percent of Americans over age 70 have MCI and about one third of Americans age 85 and over have Alzheimer’s disease. (8-9, footnotes omitted)

The CFPB recommends that financial institutions consider

  • training staff to recognize abuse;
  • using fraud detection technologies;
  • offering age-friendly services; and
  • reporting suspicious activities to authorities.

These recommendations are a step in the right direction, although they offer no panacea. As the Report acknowledges, even if financial institutions report suspicious activities to government authorities, there is no guarantee that they will be acted on. But if these recommendations are publicized, they may deter some predators who think that they can act freely within the fog of their victims’ cognitive decline. And a few well-publicized prosecutions of relatives, caregivers and advisors who violate the trust that was placed in them would help to spread the message that ripping off senior citizens is no easy path to riches.

Rigged Justice

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photo by Toby Hudson

The Office of Senator Elizabeth Warren has released Rigged Justice: 2016 How Weak Enforcement Lets Corporate Offenders Off Easy. The Executive Summary states,

When government regulators and prosecutors fail to pursue big corporations or their executives who violate the law, or when the government lets them off with a slap on the wrist, corporate criminals have free rein to operate outside the law. They can game the system, cheat families, rip off taxpayers, and even take actions that result in the death of innocent victims—all with no serious consequences.

The failure to punish big corporations or their executives when they break the law undermines the foundations of this great country: If justice means a prison sentence for a teenager who steals a car, but it means nothing more than a sideways glance at a CEO who quietly engineers the theft of billions of dollars, then the promise of equal justice under the law has turned into a lie. The failure to prosecute big, visible crimes has a corrosive effect on the fabric of democracy and our shared belief that we are all equal in the eyes of the law.

Under the current approach to enforcement, corporate criminals routinely escape meaningful prosecution for their misconduct. This is so despite the fact that the law is unambiguous: if a corporation has violated the law, individuals within the corporation must also have violated the law. If the corporation is subject to charges of wrongdoing, so are those in the corporation who planned, authorized or took the actions. But even in cases of flagrant corporate law breaking, federal law enforcement agencies – and particularly the Department of Justice (DOJ) – rarely seek prosecution of individuals. In fact, federal agencies rarely pursue convictions of either large corporations or their executives in a court of law. Instead, they agree to criminal and civil settlements with corporations that rarely require any admission of wrongdoing and they let the executives go free without any individual accountability. (1)

I think the report’s central point is that the “contrast between the treatment of highly paid executives and everyone else couldn’t be sharper.” (1)

The report does not address some of the key issues that stand in the way of achieving substantive justice for financial wrongdoing. First, many of those accused of wrongdoing were well-represented by counsel who ensured that they did not violate any criminal laws, even if they engaged in rampant bad behavior. Second, contemporary jurisprudence of corporate criminal liability presents serious roadblocks to prosecutors who seek to pursue such wrongdoing. Third, many of these cases are incredibly resource heavy, even for federal prosecutors. This can incentivize them to go after other types of financial wrongdoing instead, such as insider trading.

It seems like it is too late to address much of the wrongdoing that arose from our most recent financial crisis. But if this report achieves one thing, I would hope that it gets Congress to focus on how corporations and their high-level executives could be held criminally accountable the next time around.

Reiss on Citigroup Settlement

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Law360 quoted me in Feds Deploy Potent Bank Fraud Law In $7B Citi Pact (behind a paywall). It reads in part:

The U.S. Department of Justice’s $7 billion mortgage bond settlement with Citigroup Inc. on Monday may not have been possible without the help of a once-obscure fraud law that has become a legal magic wand for prosecutors.

Citigroup’s settlement included a $4 billion civil fine under the Financial Institutions Reform Recovery and Enforcement Act, the largest such penalty in history. FIRREA was passed in the wake of the 1980s savings-and-loan crisis but has been dusted off in recent years as prosecutors have targeted major Wall Street banks that packaged and sold toxic residential mortgage-backed securities before the 2008 economic collapse.

The law’s government-friendly provisions are well-documented. FIRREA contains a 10-year statute of limitations, rather than the typical five-year window for fraud suits. That has permitted the government to comfortably sue banks over conduct that occurred in 2006 and 2007, when many of the shoddy loans implicated in the crisis were securitized. Prosecutors can use tolling agreements to keep potential claims alive even longer.

*     *     *

The sheer size of the government’s FIRREA fines thus far, combined with the lack of case law underpinning the statute, has placed banks and their defense counsel in a difficult negotiating position, according to David Reiss, a professor at Brooklyn Law School.

“The message for people in negotiations is: Expect to pay a lot, or else, the government is going to call your bluff,” Reiss said. “It’s the Wild West for civil penalties.”

Monday’s settlement relates to Citigroup’s due diligence on loans that were packaged into securities and sold to investors for tens of billions of dollars. According to an agreed-upon statement of facts, the bank “received information indicating that, for certain loan pools, significant percentages of the loans reviewed did not conform to the representations provided to investors about the pools of loans to be securitized.”

In one case, a Citigroup trader wrote an internal email questioning the quality of loans in mortgage-backed securities issued in 2007. The trader said that he “went through the diligence reports and think that we should start praying … I would not be surprised if half of these loans went down.”

The bank did not admit to breaking any particular law, and neither it nor any individual employees were criminally charged. At the same time, DOJ officials were quick to point out that the settlement did not release Citigroup or any individuals from potential criminal liability.

Reiss said the threat of criminal prosecution could become a hallmark of FIRREA cases, giving banks another cause for concern.

“That again demonstrates a lot of leverage on the side of the government,” Reiss said. “It’s a powerful tool to keep in your back pocket.”

Borden and Reiss on Dearth of Prosecutions for Mortgage Misrepresentations

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We published Cleaning Up the Financial Crisis of 2008:  Prosecutorial Discretion or Prosecutorial Abdication? (paywall) today in the BNA Criminal Law Reporter.  (You can also get a copy on SSRN or BEPress).  It builds on things we have said here and here.  In short, we argue

When finance professionals play fast and loose, big problems result. Indeed, the 2008 Financial Crisis resulted from people in the real estate finance industry ignoring underwriting criteria for mortgages and structural finance products. That malfeasance filled the financial markets with mortgage-backed securities (MBS) that were worth a small fraction of the amount issuers represented to investors. It also loaded borrowers with liabilities that they never had a chance to satisfy.

Despite all the wrongdoing that caused the financial crisis, prosecutors have been slow to bring charges against individuals who originated bad loans, pooled bad mortgages, and sold bad MBS. Unfortunately, the lack of individual prosecutions signals to participants of the financial industry that wrongdoing not only will go unpunished but will likely even be rewarded financially. Without criminal liability, we risk a repeat of the type of conduct that brought us to the edge of financial ruin.

Seems straightforward to us, but many other lawyers seem to disagree, including the outgoing Assistant Attorney General in charge of the Criminal Division, Lanny Breuer.  He told the NY Times, “I understand and share the public’s outrage about the financial crisis. Of course we want to make these cases. … If there had been a case to make, we would have brought it. I would have wanted nothing more, but it doesn’t work that way.”  More interesting stuff in the article.

Further Thoughts on Prosecutorial Abdication

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I was discussing Prosecutorial Abdication with a friend who used to work in a prosecutorial office.  While she agreed with what Brad and I had written, she also highlighted the technical and training challenges that prosecutors face in putting together an effective investigation.

Where an insider trading or corporate fraud case might be very difficult and involve tens of thousands of emails, it usually only involves a few key people.  As a result, it is easier to get a handle on the case.  In contrast, she noted, a securities fraud case based on even a single mortgage-backed security involves thousands of mortgages originated by many different lenders.  Numerous different hands touch those files at origination as well as during the securitization process.  On top of that, many of the key documents are missing or at least their chain of custody is uncertain.

The net result, according to her, is that building such a case can be exponentially harder than building an insider trading case.  This is particularly true because many prosecutor offices will not have the sophisticated software (Excel is not enough!) to track all of the relevant data nor the training (forensic accounting skills would be nice) to do an effective job. Let’s see what the Financial Fraud Enforcement Task Force can do with the resources made available to it . . ..