February 3, 2015
Reiss on Financial Crisis Litigation
Law360 quoted me in Feds’ Moody’s Probe Marks Closing Of Financial Crisis Book (behind a paywall). It opens,
A reported investigation into Moody’s Investors Service’s ratings of residential mortgage-backed securities during the housing bubble era could be the beginning of the last chapter in the U.S. Department of Justice’s big financial crisis cases, attorneys say.
Federal prosecutors are reportedly making their way through the ratings agencies for their alleged wrongdoings prior to the financial crisis after wringing out more than $100 billion from banks and mortgage servicers for their roles in inflating the housing bubble. But the passage of time, the waning days of the Obama administration and the few remaining rich targets likely means that the financial industry and prosecutors will soon put financial crisis-era enforcement actions behind them, said Jim Keneally, a partner at Harris O’Brien St. Laurent & Chaudhry LLP.
“I do look at this as sort of the tail end of things,” he said.
With the ink not yet dry on a rumored $1.375 billion settlement between the Justice Department, state attorneys general and Standard & Poor’s Ratings Services, prosecutors have already reportedly turned their attention to the ratings practices at S&P’s largest rival, Moody’s, in the period leading up to the 2008 financial crisis, according to The Wall Street Journal.
The federal government and attorneys general in 19 states and Washington, D.C., had launched several suits since the financial crisis accusing S&P of assigning overly rosy ratings to mortgage-backed securities and other bond deals that ended up imploding amid a wave of defaults, causing a cascade of investor losses that amounted to billions of dollars.
Although S&P originally elected to fight the government, it ultimately elected to settle. The coming $1.375 billion settlement arrives on top of an earlier $77 million settlement with the U.S. Securities and Exchange Commission and the attorneys general of New York and Massachusetts over similar claims.
Moody’s is reportedly next in line, with Justice Department investigators reportedly having had several meetings with officials from the ratings agency that looked into whether the Moody’s Corp. unit had softened its ratings of subprime RMBS in order to win business as the housing bubble inflated.
Both the Justice Department and Moody’s declined to comment for this story.
The pursuit of Moody’s as the S&P case wraps up follows a pattern that the Justice Department set with big bank settlements for the financial crisis.
“You would expect that they would sweep through, so to speak,” said Thomas O. Gorman, a partner with Dorsey & Whitney LLP.
After reaching a $13 billion deal with JPMorgan Chase & Co. in November 2014, the Justice Department quickly turned its attention to Citigroup Inc. and Bank of America Corp., which reached their own multibillion-dollar settlements last summer.
Now prosecutors are in talks with Morgan Stanley about another large settlement, according to multiple reports.
All of those deals follow the $25 billion national mortgage settlement from 2012 that targeted banks’ pre-crisis mortgage servicing practices.
Time may be catching up with the Justice Department more than six years following the height of the crisis, even after the Justice Department began employing novel uses of the Financial Institutions Reform, Recovery and Enforcement Act, a 1989 law passed following the savings and loan crisis, Keneally said.
Using FIRREA extended the statute of limitations on financial crisis-era cases, allowing for prosecutors to develop their cases and take a systematic approach. Even that statute may have run its course, as it pertains to the crisis.
“The passage of time is such that you have evidence that no longer exists,” Keneally said.
Politics may also play a role as the financial crisis recedes from memory and the next holder of the presidency potentially looks to move forward, he said.
“We’re getting to the end of the Obama administration,” Keneally said. “I think it’s going to be hard for any administration to ramp things up again.”
And that has some wondering whether the Obama administration and the Justice Department under Attorney General Eric Holder followed the correct path.
“The Justice Department and the states’ attorneys general collected far more in their penalties and settlements than anyone could have imagined before the financial crisis,” said Brooklyn Law School professor David Reiss.
Those large settlements may give investors and top management pause when it comes to questionable activity. However, because no traders or other top banking personnel went to prison, questions remain about what deterrent effect those settlements will have on individuals.
“Big institutions are now probably deterred from some of this behavior, but are individuals who work on these institutions deterred?” Reiss said.
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