Thread: Banks Being Forced To Plead Guilty To Criminal Charges

INVESTING 5/05/2014 @ 8:59AM 409 views

Banks Being Forced To Plead Guilty To Criminal Charges: Will They Survive?

Punishing patently criminal activity perpetuated by big-banks, while at the same time balancing economic realities and realpolitiks, has not been a slippery slope for banks.

It’s been a grooved treadmill banks have exercised their greed on.

The truth is economic realities and realpolitiks are themselves the slippery slope that confounds prosecutors and stymies guilty pleas.

Well, that could change…and very shortly.

As much as we’d like to see guilty parties punished for their wrongdoing, the reason criminal enterprising banks aren’t forced to plead guilty, but instead get away with non-prosecution and deferred-prosecution agreements, is fear of economic fallout from their being shut down.

Federal guidelines actually require prosecutors in criminal matters to weigh the business and economic consequences of forcing a guilty plea from corporations.

Which itself provides convenient cover for corporations as if they weren’t the collective product of individuals whose actions are the basis of criminality but a monolithic entity imbibed by the Supreme Court and drunk with inalienable rights intended for persons.

But, I’ll get to that.

Just last month a group of prosecutors met in Washington and in New York with federal and state regulators to discuss seeking guilty pleas from two giant banks.

Led by David O’Neil, head of the Justice Department’s criminal division, Preet Bharara the U.S. Attorney for the Southern District of New York and Cyrus Vance Jr., the Manhattan District Attorney, met in Washington with regulators and lawyers from the Federal Reserve and the Comptroller of the Currency, and in New York with New York’s Superintendent of Financial Services, Benjamin M. Lewsky, to discuss extracting guilty pleas from mega Swiss bank Credit Suisse and French giant bank BNP Paribas .

Credit Suisse faces its guilt for helping U.S. citizens evade federal taxes, while BNP Paribas is charged with knowingly doing business with U.S. blacklisted countries.

If either bank has to plead guilty to criminal charges it would be the first time in more than two decades that a bank or investment bank will have pled guilty.

What sticks in the minds of regulators is what happened to the “junk bond” market after Drexel Burnham Lambert pleaded nolo contendere (no contest) to six felonies having to do with charges of stock parking and stock manipulation in 1988. While Drexel didn’t have to shut down, afterMichael Milken was removed, its prominent high yield traders and bankers left and the firm filed for bankruptcy in 1990. But, the immediate aftermath of the firm facing indictment under the Racketeer Influenced and Corrupt Organization Act (RICO) was that bonds and capital markets in general wavered.

And although Lehman Brothers demise in 2008 had nothing to do with criminal charges, what happened to the markets after it imploded sends chills down regulators spines.

Also, when Arthur Andersen in 2002 voluntarily surrendered its licenses to practice as certified public accountants in the U.S. after being found guilty of criminal charges for aiding and abetting accounting fraud at Enron, 85,000 employees lost their jobs.

The reason prosecutors meet with regulators is out of fear that extracting a guilty plea to a criminal charge could trigger a license or charter suspension or revocation, cause counterparties and customers to suffer contamination issues, or have an extensive economic impact.

Regulators, for their part, end up mostly “shilling” for their charges arguing the banks’ line that a threat to a big bank anywhere is a threat to the system everywhere.

Noting the injustice in big banks strong-arming regulators to lean on prosecutors to be more lenient, Preet Bharara recently described the slippery slope to a gathering of Wall Street lawyers as a “gaping liability loophole that blameworthy companies are only too willing to exploit.”

Mr. Bharara has “warned” all the big banks he’s looking at them and before long he will start extracting guilty pleas.

The Credit Suisse or BNP outcomes might be his shot across the bow.

Camera Wall Street Protest (Photo credit: david_shankbone)

What’s being discussed between regulators who may be responsible for taking impactful action against convicted criminal parties and prosecutors pushing a change of course, is whether the parent company of a big bank would suffer irreparable damage or whether, as in the recent past, more serious charges and guilty pleas would be extracted from walled-off subsidiaries.

Throwing the baby out with the bathwater is never a good idea.

What’s not being addressed is the root of the problem. People, not inanimate entities, commit crimes.

Why should an otherwise productive business and innocent officers, managers and employees, shareholders, creditors, counterparties, customers and taxpayers be subject to punishment for the action of easily identifiable guilty persons?

Prosecutors should offer guilty entities a deal they can’t refuse.

They should force them to face the consequences of being shut down entirely or demand they identify guilty persons, including entire departments and business lines if the “culture” of those groups are based on criminal activity, and serve them up to face financial clawbacks, suspension, expulsion and prison time, where warranted.

http://www.forbes.com/sites/shahgila...-they-survive/

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