Just three days ago in “Wall Street To Enter Hollow Guilty Plea On FX Rigging, Return To Business As Usual [7],” we lamented the fact that the Justice Department’s latest attempt to convince an incredulous public that the government is willing to prosecute white collar crime at TBTF institutions (which includes an amusing 'crack down' on UBS which we outlined here [8]) will ultimately end in nothing more than the payment of a token fine before it’s back to business as usual. We also noted that there are actually SEC regulations in place specifically designed to ensure that so-called “bad actors” are punished in a way that is actually meaningful to them and as such serves to deter the type of behavior that results in the buildup of systemic risk and the rigging, fixing and manipulation of every market and -BOR on the face of the earth. Specifically, we said the following:
Even after Wall Street firms essentially admit to committing egregious fraud by ponying up billions to settle allegations of manipulation, policies put in place to ensure that deep pockets don’t allow big banks to simply sweep scandals under the rug once settlements are doled out are systematically skirted. The latest example of this was Deutsche Bank, who, after paying $2.5 billion to settle allegations its traders conspired to manipulate all manner of -BORs, worked with the CFTC to have language inserted in the settlement agreement exempting the bank from a Dodd Frank rule that restricts so-called “bad actors” from taking advantage of exempt securities transactions.
The excuse for allowing Wall Street to skirt the very penalties that were put in place as a result of the very things for which the banks are now being prosecuted is two-fold: 1) there’s the so-called ‘Arthur Andersen effect’ whereby the decade-old collapse of an accounting firm and the layoffs that accompanied it are somehow supposed to represent what would happen if a Wall Street bank were not able to claim seasoned issuer status, and 2) curtailing a major bank’s ability to issue capital “speedily and efficiently”, participate in private placements, and manage mutual funds represents a systemic risk.
We’ll leave it to readers to determine the extent to which any of that is an accurate portrayal of what would happen if big banks were unable to obtain waivers, but rest assured the waivers will be obtained as the following from Reuters makes abundantly clear:
Banks want assurances from U.S. regulators that they will not be barred from certain businesses before agreeing to plead guilty to criminal charges over the manipulation of foreign exchange rates, causing a delay in multibillion-dollar settlements, people familiar with the matter said…
The banks are also scrambling to line up exemptions or waivers from the Securities and Exchanges Commission and other federal regulators because criminal pleas trigger consequences such as removing the ability to manage retirement plans or raise capital easily…
Negotiating some of the waivers among the SEC's five commissioners could prove challenging because many of these banks have broken criminal or civil laws in the past that triggered the need for waivers.
Many of the banks want an SEC waiver to continue operating as "well-known seasoned issuers" so they can sell stocks and debt efficiently, people familiar with the matter said. Such a designation allows public companies to bypass SEC approval and raise capital "off the shelf" - a process that is speedier and more convenient.
Several of the people said another waiver being sought by some banks is the ability to retain a safe harbor that shields them from class action lawsuits when they make forward-looking statements.
The banks involved are also seeking waivers that will allow them to continue operating in the mutual fund business, sources said.
The plea deals could be announced as soon as next week, two of the people said, adding that not all the penalties had been finalized yet.
Peter Carr, a spokesman for the U.S. Justice Department, declined comment on the timing or reason for a possible delay of any agreements. Citi, JPMorgan, RBS and UBS did not respond to requests for comment. A Barclays spokesman declined to comment.
Note that the original version of this story said that plea deals could be announced as soon as ... well, as soon as two days ago, but just as we predicted, none of the banks will enter guilty pleas without a guarantee from the government that no actual penalties (because monetary fines don’t count when you’ve got access to cheap Fed cash) will apply.
You can expect The Justice Department to cave to these demands in relatively short order because while we know that TBTF guilty pleas represent but a pyrrhic victory (at best) for a regulatory regime that fell asleep at the wheel and allowed Wall Street to run the entire financial system into the ground, there will be no shortage of fanfare and congratulatory handshakes when the DOJ ‘proves’ how very serious it is by sending a few TBTF logos (but no actual people) to prison.
