“JPMorgan discloses federal criminal investigation over sale of mortgage-backed securities”

August 9, 2013

The Washington Post on August 8, 2013 released the following:

“By Associated Press,

NEW YORK — The U.S. Justice Department is investigating JPMorgan Chase over mortgage-backed investments the bank sold in the run-up to the financial crisis.

The New York-based bank said in a regulatory filing that it is responding to investigations by the civil and criminal divisions of the U.S. Attorney’s office for the Eastern District of California. In May, the civil division informed JPMorgan that it had “preliminarily concluded” that the bank had violated federal securities laws in connection with certain mortgage-backed investments it sold from 2005 to 2007.

A JPMorgan spokeswoman declined to comment.

The disclosure is just the latest in a swirl of mortgage-related lawsuits and investigations that have hammered big U.S. banks in the aftermath of the financial crisis. The banks have been accused of improperly foreclosing on homeowners, discriminating against others and knowingly making loans to people who couldn’t afford them. Other probes, including the one disclosed by JPMorgan, have focused on mortgage-backed securities, where the banks bundled together their mortgages and sold them in slivers to investors.

JPMorgan didn’t give details on what the Justice Department is investigating. But previous lawsuits and investigations, against both JPMorgan and other big banks, have said that the banks misled investors about the quality of the loans they were buying. When the real estate bubble burst, many of the mortgage-backed securities soured and the investors who bought them lost billions.

If the investigations result in criminal or civil action by the Justice Department against JPMorgan, it would be the most high-profile government move against the bank to date. JPMorgan, which came through the financial crisis stronger than most of its competitors and was lauded for wise risk-management practices, has lately faced a slew of sanctions by federal regulators.

In January, regulators ordered the bank to take steps to correct poor risk management that led to a surprise trading loss last year of more than $6 billion. The Federal Reserve and the U.S. Comptroller of the Currency also cited JPMorgan for lapses in oversight that could allow the bank to be used for money laundering. Last month, the bank agreed to pay $410 million to settle allegations by the Federal Energy Regulatory Commission that it manipulated electricity prices in California and the Midwest.

An investigation by the Securities and Exchange Commission of the trading loss is nearing final stages with civil charges possible, according to news reports Thursday. The SEC is seeking an admission of wrongdoing from JPMorgan in a settlement, The Wall Street Journal and The New York Times reported, citing unnamed people familiar with the case.

That would be a departure from the SEC’s traditional policy of allowing most companies and individuals agreeing to settlements to neither admit nor deny wrongdoing. It would be a major application of a new policy announced recently by SEC Chairman Mary Jo White that calls for requiring admissions of wrongful conduct in some significant cases.

SEC spokesman John Nester declined comment on the reports.

The newly disclosed Justice Department investigations are not JPMorgan’s first legal headaches over mortgage-backed securities. It has settled charges from the SEC over mortgage-backed investments it made in the run-up to the financial crisis. It’s also facing lawsuits from the New York Attorney General’s Office and the National Credit Union Administration over the securities.

JPMorgan is fighting the attorney general’s lawsuit, which focused on investments sold by Bear Stearns in 2006 and 2007. JPMorgan bought Bear Stearns in 2008.

JPMorgan made the disclosure about the Justice Department investigations in a quarterly regulatory filing late Wednesday. It came a day after the U.S. government accused Bank of America of civil fraud, saying the company failed to disclose risks and misled investors in its sale of $850 million of mortgage bonds during 2008. The government says that the bank failed to tell investors that more than 70 percent of the mortgages backing the investment were written by mortgage brokers outside the banks’ network.

Bank of America has disputed those allegations, saying the investors who bought the securities had “ample access” to data about the mortgages.

“We are not responsible for the housing market collapse that caused mortgage loans to default at unprecedented rates and these securities to lose value as a result,” the bank said in a statement this week.

Shares of JPMorgan Chase & Co. slipped 47 cents, to close Thursday trading at $54.83. The stock has traded between $36.40 and $56.93 in the past 52 weeks, and remains up 25 percent since the start of the year.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Weighing the Legal Ramifications of the Wal-Mart Bribery Case

April 24, 2012

The New York Times on April 23, 2012 released the following:

“BY PETER J. HENNING

The United States government puts a premium on corporate cooperation in foreign bribery cases, relying on companies to conduct thorough internal investigations and voluntarily disclose any wrongdoing.

Indications that Wal-Mart Stores may have taken steps to keep an internal investigation from digging deeper into $24 million in questionable payments — and later promoting an executive who may have been implicated in them — may affect how the government decides to proceed against the giant retailer.

Wal-Mart first disclosed in December that it had started “a voluntary internal review of its policies, procedures and internal controls pertaining to its global anticorruption compliance program.” That review was the result of reporting by The New York Times about bribery by Wal-Mart de México to secure permits and approvals to build new stores.

The company’s disclosures did not give any information about where the foreign bribery issues had arisen, only that the focus was on whether “permitting, licensing and inspections were in compliance with the U.S. Foreign Corrupt Practices Act.” Wal-Mart said it had informed the Justice Department and the Securities and Exchange Commission about the internal investigation, and the company issued a statement in response to the Times article that its outside advisers “have and will continue to meet with the D.O.J. and S.E.C. to report on the progress of the investigation.”

Companies caught up in investigations of foreign bribery often seek to exert a measure of control over the flow of information by meeting early and often with government investigators in an effort to establish credibility regarding the scope and integrity of the investigation, usually sharing the results as quickly as possible. If corporate counsel can demonstrate its reliability, then the Justice Department and the S.E.C. are more likely to accept the findings of the internal investigation without conducting an independent review.

Cooperation is also important because it is a significant factor for prosecutors in deciding how to resolve a case. The Justice Department has allowed companies to pay reduced fines and avoid a guilty plea to criminal charges by entering into deferred or nonprosecution agreements because they came forward voluntarily and readily provided information.

While Wal-Mart may be angling for the same type of resolution, it is questionable whether being prodded by The Times’s reporting to start an internal investigation shows that it took affirmative steps to address a problem. The company had dropped its earlier investigation, and likely would have let that sleeping dog lie if not for potential media scrutiny.

The Times article also raises two significant red flags for investigators that may cause them to take a more aggressive approach in the case. First, the Mexican bribery involved senior management at the subsidiary, not just low-level employees operating on their own. One factor cited in the Justice Department guidelines for deciding whether to charge a business organization is the “pervasiveness of wrongdoing within the corporation,” and the most important consideration “is the role and conduct of management.”

Second, Wal-Mart’s own investigators raised questions about $16 million in “contributions” and “donations” to local governments, but there was no further review of those payments. Simply ignoring these types of transfers is sure to raise questions for the government about whether the company can claim it had an effective compliance program back in 2005 when these issue first came to light, another important consideration in determining whether to file charges.

Wal-Mart also pointed out twice in its statement that the payments in Mexico took place more than six years ago. That may be an effort to explain why it may be unable to conduct a complete investigation. Whether the excuse will fly with the Justice Department and the S.E.C. remains to be seen.

The time lag may present a problem if the Justice Department wants to prosecute any individuals for bribery of Mexican officials. The statute of limitations for a violation of the Foreign Corrupt Practices Act is five years. The limitations period can be extended if the government was seeking evidence from a foreign country, but that does not appear to be the case because Wal-Mart only disclosed the issue in late 2011. So charges related to conduct before 2007 may be lost due to the passage of time.

One way the government can try to avoid the statute of limitations is to charge a conspiracy, which only requires that one act in furtherance of the criminal agreement take place within the last five years. If active steps by Wal-Mart executives to cover up payments to foreign officials occurred in 2007 or later, then prosecutors might be able to pursue that charge.

The statute of limitations will not work as much in Wal-Mart’s favor, however, because the company is required to annually file financial statements covering the previous five years. It is likely that questionable payments were not properly reflected on the company’s books and records. So even if no charges can be brought for any foreign bribery, at a minimum it could be charged with violating the accounting provisions of federal securities law for not properly disclosing the payments made by Wal-Mart de México.

Another potential avenue that prosecutors are likely to investigate is obstruction of justice under 18 U.S.C. § 1519, which was added by the Sarbanes-Oxley Act. If there is evidence that anyone at the company covered up or destroyed records “with the intent to impede, obstruct, or influence” a future investigation, that could be grounds for a criminal charge.

One factor working against Wal-Mart is that the Justice Department may be looking for a prominent case to demonstrate the need for vigorous enforcement of the Foreign Corrupt Practices Act as a response to recent criticisms of the law. The Chamber of Commerce, which hired a former attorney general, Michael B. Mukasey, to lobby for changes to the statute, has argued that aggressive application of the law has caused companies to shy away from overseas investments for fear of being scrutinized.

The Times article makes it clear that Wal-Mart appeared to be more concerned with protecting its fast-growing Mexican operation than with thoroughly investigating allegations that corruption helped fuel its success. Prosecutors can make an example of Wal-Mart to show that the Justice Department will not tolerate foreign bribery, even by a leading American company. That would bolster the argument that revising the statute would send the wrong message to the rest of the world.

The payments at issue are comparatively paltry, perhaps totaling less than $50 million, although that number could increase as the internal investigation moves forward. The ultimate cost to Wal-Mart for the legal and accounting fees for the investigation, along with any monetary penalties the Justice Department and the S.E.C. may seek, will probably far exceed the bribes.”

18 U.S.C. § 1519

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.