As U.S. Justice Department prosecutors begin to bring the first criminal charges against global banks since the financial crisis, they are facing dire warnings of uncontainable collateral damage from none other than the sell-side’s banking analysts…
“Don’t play with matches,”
warned Brad Hintz, bringing up the specter of Enron (somehow suggesting we would better if that had not been prosecuted?) “The mere threat of requiring a hearing could cause customers to lose confidence in the institution and could cause a run on the bank,” warns a banking lawyer (well isn’t that how it’s supposed to be?). Too Big To Prosecute is starting to tarnish a little as Preet Bharara begins to bring the heat, adding, somewhat humorously that, banks have a
“powerful incentive to make prosecutors believe that death or dire consequences await.”
“But I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy. And I think that is a function of the fact that some of these institutions have become too large.
Again, I’m not talking about HSBC. This is just a — a more general comment. I think it has an inhibiting influence — impact on our ability to bring resolutions that I think would be more appropriate. And I think that is something that we — you all need to — need to consider. So the concern that you raised is actually one that I share.”
But now, as Bloomberg reports,
And that has led to significant backlash from the industry – how dare he!!
The 2002 collapse of Arthur Andersen, the accounting firm indicted in the Enron scandal, “should be a lesson” for prosecutors, Brad Hintz, an analyst at Sanford C. Bernstein & Co., said today in an interview on Bloomberg Television. “Don’t play with matches.”
Criminal action would have to be handled so that any review of a bank’s charter wouldn’t spook customers or revoke a firm’s license, said Gil Schwartz, a partner at Schwartz & Ballen LLP and a former Federal Reserve lawyer. “The mere threat of requiring a hearing could cause customers to lose confidence in the institution and could cause a run on the bank,” Schwartz said.
And as Preet Bharara somewhat comedically notes…
“Companies, especially financial institutions, will do almost anything to avoid tough enforcement action and therefore have a natural and powerful incentive to make prosecutors believe that death or dire consequences await,” he said. “I have heard assertions made with great force and passion that if we take any criminal action, the skies will darken; the oceans will rise; nuclear winter will be upon us, and the world as we know it will end.”
But the threats and fears of what is clearly TBTF‘s contagious effects remain…
“You can’t do a guilty plea of a systemically important financial institution without first getting the regulators on board a commitment that the conviction won’t put the bank out of business,” he said in an e-mail. “That seems to be going on here, not surprisingly.”
And this is with stocks at record highs and the entire farce of opaque bank balance sheets now a dim and distant memory for all but the sanest.
“These are test cases,” said Phan. “There’s a pragmatism behind this. You look for a target that’s small enough and that will send a message.”
Prosecuting banks would break with a practice of brokering settlements with companies that are considered integral to the financial system. Previous probes were resolved through so-called non-prosecution and deferred-prosecution agreements, which have been criticized by U.S. lawmakers for failing to hold banks accountable.
“It’s about time,” said Buell, who was part of the prosecution team at the trial of Arthur Andersen, whose indictment put about 85,000 people out of work.
“The argument that we can’t have guilty pleas because of debarment provisions that are written into various regulatory codes has always seemed to be a case of the tail wagging the dog.”
So, to summarize, the regulator is actually taking a crack at the TBTFs for the fraud they committed and the industry is in full Mutually Assured Destruction threat mode should it actually be forced to admit guilt… well played Fed… more leveraged, more interconnected, and more TBTF in the world’s economy…