Back in November, I explained how the Justice Department’s settlement with JPMorgan Chase over securities fraud was misleading, inadequate and shameful. Now a public interest group is adding “unlawful” to that roster.
Better Markets, an advocate for financial reform, has filed suit to stop the $13 billion settlement (which actually will cost JPMorgan less than half that) and force it to be reviewed by a court, making the details public. “The Justice Department cannot act as prosecutor, jury and judge and extract $13 billion in exchange for blanket civil immunity to the largest, richest, most politically connected bank on Wall Street,” said Dennis Kelleher, the group’s president and CEO, in announcing the lawsuit. “The executive branch does not have this unilateral power because it violates the constitutional requirement of checks and balances.”
You may recall that the Justice Department was set to hold a press conference announcing civil charges against JPMorgan Chase for selling knowingly substandard mortgage-backed securities to investors. But then Jamie Dimon personally called Tony West, No. 3 at DOJ, and offered a large settlement in exchange for immunity. Dimon then entered into one-on-one negotiations with Attorney General Eric Holder, something no criminal suspect has ever had the pleasure of doing, working out the settlement that was announced last November.
The terms of the settlement released to the public were woefully incomplete, Better Markets explains. The deal never specifies the extent of investor losses resulting from the misconduct. It never says how much profit JPMorgan Chase made off of years of pervasive fraud. No details of any Justice Department investigation were revealed. No individual executives were named in the agreement, and no references to specific violations of law cited. As Bloomberg’s Jonathan Weil reported at the time, the “statement of facts” agreed to by JPMorgan Chase (which Better Markets calls “a very short, largely uninformative summary of conduct engaged in by some unidentified staff”) was carefully crafted to have no value in any future litigation by private investors or homeowners. The Justice Department didn’t even do the standard work of obligating JPMorgan to change its business practices. It was essentially a unilateral contract between a law enforcement agency and a bank, standing in for a settlement with force of law.
Better Markets alleges that the Justice Department violated the separation of powers and the Administrative Procedures Act by making this arbitrary agreement without judicial review, and violated the Financial Institutions Reform, Recovery and Enforcement Act of 1989, which DOJ explicitly states was the impetus for the $2 billion civil penalty. This appears to be the strongest part of the argument, as the FIRREA statute is clear that the attorney general must file a civil action to recover any civil penalty, which must be “assessed by the court.”
The complaint even hints that the Justice Department has a conflict of interest, desiring to reverse criticism of its practically nonexistent enforcement of financial crisis misbehavior. “The DoJ and the Attorney General have aggressively used the $13 billion agreement to try and restore their reputations and rebut these charges,” Better Markets writes. “Structuring the agreement so that there would be no judicial review ensured that there would be no independent check on their claims.”
Here’s why our judicial system may prove unable to deal with such a challenge, however. In order to get the injunction it seeks, Better Markets must prove standing to sue, proving that it was personally harmed by the Justice Department’s settlement. This is the way it approaches the standing issue in the complaint: “Better Markets has standing to bring this action because the DOJ’s violations of the Constitution, the APA, and FIRREA have injured and continue to injure Better Markets by undermining its mission objectives; by interfering with its ability to pursue its advocacy activities; by forcing it to devote resources to counteracting the harmful effects of the DOJ’s unlawful settlement process; by depriving Better Markets of the information to which it would have been entitled had the DOJ sought judicial review and approval of the $13 Billion Agreement; and by depriving Better Markets of a judicial forum in which it could seek to participate to influence the settlement process before the agreement becomes effective.”
It’s hard to find any precedent for a court granting standing on the basis of harm to mission objectives or advocacy activities. Better Markets claims in the complaint that, among other things, having to write a blog post and press release trashing the settlement constituted harm, which feels like a thin reed. This suit would have to break new ground, and potentially dangerous ground, as any corporate lobbyist could then argue along similar lines if the executive branch passed a regulation their clients opposed, for example. If Better Markets filed suit on behalf of someone personally harmed through the purchase of one of JPMorgan Chase’s toxic securities, who was subsequently deprived of information resulting from a settlement that could aid their private litigation, that may have a chance to work. This avenue is much more unlikely, and it speaks to a flaw in our justice system, where the powerful often get protected. Homeowners who challenged a bank’s standing to foreclose on them usually got brushed off, but DOJ and JPMorgan’s standing challenge will almost certainly get full respect.
But getting standing may not be the only goal here. In fact, Better Markets has already won the first round, by calling media attention to the sweetheart settlement negotiated in secret without judicial review. Since the press initially took the Justice Department’s claims at face value, any shift of this kind is notable. Second, this gets an array of facts about both the Justice Department’s secret settlement and also JPMorgan Chase’s legacy of criminal conduct (the suit helpfully lists 17 prior government enforcement actions against the bank) in front of a judge, whose pronouncements (even in a loss) could damage the reputations of those involved.
Third, the Justice Department has said that the JPMorgan Chase deal would be a template for their enforcement against the entire mortgage securitization industry. Resistance like this lawsuit could get DOJ to think twice about that. It has the ability to change course: Just yesterday the department got a former Bank of America executive to plead guilty to a years-long scheme of bid-rigging in the municipal bond markets. Public pressure could force DOJ to avoid obviously inadequate backroom deals like it made with JPMorgan Chase. Finally, the suit strengthens the case for legislative intervention, along the lines of Elizabeth Warren’s Truth in Settlements Act, which would force full disclosure of all government settlements over $1 million, including dates, settled claims and the amount and classification of any payments (like whether the payment is tax deductible, as it is in the JPMorgan Chase deal).
This action from Better Markets at least assures that those seeking accountability for the largest economic meltdown since the Great Depression will get a day in court, if only a brief one. It’s astonishing that the Justice Department thinks it can get away with the first of what it says will be a series of settlements on some of the core conduct of the financial crisis without judicial or public review. At least someone is making a bid, however remote, to blow the whistle.