JPMorgan Chase & Co. and the Justice Department have reached a tentative $13-billion (U.S.) settlement over the bank’s questionable mortgage practices leading up to the financial crisis, people briefed on the talks said Saturday. It would be a record penalty that would cap weeks of heated negotiating and underscore the extent of the bank’s legal woes.
The deal, which the Justice Department took the lead in negotiating and which came together after a Friday night call involving Attorney General Eric H. Holder Jr. and JPMorgan’s chief executive, Jamie Dimon, would resolve an array of state and federal investigations into the bank’s sale of troubled mortgage investments. That type of investment, securities typically backed by subprime home loans, was at the heart of the financial crisis.
While the deal would put those civil cases to rest, it would not save JPMorgan from a parallel criminal inquiry from federal prosecutors in California, the people briefed on the talks said. Under the terms of the preliminary deal, the people said, the bank would also have to assist prosecutors with an investigation into former employees who helped create the mortgage investments.
The $13-billion deal, which could still fall apart over issues like how much wrongdoing the bank is willing to acknowledge, would represent something of a reckoning for Wall Street, whose outsize risk-taking in the mortgage business nearly toppled the economy in 2008. It might also provide a measure of catharsis to the investing public, which suffered billions of dollars in losses from buying bad mortgage securities.
For the Justice Department, often criticized for being soft on big banks, the deal suggests that the Obama administration’s crackdown on Wall Street has gained some momentum in recent months. It comes less than three months after federal prosecutors and the FBI in Manhattan announced a criminal indictment of the hedge fund SAC Capital, which was accused of permitting a “systematic” insider-trading scheme to unfold from 1999 to 2010. The hedge fund, according to people briefed on the case, is negotiating a plea deal that would force it to plead guilty to criminal misconduct and pay more than $1-billion in penalties.
The cost to JPMorgan, the nation’s biggest bank, goes beyond the bottom line. The settlement would deal a reputational blow to the bank and Dimon, who steered JPMorgan through the crisis without a quarterly loss or major government scuffle. Now Dimon’s tenure is engulfed in turmoil, the consequence of fighting a multifront battle with federal authorities scrutinizing everything from a $6-billion trading loss in London last year to the bank’s hiring of well-connected employees in China.
In the mortgage case, the size of the penalty underpins its importance. The $13-billion penalty, according to one of the people briefed on the talks, would include about $9-billion in fines and $4-billion in relief for struggling homeowners.
Some defense lawyers question whether the government is going too far in demanding that sum. A $13-billion penalty would be more than half what JPMorgan earned in profits last year. The lawyers also note that some of the mortgage securities in question are not JPMorgan’s. Rather, the bank inherited the liabilities when it bought Bear Stearns and Washington Mutual in 2008, at the height of the financial crisis.
A spokesman for JPMorgan declined to comment. Brian Fallon, a Justice Department spokesman, also declined to comment.
The penalty, if approved, would surpass other major Wall Street settlements and represent the largest that a single company has ever paid in settling with the Justice Department. HSBC Holdings PLC, for example, agreed to a $1.9-billion penalty last year over money laundering accusations. BP PLC paid $4.5-billion for its role in the huge oil spill in the Gulf of Mexico.
The JPMorgan penalty also eclipses what the bank previously offered to pay. Until now, the bank was offering about $11-billion in total. And it refused to increase its offer unless the California authorities dropped the criminal investigation into the bank’s sale of troubled mortgage securities to investors.
But the bank, one of the people briefed on the talks said, tentatively backed down from that demand, a major victory for the government and one that allows the Justice Department to pursue its criminal investigation of JPMorgan.
The preliminary deal materialized late Friday after Holder spoke on the phone to the bank’s top executives, including Dimon, and the general counsel, Stephen M. Cutler, one person said. Holder told Dimon that he could not shut down the criminal investigation, reiterating an argument he made when the two met last month in Washington. The associate attorney general, Tony West, was also at that meeting and on the phone call Friday night.
One significant obstacle stands in the way of a deal: whether JPMorgan will admit to all of the improper actions cited by the Justice Department. Banks are typically loath to acknowledge wrongdoing, fearing it could expose them to a raft of shareholder lawsuits.
West and Cutler are negotiating over a statement of facts in the case that would address the wrongdoing issue, the people briefed on the talks said. Those negotiations could hit a snag if JPMorgan seeks to limit the conduct that the Justice Department wants to include.
An eye-popping fine is a political no-brainer for the Justice Department, a move that could somewhat appease a public that is skeptical of Wall Street’s influence in Washington.
But some public interest groups continue to question why no top Wall Street executives have been charged criminally for the risky acts that triggered the crisis. The government also prefers to settle with big companies rather indict them, fearing that criminal charges could unnerve the broader economy.
The government investigations into JPMorgan, which focus on securities the bank sold from 2005 to 2007, raised questions about whether JPMorgan had failed to fully warn investors about the risks of the deals.
One of the largest pieces of the $13-billion deal could come from a settlement with the Federal Housing Finance Agency. The agency sued JPMorgan over loans it had sold to Fannie Mae and Freddie Mac, the government-controlled mortgage finance companies. The settlement would also resolve a case related to Bear Stearns, the people briefed on the matter said, a lawsuit that has pitted the New York attorney general against JPMorgan.
Eric T. Schneiderman, the New York attorney general, sued JPMorgan last October, saying Bear Stearns and its lending unit, EMC Mortgage, had duped investors who bought mortgage securities assembled by the companies from 2005 through 2007. Through a deal backstopped by the government, JPMorgan bought Bear Stearns in 2008.
Dimon has called the lawsuit unfair, arguing that JPMorgan should not be penalized for buying Bear Stearns.
Yet JPMorgan’s board, faced with regulatory problems, one more vexing than the next, is eager to strike a conciliatory stance. Toward that end, the bank’s board approved the payment of about $1-billion in fines to government authorities so it could resolve investigations into the trading loss in London and an inquiry into the bank’s credit card products. JPMorgan admitted wrongdoing to the Securities and Exchange Commission, which cited the bank for a breakdown in controls, and the Commodity Futures Trading Commission, which accused the bank of “employing a manipulative device” with its high volume of trading.
With the bank’s legal woes escalating – at least seven federal agencies, several state regulators and two foreign countries are investigating the bank – JPMorgan announced this month that it would have to allot $9.2-billion to cover legal expenses alone. The huge legal bill led the bank to report its first quarterly loss under Dimon’s leadership.
Amid the swirl of legal problems, some people within JPMorgan have privately questioned whether Dimon could survive a push by shareholders to divest him of the dual titles – chairman and chief executive – that he holds.
But he survived such a push this year, having secured nearly 70 per cent of the votes. And even if a majority of shareholders voted to split the roles, it would be a non-binding measure.