Memories of the fictional sports announcer Biff Burns came to mind this weekend amid all of the anonymously attributed news reports that the Justice Department had reached a tentative settlement agreement with JPMorgan Chase & Co. worth $13 billion. Burns was part of the comedian George Carlin’s stable of characters. His shtick was to report the day’s scores while omitting basic information. (“Here’s a partial score: Pittsburgh 37.” Or, “Quickly now the basketball scores: 110 to 102, 125 to 113, 131 to 127.”) Likewise, it has been widely reported that the $13 billion settlement would be the largest ever by the government with a single company. Yet we still don’t have enough facts to know which side would emerge the real winner. It probably would be a stretch to give the Justice Department credit for the full $13 billion. The matters JPMorgan would be resolving include a 2011 lawsuit by the conservator for Fannie Mae and Freddie Mac, as well as a separate suit by New York Attorney General Eric Schneiderman. It also isn’t clear how much of the $13 billion would be paid in cash. (JPMorgan had $28.9 billion of pretax income last year.) About $4 billion would be earmarked for consumer relief, details of which are fuzzy. For all we know this could take the form of coupons, discounts or other soft benefits, which might not cost JPMorgan anywhere near $4 billion in the end. This month the Association of Mortgage Investors sent U.S. Attorney General Eric Holder a letter to complain that some of the government’s settlements with large banks “have resulted in the responsible party shifting a portion of the settlement costs” to investors in residential mortgage-backed securities. If the government lets JPMorgan finance breaks for homeowners with other people’s money rather than its own, that isn’t much punishment. Another $4 billion would go toward resolving the lawsuit related to Fannie and Freddie. For the Justice Department to include this accord in its total settlement figure would be akin to the rooster taking credit for the dawn. The suit isn’t a law-enforcement matter. It’s a business dispute. Back in 2011 the Federal Housing Finance Agency, which is the conservator for Fannie and Freddie, hired the law firm Quinn Emanuel Urquhart & Sullivan LLP to litigate the two companies’ mortgage-bond claims against JPMorgan and other large banks. The agency’s lawsuit covers $33 billion of residential mortgage-backed securities issued from 2005 to 2007 that Fannie and Freddie brought from JPMorgan and other companies it later acquired, including Washington Mutual and Bear Stearns. In court papers, Quinn Emanuel attorneys have said Fannie and Freddie lost billions of dollars on those bonds, without specifying more precisely. Perhaps $4 billion (before attorneys’ fees) is a good deal for Fannie and Freddie. Or maybe it’s an even better bargain for JPMorgan, at about 12 percent of the bonds’ face value. It’s hard to say. The settlement wouldn’t end the Justice Department’s criminal investigation of JPMorgan. The bank was told it won’t receive a waiver from prosecution, and would have to cooperate with the Justice Department’s probes of individuals still under investigation. This brings me to another quirk in the Fannie-Freddie portion of the settlement. The Federal Housing Finance Agency’s amended complaint against JPMorgan also named 32 individuals as defendants, all of whom worked for JPMorgan or one of the companies it later acquired. If the agency settles the case with JPMorgan and collects its $4 billion on behalf of Fannie and Freddie, it wouldn’t make much sense financially to continue pressing claims against the individuals; whatever sums it could collect from them would be immaterial by comparison. It isn’t clear if any of those people are under investigation by the Justice Department. JPMorgan hasn’t disclosed which mortgage bonds are the focus of the criminal probe or whether they include any of the bonds sold to Fannie or Freddie. That said, the housing-finance agency did allege that JPMorgan and the individual defendants violated federal securities laws. Unveiling a massive settlement without holding any individuals responsible would be unsatisfying. By now, though, the public has come to expect such outcomes as the norm. All of this is a long way of saying there is still much we don’t know about the Justice Department’s investigations and how the various settlements will turn out. JPMorgan wants peace with the government concerning all of its mortgage-bond woes. The Justice Department wants to show it’s capable of holding a large bank accountable for violations of the law. Yet it's unlikely either side won a total victory -- the question is whether the deal will deter misconduct by banks in the future. (Jonathan Weil is a Bloomberg View columnist. Follow him on Twitter.) |
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