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Big fine 'won't do much damage': Credit Suisse CEO

Hours after the Obama administration announced the criminal conviction of Credit Suisse on Monday evening, the bank's chief executive, Brady W. Dougan, publicly reassured Wall Street that the punishment would not do much damage to his firm. The conviction, he said on a conference call, would not cause "any material impact on our operational or business capabilities."

And in many ways, that was exactly the outcome that the American authorities desired.

The Justice Department and bank regulators had worked hard to find a careful balance. When Credit Suisse pleaded guilty to the crime of aiding tax evasion, prosecutors did not want the action to lead to repercussions that could destabilize the bank or the wider financial system.

Brady Dougan, chief executive officer of Credit Suisse Group AG.
Gianluca Colla | Bloomberg | Getty Images
Brady Dougan, chief executive officer of Credit Suisse Group AG.

So far, that arrangement seems to have been achieved. The question, however, is whether it amounts to justice.

The United States attorney general,Eric H. Holder Jr., believes that it does. "This case shows that no financial institution, no matter its size or global reach, is above the law," he said in a statement on Monday about Credit Suisse's guilty plea.

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In some respects, Credit Suisse is definitely being punished. The conviction is a stubborn stain on Credit Suisse's name. The bank finds itself in the company of corporate felons that include Drexel Burnham Lambert, the ethically challenged Wall Street firm, and Arthur Andersen, Enron's auditor. (Both firms died in part because the government pursued tough measures against them.)

In addition, the $2.6 billion in penalties that Credit Suisse has agreed to pay is not an insignificant sum. In fact, some legal experts say that figure most likely far exceeds the amount of unpaid taxes in the disputed accounts. In this case, unlike so many others, the American authorities actually pursued individuals who they believed were guilty of wrongdoing. It indicted eight Credit Suisse employees, obtaining guilty pleas from two so far.

Read More Credit Suisse sees no impact from US tax settlement

And a convicted bank faces a severe response from law enforcement agencies if it does more wrongdoing, according to an official in the Justice Department who spoke on the condition of anonymity. "Felons almost always face even harsher punishments if they reoffend," the person said. "And given its status, the bank has to be concerned not just about U.S. regulators and prosecutors, but also regulators around the world."

Still, the settlement left some critics of big banks disappointed for what it didn't do.

It did not produce the names of people whose accounts may have been used for tax evasion. Senator Carl Levin, Democrat of Michigan, who led a congressional investigation of Credit Suisse's tax-related activities, said that he supported the Justice Department's actions against the bank, but added: "It is a mystery to me why the U.S. government didn't require as part of the agreement that the bank cough up some of the names of the U.S. clients with secret Swiss bank accounts."

Read More Credit Suisse to pay $2.5B+ in fines, restitution

The bank's most senior executives, including Mr. Dougan, got to keep their jobs, leading another senator to criticize the government's settlement. "Nor does the plea deal hold any officers, directors or key executives individually accountable for wrongdoing, raising the question of whether it will sufficiently deter similar misconduct in the future," Senator John McCain, Republican of Arizona, said in a statement.

A conviction may in theory prompt trading partners or clients to stop doing business with the bank, but Mr. Dougan suggested on Tuesday that they were not withdrawing. Even the bank's public statement on the conviction was somewhat tepid. In the statement Credit Suisse released on Monday, Mr. Dougan's comments did not contain the words "guilty" or "conviction." Instead, he merely said, "We deeply regret the past misconduct that led to this settlement."

Read More Credit Suisse guilty plea likely to be announced on Monday

"If there are no consequences from a criminal conviction, they are just dumbing down a criminal conviction," Rebel A. Cole, a professor of finance at DePaul University, said.

Still, real-world considerations usually make it impossible to achieve perfect justice — and the Credit Suisse case has gray areas.

In some respects, it was just as much a fight between the American and Swiss governments as a battle between Credit Suisse and United States law enforcement authorities. The Justice Department wanted Credit Suisse to provide the names of clients who were potential tax evaders, but the Swiss government did not grant an exemption to Swiss law that in theory would have allowed the bank to do that. The Justice Department nevertheless pressed ahead with its criminal case against the bank.

Read More Credit Suisse CEO pressured to resign in tax probe

But the issue of the client names wasn't the only reason the Justice Department pursued a criminal conviction. Its statement of facts laid out areas unrelated to the names in which Credit Suisse's management could have been more cooperative.

The bank did not retain certain documents, it failed to interview potentially culpable bankers before they left the firm, and it did not start an internal inquiry until 2011, which was many months after the American authorities began to step up their scrutiny of Swiss banks for tax evasion.

"Among other things, prosecutors are required to consider the company's compliance program and the quality of its cooperation in determining how to proceed," Daniel W. Levy, a principal at the law firm McKool Smith, said. "Here, the government thought that Credit Suisse's compliance program and cooperation were subpar."

Given the lackluster cooperation, the American authorities may have had grounds to demand tougher punishments than they did. And if they had threatened, or applied, stricter actions, they might have been able to get the names of the potential tax evaders, possibly allowing them to solve the underlying crimes, which is one aim of good justice.

If Credit Suisse suffers no real business consequences as a result of its conviction, banking regulators may have to get creative and devise more painful sanctions that are not life-threatening.

Read More Holder's bank warning sparks caution, criticism

A tough-but-not-fatal measure may soon emerge from the office of Benjamin M. Lawsky, the New York State superintendent of financial services. The agency is preparing to accept a guilty plea from the French bank BNP Paribas for suspected sanctions violations. In that case, Mr. Lawsky might decide to temporarily suspend the bank's ability to transfer money through New York for foreign customers. That would most likely hurt, depending on its terms, but it would almost certainly not prove fatal.

Another partial punishment might be to temporarily ban a Wall Street firm from trading with the Federal Reserve. Banks that have this special role are called primary dealers, and trade mostly in government bonds with the Federal Reserve Bank of New York as part of the Fed's efforts to manage monetary policy.

According to its operating policy, the New York Fed "expects a primary dealer to maintain a robust compliance program, including procedures to identify and mitigate legal, regulatory, financial, and reputational risks." These are the sorts of risks that Credit Suisse failed to manage properly in the tax evasion case.

Read More European bank CEO pay surges in 2013

The Credit Suisse subsidiary that is a primary dealer remains in that role.

"We considered this matter and decided, in light of all the facts and consistent with the standards set out in our operating policy for primary dealers, to continue the counterparty relationship," a New York Fed official said. "It is important to note that regulators made the collective decision to allow the firm and its subsidiaries to continue its operations, including in the markets in which we transact."

—By Peter Eavis, The New York Times

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