COLUMN-Case against Bear and JPMorgan provides little cheer

(Bethany McLean is a Reuters columnist but her opinions are her own)

By Bethany McLean

NEW YORK, Oct 10 (Reuters) - Last week, New York Attorney General Eric Schneiderman, who is the co-chairman of the Residential Mortgage-Backed Securities Working Group - which President Obama formed earlier this year to investigate who was responsible for the misconduct that led to the financial crisis - filed a complaint against JPMorgan Chase.

The complaint, which seeks an unspecified amount in damages (but says that investors lost $22.5 billion), alleges widespread wrongdoing at Bear Stearns in the run-up to the financial crisis. JPMorgan Chase, of course, acquired Bear in 2008.

Apparently, this is just the beginning of a Schneiderman onslaught.

"We do expect this to be a matter of very significant liability, and there are others to come that will also reflect the same quantum of damages," Schneiderman said in an interview with Bloomberg Television. "We're looking at tens of billions of dollars, not just by one institution, but by quite a few."

The prevailing opinion seems to be, Yay! Someone is finally making, or at least trying to make, the banks pay for their sins. But while there is one big positive to the complaint, overall I don't think there's any reason to cheer.

Schneiderman's case clearly lays out the alleged bad behavior at the old Bear Stearns. Although Bear promised investors it was doing due diligence on the mortgages it purchased, it wasn't. Defendants "systematically failed to fully evaluate the loans, largely ignored the defects that their limited review did uncover, and kept investors in the dark about both the inadequacy of their review procedures and the defects in the underlying loans," alleges the complaint.

Even worse, Bear would make deals with the sellers of mortgages in which it would force them to make a payment for failed mortgages, but instead of taking the bad loan out of the trust, Bear would just keep the money - even though both Bear's lawyers and its accountants (this is truly stunning), according to Schneiderman's case, warned them that wasn't OK.

The complaint shows just how complicit the Bear bankers were in the proliferation of bad loans that almost took down the economy, and that alone makes it valuable. "He's finally telling the story so that people can understand the depth and magnitude of what went on," says Eliot Spitzer, who had Schneiderman's job after the dot-com bust.

But beyond that, there's not much to applaud. The biggest flaw is that Schneiderman decided not to name any individuals, a practice that is sadly all too common in financial fraud cases. The New York Times argued that it's a strength that the case doesn't focus on individuals and specifics, and instead alleges a broad pattern of fraud. But naming names is powerful. Anonymity is weak, and that is amplified when the generalized wrongdoing allegedly occurred at a now-defunct bank. In addition, the lack of names is weird. How could the actions alleged in the complaint have been accomplished if real people didn't do them?

Schneiderman's office also brought charges under a specific New York State law called the Martin Act. The Martin Act doesn't require prosecutors to show that the defendants intended to commit fraud. This seems ridiculous. If Bear employees committed the acts detailed in the complaint, especially pocketing money that should have gone into investors' pockets, against the warnings of lawyers and accountants, how can they have intended anything other than fraud?

Which, of course, raises a few other questions. Chief among them: Why haven't Justice Department investigators brought criminal charges, and why hasn't the Securities and Exchange Commission even brought civil charges? Technically speaking, both are also members of the Residential Mortgage-Backed Securities Working Group, but both also have been conducting their own investigations since the crisis hit. The answer cannot be that Schneiderman discovered something new.

JPMorgan has complained that his suit relies on "recycled claims already made by private plaintiffs" and, well, it does. The notion that investment banks were knowingly putting bad loans into securitizations has been public knowledge since the fall of 2010. That was when executives from a company called Clayton Holdings, which was retained by many of the big banks to do due diligence on the mortgages they were buying, told the Financial Crisis Inquiry Commission that Wall Street knew that almost one-third of the mortgages they were securitizing didn't meet their own standards. Spitzer wrote a column for Slate calling the documents the "Rosetta stone" because he thought they provided such a clear road map for investigators. That's not all. Schneiderman's predecessor, Andrew Cuomo, actually entered into a cooperation agreement with Clayton back in 2008! Did it really take over four years to put together a complaint that doesn't even name real people?

As for the part about Bear pocketing money that should have gone to investors, that's been well known since at least early 2011, when Teri Buhl did an in-depth piece for the Atlantic on a lawsuit that bond insurer Ambac filed against JPMorgan in 2008, which was unsealed in early 2011. Buhl wrote that Bear traders were "pocketing cash that should have gone to securities holders." And the Ambac lawsuit named names!

In other words, everyone has had plenty of time.

So there are a couple of possibilities. One is that Justice and/or the SEC will follow up with their own charges now that Schneiderman has laid the groundwork. Maybe. But that doesn't make a lot of sense given the widespread availability of the information in his lawsuit and the length of time that has passed since the financial crisis. It's an old saw in legal circles that the more time goes by, the harder it is to file criminal charges. By now, it will feel strange if the Justice Department yanks four people who worked at the old Bear and in effect says: "You and only you are going to take the fall for the entire financial crisis!"

Another possibility is that those who say that federal agencies simply don't have the appetite to pursue the banks are right. Whether that's because they lack the resources and the political will, or because bringing criminal charges against individuals would inexorably lead up the chain to the institution, which would destroy it, and no one wants to see that happen, it doesn't much matter. If Schneiderman's lawsuit is the best we can manage under those constraints, then that's a tragedy.

A third possibility is that there's more nuance to what happened than Schneiderman's suit allows. (JPMorgan, for its part, has said it will contest the charges.) Some would still say that's all right, because if there are 50 shades of bad behavior, this is clearly one of them; so even if it's not the darkest, let's make the bankers pay up. The problem is that it's not the bankers who will pay. It's not the individuals who did these awful things, or former Bear Stearns executives who may have sanctioned it knowingly or unknowingly, or even current JPMorgan executives who will pay the big fine that will likely be the end result of all this. It's JPMorgan's current shareholders, which include mutual funds like indexers Vanguard and Wellington. In other words, we, the American investor class, are the ones who are going to pay. And if Schneiderman does indeed apply this same method to other banks, well, then we'll pay even more. I fail to understand why this is justice, or why this will do anything to dissuade bad behavior in the future.

I'm also bothered by what happened after Schneiderman filed his suit. First, JPMorgan Chase raised a stink, because in the minds of many JPMorgan executives, they performed a public service by purchasing Bear and have already paid enough for its misdeeds. Maybe it's not fair to blame Schneiderman's office for responding with a press release trumpeting the myriad ways in which JPMorgan Chase benefited from government assistance. But whether you love or hate the big banks, the alleged wrongdoing that happened at Bear has nothing to do with whether or not JPMorgan Chase benefited from government help. The punishment the bank should face for any misdeeds should be purely a matter of law, not public opinion about the bank bailout. Otherwise, we risk bastardizing the law.

Finally, I worry that this is all a classic "watch the birdie" exercise: Hey, folks, look over here at this facsimile of justice! Making the big banks pay somehow sure feels good, and if you don't look too closely, it may even distract you from the big questions. Namely, what should a financial institution that serves the needs of businesses and consumers-instead of one that uses us as fodder for its own profits and executive bonuses - look like? And how do we get from here to there? Instead, we're going to pay up, and in exchange, get business as usual. That's not a good deal.

(Bethany McLean)