With the Department of Justice announcing its latest multibillion-dollar settlement with a too-big-to-fail bank — Goldman Sachs this time — the question we all must be asking is, "Does this mean that real accountability has finally come to Wall Street?"
Unfortunately, we already know the answer is a clear "no." Too big to fail not only means "too big to jail" but also "too big to punish." Like in previous DOJ settlements, Goldman's appeared to be carefully crafted to look meaningful without actually imposing significant accountability. The $5 billion payment sounds big, but that figure is the equivalent of pennies for Goldman, no more than the regular cost of doing business on Wall Street.
Three fundamental problems plague DOJ's approach. First, the multi-billion-dollar payments are as misleading as teaser-rate mortgages. For all of Goldman's predatory activities covered by this deal — its peddling of toxic assets to unsuspecting investors from 2005 to 2007 — what was Goldman's profit? What were the investors' losses? The settlement documents contain no such details, let alone any admissions, so no one can say whether the punishment fits the crime. What we do know is that Goldman reported net revenues of $37.7 billion and net earnings of $9.5 billion in 2006 alone, just one year in the scheme described. This settlement, like the others before it, appears woefully insufficient to effect real change.
Second, who is paying? Today's shareholders; they might have benefited from Goldman's dealings but they certainly did not commit the company's fraud. Who else pays? Once again, the taxpayer. More than half of Goldman's deal, $2.675 billion, comprises "cash payments" of $875 million and "consumer relief" of $1.8 billion, which are all tax-deductible expenses. Less than half of the total settlement, $2.385 billion, is a civil penalty that Goldman cannot write off. If Goldman were to pay the nominal 39% total corporate tax rate on $2.675 billion, Goldman would save — and taxpayers would lose — more than $1 billion.
Third and most importantly, once again not a single responsible individual at Goldman is even named, let alone held accountable. It's as if the bank buildings were unoccupied when the building itself committed the crimes. Can a company break the law without any individual breaking the law? Phil Angelides, chair of the Financial Crisis Inquiry Commission, aptly describes this logical impossibility as "immaculate corruption." Corporate misconduct and crime will not be deterred until executives and supervisors are held personally accountable.
DOJ recently announced with much fanfare that this pattern of deficient settlements with Wall Street's biggest banks would change. Last September, DOJ released the much-discussed "Yates Memo" — from Deputy Attorney General Sally Quillian Yates — which claimed the DOJ was moving away from merely fining shareholders and toward holding culpable individuals accountable. Yet this Goldman settlement flouts the Yates Memo by failing to identify, much less hold accountable, any individual who broke the law. They are merely anonymous members of a committee. Are these executives too big to name?
The Goldman settlement is just the latest example of DOJ's disappointing practice of "accountability theater" for financial companies whose fraud and illegal conduct wrecked our economy. By one estimate, financial institutions have paid out more than $190 billion in settlements since the crisis. Much of this resulted from suits brought by defrauded market participants, in which the settlement payments may be deducted from a bank's taxes. A very small portion comprises nondeductible civil penalties imposed by the government, like the $2.385 billion Goldman agreed to pay.
It is long past time for real accountability. Thankfully, there is still time. The statute of limitations for mail and wire fraud that affects financial institutions is 10 years, so DOJ can still prosecute the rampant fraud that financial titans committed before the crisis. While criminal prosecutions are surely merited, even serious civil penalties would dramatically deter those who would cause the next crisis. The real victims of the financial crash, the American public and taxpayers, deserve no less than real accountability — on both Wall Street and the DOJ.
But the current practice of insincere settlements exemplified by the Goldman settlement does not punish or deter lawbreaking. It is just more of the same wrist-slapping. DOJ checked the Goldman box with a big-number headline, but the public still loses. This is kabuki justice that still leaves a dangerous industry culture and individuals responsible for the malfeasance in place and leaves the public vulnerable to the next crash.
Dennis Kelleher is the president and CEO of Better Markets. Austin King is an attorney with Better Markets.