A Lawsuit that Challenges the Unfairness of Bailouts

When Attorney General Eric Holder announced he was stepping down, his critics were all over him for his record of zero prosecutions of big bank CEOs in connection with the fraud-infested financial crisis.

Among the critics was TV journalist Bill Moyers who said, “Attorney General Eric Holder’s resignation last week reminds us of an infuriating fact: No banking executives have been criminally prosecuted for their role in causing the biggest financial disaster since the Great Depression.”

His recent article carried the subhead “Too Big To Jail,” a subhead I also used in my book The Crime of Our Time on the crisis in 2010. Many have been writing about the sell-out to the banks by the Obama Administration for years.

Perhaps the most rigorous critic that Moyers interviewed, and I quoted then, was former Bank Regulator Bill Black who puts the blame where it deserves: At the top.

Bill Black gives one of his best recaps ever of the “too big to jail” syndrome on Bill Moyers. For readers who missed the story, Black gave critical testimony in a Federal prosecution of small fry mortgage fraudsters. He helped persuade the jury that in fact no fraud took place because the banks were willing to underwrite any predatory, poorly underwritten loan in the run-up to the crisis. Black savages the posture of the Department of Justice in this case and in general:

WILLIAM K. BLACK: Yeah, the saying in the savings and loan debacle is you never wanted to be the guy that was chasing mice while lions roamed the campsite. So the mice are these alleged tiny frauds type of thing, where they ignore the lions, who are the CEOs of the banks and such.

BILL MOYERS: And the jury said, no, it’s the lions.


BILL MOYERS: Not the mice.

WILLIAM K. BLACK: Yes. So this is a crisis created by the lenders. …We want them to prosecute but prosecute the lions and stop this nonsense.”

There were journalists like John Cassidy in the New Yorker and, of course financial executives, who defended the banksters by arguing that they made mistakes but not criminal ones, e.g., “The bankers got caught up in the bubble and did things—such as package together junky mortgages and market them to investors as triple-A securities—that in retrospect look suspiciously like deliberate fraud, but at the time appeared to be profitable and above-board ventures. The bankers were greedy, self-serving, imprudent, and negligent. In most cases, though, there was no active intent to defraud—or, at least, not one that could be demonstrated in a court of law.”

Today, many who have studied this sordid story more closely see rationalization and avoidance, a lack of courage at one extreme, and total complicity at another. They also see that the government has since won massive financial settlements from the banks in lieu of prosecutions or admissions of guilt. These were deals that banks could write off as an expense of doing business that ran into the billions and also keep the Treasury going.

They worked with the banks in a mutual admiration society, not against them. Wall Street was one of President Obama’s biggest funders.

Now, a new bank scandal is emerging that may allow Holder and his successors to finally find someone to make an example of, and put behind bars for the sins of the industry, and not just for insider trading.

The Times reports, “The Justice Department is preparing a fresh round of attacks on the world’s biggest banks, again questioning Wall Street’s role in a broad array of financial markets.

With evidence mounting that a number of foreign and American banks colluded to alter the price of foreign currencies, the largest and least regulated financial market, prosecutors are aiming to file charges against at least one bank by the end of the year, according to interviews with lawyers briefed on the matter. Ultimately, several banks are expected to plead guilty.”

At the same time, a bizarre law case has surfaced involving AIG, the big reinsurance company, that was bailed out by the government, and also blamed for bringing down the economy.

Former AIG CEO, Maurice “Hank” Greenberg is charging the government was unfair, unduly punitive and used its money improperly to benefit banks like Goldman Sachs who were paid off at 100% while AIG was charged onerous interest rates.

Sometimes the dirtiest of details only come out when one gang of banksters sues another.

For the most part, NY Times analysts are dismissive of the suit—because, its facts call their reporting into question.

AP reports, Greenberg’s firm, “Starr claims the assumption of AIG stock by the Federal Reserve Bank of New York in exchange for the $85 billion loan amounted to an unconstitutional “taking” of private property. Starr was AIG’s largest shareholder when the financial crisis struck.

Starr contends that the Fed didn’t have the legal right to demand the surrender of equity in exchange for a bailout.”

Not surprisingly, the N.Y. Times puts government practices in a brighter light, reporting “Federal officials contend that they acted lawfully, and that A.I.G.’s rescue should leave shareholders grateful for the $182 billion from taxpayers. The government took an eventual 92 percent stake in A.I.G. It contends that not only was the company saved, but also that a healthy profit was returned to the public coffers and shareholders’ pockets.”

Greenberg’s super-lawyer David Bois who represented CBS years back in its suit with Vietnam General Westmoreland (he won), and Al Gore Against George W. Bush (he lost) is pounding away at government officials. He got former Treasury Secretary Henry Paulson to admit that harsh terms against AIG were intended to “quiet outrage.”

“They charged an extortion rate,” Boies said in his opening statement in the U.S. Court of Federal Claims. “They tried to demonize AIG and suggest somehow that AIG was a poster child for problems during the financial crisis.”

Bloomberg reported, “Hank Greenberg’s lawyer continued to hammer a Federal Reserve official on Tuesday about its 2008 bailout of AIG — zeroing in on some Fed e-mails allegedly casting doubt on the Central Bank’s authority to undertake such a rescue.

David Boies, during Day 2 of the trial here pitting Greenberg and other AIG shareholders against the federal government, peppered Scott Alvarez, the Fed’s general counsel, about e-mails he and his colleagues wrote that said the Central Bank didn’t have the authority to purchase the 79.9 percent stake in AIG that it did.

Greenberg claims the $182 billion bailout included “extortionate” interest rates, was carried out against Fed policy, unjustly singled out AIG for harsh treatment and violated the Constitution.

The suit seeks to claw back $40 billion in value taken by the Fed and regulators.

Boies argued that the preferred stock agreement the New York Fed put together wasn’t authorized because the Fed board didn’t specifically approve it.”

It’s rare to see this kind of legal fireworks, but when big money is stake, details we never knew tend to surface.

The Wall Street Journal reported, “Greenberg, who built AIG into the world’s biggest insurer before leaving in 2005, claims the government should have provided at least $25 billion in compensation. He argues that banks including Morgan Stanley and Citigroup Inc. got bailout loans at rates of less than 4 percent without surrendering shares while AIG was charged 14 percent.”

Pricey law suits force evidence into the public domain, and so we learn that a bailout intended to bolster confidence in the system by punishing so–called wrong doers can also, in the words of the Times ‘deal expert,’ “push money into the hands of Goldman Sachs, Deutsche Bank, Societe Generale and the dozens of other banks that were the beneficiaries. That was never going to win a popularity contest but that was the effect of the assistance to AIG. And that was the point.”

Years earlier, it was Karl Marx who said of Capitalism, “the point” is to change it. This case offers fresh details of how firms engaged in financial crimes benefited and the people who were ripped off did not.

News Dissector Danny Schechter wrote three books and made two films about the financial crisis. He blogs at newsdissector.net and editsMediachannel.org. Comments to dissector@mediachannel.org.

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