Why Is The S.E.C. Concealing Massive Citigroup Fraud?
Citigroup, the most insolvent bank ever to foul the earth, is being protected by the S.E.C.
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What is the SEC hiding? And Why?
By John Titus, creator of the new documentary, Bailout.
Part One
William Cohan of Bloomberg wrote a curious story, "Why does the SEC protect banks’ dirty secrets?"
It's a really good question.
Standing alone, however, Cohan's article is just another electric tile in a giant mosaic that flashes intermittently in a news cycle, briefly illuminating another piston or grommet in the Wall Street-Washington corruption machine before fading without impact.
But when coupled with other evidence, Cohan's piece, concerning the S.E.C.'s wholesale expungement of information from Citigroup documents in response to a Freedom of Inforation Act (FOIA) request, leads to what looks very much like a criminal conspiracy by Citigroup executives, up to and including Robert Rubin, to defraud the company's investor-clients on a scale that is nothing short of colossal.
In this light, the S.E.C.'s concealment effort on behalf of Citigroup--not its first, as we shall see--poses issues about the exact nature of the S.E.C.'s role with respect to financial crime, because neither "regulator" nor "crime fighter" applies under any reasonable interpretation of the evidence.
The questions raised here are both fair and viable. They’re fair because the S.E.C. elected to make a mockery of both the law it's supposed to follow and the public it's supposed to serve by redacting in their totality documents sought under the FOIA, leaving the inference of criminality to waft plume-like through its own stench. They’re viable because while the statute of limitations for criminal fraud may have run, the statute of limitations for conspiracy to commit fraud—a crime whose very essence, secrecy, precludes the statute from running in the first place—presents no such legal obstacle.
Part One examines the available evidence, which includes Cohan's article, the congressional testimony of former Citigroup risk officer Richard Bowen, and a lawsuit against Citigroup that the S.E.C. filed and immediately tried to settle--unsuccessfully--a year ago. Along the way, we'll see just how pernicious bailouts are to a functioning democracy.
Part Two will explore the potential ramifications of the S.E.C.'s failure to sweep its suit against Citigroup under the rug. The S.E.C.'s failure was due, almost laughably, to the random assignment of its case to Judge Jed Rakoff, a jurist whose revulsion at the S.E.C.'s corruption, already legendary, may well carry everyone involved into unchartered territory.
Cohan's Article About The S.E.C.'s Response to FOIA Requests Involving Citigroup Mortgages
Cohan’s particular focus was on documents that the S.E.C. produced relating to congressional testimony given by Richard Bowen. Bowen is the former Citi risk officer who told the Financial Crisis Inquiry Commission, among other things, that Citi sold MBS products despite knowing—based on information that Bowen provided to the top ranks of the company, including ex-CEO Robert Rubin himself—that huge swaths of mortgages owned by Citi were defective to the tune of between 60 and 80%.
To pursue Bowen’s revelations further, another Bloomberg reporter, Bob Ivry, filed FOIA requests with the S.E.C. seeking documents related to Bowen’s potent disclosures.
What Ivry likely hoped to discover was additional documentary evidence (beyond Bowen’s email to Rubin included with his testimony) that Citigroup officers, including Rubin, had defrauded purchasers of Citi’s MBS products by intentionally selling investments that Citi executives knew to be dogshit. (The term “dogshit” is used in accordance with Citigroup technical parameters for its investment products, which we’ll come to in a minute.)
What Ivry received in response, after a bit of wrangling, was a pile of documents notable only for their extensive redactions, i.e., blacked out content. The S.E.C. contends that the information that it’s concealing on Citi’s behalf qualifies as trade secrets.
The rub here isn’t whether or not the information satisfies the legal criteria for trade secret status. A bit of it probably does while the heft undoubtedly does not. What carries the trade secret assertion into the theater of absurd moral hazard isn't the nature of the information itself, but rather the fact that Citi is able to make the claim at all.
How Bailouts Cover Up Ineptitude and Potential Crime
Citigroup is the most pathetic TBTF bank in business, no mean feat among a herd of behemoths that is deathly ill. Citi exceeds its peers in just about every category you can think of associating with “broke bank” since the crisis began in 2008:
- Citigroup received the most TARP money, $45 billion, tying it with Bank of America as Wall Street's top welfare recipient known at the time
- Citigroup was alone among its peers in having its toxic assets, $306 billion of them, ring-fenced at taxpayers’ expense
- Citigroup received more secret loans from the Federal Reserve--$2.5 trillion—than any other bank, $500 billion more than Morgan Stanley, which Neil Barofsky informs us (via Ben Bernanke) in Bailout (the book, not the film) would have been the next domino to topple in the Fall of 2008
- Citigroup is the only bank that resorted to a reverse stock split, at 1-to-10, to put its share price back over $5, the low watermark for purchase eligibility among many institutional funds
When the crisis hit in 2008, Citigroup should have followed Lehman Brothers—or perhaps led it—into the morgue of corporate obesity. Citigroup posted losses that year of $27.7 billion, more than four times Lehman’s losses before it collapsed into dust during the third quarter, and yet Citi paid out $32.4 billion in compensation—the bulk of it in bonuses after receiving the $45 billion welfare check.
And Citigroup’s figures that year, as pustulent as they appear, in all likelihood mask even deeper rot within the company. Compare Citigroup's valuations of its MBS holdings with those of another sick TBTF firm at the time, Merrill Lynch.
Merrill matched Citi’s loss with a $27.7 billion loss of its own, and its deteriorating corpus had to be kept alive by Hank “The Hammer” Paulson, who shoved it snugly within a warm Bank of America cavity.
Merrill's troubles reltated in no small part to MBS. In July 2008, Merrill sold $31 billion in mortgage-backed securities at 22 cents on the dollar. A 78% discount, while huge, was not at all unusual as the darkling reality of MBS assets materialized before a market that was sobering up after a very long binge. A few months earlier, Citadel had bought MBS at 27 cents on the dollar. And yet in this very market decline, Citi was marking equivalent investments at the imperial rate of 61 cents.
Of course, when Citi was appraising its MBS assets at nearly 3 times as valuable as those of the soon-to-be-ambulance-bound Merrill, and regulators were looking the other way (often at pornography rather than the raging crisis), no one knew that Richard Bowen would come before Congress and testify that Citigroup mortgages were 60% defective in 2006 and 80% defective in 2007, casting further doubt—this time from within the company itself—on Citi’s 61-cent MBS valuation.
Were Citi's incredibly rich valuations the product of accounting fraud? After all, the congressional repeal of mark-to-market accounting rules wouldn't occur until the following year. Or did Citi have some foresight about that event?
Perversely, we don’t know for one simple reason: Citigroup got bailed out. Citigroup is a confirmed zombie, yes, but a corpse it is not. Unlike Lehman Brothers, Citigroup roams the earth as a going business, complete with armies of lawyers who go around willy-nilly asserting preposterous trade secret protection claims to conceal the truth from the very public that's paying them and their rubber-stamping counterparts in the S.E.C.
Lehman Brothers, of course, is not a going concern and thus faces no threat of competitive harm through the disclosure of internal information, including alleged trade secrets. Consequently, the bankruptcy examiner’s 2200-page report came with 1800 pages of attached documents that were wholly unredacted. Thus we see in all their naked glory information such as internal financial projections made to Lehman’s board of directors.
A second and seldom observed consequence of treating Lehman like a real rather than a crony capitalist was the disclosure of information about regulators, including the S.E.C. We learned, for instance, that the government was in many cases fully aware of Lehman’s scams, to wit:
The Examiner questioned Lehman executives and other witnesses about Lehman’s financial health and reporting, [and] a recurrent theme in their responses was that Lehman gave full and complete financial information to Government agencies, and that the Government never raised significant objections or directed that Lehman take any corrective action.
The same governmental complicity, or worse, may be going on within Citigroup, but we don’t know because the government handed Citigroup the ultimate in welfare, a bailout. This opens another can of worms altogether, namely, the motivations behind bailouts. At a minimum they implicate conflicts of interest and may indeed extend to crime. It’s yet another layer in the moral hazard onion, which, as the last four years has demonstrated, is inherently difficult to peel.
This leads us directly back to Cohan’s question: why does the S.E.C. protect Citigroup’s dirty secrets?
Fortunately, we have more to go on than redacted documents that reflect nothing beyond the S.E.C.’s contempt for the law. In particular, there are some extremely suggestive clues in the testimony of Richard Bowen and in the S.E.C.’s own lawsuit against Citigroup.
Bowen’s testimony, taken together with the S.E.C.-Citigroup lawsuit, raises the very grave question of whether Citigroup executives made the conscious decision to defraud investors on a staggering scale, and whether this criminal enterprise has the intentional and ongoing assistance of the S.E.C.
Richard Bowen’s testimony
The parts of Bowen's testimony that are material here are these:
- Bowen was a Senior Vice President and a Chief Underwriter at Citigroup from 2002 through 2005 and was promoted to a Business Chief Underwriter responsible for 220 underwriters doing $90 billion in residential mortgages
- By mid-2006, 60% of Citi’s $50 billion in prime mortgages purchased from 1600 different mortgage companies and sold to Fannie and Freddie and other investors were defective. In 2007, defective prime mortgages rose to 80%
- In 2006, Citi’s residential mortgage volume grew by 40%, and an even bigger increase was expected in 2007
- As part of this expansion, Citi’s Chief Risk Officer (above Bowen) “started changing many of the underwriting decisions from ‘turn down’ to ‘approve'”
- In one $300+ million Merrill Lynch subprime pool, the underwriters turned down 716 mortgages, which the Chief Risk Officer personally changed 260 to approved, and the pool was purchased
- Bowen sent an email to Citigroup CEO Robert Rubin voicing his concerns about the companies’ massive volume of defective mortgages on November 3, 2007
One question that Bowen’s testimony leaves unanswered is this: why did Citigroup, in 2006, start significantly increasing not only the number of mortgages purchased but also the percentage of mortgages that were defective? How could the highest-ranking executives at Citigroup profit from taking on vastly higher volumes of mortgages that they knew were defective?
One compelling answer comes from the S.E.C. case against Citigroup filed last year: they could package them into shitty deals, short them (via CDS), and then dupe customers into buying them. Such a scheme would have appeared at the time to guarantee Citigroup untold riches at both ends, first in fees and later on the winning bet against its own securities. Back then, the credit default swaps orgy at companies like AIG, which sold $3 trillion in protection before collapsing into Tim Geithner's waiting arms, was raging with Caligulean fury.
The S.E.C. Lawsuit Against Citigroup for Selling "Dogshit" MBS
The S.E.C. lawsuit, which involves mortgage-backed securities, revealed from its outset a significant degree of complicity between the agency and the target of its lawsuit, Citigroup. The S.E.C. tried to settle the case, for $285 million, on the same day it filed the complaint. A lot of judges would have been happy to see a complex securities case like that disappear instantly from their docket. The executive committee of each federal district court is on the lookout for laggards, and keeping tabs on bloated dockets is one way they do it.
But alas, in the Southern District of New York there is both a judge with an eye-opening record of hatred for collusion between litigants at the public's expense and a random case assignment system, and on the day the S.E.C. filed suit against Citigroup, October 19, 2011, Lady Luck frowned on the S.E.C. and Citigroup. There are 47 federal district court judges who could have gotten that case. Rolling snake eyes was a more likely event, and with a far better outcome for the S.E.C. and Citigroup, than drawing Judge Jed Rakoff, which is exactly what happened.
One wonders how much time elapsed--if any--between the time the S.E.C.-Citigroup complaint was stamped "Judge Rakoff" and the S.E.C.'s eager posting of the $285 million settlement on its website. In any event, Judge Rakoff was not amused by the parties' patent complicity and turned the proposed settlement into hamburger, which has extended the case by over an entire year beyond its intended 1-day lifespan.
On the merits, the S.E.C.’s lawsuit against Citigroup bears a remarkable resemblance to its Abacus case against Goldman Sachs: the bank created an investment vehicle specifically designed to fail, shorted it, and then sold it on to unsuspecting investors by concealing both pieces of highly material information.
But here the similarities with Goldman end.
What makes the allegations in the S.E.C.-Citigroup complaint so interesting is how perfectly they gibe with Bowen's testimony, not only in terms of their subject matter (securities backed by bad mortgages) and their timing (early 2007), but with how cleanly they supply a motivation to go behind Bowen's observation that Citi ramped up, in a huge way, its purchases of mortgages known to be defective.
Recall that Bowen supplies the evidentiary linkage to none other than Robert Rubin, which in turn supplies Citigroup's internals with far more gravitas than their equivalents at Goldman, limited as the latter were to half-million-dollar-a-year minions with names like "Fab." The Citigroup allegations are devastating in that the accused bank...
- shorted $500 million of collateralized debt obligations on its mortgages (CDO’s) but concealed this fact from investors
- pocketed $160 million by shorting the CDO’s (via credit default swaps), which defaulted just months later, having already collected $34 million in fees
- had experienced CDO traders privately describing the investment portfolio as “a collection of dogshit” and “possibly the best short EVER!” because “the portfolio is horrible”
- didn’t mention that it had selected the securities itself, telling investors only that selection was “based primarily on structural and credit analysis as well as technical factors which may influence trading levels and pricing"
If the S.E.C. had had any say in the matter, the case would have gone away a long time before regular events in lawsuits, such as document production and depositions, could even be scheduled.
It would be interesting to find out, through such discovery mechanisms, whether the Citi deal at issue in the suit, involving as it did the sale of dogshit mortgages (in perfect accordance with Bowen's testimony), was executed pursuant to a plan by Citgroup executives to profit wildly by systematically defrauding its customers by secretly shorting these "investments."
That would explain Citigroup's suddenly insatiable appetite for mortgages known to be defective. It would also explain Citigroup's zeal to hide just about every scrap of information relating to Bowen's testimony under any label, however ridiculous, including "trade secret."
And last but not least, it would supply the grounds for a case of criminal conspiracy to defraud investors on an uprecedented scale, perpetrated by none other than the highest-ranking executives within Citigroup—exactly what the public has demanded, without satisfaction, for a very long time now.
At the same time, given what we know about the S.E.C.’s treatment of Lehman’s accounting practices, it would raise very serious questions about the agency’s motivation, not only for its over-the-top FOIA redactions, but for its extreme haste in trying the make its case against Citigroup go away.
It would take a planet-sized set of balls and a mountain of luck to set in motion the machinery to see a special prosecutor explore whether the S.E.C. has been systematically betraying the public for years. Strange it is then that out of several hundred federal judges, the one with hands-down the best record of fighting Wall Street-Washington graft is presiding over a case that looks like the tip of an iceberg, and that he's doing so at a time when the two most formidable public enemies of American kleptocrats--Alan Grayson and Elizabeth Warren--will return to Washington, D.C. in just a few short weeks under the titles of "Representative" and "Senator."
Eventually the truth about what happened in 2008, and has been going on ever since, will out, just as it did after 1929. We're just waiting for our Pecora.
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John Titus has practiced law in federal courts for more than 15 years.
And buy a copy while you're there.
Photos by William Banzai7...
Feb 6, 2013 at 6:39 PM
Reader Comments (15)
http://www.nysd.uscourts.gov/judge/Rakoff
Judge Rakoff hit the blogosphere in 2009 (I think) with the S.E.C. v. BAC, concerning the fraudulent concealment of Merrill Lynch planned bonuses by BAC executives from their shareholders prior to the proxy vote on the (shotgun) merger.
When I first read Judge Rakoff's opinion from his most recent case, S.E.C. v. Citigroup, I thought it was just rehash; it starts out almost verbatim the same as Rakoff's seminal blast in the BAC case. But alas, Rakoff covers new turf this go-round:
"An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous. The injunctive power of the judiciary is not a free roving remedy to be invoked at the whim of a regulatory agency, even with the consent of the regulated. If its deployment does not rest on facts – cold, hard, solid facts, established either by admissions or by trials – it serves no lawful or moral purpose and is simply an engine of oppression."
"Finally, in any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth. In much of the world, propaganda reigns, and truth is confined to secretive, fearful whispers. Even in our nation, apologists for suppressing or obscuring the truth may always be found. But the S.E.C., of all agencies, has a duty, inherent in its statutory mission, to see that the truth emerges; and if fails to do so, this Court must not, in the name of deference or convenience, grant judicial enforcement to the agency’s contrivances."
THAT is a jurist who takes his Article III duties to heart.
http://www.forbes.com/sites/billsinger/2011/11/29/judge-rakoff-rejects-secs-contrivances-in-citigroup-settlement/
(Posted by Cheyenne in a Citigroup comment for a previous story.)
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The settlement will refund investors with interest and include a $95 million fine - a relative pittance for a giant like Citigroup. On Monday, the company reported that in the third quarter alone it earned profits of $3.8 billion on revenue of $20.8 billion.
Neither the S.E.C. nor the Justice Department would say whether the case raised questions about whether Citigroup had been involved in any criminal wrongdoing.
http://dailybail.com/home/citigroup-pays-285-million-to-settle-sec-mortgage-fraud.html
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BUSTED: Robert Khuzami SEC Enforcement Chief
Khuzami who once promised to be a tough cop on the beat, allegedly broke protocol, held a secret meeting with his good friend - counsel for Citi - then instructed SEC staff to go easy on Crittenden and Arthur Tildesley. The SEC's internal watchdog is reviewing an allegation that Robert Khuzami, the agency’s top enforcement official, gave preferential treatment to Citigroup Inc. executives in the agency’s $75 million settlement with the firm in July.
http://dailybail.com/home/busted-robert-khuzami-sec-enforcement-chief.html
"[I]t was the second quickest CDO deal to fail in history, putting Citigroup in the money on its $500 million short in record time while its investors lost everything."
http://www.huffingtonpost.com/dennis-m-kelleher/are-the-sec-and-citigroup_b_1096270.html
Wow. That's pretty impressive. It's something S.E.C. lawyers, if it had any who bothered to read their oaths, could ask Robert Rubin about in depositions.
Citigroup did all of this on purpose just like Goldman Sachs did with Abacus.
Just like with Goldman, no real thought is being given to charging anyone with a criminal offense, even though this seems like fraud to me, a non-lawyer. The SEC is covering up Richard Bowen's testimony so that no one can find out just how stinking bad the fraud at Citit really was.
And no one cares. None of the Obama sycophants posing as journalists would even dream of asking such a tough question to the main appointed by their lord & savior to head doj.
Am I forgetting anything?
Both the Goldman case and the Citigroup cases filed by the S.E.C. are civil suits--not criminal--and the facts as set forth in each complaint qualify as fraud. Each bank created investments designed to fail, shorted them, then sold them to investors, telling them they were great investments but concealing both the origins of the investments and the fact that each bank stood to profit when the investments blew up in the investors' faces (which in fact they did). Privately, each bank described the investments as excrement (Goldman as "shitty deals" and Citigroup as a "collection of dogshit").
Despite the similarity of the cases, though, the S.E.C.'s approach to the Citi case is quite a bit different than its case against Goldman in that the S.E.C...
(1) didn't charge Citi with fraud at all, only negligence,
(2) didn't require that Citi present any facts to support the propsed settlement, and
(3) didn't fine Citi nearly as much as Goldman. Goldman was fined $550 million on $15 million in illegal profits, while Citi was fined $95 million on $160. I'll cover this in Part 2.
So the big question is, why the hell is the S.E.C. so eager to get out of the case that it's letting Citi off basically scot free? And the answer is, in my opinion, because there's a definite connection in the specific case at issue here and Citi's broader strategy to screw its clients. And that connection is where Bowen's testimony comes in, because it links the limited case here all the way up to ex-CEO Bob Rubin himself.
There's been a lot written about the specific Citi case, to be sure, but the article above is the first to explain why it's just the tip of an enormous iceberg: because Bob Rubin is connected to the specific fraud at issue. Former FDIC chair Sheila Bair says Rubin is Tim Geithner's "mentor and hero." And that just might explain why the S.E.C. wants out of this case so very badly and in the mean time is hiding bodies left and right.
And why folks think the SEC is the savior for the people is beyond me. Is there not ample evidence that the SEC is, at best, mildly incompetent, and at worst (my take), a completely incompetent and almost fully corrupt agency? Madoff anyone?
What did our boy Harry Markopoulus say about the SEC? Over-lawyered, and stocked with political and financial wanna-be's who do not understand the principles of basic finance and really don't care because it's just a stepping stone. Me thinks Harry is dead on...
Imagine: Rubin, former Treasury Sec., the subject of a DOJ fraud investigation? Ain't gonna happen, but we can dream, right?
Only the S.E.C. (not the DOJ) is involved since the matteri is civil. Moreover, and predictably based on everything else the S.E.C. has done, only the name of a low-level employee (in this instance, that of Brian Stoker) has surfaced.
And even by the milque toast standards of the S.E.C., the agency is blatantly pulling its already effeminate punches. The first paragraph of the complaint, for instance, expressly deems Citigroup's behavior a "securities fraud," and yet the counts of the same complaint, where the rubber meets the road, charge Citigroup with negligence only.
http://www.sec.gov/litigation/complaints/2011/comp-pr2011-214.pdf
The standard of proof for negligence (preponderance of the evidence) is lower than for civil fraud (clear and convincing evidence), as you know. And yet the despite voluntarily handicapping its case this way, the S.E.C. is absolutely desperate to get out of the case.
The real question here is why. What is beneath this case--putatively a negligence action, which has the legal force of a slip-and-fall action--that has the S.E.C. and Citigroup so spooked that they're going to the extreme of a mandamus action to get out of it?
Understand that SEC = civil. Tongue-in-cheek comment, although DOJ is absent in all of this, as you know.
What's not funny is that as the days, months and years tick away, memories fade and the cheese-doodle, dancing w/stars public bores, and MSM goes back to covering petty theft (poorly), any meaningful chance of law enforcement goes the way of the dodo...and the biggest theft in American history goes unpunished...
http://dailybail.com/home/attention-federal-prosecutors-did-citigroup-executives-illeg.html
Chuck Prince, Robert Rubin Testimony - VIDEO
This is worth checking out.
By Thomas Friedman
Excerpt:
CITIGROUP is lucky that Muammar el-Qaddafi was killed when he was. The Libyan leader’s death diverted attention from a lethal article involving Citigroup that deserved more attention because it helps to explain why many average Americans have expressed support for the Occupy Wall Street movement. The news was that Citigroup had to pay a $285 million fine to settle a case in which, with one hand, Citibank sold a package of toxic mortgage-backed securities to unsuspecting customers — securities that it knew were likely to go bust — and, with the other hand, shorted the same securities — that is, bet millions of dollars that they would go bust.
http://www.nytimes.com/2011/10/30/opinion/sunday/friedman-did-you-hear-the-one-about-the-bankers.html?_r=1
Is just like having Israel see if they committed War Crimes. Just not going to happen.
Someone has added this story to Vikram Pandit's Wikipedia page. It's now footnote #39.
http://en.wikipedia.org/wiki/Vikram_Pandit#cite_note-39
Congrats