Thursday, October 30, 2014
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Financial Regulators’ Fine Mess

WASHINGTON, DC – When an athlete breaks the rules, it is easy to figure out whether the relevant disciplinary body really wants to discourage repeat offenses. Suspending a player from the sport – as happens in soccer in the case of dangerous fouls – is a real punishment, not only for the individual but also for the team.

Consider the case of Michael Clarke, the captain of the Australian cricket team, who recently threatened bodily harm to an opposing player. Despite public hand-wringing, Cricket Australia (the governing body) imposed only a small fine (that is, small relative to Clarke’s annual salary). Whether or not this was appropriate, Cricket Australia was making it clear that such behavior merited only a symbolic punishment.

The recent $13 billion settlement between the US Department of Justice and JPMorgan Chase (JPM), one of the world’s largest international banks, should be viewed the same way. To the uninitiated, the fine appears significant (which explains all the attention-grabbing headlines), and it certainly has made America’s financial regulators look busy and serious. But, just like Cricket Australia, the message is clear: There will be no change to business as usual.

JPM was accused of a wide range of illegal activities, including misrepresenting securities to investors and much more. Better Markets, a pro-financial-reform group, points out that what we know about the settlement suggests that it is largely meaningless. As Dennis Kelleher, head of Better Markets, put it,

“Rather than throwing the book at [JPM] and its executives, the Department of Justice called off a press conference and stopped a lawsuit because the bank’s high profile, politically-connected CEO, Jamie Dimon, personally called the Attorney General and asked him to do so.”

The way in which the settlement was worked out should also give us pause – with Dimon having direct access to US Attorney General Eric Holder, America’s top law-enforcement official. “Few if any Americans have the ability to even get the AG on the phone,” Kelleher reminds us, “much less the power to get him to stop him from filing a lawsuit that would have revealed to the public the details of JPMorgan’s alleged illegal conduct.”

As a result, we will not learn exactly what was alleged in the case against JPM, including the evidence used. The level of public scrutiny and concern will subside.

But at least JPM must pay a high price to make the entire matter disappear, right? Well, no. A $13 billion “fine” for a company the size of JPM is about as painful as Clarke’s fine is for him – not painful at all. Clarke earns about $6 million (Australian dollars) per year; in addition to an annual retainer, he receives a $14,000 match fee for every international test match, along with other tour fees and bonuses. He was fined 20% of the international match fee ($2,800), or about 0.05% of his annual salary. For anyone with an annual income of $50,000 (which is close to the median for US households), this would be equivalent to a fine of $25.

JPM has a total balance sheet of around $4 trillion, measured using international accounting standards. As management told shareholders after the settlement was announced, “the Firm is appropriately reserved for all of these matters,” meaning that there would be no material impact on earnings. And, predictably, “the Firm did not admit any violations of law.”

In fact, while Clark’s paltry fine presumably at least comes out of his own pocket, the penalty levied on JPM is to be paid largely by its shareholders. And, because there is no market for corporate control over megabanks (because protections provided by regulators prevent hostile takeovers or effective shareholder activism), frustration on the part of JPM’s investors cannot result in a change of management.

But, again, JPM’s shareholders have little cause for concern. Marianne Lake, JP Morgan’s chief financial officer, has suggested that about $7 billion of the fine is likely to be tax deductible, that is, treated as a form of necessary and usual business expense. The bank was taxed at an effective rate of 31.3% in the first nine months of 2013, according to the Wall Street Journal, implying a tax break worth around $2.2 billion (which could end up higher).

While JPM is now off the hook, holding individual employees personally accountable for their behavior is still an option. But no one should hold their breath. The chances that anyone will be suspended from the industry are minimal, and the impact on management is likely to be nil.

Kelleher sent a forceful letter to Holder, urging full disclosure of all relevant details in the case – and there are many. Americans owe it to themselves to read it and recommend it to their elected representatives. Kelleher concludes, “Equal justice for all without fear or favor is the bedrock of our democracy and, indeed, our country.” Unfortunately, the Department of Justice still seems to believe that very large companies deserve special access and special treatment.

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  1. CommentedJames Goodman

    To enforce the rules equitably you need government that is hard but fair, and tough enough to also manage the big dogs. Apparently this not the case with the US Justice Department... preferential treatment and plutocracy go hand in hand.

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