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What Robert Mueller Learned From Investigating Enron

Reprinted with permission from ProPublica.

This story was co-published with The New York Times.

It seems safe to assume that nobody read Donald Trump Jr.’s damning emails with a Kremlin-connected lawyer more closely than Robert Mueller.

Mueller, the special counsel investigating possible ties between the Trump campaign and Russian officials, will surely be making calls to everyone involved in the now infamous meeting, including the president’s son; the president’s son-in-law, Jared Kushner; and his campaign chairman at the time, Paul Manafort.

As he does, the question is whether Mueller will be able to build a case that goes all the way to the top.

That could depend on what lessons he learned from overseeing the task force that investigated one of the biggest fraud cases in American history: the collapse of the energy giant Enron.

In December 2001, Enron filed what was then the largest corporate bankruptcy in American history. Just weeks later, Mueller, then the FBI director; Deputy Attorney General Larry Thompson; and the assistant attorney general for the criminal division, Michael Chertoff, formed the Enron Task Force, an elite team of FBI agents and federal prosecutors assigned to investigate and prosecute crimes related to the Houston-based energy trader. Andrew Weissmann, who recently joined Mueller’s Russia team, later led the task force.

The Enron team was patient and learned from its investigative and trial mistakes. After its yearslong run, it set a high-water mark for complex, high-profile financial inquiries, successfully indicting and imprisoning almost all of the company’s top executives.

Early on, the Enron team also won a jury conviction of the Arthur Andersen accounting firm, Enron’s auditor, on an obstruction-of-justice charge. That experience could prove valuable as the Russia team investigates — among many possible routes — whether President Trump obstructed justice when he fired James Comey, the FBI director.

Prosecuting the Enron executives went slowly. Not until 2006 did a jury find the former chief executive, Jeffrey K. Skilling, and the former chairman and chief executive, Kenneth L. Lay, guilty. (Lay died before sentencing.)

The frauds Enron was accused of were audacious. The company had hidden debt in a complex web of off-the-books companies and had faked its profits. Yet prosecutorial success was not inevitable. Skilling and Lay pleaded ignorance, blaming lower-level employees and arguing they had relied on the advice of their attorneys and auditors. The government did not have damning emails or wiretap evidence from either man. Prosecutors may face a similar challenge with Trump, who tweets but reportedly does not use email.

The Enron team got off to an auspicious start, with the Department of Justice providing adequate prosecutorial resources. Mueller helped recruit talented prosecutors and investigators from around the county and then got out of their way.

He and other top Justice Department officials then gave their team political cover. Enron and its executives were particularly close to the Bush family and top Republican officials. Early on, the team interviewed White House officials about their recollections. Republican political operatives voiced displeasure, but the team persisted.

The task force conducted its investigations effectively, flipping lower-level employees to build cases against the top bad actors. The Enron team made aggressive and risky moves. For example, it shocked Houston high society by charging the wife of Andrew Fastow, the chief financial officer, with tax evasion to put pressure on him. It worked. Fastow began to cooperate with the government. (His wife pleaded guilty.) Every prosecutor knows this strategy works, but for various reasons today, few put in the painstaking work needed to penetrate the sophisticated legal defenses of highly paid executives.

As it proceeded, the task force weathered relentless attacks. First, critics charged it was moving too slowly. Later, white-collar defense lawyers accused the team of intimidating witnesses and overzealously charging executives. The legal establishment particularly criticized the prosecution of Arthur Andersen. The government won at trial in 2002, but the Supreme Court overturned the verdict three years later on a narrow issue involving jury instructions.

Despite its successes, the Enron Task Force emerged with a mixed legacy thanks to its trial losses and reversals from higher courts. Among them, the Supreme Court reversed part of the Skilling verdict.

Today, many Justice Department officials have learned the wrong lessons from the Enron experience, accepting the idea that the task force was overzealous. Even Democratic appointees like Mary Jo White, President Obama’s chairwoman of the Securities and Exchange Commission, and Lanny Breuer, his assistant attorney general for the criminal division, came to believe the prosecution of Andersen had been a mistake.

Drawing the wrong lessons has consequences. In subsequent years, the Justice Department did not assign prosecutors to work solely on financial crisis cases. While the Bush Justice Department had acted quickly to create the Enron Task Force, the Obama department allowed plans to create a similar task force, after the banking collapse of 2008, to die amid bureaucratic infighting.

It was no surprise, then, that the Justice Department never put any top bankers from the biggest banks in prison after the financial crisis. Forgetting what went right with the Enron prosecutions has contributed to a problem that still plagues the Justice Department: It has lost the will and ability to prosecute top corporate executives from the largest corporations.

Today Mueller’s team is operating in an even hotter kitchen than the Enron Task Force did. The president has repeatedly called the investigation “a witch hunt,” and rumors abound that he could fire Mueller any day. A Trump ally, former House Speaker Newt Gingrich, has grumbled conspiratorially that the former FBI director was the “tip of the deep state spear” aimed at the president.

But the Enron Task Force may have given Mueller a hide thick enough to protect him from those attacks. More than that, Enron honed skills he’ll need now in the Russia investigation, which may well touch on money laundering, secrecy havens, complex accounting maneuvers, campaign finance violations — and multiple lies.

As I talked with Mueller’s former Enron Task Force colleagues in recent weeks, it became clear to me that he believes the Enron team was successful — and understands why. That means his special counsel team will probably move more slowly than people anticipate. But it might also shock people with its aggressive investigative and prosecutorial tactics. If Trump and his advisers committed crimes, Mueller will find them.

Jesse Eisinger is the author of The Chickenshit Club: Why the Justice Department Fails to Prosecute Executives.

A Federal Regulator Is Probing Wells Fargo’s Mortgage Practices

Reprinted with permission from ProPublica.
by Jesse Eisinger

The Consumer Financial Protection Bureau is conducting an investigation into alleged improprieties in Wells Fargo’s mortgage fee practices.

The CFPB is looking into allegations, first reported by ProPublica in January, that the bank inappropriately charged customers fees to extend their promised interest rates when their paperwork was delayed. The CFPB probe is in its early stages, according to a person familiar with it, and there is no certainty that the agency will take action. The CFPB has the power to levy fines and seek restitution if it finds a financial firm has violated the law. A CFPB spokesperson declined to comment.

Wells Fargo is also conducting its own internal review, overseen by the law firm Winston & Strawn. The inquiry was initially limited to the Los Angeles area, but has since widened. In a sign of its escalating scope and seriousness, Wells Fargo let three top mortgages executives go last week, including Greg Gwizdz, a 25-year veteran of the bank who most recently was the head of its retail sales division. Gwizdz oversaw the bank’s more than 7,900 loan officers.

The bank also dismissed Drew Collins, the manager of the Pacific division, and Sandy Streator, the regional sales manager for Nevada and Oregon. Previously the bank parted ways with Tom Swanson, the Los Angeles County regional sales manager. Gwizdz, Collins and Streator did not respond to requests for comment.

The decision to let the executives go was a result of “some of the things we found as part of” the internal review, said bank spokesman Tom Goyda, though he added that “no single issue or situation” led to the departures. Goyda declined to comment on the CFPB probe.

ProPublica reported Wells Fargo mortgages routinely bogged down in paperwork delays. When that occurred, supervisors instructed loan officers to blame and charge the customers, even when the problems were the fault of the bank, according to current and former Wells Fargo employees. Customers were charged fees of $1,000 to $1,500 or more, depending on the size of the loan, to extend, or lock in, their interest rates. The practice of shunting the fees onto the customers was particularly common in the Los Angeles County and Oregon regions.

In Oregon, part of Streator’s territory as regional sales manager, two former loan officers and one former branch officer told ProPublica in February they were instructed to charge customers for mortgage lock extensions even when the bank was responsible. The former branch officer estimated that in 2015 and 2016 he oversaw 350 mortgages that needed lock extensions. He said the bank only paid the fee twice.

Wells has been reshuffling management elsewhere within the organization as part of the fallout into an earlier and separate scandal. Last September, the bank was fined $185 million for illegally opening as many as 2 million deposit and credit card accounts without customers’ knowledge. In February, it fired four senior managers connected to that wrongdoing.

In April, the board of directors issued a report excoriating the bank’s top-level management for its high-pressure sales culture.

The CFPB probe comes at a time when the 6-year-old agency’s own future is uncertain under the Trump administration. Banks, financial firms and the Republican Party have opposed the agency and its sweeping powers to oversee consumer finance. Consumer advocates and the CFPB’s adversaries await a decision from the U.S. Court of Appeals for the District of Columbia about the constitutionality of the agency. Adding to the uncertainty, Richard Cordray, the director of the agency, is expected to be leaving his post sometime this summer, though his term does not expire until July 2018.

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Why Deutsche Bank Remains Trump’s Biggest Conflict Of Interest

Reprinted with permission from ProPublica.

If you measure President Donald Trump’s conflicts of interest by the amount of money at stake, or the variety of dicey interactions with government regulators, one dwarfs any other: his relationship with Deutsche Bank.

In recent weeks, Deutsche Bank has scrambled to reach agreements with American regulators over a host of alleged misdeeds. But because the president has not sold his company, the bank remains a central arena for potential conflicts between his family’s business interests and the actions of officials in his administration.

“Deutsche poses the biggest conflict that we know about in terms of dollar amounts and the scale of legal exposures,” says Brandon Garrett, a University of Virginia law professor and author of Too Big To Fail: How Prosecutors Compromise with Corporations. In trying to clear up its outstanding regulatory troubles, the bank “may have tried to do its best to avoid the appearance of impropriety but it may be impossible for them to do so.”

Deutsche is Trump’s major creditor, having lent billions to the president since the late 1990s even as other American banks abandoned Trump, who frequently bankrupted his businesses. While the president hasn’t released his tax returns, he has made public some information about his debts. According to these incomplete disclosures and reports, the Trump Organization has roughly $300 million in loans outstanding from the bank. Trump continues to own the business, although he has turned over day-to-day management to his sons.

At the same time that it is Trump’s biggest known creditor, Deutsche is in frequent contact with multiple federal regulators. While the bank agreed last week to pay $630 million to settle charges by New York state’s top financial regulator as well as the U.K.’s Financial Conduct Authority that it had aided Russian money-laundering, it’s still undergoing a related federal investigation into those activities, which it is also trying to settle. That will be an early big test of the Justice Department under Attorney General Jeff Sessions. The Justice Department also has an ongoing probe of foreign exchange manipulation by several banks, including Deutsche Bank.

Even if the bank clears up the ongoing federal cases, it will remain weighed down by past transgressions. During the housing bubble, Deutsche Bank misled buyers about the quality of its mortgage securities and omitted important information. In 2015, its London subsidiary pleaded guilty in connection with the multi-bank conspiracy to manipulate global interest rates and paid $775 million in criminal penalties.

Deutsche will soon have an astonishing six independent monitors monitoring its conduct — the most ever for one company, according to Garrett. Drawn from the ranks of consultancies and law firms, these overseers make sure Deutsche complies with previous state and federal settlements and regulations relating to its foreign exchange manipulations, global interest rate fraud, sales of dodgy mortgage securities, derivatives trading, and sanctions evasion.

Indeed, the independent monitor of Deutsche’s derivatives reporting, Paul Atkins from Patomak Partners, has his own conflict of interest. Atkins served on Trump’s transition team and played a role in appointing federal financial regulators. He is now monitoring whether Trump’s business partner complies with the terms of a settlement with the Commodity Futures Trading Commission on derivatives reporting.

A Patomak spokeswoman declined to comment.

Meanwhile, the Federal Reserve has regulators sitting in Deutsche’s offices, as it does with every big bank, keeping a watchful eye on the firm’s safety and soundness. Last year, the Fed failed Deutsche Bank during its annual stress test, finding that it had insufficient capital and could not withstand another financial crisis. And the Securities and Exchange Commission and the CFTC regulate its investment banking and trading activities.

A Deutsche Bank spokeswoman declined to comment. The White House did not return an email seeking comment.

The Trump Organization’s wide-ranging business dealings could raise quandaries for an array of government agencies, from the Department of Labor, which regulates the company’s employment practices, to the General Services Administration, which leases Trump his hotel in Washington, D.C. “Just about everything that every branch, every type of enforcement, every action from every agency could touch on Trump’s conflicts. There is no end to the corruption and ethics concerns,” Garrett says.

But the potential conflicts may be most acute at the Justice Department. Whether the Justice Department walks away from an investigation or takes a hard line against Deutsche Bank, its every move will be scrutinized as either too tough or too weak.

With new management, Deutsche Bank has embarked on an effort to rebuild its reputation. Deutsche CEO John Cyran has conducted an apology tour for the bank’s multiple and serial misdeeds. The money-laundering settlement isn’t Deutsche’s only recent move to close out government probes. In January, it agreed to pay $95 million to end a tax fraud investigation by the U.S. Attorney for the Southern District of New York. And in December, it became one of the last of the global banks to resolve civil charges over the creation and sale of misleading mortgages investments, agreeing to pay a penalty of $3.1 billion.

In these agreements, Deutsche capitalized on the Obama Department of Justice’s eagerness to settle, according to defense attorneys who don’t represent the bank but are familiar with the cases. Outgoing administrations desire to wrap investigations up so departing prosecutors may shine their resumes on the way out the door.

The Obama administration had an added incentive to reach settlements because it worried the Trump administration Justice Department might seek smaller penalties or otherwise go soft on corporations. That helps explain why Deutsche Bank’s mortgage securities settlement, which included $4.1 billion in credit for consumer aid in addition to the penalty, was far below the $14 billion figure reported in the fall as Justice’s opening bid. While most observers expected that figure to come down sharply, Deutsche’s terms were still widely considered favorable.

Even so, Deutsche’s share price remains depressed as investors worry about the bank’s future payouts and ongoing fragility. The bank faces class action suits alleging efforts to manipulate interest rates and the currency markets.

Given the government’s responsibilities, Trump’s regulators face a fraught and sensitive task of proving their independence and fair-mindedness when it comes to Deutsche Bank. Prior White Houses have taken great care to avoid interfering in Justice Department investigations and prosecutions. Despite his early support for Trump’s campaign and their personal friendship, Sessions has said he will not recuse himself from any Justice Department probe into the president, the Trump family or any of his political advisors.

The relationship Deutsche Bank has with the president cuts two ways, defense lawyers and former prosecutors say. It might be advantageous to be in business with a president who appears to regard the office as an opportunity for brand enhancement and enrichment. The bank might hope for leniency from the president’s regulators because of its business ties to him.

There are signs that Deutsche’s new management is not eager to continue serving as Trump’s financier. Trump sued the bank in 2008 to avoid paying a loan for a Trump hotel in Chicago. The parties settled, but lawsuits have a way of fraying friendships. A former top executive at Deutsche Bank says the current top management does not like the real estate developer. “They don’t want to do business with him anymore,” he says.

Given the tension, Deutsche may worry about the mercurial president. The bank’s concern is that the Trump administration could use its regulatory powers to secure better business terms. Nationalist strains course through his inner circle. A top Trump economic advisor recently accused Germany of currency manipulation. Trump, some observers fear, may seek to boost American financial institutions over foreign ones like Deutsche.

In recent months, Deutsche has also sought to renegotiate its loans with Trump, according to a Bloomberg report, in an effort to reduce its exposure to the president. The bank hoped to eliminate the president’s personal guarantee on loans. But such a move would not eliminate the conflict of interest, since the president’s company, which Trump still owns, would remain on the hook to pay back the loans.

IMAGE: Deutsche Bank CEO John Cryan addresses the bank’s annual general meeting in Frankfurt, Germany, May 19, 2016. REUTERS/Kai Pfaffenbach 

Here’s Another Disgraceful Way Wells Fargo Took Advantage Of Its Customers

Reprinted with permission from ProPublica.

Wells Fargo, the largest mortgage lender in the country, portrays itself as a stalwart bank that puts customers first. That reputation shattered in September, when it was fined $185 million for illegally opening as many as 2 million deposit and credit-card accounts without customers’ knowledge.

Now four former Wells Fargo employees in the Los Angeles region say the bank had another way of chiseling clients: Improperly charging them to extend their promised interest rate when their mortgage paperwork was delayed. The employees say the delays were usually the bank’s fault but that management forced them to blame the customers.

The new allegations could exacerbate the lingering damage to the bank’s reputation from the fictitious accounts scandal. Last week, Wells Fargo reported declining earnings. In the fourth quarter, new credit card applications tumbled 43 percent from a year earlier, while new checking accounts fell 40 percent.

“I believe the damage done to Wells Fargo mortgage customers in this case is much, much more egregious,” than from the sham accounts, a former Wells Fargo loan officer named Frank Chavez wrote in a November letter to Congress that has not previously been made public. “We are talking about millions of dollars, in just the Los Angeles area alone, which were wrongly paid by borrowers/customers instead of Wells Fargo.” Chavez, a 10-year Wells Fargo veteran, resigned from his job in the Beverly Hills private mortgage group last April. Chavez sent his letter to the Senate banking committee and the House financial services committee in November. He never got a reply.

Three other former employees of Wells Fargo’s residential mortgage business in the Los Angeles area confirmed Chavez’s account. Tom Swanson, the Wells Fargo executive in charge of the region, directed the policy, they say.

In response to ProPublica’s questions, Wells Fargo spokesman Tom Goyda wrote in an email, “We are reviewing these questions about the implementation of our mortgage rate-lock extension fee policies. Our goal is always to work efficiently, correctly and in the best interests of our customers and we will do a thorough evaluation to ensure that’s consistently true of the way we manage our rate-lock extensions.” Through the spokesman, Swanson declined a request for an interview.

Wells Fargo’s practice of shunting interest rate extension fees for which it was at fault onto the customer appears to have been limited to the Los Angeles region. Two of the former employees say other Wells Fargo employees from different regions told them the bank did not charge the extension fees to customers as a matter of routine.

Three of the former employees, who now work for other banks, say their new employers do not engage in such practices.

Here’s how the process works: A loan officer starts a loan application for a client. That entails gathering documents, such as tax returns and bank statements from the customer, as well as getting the title to the property. The loan officer then prepares a credit memo to submit the entire file to the processing department and underwriting department for review. The process should not take more than 60 or 90 days, depending on what kind of loan the customer sought. During this period, the bank allows customers to “lock in” the quoted interest rate on the mortgage, protecting them from rising rates. If the deadline is missed, and rates have gone up, the borrower can extend the initial low rate for a fee, typically about $1,000 to $1,500, depending on the size of the loan.

Wells Fargo’s policy is to pay extension fees when it’s at fault for delays, according to Goyda. Yet in the Los Angeles region, the former employees say, Wells Fargo made customers pay for its failures to meet deadlines. The former employees attributed the delays to the inexperience and low pay of the processing and underwriting staff. In addition, to keep costs down, the bank understaffed the offices, they say.

“The reason we were not closing on time was predominantly lender related,” said a former Wells Fargo employee. When a loan officer asked the bank to pick up the extension fee, “it didn’t make a difference if” the written request “was a one-liner or the next War and Peace,” said the former employee. “The answer was always the same: No. Declined. ‘Borrower paid,’ never ‘Lender paid.’”

Anticipating that it couldn’t close on time, the bank adopted a variety of strategies to shift responsibility to customers. The “most blatant methods of attempting to transfer blame onto customers for past and expected future delays,” Chavez wrote, included having loan processors flag “the file for ‘missing’ customer documentation or information that had already been provided by the borrower.” The customers would have to refile, blowing the deadline.

Sometimes loan officers would ask customers to submit extra documents that Wells Fargo did not need for its initial assessments, burdening them with paperwork to ensure they wouldn’t meet the deadline. On occasion, employees built in a cushion, quoting a higher fee at the beginning. That way, they didn’t have to go back to tell the customer about the extra fee at the end.

One employee says he complained to Swanson’s boss about the situation but upper management referred the problem back to Swanson. The employee’s immediate manager then scolded him.

Swanson told co-workers that he personally took a hit if the bank paid out too many extension fees, two of the former employees recall. “Swanson would be very upfront that his bonus is tied to extension fees,” says one. The other former loan officer says, “During meetings, the branch was told extensions were costing the branch money.”

Swanson, an 18 year veteran of the bank, has faced criticism before that he sought profits at the expense of customers. In 2005, customers in Los Angeles sued Wells Fargo for racial discrimination. They contended that Swanson prohibited loan officers in minority neighborhoods from using a software program that gave them the ability to offer borrowers discounted fees. He allowed loan officers to use the same program in white neighborhoods, where residents paid lower fees as a result. Believing that minority borrowers did not shop around for mortgages, Swanson contended Wells Fargo did not need to offer the discounts in their neighborhoods since the bank faced less competition, according to witness testimony at trial.

In 2011, a Los Angeles Superior Court jury found that Wells Fargo intentionally discriminated on a portion of the loans in question and awarded plaintiffs $3.5 million, a decision that was upheld on appeal. With interest, the payout rose to just under $6 million. “The verdict in the case was not in line with the law and the facts, and there was no evidence that class members paid a higher price than other similarly situated borrowers,” Goyda said. Nevertheless, he added, the bank decided to pay the judgment rather than pursue additional appeals.

“Swanson runs that place,” said Barry Cappello, who co-tried the case against Wells Fargo with his partner Leila Noël. “He is the man. They do what he wants done. Despite the lawsuit and the millions they paid out, the guy is still there.”

Shifting extension fees onto borrowers may amount to just poor customer service, rather than a regulatory violation. Still, if it is widespread and systematic, the bank could be running afoul of banking laws that ban unfair or deceptive practices, regulators say.

For a couple of years around 2011, when Wells Fargo was originating a heavy volume of mortgages, the bank made a decision to pay all the extension fees, spokesman Goyda said. But, around 2014, it reverted back to its traditional policy of paying fees only when it’s at fault.

Chavez says that the problems began in earnest that year and persisted as of the time he left last April. The precise value of the improperly assigned extension fees in the Los Angeles region is unclear. Chavez and another employee estimate they ran into the millions. One of the former employees estimates a quarter of the mortgages at his branch had to be extended. By that measure, if a loan officer did $100 million in loans in a year, those mortgages would rack up about $62,000 in extension fees. The Beverly Hills office alone did around $800 million to $1 billion in underlying mortgages, generating at least half a million dollars in extension fees, the employee estimates. Swanson’s region has 19 branches.

Some customers resented having to pay the extension fees, and took their business elsewhere. After one mortgage application faced a delay, a Wells Fargo assistant vice president in Brentwood named Joshua Oleesky called to tell the customer that he had to pay an interest rate lock extension fee. The customer balked, blaming the bank for missing the deadline. Oleesky “started interrogating me on why Wells Fargo was responsible for the delay,” the customer wrote in a June 29, 2015, letter of complaint to Michael Heid, then president of Wells Fargo Home Lending. (He cc’d John Stumpf, Wells Fargo’s former CEO, who was ousted after the fictitious accounts scandal.) The customer went with another bank for the mortgage. Through the Wells Fargo spokesman, Oleesky declined comment.

According to the customer, Heid didn’t answer the letter.

IMAGE: A Wells Fargo branch is seen in the Chicago suburb of Evanston, Illinois, February 10, 2015. REUTERS/Jim Young

Puerto Rico Turns To Lewandowski To Lobby Trump On Debt

Reprinted with permission from ProPublica.

The hedge funds and insurance companies that want financially strapped Puerto Rico to pay them back in full may have found a new ally: Donald Trump’s former campaign manager, Corey Lewandowski.

The newly elected governor of Puerto Rico is in discussions to hire Lewandowski’s lobbying firm, at a time when the island’s creditors are hoping that the incoming Trump administration will be more sympathetic to them than the Obama administration has been. Such a shift would add to concerns that the new administration’s tight ties to banks and investment funds could tilt its policies in favor of Wall Street.

“There’s no contract, but we have active talks” with the governor, says Barry Bennett, who recently formed Avenue Strategies with Lewandowski.

The governor wants Avenue to lobby the new administration regarding Puerto Rico’s fiscal crisis, though it’s too early to say exactly what steps the firm would push for, Bennett said. He denied a report by Caribbean Business that Lewandowski recently arranged a get-together between the new governor, Ricardo Rosselló, and Trump. “There was no meeting with Trump,” he said. A spokesman for Rosselló confirmed that the governor did not meet with Trump.

A Trump transition team spokeswoman did not respond to requests for comment.

Lewandowski gained a bulldog reputation as Trump’s campaign manager. He was charged with battery for grabbing Michelle Fields, a Breitbart News reporter, after a Trump press conference. Prosecutors later dropped the charges. After being ousted from the campaign, but while receiving severance pay, Lewandowski became a CNN commenter and remained close with the incoming president.

Mired in a yearslong depression, Puerto Rico faces a fiscal crisis, with over $72 billion in debt that it cannot afford, and about $43 billion in unfunded pension liabilities. Its creditors consist mainly of insurance companies that specialize in backing municipal debt; hedge funds, which mainly have positions in the island’s general obligation bonds; and mutual funds, which own bonds backed by sales taxes.

Puerto Rico, a commonwealth, is a territory of the United States. Puerto Ricans do not vote in presidential elections but send a delegate to Congress who has limited voting rights. For years, Puerto Rico’s creditors have battled the island’s government and each other in a high stakes negotiating and lobbying campaign. Now, they’re seeking to salvage their investment as Puerto Rico’s financial picture worsens.

Until last year, under its constitution, Puerto Rico could not file for bankruptcy, unlike states and municipalities in the rest of the United States. Last June, Congress passed a law, called Promesa, allowing Puerto Rico to file for a type of bankruptcy if necessary. Bondholders could lose out in a bankruptcy, as the island’s entire debt would be restructured.

Promesa allowed Puerto Rico to temporarily stop making payments on its general obligation debts, primarily held by hedge funds and other financial companies. The island continued to make payments on the debt backed by sales taxes, known as Cofina. Since the general obligation debt is protected by the Puerto Rico constitution, the general obligation holders argue that it’s illegal to allow payment to the Cofina debtholders.

The law also established an oversight board to oversee Puerto Rico’s affairs, putting the island under more direct federal rule. The board is made up of appointees chosen by both American political parties and has a Republican majority.

During the campaign for governor, Rosselló, a 37-year-old biomedical engineer and neurobiologist and son of a former governor, called for negotiations with creditors. A member of the New Progressive party, which advocates Puerto Rican statehood, Rosselló claimed during the campaign that Puerto Rico could pay its debts in full. Creditors view him as more sympathetic than the outgoing governor, Alejandro García Padilla, who refused to negotiate with them. Rosselló is expected to hold talks with creditors through the first part of the year, seeking to strike a deal and avoid bankruptcy, according to people familiar with the matter.

Hedge funds with investments in Puerto Rican bonds include Aurelius Capital Management and Monarch Alternative Capital. John Paulson, the hedge fund manager who backed Trump’s campaign, owned Puerto Rico debt at one point and has substantial real estate on the island. He appears not to own bonds anymore, according to people involved in the negotiations. A spokesperson for Paulson did not respond to a request for comment.

Trump has appointed several high-profile investors and Goldman Sachs bankers to key cabinet and advisory positions. Trump’s choice for treasury secretary, Steven Mnuchin, is himself a hedge fund manager, though he does not appear to have investments in Puerto Rico debt.

The Obama administration pushed for the Promesa law and antagonized the bondholders, particularly the hedge funds. They contend that the outgoing administration ignored their financial interests in favor of seeking to protect the pensions of public employees and create a model for other municipalities facing similar fiscal crises.

Now with a new governor and a new American president, some of the bondholders believe their negotiating position has improved. Trump “can’t be as bad as what we had,” says one bondholder, who requested anonymity. “I don’t believe they will hold Puerto Rico hostage to try to create a mold that they hope will someday help with Chicago, New Jersey or wherever.”

Update, Jan. 12, 2017: After this story was published, a spokesman for Rosselló confirmed that the governor did not meet with Trump.

IMAGE: Corey Lewandowski, campaign manager for Republican U.S. presidential candidate Donald Trump, exits following a meeting of Trump’s national finance team at the Four Seasons Hotel in New York City, U.S. on June 9, 2016.  REUTERS/Brendan McDermid/File Photo

Trump’s Treasury Secretary Pick Is A Very ‘Lucky’ Man

Reprinted with permission from ProPublica

Steven Mnuchin has made a career out of being lucky.

The former Goldman Sachs banker nominated to become Donald Trump’s treasury secretary had the perspicacity to purchase a collapsed subprime mortgage lender soon after the financial crisis, getting a sweet deal from the Federal Deposit Insurance Corporation. Now, if he’s confirmed, he will likely be able to take advantage of a tax perk given to government officials.

Mnuchin was born into a family of Wall Street royalty. His father was an investment banker at Goldman Sachs for 30 years, serving in top management. He and his brother landed at the powerful firm, too. After making millions in mortgage trading, Mnuchin struck out on his own, creating a hedge fund and building a record of smart and well-timed investment moves.

He dodged disaster when he inherited his mother’s portfolio. She was a longtime investor with Bernie Madoff, the largest Ponzi schemer in American history. After she died in early 2005, Mnuchin and his brother quickly liquidated her investments, making $3.2 million. The Madoff trustee, Irving Picard, sued to retrieve the money from the Mnuchins, as he did from other Ponzi scheme winners, contending that they were fake gains. A court ruled that Picard could only claw back money from those who had cashed out within two years before the collapse. The Mnuchins, having pulled out roughly three years before, got to keep their Madoff money. That something was dodgy about Madoff was an open secret on Wall Street.

After the financial crisis, the FDIC seized IndyMac, whose irresponsible mortgage loans failed as the housing bubble burst. Desperate to offload the bank, the FDIC subsidized the takeover by sheltering Mnuchin and his team of investors, including hedge fund managers John Paulson and George Soros, from losses. The investors injected $1.55 billion into the bank in 2009. They changed the name to OneWest and five years later, sold it to lender CIT for more than $3 billion, doubling their investment.

Mnuchin also benefited from what may have been a nice fluke a little later. He served as the co-chair of Relativity Media, a film and entertainment company, for about eight months until May 2015. Relativity filed for Chapter 11 bankruptcy in July 2015. Just before it collapsed, Relativity paid off a $50 million loan to Mnuchin’s bank, OneWest, in full.

Paying off one creditor in full just before filing for bankruptcy looks questionable, especially when there is the appearance that such a deal isn’t at arm’s length. One Relativity investor cried fraud and sued in 2015, contending that Relativity used its loans for improper purposes, including to make payments to OneWest. Mnuchin’s lawyer called the claims preposterous and the suit was initially thrown out. A lawyer for the investor, a film financing company, told the Los Angeles Times that it planned to refile.

Mnuchin was blessed again when the Obama administration did not crack down harder on foreclosure abuses. OneWest got a reputation among activists and borrowers as one of the more feckless banks, accused of throwing borrowers out of their homes, denying mortgage modifications, and targeting the elderly with reverse mortgages. The Office of the Comptroller of the Currency settled with OneWest, and over a dozen other banks and mortgage servicers, over its robosigning practices in 2011. That regulatory settlement, called the Independent Foreclosure Review, was an utter debacle, as ProPublica has detailed. Regulators set up a process for consultants to review how the servicers had handled modification reviews, which meant in effect that the banks were monitoring themselves. The regulators did not punish any top financial executives over foreclosure mistreatment. In a happy circumstance for Mnuchin, the Department of Justice and state attorneys general did not include OneWest in their subsequent and more punitive settlement over foreclosure bad behavior.

Mnuchin was fortunate once more to pick the right candidate, Trump, early; most of Wall Street assumed that Hillary Clinton would win and bet accordingly with its political donations.

What good happenstance, then, that Trump didn’t mean what he said about Wall Street on the campaign trail.

On the stump, Trump said, “We will never be able to fix a rigged system by counting on the people who rigged it in the first place.” He attacked Goldman Sachs by name, saying that the bank “owns” Ted Cruz, whose wife worked at the firm. “I know the guys at Goldman Sachs,” he said, “They have total, total control over [Cruz]. Just like they have total control over Hillary Clinton.” Trump put an image of Goldman CEO and chairman Lloyd Blankfein, along with other Jewish figures in finance like George Soros and Janet Yellen, in a commercial late in the campaign that was widely decried as anti-Semitic.

Trump did not feel such a strong antipathy for Goldman that he passed over a firm veteran to be his treasury secretary.

Mnuchin still owned $97 million of CIT stock as of last February. The Treasury Department will likely require him to sell those shares, since it poses a conflict of interest for the treasury secretary to own a stake in a financial institution. But therein lies a final good break for Mnuchin: According to a provision of the tax code, he can defer taxes, as long as he complies with certain conditions. That benefit, available to all officials who are required to sell investments upon taking a government job, could be worth millions to Mnuchin.

If you have any information on Trump’s business or his incoming administration, please contact Jesse Eisinger at jesse@propublica.org.

IMAGE: Steven Mnuchin, U.S. President-elect Donald Trump’s reported choice for U.S. Treasury Secretary, speaks to members of the news media upon his arrival at Trump Tower in New York, U.S. November 30, 2016. REUTERS/Mike Segar

Swamp-Dweller: Trump’s Financial Policy Advisor A Longtime Lobbyist

Reprinted with permission from ProPublica.

President-elect Donald Trump’s transition-team adviser on financial policies and appointments, Paul Atkins, has been depicted as an ideological advocate of small government. But the ways that the Trump administration and Congressional Republicans are likely to approach financial deregulation could serve Atkins’ wallet as well as his political agenda. Like Trump himself, Atkins himself faces potential conflicts between his business dealings and his public role.

In 2009, a year after he finished his term as a Republican member of the Securities and Exchange Commission, Atkins formed Patomak Global Partners, a consulting firm headquartered on 17th Street, nestled blocks from the Hay-Adams Hotel and the south lawn of the White House. While Trump promised to “drain the swamp” of Washington, Atkins’ environs could not get any swampier. Patomak’s president is Daniel Gallagher, also a right-leaning former SEC commissioner who might be a candidate for SEC chairman under Trump. Former high-level government officials populate Patomak’s ranks.

Patomak has thrived as financial firms tried to navigate the new world of post-crisis regulations. Patomak and its counterparts, like Promontory Financial Group, are not technically lobbyists, but they exploit their connections to regulators to help their clients — banks and other financial institutions — navigate the rules. (Such consulting firms say they help clients comply with, not circumvent, the rules. A Patomak spokeswoman did not respond to a request for comment.)

The firms stand as emblems of the Washington revolving door. Banks pay a premium to former high-level regulators, valuing them for their contacts at the regulatory agencies. Stacked with Republicans, Patomak is well positioned to benefit from the new power structure in Washington. “They have better lines of communications with those in power. They are better able to see and understand what is coming down the pike,” says one former high-ranking regulator who now works for a hedge fund.

Under a court order last month, Atkins and his firm are now monitoring Deutsche Bank’s agreement with the Commodities Futures Trading Commission to properly oversee and disclose its derivatives trading. Separately, Deutsche Bank is negotiating with the Department of Justice over the size of its fine to settle mortgage related misdeeds. Donald Trump has outstanding loans from Deutsche Bank. These inter-connections raise a host of conflict of interest issues. Will Patomak monitor Deutsche Bank vigilantly? Will financial regulators, perhaps appointed by Trump on Atkins’ recommendation, be inclined to soften their regulatory stance on Deutsche Bank in exchange for business favors to the Trump empire?

Wall Street is thrilled about the incoming Trump administration. Bank stocks are soaring. Atkins, who is overseeing the appointees to the independent financial regulators like the SEC and the Federal Deposit Insurance Corporation, will be able to help shape the Trump Administration approach to financial regulation. But just what does that vision entail? Or, among the disparate groups vying for influence, whose ideas will win out?

There seem to be three tribes in the Trump financial regulatory coalition: ideologues, Wall Streeters and populists.

Atkins belongs to the first tribe. “I think of him as more libertarian than conservative,” says Simon Lorne, the former general counsel for the SEC, who worked with Atkins in the Clinton Administration.

In testimony last year to the House Financial Services Committee, Atkins opened by approvingly quoting Friedrich Hayek, the Austrian economist and philosopher beloved by libertarians. Hayek, Atkins explained, identified the “fatal conceit”: the idea that “man is able to shape the world around him according to his wishes.”

Governments, in Atkins’ view, share this hubristic notion. When they try to corral capital markets to prevent exploitative or risky behavior, they end up hurting the economy. Since the financial crisis, Atkins has been a part of the steady assault on Dodd Frank.

“The real tragedy — or inconvenient truth — behind Dodd-Frank and the hundreds of other rules flowing from Washington every year is that consumers, investors, and small business are harmed the most,” he told Congress in May.

But as the existence of Patomak demonstrates, even ideologues find the regulatory state lucrative.

Meanwhile, the Wall Street crowd appears to have a seat at the table. Steve Mnuchin, the former Goldman Sachs partner who was the Trump campaign’s national finance chairman, is a possible Treasury secretary.

The third tribe, in theory, is the populists. Trump campaigned with a populist message but they have no representatives on regulatory transition team or among the rumored appointees. Steve Bannon, Trump’s chief political strategist and a former Goldman Sachs partner, has criticized the 2008 bank bail-out, and the Republican platform called for breaking up the big banks. But few expect anything resembling that.

Experts say the GOP isn’t likely to repeal Dodd Frank wholesale. Instead, they will likely chip away at it, opening up loopholes. Some changes will come from Congress, others from inside the regulatory bodies themselves. Many “elements can be dismantled in back rooms,” says Marcus Stanley, policy director of the consumer group Americans for Financial Reform.

Instead of shuttering the Consumer Financial Protection Bureau, the GOP-controlled Congress may change its leadership structure, shift its source of funding, and shave its budget. Instead of repealing the Volcker Rule, which prohibits banks from trading for their own account, regulators may widen the number of trades that fall outside the definition. Legislators have floated proposals to loosen derivatives trading rules. They aspire to weaken the Financial Stability Oversight Council. Congress will likely continue to trim the budgets for the SEC and the CFTC and reverse rules extending fiduciary standards to new classes of financial advisors.

Such moves diminish Republican vulnerability to Democratic attacks that a repeal of Dodd Frank is a gift to Wall Street. Maintaining a sprawling kudzu of arcane rules and regulations preserves the necessity of specialists in the art of navigating the bramble of the swamp. Including firms like Patomak.

IMAGE: U.S. Securities and Exchange Commissioner Paul Atkins speaks during an interview with Reuters at the U.S. Embassy in central London March 10, 2008. REUTERS/Alessia Pierdomenico/File Photo

Why Freddie Mac Resisted Refis

by Jesse Eisinger, ProPublica.

Freddie Mac, the taxpayer-owned mortgage giant, made it harder for millions of Americans to refinance their high-interest-rate mortgages for fear it would cut into company profits, present and former Freddie Mac officials disclosed in recent interviews.

In closed-door meetings, two Republican-leaning board members and at least one executive resisted a mass refi policy for an additional reason, according to the interviews: They regarded it as a backdoor economic stimulus.

Freddie’s policy was financially brutal: During the worst years of the Great Recession, when homeowners most needed the savings they could have gotten from refinancing to lower interest rates, Freddie helped keep millions of borrowers locked in high-interest-rate mortgages.

A more aggressive refi program by both Freddie and its sister company Fannie Mae would have helped an additional nine million homeowners to refinance, saving them nearly $75 billion in interest payments to date, Columbia University housing economist Christopher Mayer estimates. In addition, it would have prevented hundreds of thousands of delinquencies and foreclosures, he says.

Freddie’s resistance to refis highlights a central conflict of interest that plagues both Freddie and Fannie. That conflict is even more pronounced now that they are owned by taxpayers. The companies, which own or back about 60 percent of U.S. home mortgages, have a mandate to help expand homeownership and also to generate profits. These goals can work at cross purposes.

Freddie and Fannie maintained and erected barriers to refinancings when the Obama administration launched a program in early 2009 specifically designed to make refinancing more accessible — the Home Affordable Refinance Program, or HARP. Freddie continued to hinder refinancings through a late 2011 relaunch of HARP designed to further slash refi costs and paperwork. At that point, Fannie began opening its gates more widely, but Freddie still kept barriers in place.

Only in the last few months, under a new chief executive, has Freddie loosened many of its restrictions on refinancing.

“Almost immediately after taxpayers bailed them out, Fannie and Freddie imposed unprecedented restrictions on refinancing, preventing millions of people from saving money on their mortgages and leaving hundreds of thousands of people to lose their homes unnecessarily,” says Mayer. Then after the 2011 HARP relaunch, “Freddie was worse” than Fannie, he said.

The Internal Debate

Now, interviews with former board members and an executive have revealed two reasons why Freddie dragged its feet.

According to interviews, these officials feared that mass refinancing would hurt the company’s bottom line and therefore its ability to repay taxpayers, who had bailed out Freddie and Fannie in 2008 to the current tune of almost $142 billion. Fears that borrowers who got refis would suffer high rates of default anyway, costing Freddie, have not been borne out.

Internally, Freddie debated its compliance with HARP for years. Robert Glauber, who left Freddie’s board in March, contended in board meetings that aspects of the refinancing program were “designed to be a stimulus” for the economy, said John Koskinen, who served as Freddie Mac’s chairman from 2008 to 2011, during which time he also served briefly as its interim chief executive.

Glauber, director Linda Bammann and head of risk management Paige Wisdom resisted mass refis. One executive viewed their objections as colored by partisan unwillingness to help the economy recover, something that would benefit President Obama.

But Koskinen did not regard the discussion as partisan. “I don’t think we ever had a discussion of whether this was good for a Democratic administration.”

Glauber was a Republican appointee to the Treasury Department under President George H. W. Bush and has had a career in various Wall Street roles. In a brief email to ProPublica, he disputed a quotation attributed to him but did not comment on the substance of the internal debates. He wrote that “it is an outrage that what claim to be confidential discussions in the board room are aired in your publication.”

Bammann, who donated $250 to the National Republican Congressional Committee this year, declined to comment. Wisdom did not respond to requests for comment.

Freddie Mac declined to make an executive available. The company is “always trying to find a balance to stimulate borrowing on responsible terms at prices that protect us from risk,” a spokesman said. The new CEO, Donald Layton, has made it clear that making changes to the company’s refi program is “a major priority,” the spokesman said. And he pointed out that Freddie has streamlined its refi process outside of the HARP program as well.

The spokesman declined to comment on Freddie’s internal discussions.

HARP was intended to lower barriers to refinancing for borrowers, especially for those who have high loan balances or owe more than their homes are worth, known as being underwater. But HARP has disappointed in part because of Freddie and Fannie’s restrictive refi rules.

When the program was overhauled late last year, Freddie retained more restrictions than Fannie, puzzling many housing experts.

Still, after the HARP overhaul, refis have risen. Freddie Mac has done more than 284,000 HARP refis this year through August, compared with 185,000 for all of last year. Fannie has done 334,000 in the same period, compared with 215,000 last year. In all, the two companies have done more than 1.6 million refis under the program. The administration’s initial goal was to help four to five million.

Concerns about providing a stimulus were not the only reason for Freddie’s restrictions. Several company executives and board members worried that doing mass refis would hurt Freddie Mac’s bottom line.

To appreciate this concern, it’s crucial to understand Freddie’s and Fannie’s business. The companies are two-headed beasts: One part is an insurance company with a public mission to help the housing market and the other is an investment fund that generates profits by trading mortgage investments. The investment side existed originally to keep the mortgage securities markets flowing. But as the portfolios grew in the years leading up to the financial crisis, the tail began to wag the dog. The huge profits from the portfolios inflated executives’ pay packages and began to overshadow the public mission of helping homeowners, critics say.

Refinancings can hurt the value of those portfolios. When a new, lower-rate mortgage is issued, the old loan is paid off. The ultimate backer of that original loan — in this case Freddie or Fannie — takes a loss because the loan was “pre-paid,” meaning it was paid off earlier than expected. Mortgage securities make money from interest rates paid over time, so they decline in value if the flow of interest payments gets cut off, such as when a refi allows the original loan to get paid off early.

Glauber was concerned about Freddie incurring such losses, because taxpayers were ultimately on the hook. “Bob’s position would have been if it has a cost, it is not consistent with conservatorship,” Koskinen said.

Bammann, a former executive of JPMorgan Chase, and Wisdom voiced similar objections. Wisdom criticized the refi program, saying that it was “policy, not business,” according to the executive.

Board member Nicolas Retsinas, who served in various housing policy positions for the Clinton administration, argued consistently for an expansive refinancing policy, according to people familiar with the meetings. He argued that in calculating the costs of the refi program, Freddie should take into account the benefit from lowering defaults and foreclosures and the improved housing market and stronger economy that would come from refinancings.

Retsinas declined to comment.

Koskinen, a Democrat who served in the Clinton administration, said it was prudent for the board to discuss the costs of a refi program. “The board’s view was you could decide to categorize it or ignore it but couldn’t say it didn’t exist. The intellectually honest thing was to say, ‘How large was that cost?'” he said.

Freddie Frustrates Its Regulator

Early in the Great Recession, support for a mass refi program was bipartisan. Refis help borrowers who are current on their loans, scoring them prevailing rates.

Columbia economist Glenn Hubbard, now an economic advisor to Republican presidential nominee Mitt Romney, co-authored op-eds in the Wall Street Journal and later in The New York Times with his colleague Mayer, proposing a mass refi program. Many congressional Republicans supported it.

But The Wall Street Journal editorialized against it in February 2009, arguing a mass refi program amounted to undue government interference with the marketplace and would cause huge losses for taxpayers. Republicans turned against it.

The Obama administration and the Federal Housing Finance Agency (FHFA), which oversees Fannie and Freddie, didn’t fix HARP for years.

Under conservatorship, the FHFA has the responsibility to regulate the companies and to approve their major business decisions. Ed DeMarco, the acting head of the agency, has become a political lightning rod, criticized for having been too timid in helping the housing market. Critics contend he underestimated how much such an overall improvement would eventually help Fannie and Freddie’s bottom lines.

At the same time, DeMarco has been frustrated by Freddie Mac, according to people who are familiar with his tenure.

“Freddie is the party of ‘no.’ Fannie is the party of ‘let’s make it work,'” said a person familiar with DeMarco and the FHFA.

The FHFA was frustrated when Freddie Mac announced its guidelines in November 2011 because they restricted refis more tightly than Fannie’s did.

One example: Freddie was not going to allow certain well-situated borrowers into HARP, borrowers with a “loan-to-value” ratio of 80 or below. In other words, if a borrower had a $100,000 home and had a mortgage loan of $80,000 or less, he or she would not be eligible.

That wasn’t the only restriction. Freddie sometimes required properties to be re-appraised, which added cost and delay. And it hindered the ability for borrowers to get a refi from a new bank rather than from the one that had given them the original loan. “We were adding barriers to the homeowner,” says the Freddie executive.

Freddie’s risk management operation, the division in charge of making sure Freddie doesn’t take decisions likely to incur heavy losses, was particularly active in raising concerns over allowing more refis. For example, when Freddie insures a mortgage, it retains the right to void its guarantee and force the bank that made the loan to be responsible for it under certain circumstances, such as if the bank had done poor underwriting and the borrower’s income was misrepresented. Facilitating refis under HARP could require giving up those rights. Wisdom, the risk officer, argued that Freddie should not give up such rights lightly, because surrendering them could cost Freddie dearly.

But since many borrowers on these Freddie-backed loans had been making regular payments for a number of years, others argued there would likely be only a relatively small number of cases in which Freddie would need to force banks to take back loans. Thus, Freddie wouldn’t be giving up anything of much value.

Freddie Mac produced a memo in the fall of 2011, which was described to ProPublica, estimating that HARP would cause hundreds of millions of dollars in losses. The memo estimated big losses on the portfolio as well as from giving up the rights to return the loans. It minimized the benefits to Freddie’s insurance business from an improved housing market and improved economy. It also minimized the costs to the company of trapping homeowners in mortgages with interest rates so high they would eventually default.

That analysis appears to have been overly cautious. A recent New York Federal Reserve study estimated how much refinancings can help reduce future defaults and found that the benefits were greater than expected. “We were too conservative and that’s been subsequently borne out,” says the Freddie executive.

DeMarco has said he instructed Freddie and Fannie not to take into consideration portfolio losses. In a letter to Sen. Robert Menendez (D-NJ) in May, DeMarco wrote that “FHFA specifically directed both [Fannie and Freddie] to exclude from consideration changes in their own investment income as part of the HARP evaluation process.”

The existence of the memo raises a question of whether Freddie ignored that instruction from its regulator. It also raises the question of why FHFA did not act immediately to prevent Freddie from imposing its tighter rules.

DeMarco and the FHFA did not respond to requests for comment.

Freddie’s 80 percent loan-to-value barrier had spillover effects. Mortgage experts say it led banks to reject out of hand borrowers who were close to that threshold. If a borrower initially appeared to qualify for a refi, but then the appraisal of the home pushed him below the barrier, Freddie would reject the refi and the mortgage company would have wasted time and money. So banks avoided a wide swath of homeowners whose loan-to-value ratio was near 80 percent.

At the FHFA, “nobody was happy with Freddie under 80 percent but we decided to deal with it later. And we dealt with it,” says a person familiar with the FHFA’s efforts.

Today, more refis are being done under HARP and the barriers at Freddie have started to come down. The new CEO, Donald Layton, deserves some credit, says the Freddie executive: “Don made important changes in the program and is willing to override narrow risk management. He took a broader view of the benefits and wasn’t focused wholly on the costs.”

 

Finders Weepers: Early Bain Disputes Cast New Light on Its Business

by Jesse Eisinger, ProPublica.

It was one of the “quickest big hits in Wall Street history,” as the Wall Street Journal put it at the time.

In 1996, an investment group including Bain Capital, the firm then run by Republican presidential candidate Mitt Romney, sold the consumer credit information business Experian to a British retailer, making a $500 million profit. Bain and the other investors who reaped that windfall had closed the acquisition a mere seven weeks earlier, stunning the investing world.

Another party was stunned by the deal, but for a different reason. James McCall Springer believed that he had brought the idea to buy Experian to Bain in the first place.

Springer sued to get what he contended was his rightful finder’s fee, eventually settling. And he wasn’t the only one. At least three other parties had similar legal disputes with Bain during the early 1990s, when Romney led the company, raising questions of how rough-and-tumble the company could be. The suits also shed light on how Bain actually operated, complicating one of the main narratives Bain, the Romney campaign, and many commentators have used to describe the private equity firm.

The Romney campaign declined to respond to a request for comment on the lawsuits. Bain did not respond to a request for comment. And, of course, disputes about finder’s fees are not uncommon; large sums are at stake for little work, a situation ripe for claims of aggrandized roles.

Most accounts of Bain characterize the firm as full of hard-working young men who sought to find troubled companies, invest in them and turn them around. Romney’s presidential campaign website says that “under his leadership, Bain Capital helped to launch or rebuild over one hundred companies.” Romney campaigns have embraced his reputation as a turnaround artist, as he has run on his private equity record and his overhaul of the 2002 Salt Lake City Olympics. He even titled his 2004 book “Turnaround,” a memoir and account of the 2002 Salt Lake City Olympics.

But as the disputes illuminate, the reality of Bain’s business in the early years is more complicated.

Often, Bain wasn’t finding companies on its own. Finders and middlemen were more common in the early days of private equity than they are now. Smaller firms would seek out acquisition targets and bring them to the big buyout firms.

More significantly, Romney’s firm wasn’t always looking for startups or troubled companies that it could turn around.

Private equity companies conduct a variety of transactions other than buying startups with growth potential or troubled firms ripe for a turnaround. Some seek out family-run operations under the theory that those typically have a lot of fat to cut. Some like “roll-ups,” buying up a bunch of small operations in one industry and combining them into a powerhouse with economies of scale. Firms buy divisions of large corporations that are trying to streamline their operations. Some acquisitions fit more than one of these descriptions. The constant is debt, and plenty of it. Private equity firms use such borrowed money to maximize their gains.

The Romney campaign says Bain did various types of deals. And it celebrates that Bain helped launch or rebuild some American corporate stalwarts, like Staples, Bright Horizons and Sports Authority.

Yet in addition, under Romney’s tenure, Bain often sought out solid businesses that didn’t need to be turned around. The reason: Such companies could operate under the burden of the enormous debt that Bain would layer on them.

“They always told us day one: They wanted profitable companies that are doing OK, and they pay what they needed to pay,” says Phillip Roman, who heads up an eponymous mergers and acquisitions firm that was involved in a legal dispute with Bain in the 1990s similar to McCall Springer’s. “There are companies that like turnarounds,” referring to other private equity firms. “That’s another business” from the one Bain was in.

Bain in the 1990s was “doing more [of] the usual leveraged buyout: Buy with a lot of debt, try to increase earnings and sell as soon as possible,” says Ludovic Phalippou, an expert on private equity at the University of Oxford in England. The firm was seeking “mature companies with high cash flow,” he says, with sufficiently stable earnings “to be able to leverage a lot.”

Financial data on many of Bain’s acquisitions are not available, since they were private transactions. But there are several examples of companies that Bain took over that were established and seem to have had enough revenue to support leverage. Bain and another firm bought what they would name Masland Holdings, a maker of automobile carpeting and insulation, from Burlington Industries in 1991. Masland had $305 million in sales that year, according to Dun & Bradstreet. The firms took it public in 1993. Duane Reade was a successful family-run business with revenue of $225 million when Bain bought it in 1992, according to the Wall Street Journal, and sold it five years later.

Early on, in 1986, Bain formed Accuride to purchase the wheel-making division of Firestone Tire & Rubber, with some executives from the company. Bain structured the deal to have 40-to-1 leverage, according to the Los Angeles Times, meaning Bain and its co-investors put an enormous amount of debt on Accuride for every dollar they invested. Accuride had sales of $215 million in its fiscal 1986, according to the Wall Street Journal. Accuride was sold within a year and a half, earning Bain more than 20 times its original investment, according to the Times. (Bain revamped production and restructured executive compensation at the company, according to a case study by a Bain partner, cited by the Boston Globe.)

“I didn’t want to invest in start-ups where the success of the enterprise depended upon something that was out of our control,” Romney was quoted as saying in the Boston Globe in 2007.

The Wall Street Journal found that many of the businesses Bain bought went bust, even when Bain reaped big financial wins. The paper analyzed 77 businesses Bain invested in while Mr. Romney led the firm from its 1984 start until early 1999, finding that 22 percent either filed for bankruptcy reorganization or closed their doors by the end of the eighth year after Bain first invested. An additional 8 percent ran into so much trouble that all of the money Bain invested was lost. But overall, the hits more than made up for the losses, and Bain recorded 50 percent to 80 percent annual gains in the period, the paper found.

For a private equity firm, choosing the right company to buy is critical, which is where firms such as McCall Springer came in.

In February 1996, Springer, who runs a small investment firm in Los Angeles, woke up to press accounts that Bain and another Boston-based private-equity company, Thomas H. Lee & Co., were in talks to acquire the business that today is known as Experian. Alarmed, he fired off a letter to Adam Kirsch, a managing director of Bain Capital. “As you are aware,” Springer wrote on Feb. 9, 1996, his firm “brought each of you the idea and reasons for acquiring TRW ISS/REDI,” as Experian was then called.

“We provided you detailed business and strategic plans, company organization and cost structures, management tendencies and requirements, competitive and customer market investigations, emerging market opportunities, new or improved product and service opportunities,” Springer wrote in a letter that is an exhibit in a legal fight from that time.

Springer followed up that on Feb. 12, with a second letter to top officials of Bain and Thomas H. Lee. The top addressee: Mitt Romney.

Springer reminded Bain, as well as others involved in the deal, that McCall Springer had written agreements with each party, which he claimed acknowledged that Springer had brought the idea to them a couple of years earlier.

Instead of paying up, Bain brought legal action against McCall Springer. Romney’s private equity firm sought a declaratory judgment, a legal strategy to seek a quick resolution of a matter, often in a jurisdiction of your choosing. McCall Springer countersued, alleging it was owed equity and management rights in the deal and seeking punitive damages. In the end, Bain entered into an undisclosed settlement.

During the period that Mitt Romney was actively running Bain during the 1990s, Bain had at least three other legal disputes that were similar to the fight with McCall Springer. In each case, a party claimed it was owed money for having brought Bain an idea for an acquisition. When Bain carried out the acquisition, the firm didn’t pay the contractually obligated fee, according to the claims.

Bain fought each in court, arguing that the agreements it had with the parties didn’t cover the specific circumstances of the deals.

The Experian deal was a headline grabbing success for Bain, which was formed in 1984. Great Universal Stores, the British retailer, agreed in November 1996 to buy Experian for $1.7 billion. Bain and Thomas H. Lee had agreed to pay just over $1 billion in February, but had only closed the deal in September.

Private equity firms often claim that they develop companies, helping them to grow more quickly and professionally. The added value that the private equity owners contributed to Experian in a mere seven weeks, however, was minimal.

Bain and Thomas H. Lee turned their $100 million investments into $300 million each, a spectacular return in such a short period. (The rest of the profit went to other investors, including Experian management and TRW for its remaining stake.)

Eventually, Bain settled with Springer. Brokers and finders learned to craft their agreements more stringently, they say. “If you don’t have a really good agreement, you will be eviscerated in some shape or form,” a person familiar with the dispute says.

Phillip Roman had a similar dispute with Bain in the early 1990s.

In September 1994, Phillip Roman & Co. took Bain to court in the Commonwealth of Massachusetts, filing a complaint for declaratory and injunctive relief. Roman claimed Bain had failed to pay it a finder’s fee of $4.3 million for Bain’s takeover of Weider Health and Fitness, a health food and fitness equipment business.

The M&A firm claimed in its suit that it had signed an agreement with Bain in 1990 and brought Weider to the attention of Bain partner Geoffrey Rehnert in January 1993. Bain eventually bought Weider for $390 million. The problem for Roman was that Bain had thrown it over for another finder firm, according to the complaint.

The firms settled the case in December of the same year.

Asked if he felt angry with Bain about the dispute, he said: “At that moment I did. Everybody feels that way when they think they’ve been screwed.”

But his firm worked with Bain subsequently on deals and received fees without issue. Today, “I have no ill feeling at all, not even close,” he says.

Roman added that he had great respect for Bain and its high standards. The companies the firm bought “had to be like nuns,” he said.

In a third case, in November 1992, John Ewing, who had a firm called J.G. Ewing & Associates, approached Bain to pitch it an acquisition of the engineering and design firm Professional Service Industries, Inc. The two sides made an agreement with each other.

Shortly after, PSI’s parent hired the investment bank PaineWebber to auction off the company.

About a year later, Bain bought PSI, but didn’t pay Ewing. Ewing read about the pending deal in the newspaper. His lawyer contacted Bain, arguing that the firm wouldn’t have known about the company if Ewing hadn’t introduced it to the private equity firm, and pointing out that the parties had an agreement with each other.

Bain partner Rehnert wrote to John Ewing, saying it wouldn’t pay the fee. Bain is “not willing to pay a fee to a broker when an investment bank has been engaged to conduct an auction since bringing such a deal to our attention creates no value,” the Bain partner wrote to Ewing, according to a letter from Ewing’s lawyer to Bain.

Bain sued Ewing in U.S District Court in Massachusetts, seeking declaratory judgment. Ewing countersued for $1.4 million. The case was dismissed voluntarily in February 1995, an outcome that generally indicates the parties settled.

In the final instance, the son of the owner of Anthony Crane, a crane company that Bain took over, claimed that he had brought Bain information that another crane company was willing to sell itself to Bain. He claimed a finder’s fee, which Bain disputed. That case too appears to have been settled.

Paul Kiel contributed to this story.

 

 

Fannie And Freddie: Slashing Mortgages Is Good Business

by Jesse Eisinger, ProPublica, and Chris Arnold, NPR.

A version of this story was co-published with NPR News and broadcast on NPR’s Morning Edition.

New analyses by mortgage giants Freddie Mac and Fannie Mae have added an explosive new dimension to one of the most politically charged debates about the housing crisis: Whether to reduce the amount of money beleaguered homeowners owe on their mortgages.

Their conclusion: Such loan forgiveness wouldn’t just help keep hundreds of thousands of families in their homes, it would also save Freddie and Fannie money. That, in turn, would help taxpayers, who bailed out the companies at a cost of more than $150 billion and are still on the hook for future losses.

The analyses, which have not been made public, were recently presented to the agency that controls the companies, the Federal Housing Finance Agency, according to two people familiar with the matter. Freddie Mac’s meeting with the FHFA took place last week.

The decision of whether to allow such reductions rests with Edward DeMarco, the acting director of the FHFA, who has steadfastly opposed so-called principal reductions on the grounds that it’s a bad business decision for the companies and would cost taxpayers money.

Many economists and policy makers contend that cutting principal — the amount of money lent to the homeowner — is one of the best solutions for keeping people in their homes and to bolster the fragile economic recovery.

But this solution has raised passionate opposition: Many borrowers who are paying their mortgages every month feel it is unfair. Why, they ask, should they have to keep paying the full amount while others who took a loan they ultimately couldn’t afford or saw their house plummet in value get a break? Some economists and policy makers argue that borrowers might intentionally stop paying their mortgages to score a reduction. Indeed, the prospect that the government would help troubled homeowners was a spark that created the Tea Party movement.

The companies’ new analyses were prompted by new Obama administration subsidies the government is offering Fannie and Freddie to reduce a homeowner’s loan. But it’s unclear whether DeMarco will take advantage of those incentives.

He declined to be interviewed for this story. But in a statement to ProPublica and NPR, DeMarco said that FHFA is assessing its position in light of the new Obama financial incentives, offered under the Home Affordable Modification Program, or HAMP. “As I have stated previously, FHFA is considering HAMP incentives for principal reduction and we have been having discussions with [Freddie and Fannie] and Treasury regarding our analysis.”

Both Fannie and Freddie declined to comment.

As an independent regulator, DeMarco does not answer to the president and can make policies that the administration opposes. Obama sought to replace DeMarco, but his nominee was blocked by Republicans in the Senate, which must confirm the agency head.

As recently as Feb. 28th, DeMarco told the Senate banking committee, “Both companies have been reviewing principal forgiveness alternatives. Both have advised me that they do not believe it is in the best interest of the companies to do so.”

Overall, principal reductions could help millions of borrowers who owe much more on their homes than their houses are worth, economists estimate.

And principal reductions can help lenders, because foreclosure often leads to bigger losses than reducing the amount owed. The biggest banks have long employed such reductions to curb their own losses.

The new analyses by Freddie and Fannie were done to assess the new financial incentives that the Obama administration announced in late January. ProPublica and NPR have not read the analyses, but two people described key aspects of them. The companies now find that reducing principal on troubled mortgages has a “positive net present value” — in other words, that doing it would bring in more money for the companies over the life of the loans than not doing it.

The two companies’ analyses showed that upwards of a quarter million borrowers who owe more on their mortgages than their homes are worth could benefit from principal reductions. The companies would take a loss upfront, but over the long run these mortgage modifications would save the companies money because they would lead to lower default rates.

Experts have said that principal reductions are one of the best tools for helping homeowners stay in their homes.

“Principal reduction works,” said Mark Zandi, chief economist of Moody’s Analytics. “If someone gets a reduction in their principal amount, it gives them a real powerful hook to really fight to try to hold onto the home, even if things aren’t going financially right for them.”

The re-default rate for homeowners who receive a principal reduction is lower compared with the rate on other types of types of mortgage modifications, Zandi said.  

Zandi estimates that principal modification could benefit 300,000 to 500,000 homeowners whose mortgages were backed by Fannie and Freddie. “And that would make a substantive difference,” he says, in helping the housing market and boosting the economy.

“It saves taxpayers money and makes homeowners less likely to default,” said Zandi. Given the Obama Administration’s policy changes, “I’m now perplexed why DeMarco is not more fully engaged” in supporting principal reductions.

Not everyone supports principal modifications. Anthony Sanders at George Mason University says that implementing such reductions risks triggering a wave of strategic defaults, where people stop paying on their homes in order to qualify for a break. “DeMarco is absolutely right,” he says.

The Obama administration’s new initiative triples the subsidies. They now range from 18 cents to 63 cents on the dollar, based on conditions such as how deeply underwater a borrower is. The subsidy works out so that generally the Treasury would pick up about half of Freddie and Fannie’s principal reductions, according to a person familiar with the incentives.

The subsidies are funded through HAMP, which used money from the Troubled Asset Relief Program (TARP), widely known as the bank bailout.  Much of that money has not been spent.

Under DeMarco, the FHFA has allowed Fannie and Freddie to do principal forbearance, rather than principal reductions. In such a modification, borrowers’ monthly payments are reduced, but they still must eventually pay back the entire loan. Critics contend that such modifications don’t provide as much incentive as principal reductions for borrowers to keep paying.

Despite the new findings, it still might not make sense for Fannie and Freddie to do principal reductions. Such a program might require substantial and expensive changes to their computer and accounting systems and might distract from the core business. In his statement, DeMarco said, “FHFA’s previously released analysis concluded that principal forgiveness did not provide benefits that were greater than principal forbearance as a loss mitigation tool. FHFA’s assessment of the investor incentives now being offered will follow the previous evaluation, including consideration of the eligible universe, operational costs to implement such changes, and potential borrower incentive effects.”

Yet even before the Obama administration’s new subsidies, the FHFA’s own data supported principal reductions for some borrowers, despite its opposition to using them, some argued. An American Banker analysis of the FHFA study, which the agency sent to Congress in January, suggested that principal reduction shouldn’t be rejected so unequivocally.