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Requiring The DOJ or SEC To Prove Its Case Is Not “Criminal”

It is truly a sorry state of affairs that have come to define government enforcement of criminal (or even civil) laws against business organizations.

Exhibit A is this [1] recent CNBC video clip of Andrew Ross Sorkin’s interview of JPMorgan CEO Jamie Dimon.

As you likely know, JPMorgan recently resolved a variety of criminal and civil matters brought by various government enforcement agencies for approximately $20 billion.

“SORKIN: So, you look at these big numbers. And they are big numbers. And so the public looks at them and they are trying to grasp and understand what to make it. Do you think ultimately, that it was fair?

DIMON: No. I think a lot of it was unfair, but I’m not going to go into the details.”

No surprise there as the various JPMorgan resolution documents contained a so-called “muzzle clause.”  (See paragraph 17 of the JPMorgan DPA [2]).

Dimon continued:

“And I’m grateful to have it behind us. Because the most important thing for a company is you do your job. Serving clients and communities around the world. And this is a huge negative for the company – a huge distraction of management time, board time, when we should really be helping our clients, which includes cities and schools. So we just wanted to get back, do what we’re good at and what we are supposed to be doing.”

The interview then continued as follows.

“SORKIN: On the stuff you think was wrong, do you think you fully remedied it?

DIMON: I guess at one point it doesn’t matter who you think is wrong or right, so we can debate all day long whether we should have paid. […] You know, again, you’re really caught between two bad choices. We made the one that was better for the company.

SORKIN: Right.

DIMON: Whether it should have been high or low, I don’t care anymore. I’ve moved on. That was last year. I’m looking forward to 2014.

SORKIN: One more question on that, which though is, was there a moment – what was the moment for you when you said to yourself, “ok. Pay it. I want to put this behind me.” And was there something that happened? Was it a conversation with the board? Was it a conversation with Eric Holder? What was that moment for you?

DIMON: First of all, the board was involved every step of the way in this. It was this kind of unprecedented, kind of – you know we have multiple regulators and multiple U.S. attorneys and district – Department of Justice. And it was just, thinking it through, looking at our options and realizing there are two really bad options. And that the wrong thing to do is to complain, fight and then you could have said, well why not go to court all those years? So if you are my board, you would have said, why would you do that and subject your company to three or four more years and the outcomes could be worse. Then wouldn’t even necessarily be better. So a lot of people said fight – if you think you are right, fight – banks have a very tough time doing that. It would really hurt this company and that would have been criminal for me to subject our company to that kind of – those kinds of issues.”

Obviously, one can assume that Dimon did not literally mean it was criminal to put the DOJ and/or SEC to its burden of proof.

However, the notion that an individual with fiduciary duties to a corporation and its shareholders would speak in those terms about something so basic and fundamental to the rule of law and our legal system is truly troubling.

But then again, can you blame Dimon?  He was perhaps simply acting consistent with those fiduciary duties and in the best interest of shareholders.   After all, should JPMorgan have put the DOJ (or SEC) to its burden of proof and thus been criminally indicted (or merely charged in a civil case) the hit to JPMorgan’s market capitalization (approximately $215 billion) likely would have been greater than $20 billion.  Viewed this way, the decision of JPMorgan’s board and it executives seems like a rationale corporate decision in the best interest of shareholders.

But here is the problem as I recently highlighted in my article “Why You Should Be Alarmed By the ADM FCPA Enforcement Action [3].”  While the specific risk-averse business decisions of a specific company may seem minor in isolation, the aggregate effect of these numerous decisions contributes to a facade of enforcement of any law – whether it is the Foreign Corrupt Practices Act (see here [4]) or otherwise.

As former U.S. Attorney General Alberto Gonzales rightly noted in the FCPA context:

“In an ironic twist, the more that American companies elect to settle and not force the DOJ to defend its aggressive interpretation of the [FCPA], the more aggressive DOJ has become in its interpretation of the law and its prosecution decisions.”

For more on this dynamic see “Prosecutorial Common Law [5]” by Michael Levy –  one of best guest posts in the history of FCPA Professor.

It truly is a sorry state of affairs.

And there is more.

As highlighted at the end of this [6] video (around the five minute mark), Senator Elizabeth Warren chides government regulators for not exploiting this imbalance even more to extract even more shareholder money from risk averse corporations.

*****

The New York Times returns, once again, to JPMorgan’s FCPA scrutiny concerning alleged hiring practices in China.  This [7] article states:

“[A] confidential email has emerged that shows a top Chinese regulator directly asked Jamie Dimon, the bank’s chief executive, for a “favor” to hire a young job applicant. The applicant, a family friend of the regulator, now works at JPMorgan.  […]  JPMorgan said Mr. Dimon had nothing to do with the decision to hire the young woman, described within the bank as well qualified. And like the C.E.O. of any large company, Mr. Dimon can be expected to meet with many people in a given day. According to a person briefed on the investigation, he is not suspected of any wrongdoing. Still, the episode underscores the dual forces driving JPMorgan and other Wall Street banks to hire the family and friends of China’s ruling elite. The banks sought to build good will with Chinese officials, who, in turn, expected favors from the banks.”

*****

Related to the above issue, this [8] article states:

“UBS has suspended two staff members, including its top capital markets banker in Asia, as the Swiss bank investigates its hiring of the daughter [Joyce Wei] of the chairman of a Chinese chemicals company that is considering a $1 billion share sale the bank has sought a role in.  […]  Ms. Wei is the daughter of Wei Qi, the chairman of Tianhe Chemicals, a privately owned Chinese company that is considering a potential $1 billion initial public offering in Hong Kong this year. UBS is one of the banks positioned to secure a role in the deal.  […]  “It’s not a ‘princeling’ issue, because Joyce Wei is not a princeling,” [a person familar with the matter] said, referring to the children of senior Chinese government officials. “Tianhe is not a state-owned company,” the person added. Instead, the investigation is focused on “whether internal processes were adhered to or not.”

Even so, UBS remains part of the SEC’s industry sweep of the financial sector regarding hiring practices in China.