Since the mortgage meltdown, the Federal Deposit Insurance Corp. has opted to strike deals with banks rather than sue — and promised not to tell.
Three years ago, the agency collected $54 million from Deutsche Bank in a settlement over unsound loans that contributed to a spectacular California bank failure.
The deal might have made big headlines, given that the bad loans contributed to the largest payout in FDIC history, $13 billion. But the government cut a deal with the bank's lawyers to keep it quiet: a "no press release" clause that required the FDIC never to mention the deal "except in response to a specific inquiry."
The FDIC has handled scores of settlements the same way since the mortgage meltdown, a major policy shift from previous crises, when the FDIC trumpeted punitive actions against banks as a deterrent to others.
Since 2007, 471 U.S. banks have failed, nearly depleting the FDIC deposit-insurance fund with $92.5 billion in losses. Rather than sue, the agency has typically preferred to settle for a fraction of the losses while helping the banks avoid bad press.
Under the Freedom of Information Act, the Los Angeles Times obtained more than 1,600 pages of FDIC settlements, made from 2007 through this year with former bank insiders and others accused of wrongdoing. The agreements constitute a catalog of fraud and negligence: reckless loans to homeowners and builders; falsified documents; inflated appraisals; lender refusals to buy back bad loans.
Defendants benefit by settling because they can avoid admitting guilt and limit the damages they might face in court. The FDIC benefits by collecting money without the hassle and expense of litigation. The no-press-release arrangements help close those deals.
Deutsche Bank, now the world's largest, settled to resolve claims that subsidiary MortgageIT sold shaky loans to IndyMac Bank of Pasadena, Calif., which imploded under the weight of risky mortgages and construction loans. The IndyMac failure — considered one of the early events in the 2008 financial meltdown — caused a scene reminiscent of the grim bank failures of the 1930s.
Overall, the FDIC collected $787 million in settlements by pressing civil claims related to bank failures from 2007 through 2012 — a fraction of its losses.
Critics fault the government for going easy on banks in the aftermath of the financial crisis. At a Feb. 14 Senate Banking Committee hearing, Sen. Elizabeth Warren, D-Mass., criticized FDIC Chairman Martin J. Gruenberg along with other bank regulators for their reluctance to make examples of Wall Street firms by taking them to trial.
Attorneys who have represented bank officials and the FDIC said regulators are now far likelier to settle cases before filing lawsuits than after the last spate of failures, when more than 2,300 institutions collapsed in the 1980s and early 1990s, bankrupting a fund that insured savings and loan deposits. That crisis grew out of Reagan-era deregulation, which allowed thrifts already hurting from 1970s inflation to make riskier investments, including commercial real estate deals that soured en masse during the second half of the 1980s.
Critics describe the FDIC's current practice of low-profile deal-making as a major departure from the S&L crisis.
"In the old days, the regulators made it a point to embarrass everyone, to call attention to their role in bank failures," said former bank examiner Richard Newsom, who specialized in insider-abuse cases for the FDIC in the savings and loan debacle. The goal was simple: "to make other bankers scared."
Newsom said he couldn't understand the shift, unless the agency doesn't "want people to know how little they are settling for."