Tales of a TARP Built to Benefit Bankers, and Waiting for CEOs to Pay the Price


1.  The Obama TARP fiasco Romney can’t use:

Neil Barofsky, special inspector general, Troubled Asset Relief Program, speaks at the Reuters Washington Summit September 21, 2010. REUTERS/Kevin Lamarque

If the dynamics of the presidential campaign were different, a book called Bailout by Neil Barofsky would be getting a lot more attention. Barofsky left a post in late 2008 as a top federal financial fraud prosecutor in New York to become the special inspector general overseeing the $700 billion TARP bailout program. He’s written a Mr. Smith-Goes-to-Washington-like account of how even after TARP was turned over to a Democratic administration – in fact more so after the Democrats took over – TARP money was dispensed and TARP rules were written almost completely for the benefit of the bankers who drove America into a ditch.

For example, there’s Barofsky’s blow-by-blow description of how the rules written by the Obama administration for its much-heralded $50 billion program to help homeowners whose mortgages were underwater were so tilted in favor of the banks and against homeowners actually being able to get relief that only $1.4 billion of the $50 billion was dispensed, with few homeowners getting any help. And Barofsky is not writing about compromises the Obama administration had to make with banker-sympathetic Republicans in Congress; this is all about internal decisions that unfailingly seemed to put the needs and mindset of Wall Street above those of Main Street consumers.

A presidential campaign that wanted to call out the Obama administration for being too friendly to Wall Street and the banks at the expense of Main Street would be using Bailout as the cheat sheet that keeps on giving. But with the Romney campaign’s attack coming from the opposite direction – that the president and his team have killed the economy by shackling Wall Street – and with Romney on record in favor of allowing the mortgage crisis to “bottom out” with no government intervention, the former Massachusetts governor and his team have no use for Bailout.

That doesn’t mean reporters covering Wall Street and financial regulation shouldn’t be digging in, if not now, then after the voting. I want to read a story challenging officials, such as Treasury Secretary Timothy Geithner, to offer their response to Barofsky’s detailed and convincing indictment.

Did Geithner really refuse repeatedly to meet with Barofsky and try time and again to torpedo his investigations into fraud at TARP or his efforts to write rules that would prevent fraud? Did the Obama White House and the Treasury Department really argue to Barofsky that implementing what seem to me to be commonsense reporting and auditing rules for those accepting TARP money would scare off the banks from taking these handouts?

Did both the White House and Treasury constantly try to undercut their inspector general with leaks to the press portraying him as an ambitious partisan, when in fact he is a Democrat and was a relatively obscure if accomplished prosecutor with no previous predilection for showboating?

Did Geithner deputy Herbert Allison, a veteran Wall Street banker, really take Barofsky to lunch at a D.C. power restaurant after Barofsky had issued a series of reports critical of Treasury’s administration of TARP’s billions (which is an inspector general’s ostensible job), during which he delivered a clichéd  “You’ll never work in this town again” speech?

According to Barofsky, Allison observed that Barofsky was “a young man, just starting out with a family, and obviously this job isn’t going to last forever. Have you thought at all about what you’ll be doing next?” After which he added, writes Barofsky, “I’m telling you, you’re doing yourself real harm. Out there in the market there are consequences for some of the things you’re saying.”

Worse, according to Barofsky, by dessert Allison had asked if he was looking for “something else in government? A judgeship?”

There’s lots more, including Barofsky’s account of capitulations the Obama team has made in the implementation of the Dodd-Frank financial reform bill that has rendered some of its key provisions relatively toothless. Again, that’s not something the Romney folks would criticize. Nor would they be terribly exercised over Barofsky’s explanation of how the rules governing the way TARP money was to be used and accounted for were so watered down that they never required or even encouraged the bailed-out banks actually to lend it out and thereby help revive the economy.

Reporters on the beat ought to get out there and tell us if Barofsky’s stories hold up. And they should use his description of these crucial, but often arcane, in-the-weeds issues, as a road map for future coverage no matter who wins in November.

2. Do CEOs ever pay the price?

Last week’s announcement that Bank of America was going to pay $2.4 billion in a shareholders’ class-action suit brought as a result of the bank’s disastrous 2008 purchase of Merrill Lynch reminds me that I wish I could read something explaining who actually benefits (other than the plaintiffs’ lawyers) when massive shareholder suits like these are settled or get decided for the plaintiffs. More important, who actually pays?

Dispatches like this one did a good job of explaining what the claims were – that BofA and Merrill Lynch executives hid the nature of Merrill Lynch’s near-total meltdown as BofA shareholders were being asked to approve the merger. And some, such as this New York Times story, provided a snapshot of who will get the settlement money: “those who owned Bank of America shares or call options from September 2008 to January 2009,” which was the period that began when the deal was announced and ended when it was voted on by the shareholders.

But that leaves lots of questions. A shareholders’ suit is supposedly brought on behalf of shareholders who own a company. Yet the prime defendant is the company. So it is the company that pays the settlement, which would mean that the shareholders’ assets are being used to pay the shareholders.

Of course, if I owned shares between September 2008 and January 2009 and sold them later in January 2009, I’d only be on the receiving end. But if I still own the shares, wouldn’t I be paying myself with my own assets (and with the plaintiffs’ lawyers taking their cut on the way through this round trip)?

More important, it is the company’s lead executives, such as then-BofA CEO Kenneth Lewis, who allegedly misled the shareholders. They are also defendants in these cases. But I haven’t read anything about them paying anything. Did they? Or did the company indemnify them from such suits and/or provide company-paid insurance to cover any personal liability? Did the company or company-paid insurance cover their legal fees? If so, then what’s the point of suing them?

And, as long as we’re talking about harm done to shareholders, why wouldn’t we now see a new, post-settlement shareholders’ suit not against the company but targeted only at Lewis and some of his former colleagues who got Bank of America into this jam in the first place and just caused it to pay out $2.4 billion? (The plaintiffs here could be any current shareholders, because they are the ones who are writing the $2.4 billion check.) Again, did the company indemnify Lewis and other executives against shareholder suits, meaning that if a shareholder now sues Lewis over this $2.4 billion settlement, the shareholder is once again only suing himself?

Can someone please sort this out?

Steven Brill – Reuters