Financial Finger-Pointing Turns to Regulators
By Louise Story and Gretchen Morgenson
New York Times
November 22, 2011
In the whodunit of the financial crisis, Wall Street executives have pointed the blame at all kinds of parties — consumers who lied on their mortgage applications, investors who demanded access to risky mortgage bonds, and policy makers who kept interest rates low and failed to predict a housing market collapse.
But a new defense has been mounted by a bank executive: my regulator told me to do it.
This unusual rationale is presented by the bank executive in one of the few fraud suits brought against a mortgage banking official in the aftermath of the financial crisis — the one filed by the Securities and Exchange Commission against Michael W. Perry, former chief executive of IndyMac Bancorp, which failed spectacularly in mid-2008.
After being accused of fraud and misleading investors about his company’s financial health just before it collapsed, Mr. Perry set up a Web site this fall to defend himself.
In a document on the site, he said that a top official at the federal Office of Thrift Supervision, IndyMac’s overseer, directed and approved an action related to the S.E.C.’s allegations.
“It was O.T.S. who had the final say regarding IndyMac Bank’s capital levels,” Mr. Perry wrote.
He went on to say that Darrel W. Dochow, former regional director for the Western region of the agency and a financial regulator for more than 30 years, had “specifically directed” Mr. Perry to backdate IndyMac’s report to regulators to include an $18 million cash infusion that would make it appear well capitalized.
The shift masked IndyMac’s problems for any investors trying to assess its soundness and allowed it to continue attracting large deposits crucial to its operations.
The S.E.C., in its suit against Mr. Perry, contends that more details about the cash infusion should have been disclosed, though the commission did not accuse him of accounting fraud.
Mr. Dochow was not accused of wrongdoing by the commission or any other prosecutor, though his role has been criticized by the inspector general of the Treasury Department, which oversees some bank regulators. It does not appear that Mr. Perry’s argument persuaded the commission to back off. The S.E.C., as is its custom, did not elaborate.
A representative for Mr. Perry said he did not care to discuss the case further, but his lawyer described the lawsuit in an e-mail as “exceedingly weak, unfair and meritless.” Mr. Dochow, who retired as a regulator in 2009 at age 59, said: “There’s a lot more than what’s been written, but I can’t talk. I could go to jail.”
The IndyMac collapse, with its multibillion-dollar cost to the Federal Deposit Insurance Corporation fund, highlights the role played by federal overseers of financial companies in the years leading up to the crisis. It also raises questions about whether government officials should be held accountable for dubious conduct related to the failure of an institution and whether the government has avoided pursuing some cases because of the roles regulators have played. For years, some bank overseers have maintained cozy ties with the institutions they monitor, treating bankers like clients because of the fees that banks pay to be regulated.
The Justice Department could not cite any regulator that it had named in a prosecution related to the crisis. However, Mr. Dochow’s conduct was referred to Justice for possible criminal charges in 2009, according to Eric Thorson, the inspector general of the Treasury Department. Mr. Thorson said Mr. Dochow’s action “was clearly improper and wrong.” A spokeswoman for the Justice Department in Washington declined to comment on the case and on whether the department investigated regulators for possible wrongdoing.
IndyMac is not the only institution whose questionable accounting was approved by regulators in recent years, though it is by far the largest of several highlighted by the Treasury inspector general.
Even if regulators are involved in wrongdoing, they have some immunity. Internal disciplinary measures are rarely taken against regulators who perform badly in their jobs, say government officials.
Some regulatory shortcomings may be chalked up to innocent mistakes and failures to spot problems. Still, some economists and lawyers would like the government to examine regulatory actions leading up to the financial crisis to determine whether officials actively participated in improper behavior. And, they say, in cases like Mr. Dochow’s, penalties should be levied on overseers who acted improperly.
“The word conspired needs to be used here,” said Edward J. Kane, a finance professor and regulatory expert at Boston College who is familiar with the case. “Dochow conspired with IndyMac management to misrepresent this. He was trying to fool certainly the F.D.I.C. and the public, and anyone who lost a dollar as a creditor to this institution was harmed by relying on something they had every right to rely on.”
Longtime defense lawyers say one reason there have been so few prosecutions related to the credit crisis is because financial executives often solicited advice from outside parties — like accountants and lawyers — and experts shelter them from some potential charges because they can argue they relied on the advice. Regulatory advice may be a similar shelter against prosecution.
A Comeback From Demotion
Mr. Dochow had had a long run as a financial regulator when IndyMac ran into trouble. He started out in 1972 as an assistant national bank examiner with the Comptroller of the Currency. He rose through the ranks and in 1985, became a senior regulator with the Federal Home Loan Bank of Seattle and later with the Federal Home Loan Bank System’s Office of Regulatory Activities in Washington.
It was during his time in that office that Mr. Dochow played a central role in trying to stop a regulatory attempt to rein in Lincoln Savings and Loan, an Arizona institution run by Charles Keating, with $5.5 billion in assets. After regulators in San Francisco uncovered fraudulent sales and other improprieties at the institution, Mr. Dochow worked in Washington to avoid the issuance of a cease-and-desist order, the normal course of action in such a case, according to records handed over to Congress. The savings and loan institution failed in 1989 at significant cost to taxpayers, and Mr. Keating was convicted on multiple fraud charges, some later overturned. Mr. Dochow was demoted, according to a half dozen regulators who had worked with him, but remained a bank regulator.
Once again, he worked his way up in the organization, which became the Office of Thrift Supervision. By September 2007, he had been promoted to head the Western region, reporting directly to the agency’s top officials in Washington.
In that position, Mr. Dochow oversaw a host of institutions that had dived headlong into risky mortgage lending. Among them were Countrywide Bank, IndyMac Bancorp and Washington Mutual, three of the most aggressive lenders — and largest flameouts — in the crisis.
Mr. Dochow was known within the O.T.S. to be bank-friendly. One former examiner said: “His approach was negotiating with the banks, as opposed to regulating the banks, and viewing them more as clients, as opposed to people or entities that needed to comply.”
According to three former examiners who worked with Mr. Dochow but who requested anonymity because they feared retaliation from regulatory colleagues, he would sometimes negotiate between the banks and their lower-level O.T.S. overseers, arguing that an institution should be allowed to keep one component of its regulatory rating high if another was dropping. That way, the composite score representing a bank’s financial standing, would change little, if at all.
At other times, Mr. Dochow exhibited a close relationship with a savings and loan association when it was under investigation. In 2007, when the attorney general of New York was investigating Washington Mutual for its possible role in appraisal fraud, Mr. Dochow called Kerry K. Killinger, the institution’s chief executive, to discuss the matter, according to e-mail messages released by a Senate subcommittee in the spring of 2010. Washington Mutual had hired a law firm to do an internal investigation. Mr. Dochow told Mr. Killinger that he wanted to rely on Washington Mutual’s investigation as much as possible as opposed to having O.T.S. officials do a completely separate one.
Mr. Dochow told his superiors that he planned to leverage the Washington Mutual report but noted that “we need to be able to defend that we have done our own independent examination.”
Mr. Dochow retired in 2009, with his full government pension, according to the Treasury inspector general. Because of its woeful regulatory record during the recent mania, O.T.S. was abolished last summer. Of its remaining employees, 95 were transferred to the F.D.I.C., and 670 to the Comptroller’s office.
IndyMac’s Survival Struggle
The S.E.C. case against Mr. Perry, IndyMac’s longtime chief executive, and two former chief financial officer centers on disclosures made from February through mid-May of 2008. The disclosures related mostly to IndyMac’s capital and liquidity. The bank collapsed in July of that year and was taken over by the F.D.I.C., which had to pay insured depositors $10.7 billion.
By early May, it had become clear inside IndyMac that it could no longer be considered “well capitalized” unless money was shifted from its holding company.
This meant that IndyMac could not accept so-called brokered deposits, large amounts of money from investors looking for the highest possible rates of return. Brokered deposits represented just over a third of IndyMac’s deposits; without them, it would have been out of business.
And so on May 9, Mr. Perry instructed his deputies to shift money into the bank from the holding company and account for $18 million of it as if it had been there on March 31.
Mr. Dochow as well as IndyMac’s auditors, Ernst & Young, had signed off on the move, according to the Treasury inspector general. And Mr. Perry highlighted the regulatory approval in a document on his Web site.
”Mr. Dochow, with full knowledge of the circumstances, communicated O.T.S.’s approval,” Mr. Perry wrote. “Mr. Dochow also directed Mr. Perry to amend the bank’s thrift financial report to reflect the $18 million receivable.”
D. Jean Veta, a partner at Covington & Burling who represents Mr. Perry, said in an e-mail message that IndyMac’s financial statements followed accounting rules and that Mr. Perry “was a completely transparent leader who always favored more disclosure rather than less.” But the O.T.S., the Comptroller’s office and the inspector general’s office at the Treasury Department have all said the backdating of the cash infusion was improper.
Mr. Thorson, the Treasury inspector general, said last week that Mr. Perry and Ernst & Young could reasonably say that they acted with permission of the O.T.S. “I’m sure they said ‘O.K., that’s the guy who calls the shots; the umpire has called the shots,’ “ Mr. Thorson said.
Indeed, when asked about the IndyMac accounting, a spokesman for Ernst & Young said last week that it was “approved by the bank’s regulator, not Ernst & Young.” And there has been no enforcement action against the accounting firm.
Mr. Thorson said that his referral for a case against Mr. Dochow was given to Ranee Katzenstein, an assistant United States attorney in Los Angeles, and that Ms. Katzenstein told his office she did not intend to pursue a prosecution. When reached by phone, Ms. Katzenstein declined to say why. A spokesman for her office said she could not discuss the case. The spokesman said the investigation into Mr. Dochow’s actions was still open, although he cautioned that it might not yield a case.
Another backdated capital shift with regulator approval took place in 2008 at a savings and loan association in Florida, according to Mr. Thorson’s report. In August of that year, O.T.S. officials directed BankUnited to backdate capital that it had moved within its holding company. The report does not list their names, but it does include their titles, indicating that they were Timothy T. Ward, the deputy director for exams; Scott M. Polakoff, the agency’s senior deputy director; and Jack Ryan, the Southeast regional director.
In another instance in July 2008, O.T.S. officials objected to a backdated capital shift at Century Bank, also of Florida, but did not require corrective action.
Mr. Polakoff was placed on leave in March 2009 pending a review of the capital backdating by the Treasury department. He now works as executive managing director at FinPro Inc., a financial services consulting firm in Liberty Corner, N.J. Mr. Polakoff defended his actions last week, saying that with BankUnited, it was a “rather innocuous accounting mistake.”
Mr. Ward is a senior official at the Office of the Comptroller of the Currency; through a spokesman, he declined to comment.
Mr. Ryan, who retired in 2009, said on Tuesday that he had pointed out at the time that the capital shift violated accounting rules, though he says he now regrets that he did not fight forcefully for his position.
“I think the regulators have to abide by the rules,” he said. “And, yeah, if they tell them, ‘forget the rule, go ahead and do it’ — they shouldn’t be doing that.”
Mr. Dochow, interviewed only briefly in front of his home outside Seattle, said he could not talk, but added that “I’m not sure there’s more to say.”
Regulators like Mr. Dochow, of course, would have the chance to publicly defend themselves if accusations against them ever resulted in court cases.
It would be difficult and unusual for the Justice Department or the S.E.C. to bring a case against a bank regulator, longtime securities lawyers say. Regulators enjoy some immunity from allegations of wrongdoing under the Securities Exchange Act, which says that you cannot file a case against an officer of a United States agency for violation of a securities law if the officer was acting within the scope of the job. For financial regulators like Mr. Dochow, a conflict comes into play when banks run into trouble — on one hand, regulators try to help banks maintain their stability. But, on the other hand, securities laws require companies to be transparent in their disclosures to public investors.
Jeffrey M. Kaplan, a lawyer at Kaplan & Walker in Princeton, N.J., said: “In a case of a regulator contributing to misrepresentations made to shareholders, you could have individual criminal liability. But those cases are pretty rare.” More common are cases involving a bribe or another element of corruption.
Congressional oversight could help identify regulatory misconduct, but such efforts have been less than fruitful. Indeed, when Senate investigators tried to get information about the capital backdating that O.T.S. had allowed at IndyMac and other institutions, officials from the agency were not forthcoming, said a former Senate aide who was not allowed to speak publicly about the investigation.
Any financial crisis case that named a regulator probably would turn into a huge political battle, because it would question many of the nontransparent acts that bank regulators take while trying to save banks, said Denise Voigt Crawford, former commissioner of the Texas securities board and now a law professor at Texas Tech University.
In any prosecution of bank regulators, she said, “you’d have the Justice Department in a fight with the policy goals of the Department of Treasury. Particularly in this environment, you know the banking regulators would fight it tooth and nail.”
Some longtime lawyers go further and say the overall scarcity of cases related to the financial crisis might be in part because regulators want to avoid scrutiny of their own kind.
“It’s not just one 30-year-old wunderkind who was responsible for the financial crisis,” said Dennis C. Vacco, who was the New York State attorney general in the 1990s and now is a lawyer at Lippes Mathias Wexler & Friedman. “Once you start pulling the string through in these complex cases, you might be surprised what you find at the other end.”
Mr. Vacco continued: “What’s at the end of the string? The defense may be that ‘at the highest echelons of the financial institutions, we were in regular contact with the government.’ “
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