Banks sell money. They may sell you your mortgage loan, for a price, or underwrite your car purchase. In the global marketplace, some big banks trade countries' currencies against others, when there might be a buck to be made. Like any business, they are expected to make a profit ? and to follow the same basic rules of competition as apply to the local widget merchant.
Except they don't. Hardly chastened by recklessly bringing the world's financial system to the brink in 2008, major banks have continued to play fast-and-loose with The Rules, both those specific to their industry (such as those rules still are), and generally. For instance, you may recall the recent LIBOR-rigging scandal (see 'Loans' LIBORs Loused', right here at the RC), wherein, to make an illegal buck, traders manipulated the fundamental baseline interest rate used to calculate the price you pay for that mortgage and those car loans ? as well as your credit card balance and most other credit-based transactions.
Those 16 giant banks who got caught at it paid a few $billion in fines, and private lawsuits continue. The banksters' rather brazen defense in those cases amounts to this: "yeah, we did it, and profited a ton on all you stooges, but those ill-gotten gains buy great lawyers ? just try proving how much you, individually or collectively, were damaged. Good luck ? we'll be in The Hamptons." So far, they're right.
And last week, the DOJ announced that five of those same banks agreed to plead guilty to felonies, and pay an average of about a $billion each in fines for their manipulations of the foreign currency exchange market. This was no ingenious scheme to exploit an arcane wormhole in some complex, ponzified debt swap derivative frammis worthy of a Hahvud MBA. No, these traders got together, in internet chatrooms no less, and colluded to rig the market. In writing. Feloniously. Rather than compete, they preferred to "stay out of each other's way." They even charmingly called themselves "The Cartel."
Newly minted Attorney General Loretta Lynch announced the settlements as follows: "The penalty these banks will now pay is fitting considering the long-running and egregious nature of their anticompetitive conduct. It is commensurate with the pervasive harm done. And it should deter competitors in the future from chasing profits without regard to fairness, to the law, or to the public welfare."
Really? Is it fitting, commensurate and deterrent?
These ARE felonies, which for you and I would have serious direct and ancillary consequences. But even though these corporations ARE people (repeat after me: 'my friend'), they will serve no time, and all were promptly granted exemptions from SEC rules that would disqualify them (and you or I) from conducting financial markets business. Other than reputational damage (badges of honor, among thieves), the NY Times called those consequences "largely symbolic" rather than 'fitting.' I'll say they are ? they symbolize impunity.
As to the amounts of the fines, garden-variety antitrust shenanigans carry potential fines of up to twice the gross financial loss or gain resulting from the violation. Although these low $billions are said to exceed a year's revenue (and thus the profits) to the banks in those exchange markets, this conspiracy endured for up to six years. It's not clear that the amounts paid even equal the gross gain, much less twice that amount. It's also true that by settling, the banks have made it more difficult for private plaintiffs to collect the treble (3X) damages available to compensate their losses, if they can prove them. 'Commensurate' is an inexact term, but you won't find this matter in the dictionary as an example of its meaning.
Then there's 'deterrence.' Once again, the living, breathing, organic homo-saps who so clearly committed these crimes have so far clearly escaped legal consequences. Only one of them has even lost his job, much less gone to the hoosegow for the Sherman Act's up-to-ten-years (or paid up to $1 million in personal fine-age). "Go and sin no more" is hardly an injunction designed to alter demonstrated instincts for larceny.
Which begs, and pleads the question: Why, in the name of all that is right, decent, legal, honorable, holy and non-fattening: NOT?
More on that in Part Two.
