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How much JPM's $10 billion phone call will really cost

Better Markets lawsuit is weak legal sauce

February 12, 2014
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Wall Street reform activists Better Markets is suing to put the brakes on the record $13 billion settlement with JPMorgan Chase [JPM], and while they make an impassioned case, unfortunately it’s not a great legal case.

As we reported Monday, Better Markets, a Washington-based lobby group, charges that “the (Department of Justice) violated the U.S. Constitution and U.S. laws by using a mere contractual agreement to resolve claims of historic importance without subjecting the agreement to independent judicial review.”

One of the key allegations, on which Better Markets’ position hinges, is that there’s a smoking gun – the “$10 billion phone call” between Attorney General Eric Holder’s No. 3 and JPMorgan Chase CEO Jamie Dimon.

Better Markets alleges that the deal negotiated on that call allowed JPMorgan to hide the details of how it undermined the markets with fraudulent mortgage-backed securities. They have other complaints, too, but that’s the lynchpin.

Daniel Fisher at Forbes goes into why the Better Markets lawsuit reads more like a position paper than anything else, and that no judge will take it seriously.

Elsewhere, Alison Frankel put together a pretty insightful legal takedown of the Better Markets lawsuit.

But there’s something else to address here that’s a lot more broad than the details of the law, and which runs much deeper.

It’s the gut check of this case. It’s the mentality. It’s the almost understandable sense of legal bloodlust.

There have been no prosecutions. No dramatic parade of white-collar perps who we KNOW are more guilty of more crimes than all the inmates in the federal correctional system combined. Whatever restitution is done is done quietly and behind closed doors.

When the crowd has pitchforks, a settlement that brushes some of the worst financial crimes under the rug just isn’t going to cut it.

“We are concerned about the too-big-to-fails and how there’s no concern for the lack of personal accountability in some of the actions by the largest financial institutions in the world, not just before 2008 but since 2012,” said U.S. Rep. Michael Capuano, D-Mass., at Tuesday’s House Financial Services Committee hearing, latching onto popular anger at the financial giants.

We’re far from JPMorgan apologists – a running joke around here was that Charlie Shrem was arrested for not being employed at JPMorgan.

But brushing aside the sour taste of populist sentiment, it’s not hard to see why Better Markets and its supporters want something more from JPMorgan, and expect there’s been collusion or corruption inside the Department of Justice in putting together the deal.

The enforcer of this settlement is the very same Department of Justice whose head – Attorney General Holder – said in Senate testimony in March 2013 that there are corporations that are “too big to jail.”

In an exchange with U.S. Sen. Mike Grassley, R-Iowa, at the Senate Judiciary Committee, Grassley said, “On the issue of bank prosecution, I'm concerned that we have a mentality of too-big-to-jail in the financial sector of spreading from fraud cases to terrorist financing and money laundering cases – and I cite HSBC. So I think we're on a slippery slope.”

Holder responded: “The concern that you have raised is one that I, frankly, share. And I'm not talking about HSBC now. That (inaudible) be appropriate. But I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”

This may be the best settlement even the most gifted and untouchable prosecutor could have gotten, but you’ll have to forgive us if we understand the Doubting Thomases, even when they don’t have a legal case.

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