Pursuit of Liability on Bank Resolution

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1 Pursuit of Liability on Bank Resolution Presentation to the Deposit Insurance Corporation of Japan 8 th Roundtable: Legal Issues on Bank Resolution Fred W. Gibson, Acting Inspector General FDIC March 26, 2015

2 What is an Inspector General? Federal Inspectors General: Are established under the Inspector General Act of 1978, as amended, as independent offices within their agencies. Conduct audits and investigations of "waste, fraud, and abuse" relating to the programs and operations of the agency. Are subject only to "general supervision" of agency head. Independently select matters for audit and investigation. Have access to all information and staff of the agency. 2

3 What is an Inspector General? The Inspector General (IG) keeps the agency head informed of matters affecting the operations of the agency. The IG is required to notify the Attorney General whenever the IG believes there is evidence that a crime has been committed. The IG reports to the Congress and to the public. The IG's jurisdiction is generally not exclusive. Other government organizations can and do conduct audits and investigations of the matters that an IG may choose to investigate. The IG is prohibited by law from managing the agency. 3

4 The FDIC The mission and authority of the FDIC is established under the Federal Deposit Insurance Act, as amended. Unlike most Federal agencies, the law defines the FDIC as a "body corporate," which means it: Has the right to sue and be sued in its own name. Is governed by a five-member Board of Directors, rather than a single department or agency head. 4

5 What is the FDIC s Role in an Open Bank? The FDIC is the primary Federal supervisor for one class of banks (state non-member banks). (4,138 at Dec. 31, 2014) The FDIC has backup supervisory authority over all other classes of banks (National banks, and member banks). (2,371 at Dec. 31, 2014) The goal of bank supervision is to ensure safety and soundness. To achieve that goal, the FDIC Issues rules or guidelines and Conducts safety and soundness, and compliance examinations. 5

6 What is the FDIC s Role in a Bank Failure? Broadly, the FDIC has two roles (insurer and receiver) when a bank fails. In all cases, The FDIC is appointed receiver for failed institutions. The FDIC insures deposits of failed institutions, up to $250,000 per individual account. 6

7 What Are PLCs and How Do They Arise? Professional Liability Claims (PLCs) are cases that seek to establish responsibility for misconduct by a director, officer, contractor, or customer of a bank that resulted in harm to the financial institution, or the failure of the institution. Remedies for misconduct can be Civil (usually monetary damages for losses caused by certain misconduct), Administrative (prohibition from engaging in banking, civil monetary penalties), or Criminal (imprisonment, fines, and criminal restitution). 7

8 Responsibilities of Different Parts of the Government There is no central authority that governs how the U.S. government approaches PLCs. As a bank supervisor, under the FDI Act, the FDIC can take action to administratively sanction misconduct that impairs the safe and sound operation of a bank. As receiver and insurer, using its authority under the FDI Act, the FDIC seeks to recover monetary damages to compensate for losses suffered as a result of misconduct. Under Title 28 of the U.S. Code, exclusive authority to prosecute criminal acts is retained by the U.S. Department of Justice. 8

9 What the IG Investigates The IG investigates allegations of misconduct. The IG has agents with full law enforcement authority. The IG works with other Federal law enforcement partners to conduct its investigations (FBI, Secret Service, other Inspectors General). The IG brings its findings to the U.S. Department of Justice (DOJ), which decides whether to prosecute. If prosecuted, the IG works with DOJ to develop and bring the case, through indictment, conviction, sentencing and appeal. 9

10 IG Investigations The IG currently has 264 open investigations 150 open bank 96 closed bank Results in Fiscal Year 2014 $587 million in fines, ordered restitution, other monetary benefits 92 indictments 89 convictions 57 arrests 67 referrals to the U.S. Department of Justice 10

11 IG Investigations Cases involving fraud and misconduct by bank insiders Embezzlement False entries in bank books False financial reporting Obstruction of bank examinations Fraud and misconduct by non-bank employees False statements related to loan applications Double pledging of collateral False accounts receivable False documentation for construction draws Professional services fraud 11

12 FDIC Professional Liability Cases For the period January 1, 2009 February 25, 2015 Authorized lawsuits related to 149 institutions against 1,195 individuals for directors and officers liability The suits include 105 filed lawsuits naming 800 former directors and officers Sixty-one other lawsuits for residential mortgage backed securities, fidelity bond, insurance, accounting malpractice, appraiser malpractice, and attorney malpractice claims Seventy-two residential mortgage malpractice and fraud lawsuits pending 12

13 Enforcement Actions FDIC Enforcement Actions ( ) The FDIC issued 154 enforcement actions against 122 institution-affiliated parties associated with 58 institutions (20 percent of 291 institutions). Removal/prohibition order to 79 directors and officers and 7 other employees Civil monetary penalties against 63 former bank directors and officers, for amounts ranging from $500 to $1.3 million Administrative restitution penalties to five directors, for amounts ranging from $4,000 to $225,000 13

14 Summary of Key Points There is no central authority that decides whether to pursue professional liability cases. Generally the FDIC pursues civil and administrative remedies. Always the Department of Justice pursues criminal cases. The FDIC IG finds facts and refers matters to agencies with authority to pursue remedies. The FDIC works cooperatively with many organizations to achieve the mission of accountability for misconduct. 14

15 Contact Information Fred Gibson Acting Inspector General

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