fresh voices from the front lines of change







If only. If only Brian Moynihan designed fashionable shoes, Jamie Dimon pitched a mean slider, and Lloyd Blankfein had written the song "Boyfriend" for Justin Bieber. Then they'd prosecute bank fraud.

The Justice Department used as many people to investigate one baseball player as it's doing to pursuing Wall Street housing fraud. It has coordinated fifteen Federal agencies to seize counterfeit goods worth $178 million, yet all but ignored a bankers' crime wave which cost the global economy trillions.

Our largest (and, lest we forget, taxpayer-rescued) banks have already paid tens of billions of dollars to settle civil and criminal charges - and now there's LIBOR. Yet there have been no arrests for a well-documented litany of charges which includes bribery, perjury, forgery, investor fraud, consumer fraud, and money-laundering for Mexican drug cartels.

Let's do the numbers. Number of seizures to recover counterfeit goods worth $178 million: 24,792. Number of arrests for crimes worth tens of billions in settlements and trillions in losses: Zero.

Low and Inside

Earlier today I took part in a press call with the Campaign for a Fair Settlement in which its Campaign Director, Brian Kettenring, noted that the Department of Justice assigned 93 agents to investigate ballplayer Roger Clemens and "about 100 to investigate misconduct responsible for millions of underwater homeowners and $800 bllion in underwater equity."

They weren't investigating Clemens for his pitching technique (although I think there's more to be learned about his split-finger fastball), but for something even less consequential: his alleged steroid use. Kettenring's right to contrast the government's Clemens probe with its response to the well-documented Wall Street crimes which triggered a worldwide financial crisis.

Roughly 1,000 investigators were assigned to the much smaller Savings and Loan scandal, and 100 to the Enron case alone. Now we're told that 100 people have been assigned to a Task Force which must investigate every major bank in the country.

My participation in today's call was prompted by some reporting I did recently, where confidential sources close to the RMBS investigation told me it could deliver concrete results, and soon,with as little as twenty or thirty more people. But that the Justice Department won't provide them.

Let's do a little compare and contrast.

In Surprise Upset, Footwear Falls Behind

The DOJ isn't saying much about the RBMS Task Force, but it has expended considerable time and money into building - and publicizing - its National Intellectual Property Rights (IPR) Coordination Center.

According to an IPR Center report, there were 24,792 seizures of counterfeit products in Fiscal Year 2011, netting items worth $178.9 million in total. Specifically, 7,392 seizures intercepted "Wearing Apparel," 2,978 netted "Handbags/Wallets/Backpacks," and 1,772 snagged "Footwear."

In dollar value, the largest category of intercepted goods was "consumer electronics." And, in a surprise upset, the report informs us that "For the first time since FY 200 footwear was not the top commodity."

Want to know more? "Seizures of counterfeit perfume/cologne increased in value by 471% to $9.4 million in FY 2011." And, "FY 2011 is the first year that the category of handbags/wallets/backpacks did not make the 'Top Commodities Seized' list."

All in all, a satisfying report - especially if your name is Fendi or Prada.

Lawyers, Guns, and Money

The IPR Center apparently isn't hurting for resources. Its annual report states that "(Homeland Security) opened 1,212 intellectual property investigations and had 574 arrests, 355 indictments and 291 convictions," while "the FBI initiated 235 investigations and made 93 arrests, secured 79 indictments, and obtained 79 convictions."

Within the Justice Department itself, "assistant US Attorneys received 387 intellectual property referrals and … charged 168 cases with 215 defendants."

And when it comes to your Justice Department and intellectual property, it's not just about handbags anymore. The DOJ also moved against illegal file sharing this year, charging seven individuals and two corporations with the alleged theft of $175 million in intellectual property in the Megaupload case.

But there were no indictments in the "Megabankfraud" case.

This Year's Model

The IPR Center shows what can be accomplished when an Administration devotes many agencies toward a common goal. It's a glimpse of what a real effort to fight bank fraud might look like. The Center has a "Field Support Unit," a "Programs Unit," an "Outreach and Training Unit," and a "Policy Section." It produces educational materials and holds training sessions for law enforcement personnel, policy makers, and ordinary citizens alike. Twenty six Homeland Security offices house dedicated teams who have been trained in intellectual property issues.

Metrics matter, too. "You can't manage what you can't measure," as they say. The IPR Center produces government-wide metrics on actions as well as results - inputs and outputs - tracking items such as cases referred, arrests, convictions, and the dollar impact of their efforts.

In a dream world - and yes, I know it is a dream world - the DOJ's anti-financial fraud effort would be designed, funded, and staffed on the IPR Center model. In many ways it's a model government effort.

Seal of Approval

We're not mocking the goal. Counterfeiting leads to the loss of badly-needed jobs here the United States (although, sadly, too many of them have already been lost to outsourcing.) And on a personal level, I have a vested interest in protecting revenue streams for both written and musical material.

The problem isn't intellectual property protection (although it's my personal opinion that the Justice Department sometimes goes about it in counterproductive, Draconian and extrajudicial ways - but that's another topic.)

The problem isn't counterfeiting. It's priorities.

Economically, bank fraud is many orders of magnitude more important than copyright infringement. Imagine if it were treated as seriously and addressed with as much dedication and imagination.

Not that the DOJ's just looking out for corporations. It recently announced that private citizens who hold copyrights will be allowed to use the FBI Anti-Piracy Warning Seal (APW Seal) on copyrighted works "including, but not limited to films, audio recordings, electronic media, software, books, photographs, etc." -provided that "the APW Seal and authorized warning language shall be enclosed by a plain box border at all times …"

But as of this writing, consumers are unable to place a protective seal on their money.

Postscript: Burnin'

The three people we mentioned in our first sentence - Moynihan, Dimon, and Blankfein - don't design shoes or write songs, of course. They're the CEOs of Bank of America, JPMorgan Chase, and Goldman Sachs. Those three banks alone have paid billions to settle criminal and civil charges.

In what an otherwise very good overview of today's call, Alison Frankel of Thomson Reuters says I'm being"inflammatory" for suggesting that the Justice Department "has a long-standing pattern of inactivity, obfuscation, and obstruction" on bank fraud.

But Ms. Frankel's also smart and honest enough to have written that she's "disgusted at the greed that fueled the securitization of insufficiently underwritten mortgages." And her prediction for the RMBS Task Force, like that many other astute observers, has so far proven much more more accurate than mine. She looked at the Administration's track record and said "I'm not not holding my breath."

"Mr. Inflammatory," on the other hand, was willing to give the Administration the benefit of the doubt on this one. Until now that's been one of my worst calls in a long time.

And as for tone, a personal note: Some of us have written about the financial industry for years - its dishonest underwriting, its often-falsified risk management practices, and its ongoing patterns of criminal behavior. We've used both personal experience and the mounds of data pointing to massive bank fraud in order to lift our soft voices in protest. Some of us are well-known, respected, even Nobel Prize winners. Others, like yours truly … not so much.

But each of us has tried to find our niche in this little ecosystem of economic resistance so we can speak out as best we can. Years have passed. In the meantime bank executives, and too often our leaders, have continued to behave in breathtakingly cynical ways.

Trust me: I'd rather be still be using the analytical, dispassionate tone of a corporate consultant or State Department team member. But the times don't call for that anymore. Harsh truths sometimes call for harsh language. Some people enjoy doing it; I don't. But only the Justice Department can disprove the charge of "inactivity, obfuscation, and obstruction" - and it can only do it with action.

I hope they do. According to polls, it would do a lot for the President and his party. Much more importantly, justice will remain unserved - and our economy will remain endangered - until they do.

It would also help change the tone if the Administration did more, and spoke more, about the damage bank fraud has inflicted on millions of innocent people. The best way it can do that is by fighting for jobs and defending our social safety net.

The economic and political landscape we see today is the one some of us predicted - and feared - in 2009. We dutifully issued our warnings: Democrats would lose Congress unless they tackled Wall Street. More bank crimes were coming. Austerity rhetoric and deficit compromises would lead to economic disaster.

The response? We were sneered at as "purists" or dismissed as "naive." Well, here's another prediction: There's more trouble comin'. "Sometimes it's no fun to be right," writes Ms. Frankel.

Tell me about it.

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