Payback Time

Thursday, January 12, 2012 7:00 PM

How really amazing is the clash between Judge Jed Rakoff and the Securities and Exchange Commission? For those of you who haven’t been following it, the SEC has been routinely settling cases with investment banks who agree to pay hundreds of millions of dollars in fines but are allowed to contain reputational damage by “neither admitting nor denying” guilt in what are, generally, matters entailing fraud and gross misconduct.

Judge Rakoff refused in November to approve one such settlement, citing the public’s right to know the facts in the case. Harshly criticizing the tactics of the agency’s enforcement arm, he sent them back to do a better job. Now the SEC is contesting this decision, arguing among other things that they don’t have the resources to prosecute the matter.

I’m still waiting to meet anyone who thinks the SEC position has any merit. Of course, We the People have a right to know, and our executive and judiciary branches have an obligation to pursue the truth and a just outcome, especially in cases involving bailed out banks and financial fraud. Here’s hoping that all the previous sweetheart settlements also get overturned. (Hello, Goldman!)

So funding for regulatory oversight is an issue? And the SEC is understaffed? Then let’s reduce unemployment by hiring as many people as they need - lawyers, clerks, investigators, administrative staff, executioners. Bring ‘em on, one and all!

“But there’s a deficit,” they say. “We don’t have the budget to hire.”

If the Treasury Department needs to find some money to fund this vital initiative, here’s one obvious place to look:

For many years, some of the largest banks in the world operated their businesses with the benefit of almost unimaginably valuable insurance policies. Though never drawn up as formal contracts, the terms of these agreements specified that if the banks ever blew themselves up, their home country government would step in to bail them out.

How much did the banks pay for that insurance? Nothing. They were never invoiced and they never paid. Why not bill them retrospectively, with interest? The banks might refuse, I guess, and maybe they’d want to fight it out in court. Or maybe they’d decide to contain the reputational risk and just settle. It’s worth a try.