On Thursday, March 29, Barclays Capital Inc. and several of its affiliates (together, Barclays)–as well as two former Barclays executives–agreed to settle a three-year Department of Justice (DOJ) investigation concerning Barclays’ marketing and sale of residential mortgage-backed securities (RMBS) between 2005 and 2007.
The lawsuit was commenced by the United States Attorney’s Office for the Eastern District of New York in December 2016. The action, filed in the United States District Court for the Eastern District of New York in Brooklyn, alleged that Barclays caused billions of dollars in investor losses by engaging in a fraudulent scheme to sell $31 billion in subprime and Alt-A mortgage loans across 36 different RMBS securitizations, misleading investors about the quality of the mortgage loans backing those securitizations. More than half of the mortgage loans serving as collateral for those 36 RMBS securitizations had defaulted, and these deals helped fuel the 2008 financial crisis. The DOJ complaint alleged violations of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) based on mail fraud, wire fraud, bank fraud, and other predicate offenses.
In an unusual move by the government, the DOJ suit also targeted two former executives at the bank as individual defendants: Paul K. Menefee, of Austin, Texas, who served as Barclays’ head banker for subprime RMBS securitizations, and John T. Carroll, of Port Washington, New York, who served as Barclays’ head trader for subprime loan acquisitions. Menefee and Carroll were charged with violations of predicate offenses under FIRREA with respect to seven of the 36 RMBS securitizations at issue.
Under the terms of the settlement agreement, Barclays will pay $2 billion in civil penalties–with no admission of wrongdoing–to settle the action. Carroll and Menefee have agreed to pay a combined $2 million in civil penalties–also without admissions of wrongdoing–for dismissal of the claims against them. The settlement agreement has been called final by both sides and is currently pending execution.
Prior to the DOJ’s commencement of litigation, the two sides had attempted to reach settlement in 2016, but those negotiations stalled when Barclays refused to pay more than $2 billion in penalties to settle the dispute, while the DOJ sought higher penalties–a move that appears to have paid off for the London-based bank.
According to Ian Gordon, an analyst at Investec Plc, “[t]he settlement came at the bottom end of expectations and much sooner than expected,” and Gordon called the result a “clear positive” for Barclays. The $2 billion penalty is also notably less than settlements reached by Goldman Sachs, JPMorgan Chase, and other Wall Street banks over their pre-financial–crisis mortgage deals.
While analysts have clearly chalked up the deal as a win for Barclays, both sides publicly endorsed the settlement as a vindication of their efforts.
“The actions of Barclays and the two individual defendants resulted in enormous losses to the investors who purchased the Residential Mortgage-Backed Securities backed by defective loans,” Laura Wertheimer, the inspector general for the Federal Housing Finance Agency, said in a statement Thursday. “Today’s settlement holds accountable those who waste, steal or abuse funds in connection with FHFA or any of the entities it regulates.”
Barclays CEO Jes Stasley called the deal “a fair and proportionate settlement.” Menefee and Carroll appeared equally pleased. Menefee “has always maintained that the government’s FIRREA lawsuit against him was baseless. … Solely to put this matter behind him, Mr. Menefee has agreed to a settlement in which he has not admitted any wrongdoing,” his lawyers said in a statement. Carroll’s lawyers stated that Carroll was gratified the DOJ “relented in its efforts to prove wrongdoing where none exists.”
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