Schafer: Big penalties shouldn't be a surprise after a boom

The bad behavior that goes on in financial booms always generates a bill that eventually comes due.

That's why no one can say for sure how much money was made in any boom until at least five years later. That is, until all of the boom-era misconduct has been paid for in the form of legal fees, settlements, arbitration awards, judgments and regulatory fines.

So what's noteworthy about JP­Morgan Chase & Co.'s post-boom expense is really just the amount of dollars. The company has paid $8 billion in settlements and judgments since the start of 2010 and ended the third quarter with a $23 billion litigation reserve. Then its chief financial officer said $23 billion was probably not going to be enough.

We already know one reason why it may not be, with news this week of a $13 billion tentative settlement with government authorities over alleged misconduct in the sale of mortgage securities.

The settlement is so big that there are responsible people in the financial community who are arguing that this time the regulators have gone too far.

This is not coming from just the excitable stock market impresario Jim Cramer, but also people like respected bank stock analyst Chris Kotowski of Oppenheimer & Co. His thoughts appeared on a research note with the title "The Fleecing of JPMorgan's Shareholders."

These people should know better than anyone that litigation and settlements follow a boom like night follows day. It wasn't that long ago that equity markets had the dot-com boom, with flimsy businesses going public at big valuations. Remember what came next?

It's true the numbers are far bigger for JPMorgan, but the scale of the problem in 2008 was far bigger, too, with a full-blown financial crisis that required a massive government intervention.

Americans are still in no mood to forgive, either. In a late September poll, eight out of 10 folks thought more bankers and other employees of financial institutions should be "prosecuted" for their roles in the financial crisis of 2008.

It's easy enough to spot some of the politics of punishment in JPMorgan's tentative settlement. As the main issue concerned the sale of mortgage securities, the only way to explain the $4 billion to be allocated to consumers is that JPMorgan's overall mortgage banking practices were somehow just generally unfair.

But more than $6 billion will settle claims over mortgage securities sold by JPMorgan, Washington Mutual and Bear Stearns, prior to JPMorgan bringing the latter two into its fold in 2008. There were lots of bad actors in this market, but these three had fingerprints on some of the most disastrous mortgage deals of the era.

The circumstances of the two acquisitions, however, seem to have a lot to do with the complaints with the $13 billion tentative settlement. That, too, is wrongheaded. JPMorgan was doing no one any favors in taking over these companies, not the regulators or anybody else.

While it said it would pay an additional $6 billion in costs including for litigation, JP­Morgan did not bother to mask how much money it would make on this deal. The analysts applauded.

Then a far better deal presented itself during the crisis of September 2008, as the Federal Deposit Insurance Corp. ended up in control of Washington Mutual Bank. Known as WaMu, it was a once-sleepy savings bank in Seattle that had turned itself into an irresponsible subprime mortgage lender. When $16.7 billion in deposits left during an old-fashioned run on the bank, regulators shut it down.

The Puget Sound Business Journal later called JPMorgan's WaMu purchase one the greatest deals in U.S. banking history. JPMorgan paid just $1.88 billion for 2,239 WaMu branches, two Seattle office towers, $24 billion in securities and about $119 billion in loans. JPMorgan also took over $188 billion in deposits. And overnight it became a true national bank.

Now that shareholders of JPMorgan have figured out the actual price paid for those acquisitions, they want to know why no one thought to negotiate any protections from claims into those two deals.

"We did ask. We weren't completely stupid," CEO Jamie Dimon responded, on the third-quarter conference call. "We did ask the SEC and only the SEC, would they please agree not to take enforcement actions against JPMorgan for things that happened at Bear. And in WaMu, we don't believe we're responsible, by contract. But that does not mean that people can't come after you."

Much like JPMorgan's deal for WaMu's banking operations, the Stearns Bank in St. Cloud has done lots of deals with the FDIC. Norm Skalicky, the longtime CEO of Stearns, explained that he can barely recognize what JPMorgan does as banking, and he said, "we have had no problems with the FDIC or the government." He reads news accounts of JPMorgan's $13 billion settlement, he said, but sees no reason to look further into it.

Maybe any lesson is meant for the next generation of finance executives, who will be in charge during the next financial boom.

If sober enough to recognize what's happening, they ought to immediately start booking additional litigation reserves.

They will have to explain to their auditors that they can't say just why they will be sued. Just that they will.