By the end of 2013, a general feeling spread across the mortgage finance space that mega banks were eager to put legacy mortgage-backed securities litigation and other legal issues behind them.
Looking at JPMorgan’s (JPM) fourth-quarter and year-end financial statement, it’s clear JPM – among other banks — is still dishing out the dollars to get these issues behind them.
But who is the true beneficiary of the settlements and litigation? Homeowners? Future borrowers? Nope. It’s more likely to be attorneys and law firms who are collecting legal fees for handling these big deals.
Just look at the legal expenses tied to one big bank.
In calculating its fourth-quarter earnings per share and return on tangible common equity, JPMorgan said Tuesday that its final results were impacted by a $1.1 billion reduction after-tax (or a 27 cent-per-share cut) to cover legal expenses, including settlements tied to the Bernie Madoff case. Of course, there's no telling how much of that went to legal support staff.
It's clear from past settlements — including the Independent Foreclosure Review deal reached in early 2013 – that consumers in some cases walk away with as little as $300 dollars, while the billion-dollar litigation wheel juices the coffers of attorneys, regulatory agencies and in the past countless states.
The bill to wrap up all legacy mortgage issues is expected to be a big one – $50 billion to be exact. At least it could reach that level if you believe a recent New York Times article on the matter. Whether the final dollar amount goes that high or not remains to be seen.
When JPMorgan coughed up a rather large settlement — paying $13 billion to resolve RMBS issues in November – it set a possible precedent for future deals.
Bank of America (BAC), which releases its earnings tomorrow, also found itself knee-deep in RMBS, put-back and foreclosure-related litigation after the 2008 meltdown.
But even if attorneys are benefiting from the settlements and suits, the legal profession is not getting off scott free.
When it comes to the Securities and Exchange Commission, the agency seems to be sharpening its knife under a new leader.
Three lawyers warned about this trend in a recent article published on Bloomberg law. In a piece about the SEC, attorneys William McLucas, Douglas Davison and Michael Lamson with WilmerHale noted that SEC enforcement co-director George Canellos showed a different future for lawyers. He apparently said his staff would focus on corporate gatekeepers, including lawyers, in the future when rooting out fraud.
The same article points to a comment made by SEC Chairperson Mary Jo White in which she says her agency "will not be looking to charge a gatekeeper that did her job by asking hard questions, demanding answers, looking for red flags and raising her hand."
After hearing those quotes, McLucas, Davison and Lamson concluded, “We believe these statements, taken together with other developments discussed below, suggest that the staff will increasingly investigate and scrutinize the role of counsel."
They added, "As a practical matter, practitioners and their clients should be mindful that counsel’s advice may well come under intense scrutiny in the course of SEC investigations, and that possibility, in and of itself, poses both serious and complex issues for the private bar and the SEC."
So the takeaway is the lawyer’s role on the litigation side may be benefiting somewhat from the crisis clean-up, but attorneys working with mortage securities — or any securities in the future — are entering a new era where the SEC is keeping a deliberate eye on their handling of securities.
The takeaway: some attorneys win post-financial crisis, others face a future where there is no substitute for perfection in their daily work.
