Even by the lamentable standards of U.S. banking and securities regulators, the settlements unveiled this week with Toronto-Dominion Bank for its role in a $1.2 billion Florida Ponzi scheme were incredibly lacking.
Three federal agencies on Sept. 23 said they had struck deals with TD Bank, the Toronto-based lender’s U.S. unit. The penalties amounted to $52.5 million: $37.5 million to settle allegations by the Office of the Comptroller of the Currency and $15 million to the Securities and Exchange Commission. Per the usual niceties, TD Bank neither admitted nor denied the agencies’ claims, which ranged from negligence to violations of anti-money-laundering laws. It also settled with the Financial Crimes Enforcement Network, a unit of the Treasury Department, but that won’t result in additional payments.
Now consider this: The total fines are less than the $67 million that a single victim of the Ponzi scheme was awarded at a jury trial against TD Bank last year in a Miami federal district court. So you see, it really is possible for motivated, competent lawyers to take a big bank to trial over fraud allegations and win. The regulators just don’t do it very often.
In that case, a firm named Coquina Investments accused TD Bank of aiding Fort Lauderdale lawyer Scott Rothstein’s Ponzi scheme and making fraudulent representations of its own, by telling investors their money was safe while Rothstein depleted accounts of their cash. The jury awarded $32 million of compensatory damages and $35 million of punitive damages to Coquina, based in Corpus Christi, Texas.
“It was clear cut for us,” the jury forewoman, Shonda Smith, said after the verdict. “We were all surprised at how much stuff they allowed to go through, all the deposits and transfers. At any point someone could have stopped it.”
After the trial, Judge Marcia Cooke sanctioned TD Bank for concealing evidence. The judge ordered the bank and its former law firm, Greenberg Traurig, to pay portions of Coquina’s attorney’s fees and other costs. She also stipulated, for purposes of the court case, that “TD Bank’s monitoring and alert systems were unreasonable and that TD Bank had actual knowledge of Rothstein’s fraud.” The bank is appealing the judgment and her sanctions ruling.
All of this makes for a stark comparison. It took about four years after the Ponzi scheme collapsed for regulators to bring any actions against TD, which was Rothstein’s main bank. TD Bank has paid more than $600 million in restitution to harmed investors, according to the OCC. All the regulators seem to have done was follow up on the private litigants’ efforts. The bank at one point had more than 200 lawyers from Greenberg Traurig working on the Coquina litigation, the judge noted.
The SEC in a separate lawsuit this week accused a former TD vice president, Frank Spinosa, of committing securities fraud with intent or knowledge of wrongdoing. (He declined to testify at the Coquina trial, citing his Fifth Amendment right against self-incrimination, but this week his attorney said Spinosa didn’t know about the fraud.) Yet the SEC went easy on TD Bank and accused it only of negligence. The commission explained in its order that it “considered remedial acts promptly taken” by TD Bank, as well as TD’s cooperation.
Of course, it would be hard to blame anyone at Coquina for wondering what remedial acts the SEC had in mind, given that the firm is still fighting to collect its damages award. TD Bank continues to deny Coquina’s accusations, even while it neither admits nor denies the government’s claims. Then again, unlike the SEC, Coquina didn’t accuse TD Bank of securities fraud. It convinced a jury that TD committed regular, old-fashioned fraud. So maybe that little distinction explains things somehow.
The Justice Department is nowhere to be found when it comes to TD Bank, although federal prosecutors did land a 50-year prison sentence for Rothstein. As for the banking regulators, they pretty much lived up to the public’s meager expectations. More than a year after a federal judge ruled that TD had actual knowledge of Rothstein’s fraud, the comptroller’s office dinged the company for some violations of the Bank Secrecy Act. No big deal.
The $52.7 million of fines won’t make much of a dent. Toronto-Dominion has an $82 billion stock-market value and had more than $23 billion of revenue last year. There is no deterrent effect here. If a big bank services a billion-dollar Ponzi scheme in ways it shouldn’t, it may get a slap on the wrist from the feds, but that’s all. This must be of some comfort to JPMorgan Chase & Co., which still faces government investigations (but hasn’t been penalized) over its ties to Bernard Madoff’s Ponzi scheme, almost five years after that $17 billion scam blew up.
A TD spokeswoman, Ali Duncan Martin, declined to answer questions about this week’s settlements or the Coquina case. However, she was kind enough to send me an e-mail saying “TD Bank is pleased to resolve these regulatory concerns.” I’ll bet it is.
(Jonathan Weil is a Bloomberg View columnist.)
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