DOJ's New Duck

What will the U.S. Department of Justice come up with next to avoid prosecuting a corporation and its leaders for committing a crime?

First it was mostly civil fines and penalties. Then came deferred and nonprosecution agreements (DPAs and NPAs) that really took off in the past decade. Now there’s a new development: the “restitution and remediation agreement” (which we’ll call, ahem, R&R).

The first lucky recipient of an R&R was SunTrust Mortgage Inc., which agreed on July 2 to pay nearly $1 billion to state and federal agencies to avoid criminal prosecution in how it handled mortgage modifications using funds under the Troubled Assets Relief Program (TARP).

The settlement quacked like an NPA and walked like an NPA, with Justice stating that it would not criminally prosecute SunTrust. But neither Justice nor the mortgage company called it an NPA in their press releases. Instead, they gave it this new name. But the Office of Special Inspector General for TARP had no qualms in calling it as the office saw it. That press release announced SunTrust’s “nonprosecution agreement” in its headline.

The deal clearly states on page 5 (of 11 pages) that unless SunTrust breaches the agreement, the government will not bring any charges against the mortgage company. But the government reserved the right to pursue charges against individuals, “including current and former officers, employees and agents of SunTrust.”

Former federal prosecutor Joseph Warin, who now chairs Gibson, Dunn & Crutcher’s litigation department in Washington, D.C., and cochairs the firm’s white-collar defense and investigations practice group, suggests that it’s a type of NPA. “The SunTrust resolution, which is the most unusual 2014 resolution, clearly resonates as an NPA and may serve as a road map template for other cooperating financial institutions facing criminal investigations,” Warin says.

But some critics are hoping it goes away. A nonprosecution agreement by any other name is still a nonprosecution agreement, says Brandon Garrett, a professor at the University of Virginia School of Law. “Both the form and the substance of corporate prosecution agreements matter,” he adds. Garrett is a criminal justice expert who has been compiling such agreements online to further research on—and public awareness of—white-collar crime. In his opinion, nonprosecution deals with companies are not “normally appropriate no matter what they are called.”

NPAs provide less accountability because there is no judge supervising compliance with the deal, Garrett explains. “It sends the wrong message if companies that commit serious crimes are given nonprosecution deals,” he says. “If crimes were committed, both the company and employees should be prosecuted.”

Garrett isn’t the only critic. Former federal prosecutor Ryan McConnell says his problem with the SunTrust deal is the lack of consistency by the Justice Department. McConnell, who also writes an online column for Corporate Counsel and is cofounder of McConnell Sovany in Houston, says a company sentenced in New York and one sentenced in Florida in similar cases with similar facts should get the same deal. But no one is ensuring that they do.

The sentencing guidelines and corporate charging guidance are designed to achieve consistency, McConnell insists. But NPAs in any form pose “a risk of undermining the sentencing guidelines and intent of uniform charging guidance because there is no judicial oversight and little coordination between U.S. attorneys’ offices on how to address these things consistently,” he explains.

He says companies angle for better public images by trying to resolve criminal cases in the most favorable way. And that includes what they call the settlement. “I’m certain the lawyers negotiated the nicer name, and then went back to their client and said, ‘We got you some novel deal,’” McConnell says. “But legally, it’s the same impact” as an NPA, he adds.

Besides the Justice Department, SunTrust, a subsidiary of SunTrust Bank Inc., also reached its deal with the Department of Housing and Urban Development, the Consumer Financial Protection Bureau and 49 state attorneys general (along with the District of Columbia’s). “SunTrust’s conduct is a prime example of the widespread underwriting failures that helped bring about the financial crisis,” U.S. Attorney General Eric Holder said in a statement.

Part of the deal required SunTrust to provide $500 million in consumer relief for homeowners. And it demands that the mortgage company abide by certain terms and processes that will help to prevent the abuses from being repeated.

In a statement of facts, SunTrust admitted that between January 2006 and March 2012, it originated and underwrote FHA-insured mortgages that did not meet FHA requirements, that it failed to carry out an effective quality control program to identify noncompliant loans and that it failed to self-report the defective loans it did identify. Numerous audits and other reports “notified SunTrust management that as many as 50 percent or more of SunTrust’s FHA-insured mortgages did not comply with FHA requirements,” the Justice Department said.

From such stuff an R&R was born.

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