DOJ

HUD and Justice Department Sign Interagency Memorandum on Enforcement of False Claims Act

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On October 28, the U.S. Department of Housing and Urban Development (HUD) and U.S. Department of Justice (DOJ) issued a Memorandum of Understanding (MOU) between the two agencies that provides prudential guidance on the appropriate use of the False Claims Act (FCA) for violations by Federal Housing Administration (FHA) lenders. The MOU aims to bring greater clarity to regulatory expectations within the FHA program and ease banks’ worries about facing future penalties for mortgage-lending errors. HUD expects that FHA requirements will be enforced primarily through HUD’s administrative proceedings, but the MOU specifically addresses how HUD and the DOJ will consult with each other regarding the use of the FCA in connection with defects on mortgage loans insured by the FHA. In addition to the MOU, the FHA is simplifying certain certifications that lenders make in connection with the FHA program to better track statutory requirements and address materiality and culpability considerations. HUD Release. DOJ Release.

Nomura Settles DOJ RMBS Claims for $480 Million

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Nomura Holdings, Inc. (“Nomura”) and its U.S. affiliates agreed to pay $480 million to resolve claims brought by the United States Department of Justice (“DOJ“) for alleged misrepresentations in connection with RMBS offerings made prior to 2009. The DOJ alleged that Nomura violated the Financial Institutions Reform, Recovery and Enforcement Act by misleading investors about the risks associated with over $13 billion in RMBS securities that Nomura marketed, sold, and issued. Although Nomura reportedly represented its due diligence process as robust and extensive, the DOJ alleged that Nomura ignored those findings and securitized loans that did not meet underwriting guidelines and continually transacted with loan originators with questionable practices. Nomura disputes the DOJ’s characterization of its practices, and released a statement advising that it settled the dispute to avoid incurring additional legal expense related to the transactions at issue in the investigation. DOJ Press Release. Nomura Press Release. Settement Agreement.

Nonprofit Seeks to Enjoin DOJ Settlement with JP Morgan

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On February 10, non-profit corporation Better Markets, Inc., filed a complaint in the United States District Court for the District of Columbia against the United States Department of Justice and the Attorney General of the United States.  The complaint seeks injunctive and declaratory relief in connection with the recent US$13 billion settlement between DOJ and JPMorgan Chase & Co.  The settlement covers allegedly misleading conduct in RMBS securitizations.  Better Markets alleges that the DOJ did not have the authority to confidentially negotiate the settlement and then enter into the deal without court approval.  Better Markets asks the court to enjoin the DOJ from enforcing the agreement unless it is reviewed by a court, and to declare that the DOJ violated the Administrative Procedures Act and 28 U.S.C. Section 2201(a).  Complaint.

RBS Fined £87.5 Million over LIBOR Rates

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On February 6, the FSA issued a final notice to RBS imposing a fine of £87.5 million for misconduct in submitting rates for the calculation of LIBOR.  RBS’ misconduct included the manipulation of submissions and several failings in respect of risk management systems and controls (including ongoing failings to identify inappropriate LIBOR submissions), as well as RBS’ collusion with other LIBOR panel banks and brokers in setting rates.

The FSA stated that the significant financial penalty of £87.5 million is intended to reflect both the widespread nature of the misconduct, as well as the harm caused to market participants and the integrity of the UK financial system.  In related actions, RBS has agreed to pay $324 million to the US Commodities and Futures Commission and $150 million to the US Department of Justice. 

DOJ Brings Civil Fraud Action Against S&P

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On February 4, the Department of Justice filed a complaint in the Central District of California against two Standard & Poor’s entities in connection with credit ratings S&P provided for certain RMBS and CDOs.  The government asserts claims under the 1989 Financial Institutions Reform, Recovery and Enforcement Act (FIRREA), which allows the government to bring civil claims for mail fraud, wire fraud, and “financial institution fraud” for alleged frauds perpetrated against federally insured financial institutions.  The complaint alleges that from September 2004 through October 2007, S&P knowingly issued inflated ratings of non-prime RMBS and CDOs, delayed downgrading those products, and knowingly used faulty ratings methodology.  The government seeks statutory civil penalties totaling over $5 billion.  Complaint.

FTC and DOJ Final Rules on Premerger Notification

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On July 7, the FTC and DOJ adopted final amendments to the Premerger Notification Rules and the Premerger Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act. The final amendments, in addition to other changes, require an acquiring company to submit information about “Associates“, the operations or investment decisions of which are commonly managed by the acquiring company. Acquiring companies will be required to report: (i) an Associate with voting securities and non-corporate interests greater than or equal to 5% but less than 50% of (a) the acquired entity and (b) entities having a six-digit NAICS industry code overlapping with the acquired entity; and (ii) the geographic information of any entity controlled by an Associate having a six-digit NAICS industry code overlapping with the acquired entity. The final amendments will be effective 30 days after publication in the Federal Register. FTC Release. FTC Final Rule.