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Bank of America Corp.’s lawyers came through big for their client last year when they whittled down a U.S. case over precious metals spoofing.
Justice Department prosecutors wanted to bring criminal charges, but bank lawyers asked for none and prevailed. Prosecutors named Bank of America throughout the draft settlement document but not in the final version.
Details of wrangling between bank lawyers and the Justice Department are usually tightly guarded. The previously untold story of the talks are on point now that another big global bank,JPMorgan Chase & Co., is poised to conduct its own negotiations with the Justice Department over alleged manipulation of precious metals futures. For JPMorgan, the Bank of America deal sets a low baseline for penalties in the relatively new area of enforcing market-manipulation cases.
Over several months of haggling last spring, lawyers for Charlotte, North Carolina-based Bank of America argued that senior officials hadn’t been involved in any manipulation and the bank’s overall compliance culture was strong, according to several people who requested anonymity to describe the talks. The lawyers also pointed out that the handful of previous spoofing investigations of banks had resulted in civil rather than criminal settlements.
Bank representatives ultimately persuaded the U.S. to back off from a resolution that would have required its Merrill Lynch subsidiary to show up in court and admit to criminal conduct. The bank’s lawyers also prevailed on Justice Department prosecutors to excise multiple appearances of the Bank of America’s name from a draft of the settlement, according to two of the people.
Spokesmen for the Justice Department and Bank of America declined to comment.
JPMorgan arguably faces deeper peril. U.S. authorities havealleged that traders there engaged in an eight-yearconspiracy through 2016, spanning desks in New York, London and Singapore, to move gold and silver futures prices to their advantage by placing orders they didn’t intend to execute. Six current and former employees have been charged, including the bank’s global head of base and precious metals trading. Prosecutors are looking to build a criminal case against the bank itself, Bloomberg has reported. JPMorgan declined to comment.
JPMorgan’s Role in Metals Spoofing Is Under U.S. Criminal Probe
Though each spoofing case is unique, the Justice Department has identified these inquiries as important to ensure the integrity of financial markets. Several traders have pleaded guilty to spoofing in recent years, and regulators have reached civil settlements with four banks.
Bank of America was the first to face potential criminal charges. The case began in 2018 when prosecutors in Chicago charged two former Merrill Lynch commodities traders with spoofing over several years when Merrill was owned by Bank of America.
By early last year, U.S. prosecutors had internally arrived at a two-tiered resolution, according to the people familiar with the matter. The plan was to charge the Merrill Lynch unit but agree not to prosecute, provided the unit adhere to an improved compliance program — a so-called deferred prosecution agreement. The parent company would enter into a non-prosecution agreement. The action would be accompanied by a fine of $15 million to $30 million.
Like most companies dealing with Justice Department investigations, the bank turned to a Washington lawyer with industry expertise and government connections. Reginald Brown heads the banking practice at one of the bank’s outside law firms, WilmerHale. A veteran of the George W. Bush White House, Brown has cultivated ties to officials in Democratic and Republican administrations.
Brown and his legal team met with Robert Zink, head of the Justice Department’s fraud section, and one of his deputies to discuss the government’s proposed resolution. Brown argued that Bank of America’s relatively clean history with the Justice Department, combined with evidence that the spoofing misconduct was confined to a few traders long gone, merited a favorable outcome.
He and his legal team also considered the prospect of a deferred prosecution, with its criminal charge hanging over the bank, to be an unwarranted punishment for Merrill.
Zink listened but didn’t make any deal. Brown then sought a meeting with one of Zink’s superiors, and ended up getting an audience with John Cronan, principal deputy assistant attorney general to Brian Benczkowski, the chief of the Justice Department’s criminal division. Such requests are often part of the back-and-forth between the government and corporate defense attorneys.
After the Cronan meeting, the bank’s lawyers asked for and received an audience with Benczkowski. Like Brown, Benczkowski served in the Bush administration, as an official in the Justice Department.
Before Brown met with Benczkowski, fraud section prosecutors softened their position, according to one of the people, telling their chief that they would be willing to accept a deferred prosecution with Merrill Lynch only, and not involve the parent company.
For the Benczkowski meeting in mid-May, Brown brought along David Leitch, Bank of America’s general counsel, a veteran of both Bush administrations.
The legal team showed officials a matrix of U.S. bank prosecutions and settlements over a decade. The spoofing conduct at Merrill, they argued, was limited to a few traders and the potential damages were small — in contrast with what they said was far more pervasive misconduct at other banks accused of manipulating interest and currency rates.
The legal team also pointed out that Bank of America, unlike competitors including JPMorgan, had not been forced to take any guilty pleas in the aftermath of the financial crisis during the Obama administration. A criminal charge, even one that would likely get withdrawn as part of a deferred prosecution agreement, would impact the bank and create a reputational issue, they said.
The argument ultimately prevailed. Leadership in the criminal division downshifted to a non-prosecution agreement with Merrill.
In June, Merrill Lynch signed the non-prosecution pact and agreed to pay a $25 million fine to the Justice Department. Merrill admitted that the conduct was unlawful and amounted to commodities fraud but no charges were brought against it.
Although the deal required Bank of America to continue to cooperate with prosecutors in any cases against individuals, the bank’s name was scrubbed from the settlement that had been drawn up. It appeared a couple times in the attachments accompanying the agreement. The final settlement refers to two entities, Merrill Lynch Commodities Inc. (“MLCI”) and its parent, “MLCI Parent.”
Bank of America didn’t keep its name out of the proceedings altogether, however. The Justice Department press release announcing the deal identified the bank by name as Merrill’s parent.
The department credited the bank for its cooperation in the matter and for its internal compliance program. At the time of the agreement, the bank cited its cooperation and added that it was “disappointed by the conduct of the former Merrill Lynch Commodities employees.”
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