How America's biggest banks took part in a bid-rigging
conspiracy
Someday, it will
go down in history as the first trial of the modern American mafia. Of course,
you won't hear the recent financial corruption case, United States of
America v. Carollo, Goldberg and Grimm, called anything like that. If you
heard about it at all, you're probably either in the municipal bond business or
married to an antitrust lawyer. Even then, all you probably heard was that a
threesome of bit players on Wall Street got convicted of obscure antitrust
violations in one of the most inscrutable, jargon-packed legal snoozefests
since the government's massive case against Microsoft in the Nineties – not
exactly the thrilling courtroom drama offered by the famed trials of old-school
mobsters like Al Capone or Anthony "Tony Ducks" Corallo.
But this
just-completed trial in downtown New York against three faceless financial
executives really was historic. Over 10 years in the making, the case allowed
federal prosecutors to make public for the first time the astonishing inner
workings of the reigning American crime syndicate, which now operates not out
of Little Italy and Las Vegas, but out of Wall Street.
The defendants in
the case – Dominick Carollo, Steven Goldberg and Peter Grimm – worked for GE
Capital, the finance arm of General Electric. Along with virtually every major
bank and finance company on Wall Street – not just GE, but J.P. Morgan Chase,
Bank of America, UBS, Lehman Brothers, Bear Stearns, Wachovia and more – these
three Wall Street wiseguys spent the past decade taking part in a
breathtakingly broad scheme to skim billions of dollars from the coffers of
cities and small towns across America. The banks achieved this gigantic rip-off
by secretly colluding to rig the public bids on municipal bonds, a business
worth $3.7 trillion. By conspiring to lower the interest rates that towns earn
on these investments, the banks systematically stole from schools, hospitals,
libraries and nursing homes – from "virtually every state, district and
territory in the United States," according to one settlement. And they did
it so cleverly that the victims never even knew they were being cheated. No
thumbs were broken, and nobody ended up in a landfill in New Jersey, but money
disappeared, lots and lots of it, and its manner of disappearance had a
familiar name: organized crime.
In fact, stripped
of all the camouflaging financial verbiage, the crimes the defendants and their
co-conspirators committed were virtually indistinguishable from the kind of
thuggery practiced for decades by the Mafia, which has long made manipulation
of public bids for things like garbage collection and construction contracts a
cornerstone of its business. What's more, in the manner of old mob trials, Wall
Street's secret machinations were revealed during the Carollo trial
through crackling wiretap recordings and the lurid testimony of cooperating
witnesses, who came into court with bowed heads, pointing fingers at their
accomplices. The new-age gangsters even invented an elaborate code to hide
their crimes. Like Elizabethan highway robbers who spoke in thieves' cant, or
Italian mobsters who talked about "getting a button man to clip the
capo," on tape after tape these Wall Street crooks coughed up phrases like
"pull a nickel out" or "get to the right level" or
"you're hanging out there" – all code words used to manipulate the
interest rates on municipal bonds. The only thing that made this trial
different from a typical mob trial was the scale of the crime.
USA v. Carollo involved
classic cartel activity: not just one corrupt bank, but many, all acting in
careful concert against the public interest. In the years since the economic
crash of 2008, we've seen numerous hints that such orchestrated corruption
exists. The collapses of Bear Stearns and Lehman Brothers, for instance, both
pointed to coordinated attacks by powerful banks and hedge funds determined to
speed the demise of those firms. In the bankruptcy of Jefferson County,
Alabama, we learned that Goldman Sachs accepted a $3 million bribe from J.P.
Morgan Chase to permit Chase to serve as the sole provider of toxic swap deals
to the rubes running metropolitan Birmingham – "an open-and-shut case of
anti-competitive behavior," as one former regulator described it.
More recently, a
major international investigation has been launched into the manipulation of
Libor, the interbank lending index that is used to calculate global interest
rates for products worth more than $3 trilliona year. If and when
that case is presented to the public at trial – there are several major civil
suits in the works here in the States – we may yet find out that the world's
most powerful banks have, for years, been fixing the prices of almost every
adjustable-rate vehicle on earth, from mortgages and credit cards to
interest-rate swaps and even currencies.
But USA v.
Carollo marks the first time we actually got incontrovertible evidence
that Wall Street has moved into this cartel-type brand of criminality. It also
offered a disgusting glimpse into the enabling and grossly cynical role played
by politicians, who took Super Bowl tickets and bribe-stuffed envelopes to look
the other way while gangsters raided the public kitty. And though the
punishments that were ultimately handed down in the trial – minor convictions
of three bit players – felt deeply unsatisfying, it was still a watershed
moment in the ongoing story of America's gradual awakening to the realities of financial
corruption. In a post-crash era where Wall Street trials almost never make it
into court, and even the harshest settlements end with the evidence buried by
the government and the offending banks permitted to escape with no admission of
wrongdoing, this case finally dragged the whole ugly truth of American finance
out into the open – and it was a hell of a show.
1. THE SCAM
This was no trial scene from popular lore, no Inherit the Wind or State of California v. Orenthal James Simpson. No gallery packed with rapt spectators, no ceiling fans set whirring to beat back the tension and the heat, no defense counsel's resting a sympathetic hand on the defendant's shoulder as opening statements commence. No, the setting for USA v. Carollo reflected the bizarre alternate universe that exists on Wall Street. Like so many court cases involving big banks, the proceeding looked more like a roomful of expensive lawyers negotiating a major corporate merger than a public search for justice.
This was no trial scene from popular lore, no Inherit the Wind or State of California v. Orenthal James Simpson. No gallery packed with rapt spectators, no ceiling fans set whirring to beat back the tension and the heat, no defense counsel's resting a sympathetic hand on the defendant's shoulder as opening statements commence. No, the setting for USA v. Carollo reflected the bizarre alternate universe that exists on Wall Street. Like so many court cases involving big banks, the proceeding looked more like a roomful of expensive lawyers negotiating a major corporate merger than a public search for justice.
The trial began on
April 16th in a federal court in Lower Manhattan. The courtroom, an aerielike
setting 23 stories up, offered a panoramic view of the city and the East River.
Though the gallery was usually full throughout the three-plus weeks of
testimony, the spectators were not average citizens come to witness how they
had been robbed blind by America's biggest banks. Instead, there were row after
row of suits – other lawyers eager to observe a long-awaited case, one that
could influence the outcome in a handful of civil suits pending across the
country. In fact, the defendants themselves, whom the trial would reveal as
easily replaceable cogs in a much larger machine of corruption, were barely
visible from the gallery, obscured by the great chattering congress of
prosecution and defense attorneys.
Only the presence
of the mostly nonwhite and elderly jury, which resembled the front pew of a
Harlem church, served as a reminder that the case had any connection to the
real world. Even reporters from most of the major news outlets didn't bother to
attend. The judge in the trial, the right honorable and amusingly cantankerous
Harold Baer, acknowledged that the case was not likely to set the public's
pulse racing. "It is unlikely, I think, that this will generate a lot of
media publicity," Baer sighed to the jury in his preliminary instructions.
Once opening
statements began, it was easy to see why the press might stay away. One of the
main lines of defense for corrupt Wall Street institutions in recent years has
been the extreme complexity of the infrastructure within which these crimes are
committed. In order for prosecutors to win convictions, they have to drag
ordinary Americans, people who watch and enjoy reality TV, up the steepest of
learning curves, coaching them into game shape with regard to obscure financial
vehicles like swaps and CDOs and, in this case, Guaranteed Investment
Contracts.
So it was no
surprise that both the prosecution and the defense began their opening remarks
to the jury by apologizing for the hellishly dull maze of
"convoluted" and "boring" and "tedious" financial
transactions they were about to spend weeks hearing about. Only Wendy Waszmer,
the feisty federal prosecutor with straight brown hair and an elfin build who
presented the government's case, succeeded in cutting through the mountainous
dung heap of acronyms and obfuscations and explaining what the case was about.
"Even though some aspects of municipal bond finance are complex, the fraud
here was simple," she told the jurors. "It was about lying and
cheating cities and towns in a bidding process that was in place to protect
them."
The "simple
fraud" Waszmer described centered around public borrowing. Say your town
wants to build a new elementary school. So it goes to Wall Street, which issues
a bond in your town's name to raise $100 million, attracting cash from investors
all over the globe. Once Wall Street raises all that money, it dumps it in a
tax-exempt account, which your town then uses to pay builders, plumbers, the
chalkboard company and whoever else winds up working on the project.
But here's the
catch: Most towns, when they raise all that money, don't spend it all at once.
Often it takes years to complete a construction project, and the last
contractor isn't paid until long after the original bond is issued. While that
unspent money is sitting in the town's account, local officials go looking for
a financial company on Wall Street to invest it for them.
To do that,
officials hire a middleman firm known as a broker to set up a
public auction and invite banks to compete for the town's business. For the
$100 million you borrowed on your elementary school bond, Bank A might offer
you 5 percent interest. Bank B goes further and offers 5.25 percent. But Bank
C, the winner of the auction, offers 5.5 percent.
In most cases,
towns and cities, called issuers, are legally required to submit
their bonds to a competitive auction of at least three banks, called providers.
The scam Wall Street cooked up to beat this fair-market system was to devise
phony auctions. Instead of submitting competitive bids and letting the highest
rate win, providers like Chase, Bank of America and GE secretly divvied up the
business of all the different cities and towns that came to Wall Street to
borrow money. One company would be allowed to "win" the bid on an
elementary school, the second would be handed a hospital, the third a hockey
rink, and so on.
How did they rig
the auctions? Simple: By bribing the auctioneers, those middlemen brokers hired
to ensure the town got the best possible interest rate the market could offer.
Instead of holding honest auctions in which none of the parties knew the size
of one another's bids, the broker would tell the prearranged
"winner" what the other two bids were, allowing the bank to lower its
offer and come in with an interest rate just high enough to "beat"
its supposed competitors. This simple but effective cheat – telling the winner
what its rivals had bid – was called giving them a "last look." The
winning bank would then reward the broker by providing it with kickbacks
disguised as "fees" for swap deals that the brokers weren't even
involved in.
The end result of
this (at least) decade-long conspiracy was that towns and cities systematically
lost, while banks and brokers won big. By shaving tiny fractions of a percent
off their winning bids, the banks pocketed fantastic sums over the life of
these multimillion-dollar bond deals. Lowering a bid by just one-100th of a
percent, called a basis point, could cheat a town out of tens of
thousands of dollars it would otherwise have earned on its bond deposits.
That doesn't sound
like much. But when added to the other fractions of a percent stolen from
basically every other town in America on every other bond issued by Wall Street
in the past 10 to 15 years, it starts to turn into an enormous sum of money. In
short, this was like the scam in Office Space, multiplied by a factor of about
10 gazillion: Banks stole pennies at a time from towns all over America, only
they did it a few hundred bazillion times.
Given the
complexities of bond investments, it's impossible to know exactly how much the
total take was. But consider this: Four banks that took part in the scam (UBS,
Bank of America, Chase and Wells Fargo) paid $673 million in restitution after
agreeing to cooperate in the government's case. (Bank of America even entered
the Justice Department's leniency program, which is tantamount to admitting
that it committed felonies.) Since that settlement involves only four of the
firms implicated in the scam (a list that includes Goldman, Transamerica and
AIG, as well as banks in Scotland, France, Germany and the Netherlands), and
since settlements in Wall Street cases tend to represent only a tiny fraction
of the actual damages (Chase paid just $75 million for its role in the
bribe-and-payola scandal that saddled Jefferson County, Alabama, with more than
$3 billion in sewer debt), it's safe to assume that Wall Street skimmed untold
billions in the bid-rigging scam. The UBS settlement alone, for instance,
involved 100 different bond deals, worth a total of $16 billion, over four
years.
Contracting
corruption has been around since the construction of the Appian Way. The
difference here is the almost unimaginable scope of the crime – and the fact
that it's mobsters from Wall Street who are getting in on the action. Until
recently, such activity has traditionally been the almostexclusive domain of
the Mafia. "When I think of bid rigging, I think of the convergence of
organized crime and the government," says Eliot Spitzer, who prosecuted
two bid-rigging cases in his career as a New York prosecutor, one involving
garbage collection, the other a Garment District case involving the Gambino
family. The Mafia moved into bid rigging, he says, because it observed over
time that monopolizing public contracts offers a far more lucrative business
model than legbreaking. "Organized crime learned their lessons from John
D. Rockefeller," Spitzer explains. "It's much more efficient to
control a market and boost the price 10 percent than it is to run a
loan-sharking business on the street, where you actually have to use a baseball
bat and collect every week."
What Spitzer saw
was gangsters moving in the direction of big business. When I ask him if he is
surprised by the current bid-rigging case, which looks more like big business
moving in the direction of gangsters, he laughs. "The urge to become a
monopolist," he says, "is as old as capitalism."
2. THE TAPES
The defendants in the case – Dominick Carollo, Steven Goldberg and Peter Grimm – worked together at GE, which was competing for bond business against banks like Chase, Wells Fargo and Bank of America. Carollo was the boss of Goldberg and Grimm, who handled the grunt work, submitting bids. Between August 1999 and November 2006, the three executives participated in countless rigged bids by telephone, conspiring with middleman brokers like Chambers, Dunhill and Rubin. We know this because prior to the start of the Carollo trial, 12 other individuals, including several brokers from CDR, had already pleaded guilty in a wide-ranging federal investigation.
The defendants in the case – Dominick Carollo, Steven Goldberg and Peter Grimm – worked together at GE, which was competing for bond business against banks like Chase, Wells Fargo and Bank of America. Carollo was the boss of Goldberg and Grimm, who handled the grunt work, submitting bids. Between August 1999 and November 2006, the three executives participated in countless rigged bids by telephone, conspiring with middleman brokers like Chambers, Dunhill and Rubin. We know this because prior to the start of the Carollo trial, 12 other individuals, including several brokers from CDR, had already pleaded guilty in a wide-ranging federal investigation.
How did the
government manage to make a case against so many Wall Street scam artists?
Hubris. As was the case in Jefferson County, Alabama, where Chase executives
blabbed criminal conspiracies on the telephone even though they knew they were
being recorded by their own company, the trio of defendants in Carollo wantonly
fixed bond auctions despite the fact that their own firm was taping the
conversations. Defense counsel even made an issue of this at trial, implying to
the jury that nobody would be dumb enough to commit a crime by phone when
"there was a big sticker on the phones that said all calls are being
recorded," as Grimm's counsel, Mark Racanelli, put it. In fact, Racanelli
argued, the conversations on the tapes hardly suggested a secret conspiracy,
because "no one was whispering."
But the reason no
one was whispering isn't that their actions weren't illegal – it's because the
bid rigging was so incredibly common the defendants simply forgot to be ashamed
of it. "The tapes illustrate the cavalier attitude which the financial
community brought toward this behavior," says Michael Hausfeld, a renowned
class-action attorney whose firm is leading a major civil suit against Bank of
America, Wells Fargo, Chase and others for this same bid-rigging scam. "It
became the predominant mode of transacting business."
How and when the
government got hold of those tapes is still unclear; the prosecution is not
commenting on the case, which remains an open investigation. But we do know
that in November 2006, federal agents raided the offices of CDR, the broker
firm that was working with Carollo, Goldberg and Grimm. Caught redhanded, many
of the firm's top executives agreed to turn state's witness. One after another,
these hangdog, pasty-faced men were led up to the stand by prosecutors and
forced to recount how they'd been snatched up in the raid, separated and
blitz-interviewed by FBI agents, and plunged into years of nut-crushing
negotiations, which resulted in almost all of them pleading guilty. Prosecutors
would eventually accumulate 570,000 recorded phone conversations, and to
decipher them they worked these cooperating witnesses like sled dogs, driving
them in for dozens of meetings and grilling them about the details of the scam.
The state's first
witness, confusingly, was a CDR broker named Doug Goldberg (no relation to the
defendant Steven Goldberg). Almost every executive involved in the trial was
absurdly young; many were just out of college when the bid-rigging scam started
in the late Nineties. Doug Goldberg graduated from USC in 1993, and his fellow
CDR executive Evan Zarefsky still looks to be about 15 years old, suggesting a
suit-and-tie version of Napoleon Dynamite. The extreme youth of some of the
conspirators was an obvious subtext of the trial, underscoring the fact that
far more senior executives from bigger banks like Chase and Bank of America had
been permitted by the government to evade testifying.
Right off the bat,
in fact, Doug Goldberg explained that while at CDR, he had routinely helped the
cream of Wall Street rig bids on municipal bonds by letting them take a peek at
other bids:
Q: Who were
some of the providers you gave last looks to?
A: There was a whole host of them, but GE Capital, FSA, J.P. Morgan, Bank of America, Société Générale, Lehman Brothers, Bear. There were others.
A: There was a whole host of them, but GE Capital, FSA, J.P. Morgan, Bank of America, Société Générale, Lehman Brothers, Bear. There were others.
Goldberg went on
to testify that he repeatedly rigged auctions with the three defendants.
Sometimes he gave them "last looks" so they could shave basis points
off their winning bids; other times he asked them to intentionally submit
losing offers – called cover bids – to allow other firms to
win. He told the court he knew he was being recorded by GE. When asked how he
knew that, he drew one of the trial's rare laughs by answering, "Either
they told me or some of them, like Société Générale, you can hear the
beeping."
Because of the
recordings, he went on, he and the defendants used "guarded
language."
"I might tell
him, if I'm looking for an intentionally losing bid, 'I need a bid,' or
something like that," he said.
Q: With whom
specifically did you use this guarded type of language?
A: With Steve Goldberg and others.
Q: In your dealings with Steve Goldberg, what, if any, language or other signal did he use that you understood as a request for a last look?
A: He might ask me where I "saw the market," or he might ask me for, as I mentioned, an "indication of where the market is," an "idea of the market."
A: With Steve Goldberg and others.
Q: In your dealings with Steve Goldberg, what, if any, language or other signal did he use that you understood as a request for a last look?
A: He might ask me where I "saw the market," or he might ask me for, as I mentioned, an "indication of where the market is," an "idea of the market."
The broker went on
to detail how he had worked with the GE executives to manipulate a number of
auctions. In several cases, he was pushed to make deals with GE by his boss at
CDR, Stewart Wolmark, who seemed smitten with GE's Steve Goldberg; jurors
listening to the tapes couldn't miss the pair's nauseatingly tight, cash-fueled
bromance. In December 2000, for instance, Wolmark helped Goldberg win a rigged
bid for a bond in Onondaga County, New York. After the auction, he calls his
buddy Steve:
WOLMARK: Hey,
congratulations. You got another one.
GOLDBERG: Yeah. Yeah, thank you. Thank you.
WOLMARK: You're hot!
GOLDBERG: I'm hot? Hot with your help, sir.
GOLDBERG: Yeah. Yeah, thank you. Thank you.
WOLMARK: You're hot!
GOLDBERG: I'm hot? Hot with your help, sir.
Later on, Wolmark
basically tells Goldberg he owes a service to his fellow gangster. "I
deserve the big lunch now," Wolmark chirps.
"Yeah,"
says Goldberg. "I owe you something, huh?"
A few months
later, in March 2001, Wolmark and Goldberg do another deal, this time for a
$219 million construction bond for the Port Authority of Allegheny County,
Pennsylvania. Wolmark rings up his payola paramour and scolds him for not
calling him during a recent trip to Vegas, where Goldberg doubtless spent a
nice chunk of the money Wolmark had helped him steal from places like Onondaga
County.
"Good time in
Vegas, you can't even call me back?" Wolmark laments.
"I don't have
time to sleep in Vegas," Goldberg says suggestively.
"There's
sleeping," Stewart Wolmark chides, "and there's Stewart."
From there, the
clothes just start flying off as the pair jump into a steamy negotiation over
the monster Allegheny deal. "I'm all set with $200 million," Goldberg
says. "Everything's ready to go."
Then Wolmark asks
if GE is ready to pay CDR its bribe. "You got some swaps coming up?"
Goldberg assures
him they do. Wolmark then passes the deal off to his own Goldberg, Doug, who
handles the actual auction.
When prosecutors
tried to explain these telephone auctions at trial, projecting the transcripts
of the calls on a huge movie screen set up across the courtroom from the jury,
you could see the sheer bewilderment on the jurors' faces. The men on the tapes
seemed to be speaking a language from another planet – an insanely dry and
boring planet, where there's no color and no adverbs, maybe, and babies are
made by rubbing two calculators together. One of the jurors, an older white
man, spent the first few days of the trial yawning repeatedly, fighting a
heroic battle to stay awake in the face of all the mind-numbing jargon about
Guaranteed Investment Contracts. "Who needs Lunesta," joked one
lawyer who attended the proceedings, "when you can hear a lawyer talk
about GICs right out of the gate?"
The language of
the auctions was a kind of intellectual camouflage. If you didn't listen
closely, you'd have thought the two Goldbergs were a couple of airmen
exchanging weather balloon data, rather than two Wall Street executives
plotting a crime to rip off the good citizens of Allegheny County. In that
deal, Steve Goldberg of GE originally bid "503, 4" on the $219 million
bond, only to be guided downward by Doug Goldberg of CDR. The broker explained
in court:
Q: Can you
explain what you understood Mr. Goldberg to say when he was saying 503, 4? What
was he bidding?
A: That was the rate he was willing to bid on this investment agreement.
Q: How much was it?
A: 5.04 percent.
Q: What did you do as a response to his bid of 5.04 percent?
A: I brought his bid down to 5.00 percent.
A: That was the rate he was willing to bid on this investment agreement.
Q: How much was it?
A: 5.04 percent.
Q: What did you do as a response to his bid of 5.04 percent?
A: I brought his bid down to 5.00 percent.
In other words,
even though GE was willing to pay an interest rate of 5.04 percent, Allegheny
County ended up earning just 5.00 percent on its $219 million bond. How much
money that amounted to is difficult to calculate, given the way the bond
account diminished each year as the county used it to pay contractors; even
Doug Goldberg couldn't put a number on the scam. But if the account was full at
the start of the deal, GE may have cheated the county out of as much as $87,600
a year to start.
In any case, GE
certainly chiseled the Pennsylvanians out of a sizable sum, because soon after,
the company paid CDR a kickback of $57,400 in the form of "fees" on a
swap deal. The whole deal pleased CDR's higher-ups. "I went to Stewart
Wolmark and told him that not only did Steve Goldberg win but that I was able
to reduce his rate down four basis points," said Doug Goldberg.
"Stewart was very happy and excited."
Over and over
again, jurors heard cooperating witnesses translate the damning audiotapes. In
one lurid sequence, the bat-eared, bespectacled CDR broker Evan Zarefsky
explained how he helped the GE defendant Peter Grimm win a bid for a bond put
out by the Utah Housing Authority. The pair had apparently reamed Utah so many
times that it had become a sort of inside joke between the two of them. From a
call in August 2001:
GRIMM: Utah, let's
see, how we look on that?
ZAREFSKY: Good old Utah!
ZAREFSKY: Good old Utah!
Grimm complains
about how much he'll have to pay to win the deal. "These levels are really
shitty," he says.
Zarefsky comforts
him. "Well, I can probably save you a couple of bucks here," he says.
From there, Grimm
rattles off numbers, ultimately settling on a bid of 351 – 3.51 percent.
Zarefsky, in almost motherly fashion, guides the manic Grimm downward, telling
him, in code, that his bid is 10 basis points too high. "You actually got
like a dime in there," Zarefsky says. "You want to come down a
dime?"
So Grimm comes
back with a bid of 3.41 percent, which turned out to be the winning bid. Utah
lost out on 10 basis points, GE bilked the state out of untold sums, and CDR
got another nice kickback.
This, basically,
is how a lot of the calls went. The provider would tentatively offer a number,
and the broker would guide him to a new bid. "You have a little bit of
room there," he might say, or "That's gonna put you about a nickel
short." Guiding the bidders to the lowest possible bid was called
"figuring out the level" or being "in the market";
obtaining information about other bids was called "giving an
indicative" or "seeing the market."
The brokers and
providers used a dizzying array of methods for rigging deals. In some cases,
the broker helped the "winner" by simply excluding other bidders, who
may or may not have been in on the scam. In one hilarious sequence that sounds
like something out of a wiretap of a Little Italy social club, CDR executive
Dani Naeh tells GE's Steve Goldberg that he's not sure he can guarantee a win
on a bid for a New Jersey hospital bond. There were too many triple-A-rated
companies interested in the bond, Naeh explains, and he couldn't control their
bids the way he could those of the lesser, double-A-rated companies he usually
did business with. "It would be easier for us to contact other providers
who were rated double-A and ask them to submit an intentionally losing
bid," Naeh testified. He sounded exactly like a mobster, talking about
"our guys" and "our friends."
In some of the
calls, jurors could hear the entirety of the dirty deals negotiated, including
the bribe paid back to the broker. In one deal involving a bond for the Port of
Oakland, California, Steve Goldberg of GE starts to ask his pal Stewart Wolmark
of CDR what kind of kickback the broker wants for rigging the deal. Such
conversations about payoffs were so commonplace that Wolmark doesn't even have
to wait for Goldberg to finish the question:
GOLDBERG: What are we
building in here for the...
WOLMARK: Swap.
WOLMARK: Swap.
In his testimony,
Wolmark explained that he was asking for a swap deal in return for rigging the
bid. "He wanted to know what we were going to get paid on the back
end," Wolmark explained.
In the call,
Wolmark and Goldberg start haggling over the price of CDR's kickback. Wolmark
tells Goldberg he only wants what's fair. "Listen, I'm not a chazzer,"
Wolmark says.
Fans of the movie Scarface will
remember Tony Montana's inspired translation of this Yiddish term: "Thas a
pig that don' fly straight."
Wolmark reassures
Goldberg that as pigs go, he's a straight flier. "You see the kind of
mensch I am," he says.
Negotiations
ensue. Goldberg tells Wolmark that he can pay him more on the bribe – the swap
deal – if Wolmark can help GE save money on the Port of Oakland deal. "I'd
like to see if we can pull a nickel out of that swap," Wolmark says.
Translation: He wants to boost CDR's take on the kickback by five basis points.
"If I could
get to the right level," Goldberg answers, referring to the Port of
Oakland deal. Translation: Goldberg will help Wolmark get his
"nickel" on the swap deal if Wolmark can help GE "get to the
right level" on the bid.
3. THE POLITICIANS
The Carollo case provides far more than a detailed look at the mechanics and pervasiveness of bid rigging; it offers a clear and unvarnished blueprint of the architecture of American financial and political corruption. In an attempt to discredit the CDR witnesses, defense counsel hounded them about other revelations that surfaced in the government's investigation, particularly those that involved bribery, illegal campaign contributions and pay-for-play schemes.
The Carollo case provides far more than a detailed look at the mechanics and pervasiveness of bid rigging; it offers a clear and unvarnished blueprint of the architecture of American financial and political corruption. In an attempt to discredit the CDR witnesses, defense counsel hounded them about other revelations that surfaced in the government's investigation, particularly those that involved bribery, illegal campaign contributions and pay-for-play schemes.
The defense's
cross-examinations were surreal. It was certainly true that some of the
government's cooperating witnesses had dubious résumés, so it may have made
sense to highlight their generally duplicitous history of tax evasion or lying
to investigators. But in their zeal, defense counsel went far beyond simply
discrediting the witnesses, spending an inordinate amount of time eliciting
even more details about the grotesque corruption scheme their own clients had
taken part in. The result was a rare and somewhat confusing spectacle:
high-octane lawyers from Wall Street working to rip the lid off Wall Street
corruption in open court.
Defense counsel
showed us, for instance, how CDR employees were routinely directed by their
boss, David Rubin, to make political contributions to select candidates, only
to be reimbursed by Rubin for those contributions later on. This kind of
corporate skirting of campaign finance limits is something we've always
suspected goes on, but we rarely get to see direct evidence of it.
More interesting,
though, were the stories about political payoffs. In 2001, CDR hired a
consultant named Ron White, a Philadelphia bond attorney who happened to be the
chief fundraiser for then-mayor John Street. CDR gave White two tickets to the
2003 Super Bowl in San Diego plus a limo – a gift worth $10,000. As his
"guest," White took Corey Kemp, the city treasurer for Philadelphia,
who, 16 days later, awarded CDR a $150,000 contract to advise the city on swap
deals. But that wasn't the end of the gravy train: CDR doled out those swap
deals to selected banks, who in return kicked back $515,000 to CDR for steering
city business their way.
So a mere $10,000
bribe to a politician – a couple of Super Bowl tickets and a limo – scored CDR
a total of $665,000 of the public's money. If you want to know why Wall Street
has been enjoying record profits, here's your answer: Corruption is a business
model that brings in $66 for every dollar you invest.
Even more
startling was the way that a notorious incident involving former New Mexico
governor and presidential candidate Bill Richardson resurfaced during the
trial. Barack Obama, you may recall, had nominated Richardson to be commerce
secretary – only to have the move blow up in his face when tales of Richardson
accepting bribes began to make the rounds. Federal prosecutors never brought a
case against Richardson: In 2009, an inside source told the AP that the
investigation had been "killed in Washington." Obama himself, after
Richardson bowed out, praised the former governor as an "outstanding
public servant."
Now, in the Carollo trial,
defense counsel got Doug Goldberg, the CDR broker, to admit that his boss,
Stewart Wolmark, had handed him an envelope containing a check for $25,000. The
check was payable to none other than Moving America Forward – Bill Richardson's
political action committee. Goldberg then went to a Richardson fundraiser and handed
the politician the envelope. Richardson, pleased, told Goldberg, "Tell the
big guy I'm going to hire you guys."
Goldberg admitted
on the stand that he understood "the big guy" to mean Wolmark. After
that came this amazing testimony:
Q: Soon after
that, New Mexico hired CDR as its swap and GIC adviser on a $400 million deal,
right?
A: Yes.
Q: You learned later that that check in that envelope was a check for $25,000, right?
A: Yes. I learned it later.
Q: You also learned later that CDR gave another $75,000 to Gov. Richardson, right?
A: Yes.
Q: CDR ended up making about a million dollars on this deal for those two checks?
A: Yes.
Q: In fact, New Mexico not only hired CDR, they hired another firm to do the actual work that they needed done?
A: For the fixed-income stuff, yes.
A: Yes.
Q: You learned later that that check in that envelope was a check for $25,000, right?
A: Yes. I learned it later.
Q: You also learned later that CDR gave another $75,000 to Gov. Richardson, right?
A: Yes.
Q: CDR ended up making about a million dollars on this deal for those two checks?
A: Yes.
Q: In fact, New Mexico not only hired CDR, they hired another firm to do the actual work that they needed done?
A: For the fixed-income stuff, yes.
What we get from
this is that CDR paid Bill Richardson $100,000 in contributions and got $1.5
million in public money in return. And not just $1.5 million, but $1.5 million
for work they didn't even do – the state still had to hire another firm to do
the actual job. Nice non-work, if you can get it.
To grasp the full
insanity of these revelations, one must step back and consider all this
information together: the bribes, yes, but also the industrywide,
anti-competitive bid-rigging scheme. It turns into a kind of unbroken Möbius
strip of corruption – the banks pay middlemen to rig auctions, the middlemen
bribe politicians to win business, then the politicians choose the middlemen to
run the auctions, leading right back to the banks bribing the middlemen to rig
the bids.
When we allow Wall
Street to continually raid the public cookie jar, we're not just enriching a
bunch of petty executives (Wolmark's income in 2008, two years after he was
busted in the FBI raid, was $2,464,210.18) – we're effectively creating an
alternate government, one in which money lifted from the taxpayer's pocket
through mob-style schemes turns into a kind of permanent shadow tax, used to
maintain the corruption and keep the thieves in place. And that cuts right to
the heart of what this case is all about. Wall Street is tired of making money
by competing for business and weathering the vagaries of the market. What it
wants instead is something more like the deal the government has – regularly
collecting guaranteed taxes. What's crazy is that in order to justify that
dream of regular, monopolistic tribute, they've begun to see themselves as a
type of shadow government, watching out for the rest of us. Amazingly enough,
this even became a defense at trial.
4. THE DEFENSE
There were times, sitting in the courtroom, when I wondered, How did this case even go to trial? What defense attorney would look at the thousands of recorded phone calls, the parade of cooperating witnesses, the stacks of falsified documents, and conclude that airing all of this in court was a smart play? Listening to tape after damning tape played in open court while the defendants cringed in a corner seemed increasingly like a gratuitous ass-kicking, one that any smart defense lawyer would have made a deal to avoid.
There were times, sitting in the courtroom, when I wondered, How did this case even go to trial? What defense attorney would look at the thousands of recorded phone calls, the parade of cooperating witnesses, the stacks of falsified documents, and conclude that airing all of this in court was a smart play? Listening to tape after damning tape played in open court while the defendants cringed in a corner seemed increasingly like a gratuitous ass-kicking, one that any smart defense lawyer would have made a deal to avoid.
But as the weeks
passed, I started to get a feel for the defense strategy, which made a kind of
demented sense. The lawyers for Carollo, Goldberg and Grimm didn't even bother
trying to argue the facts of the case. Instead, in one cross-examination after
another, they kept hitting the same theme. Despite the fact that the rigged
bids resulted in lower returns, wasn't it true that the cities and towns still
received, technically speaking, the highest bid? If a town received a 5.00 percent
return on a $219 million bond instead of 5.04 percent, who's to say that wasn't
a good price?
John Siffert, the
gray-faced and unlikable attorney for Steve Goldberg, put it this way in his
cross-examination of CDR executive Stewart Wolmark. Asking about the Allegheny
deal, he boomed: "Isn't it fair to say that you believed that by
lowering... Steve's bid to 5 percent, Steve's bid was still a fair price to
pay?"
Wolmark's answer
was both quick and sensible: "I don't determine the fair price," he
replied. "The market does." GE was supposed to pay the highest price
the market would pay. It wasn't a competitive auction, as required by law.
But Siffert had
made his point, and his rhetoric got right to the heart of the defense, which
was going to center around the definition of the word "fair." The men
and women who run these corrupt banks and brokerages genuinely believe that
their relentless lying and cheating, and even their anti-competitive cartelstyle
scheming, are all legitimate market processes that lead to legitimate price
discovery. In this lunatic worldview, the bidrigging scheme was a system that
created fair returns for everyone. If a bunch of Pennsylvanians got a 5.00
percent return on their money instead of 5.04 percent, and GE and CDR just happened
to split the extra .04 percent, that was a fair outcome, because that's what
the parties negotiated. True, the Pennsylvanians had no idea about the extra
.04 percent, and true, they had hired CDR precisely to make sure they got that
extra 0.4 percent. But hey, it's not like they were complaining: Until someone
told them they were being brazenly cheated, they were happy with their bond
service. And besides, it's not like ordinary people understand this stuff
anyway. So how is it the place of some busybody federal prosecutor to waltz in
here and say what's a fair price?
Walter Timpone,
who represented Carollo, tried to lay this outrageous load of balls on the jury
using a faux-folksy analogy. "When your refrigerator breaks down, if
you're not mechanically inclined, you're at the mercy of that repair
person," he told the jury. "And if he repairs the refrigerator, makes
it work well, charges you a fair price, you're likely to call on him again when
the stove breaks." What he was essentially telling jurors was: This shit
is complicated, so best just to leave it to the experts. Whether they're fixing
a fridge or fixing a bond rate, they get to set the price, because we're all
morons who are dependent on them to make our world work. Timpone, in his
lawyerly way, was actually telling us an essential economic truth: You're
at the mercy of that repair person.
This incredible
defense, which the attorneys for all three defendants led with, perfectly
expresses the awesome arrogance of the modern-day aristocrats who run our
financial services sector. Corrupt or not, they built this financial
infrastructure, and it's producing the prices they genuinely think are fair for
us – and for them. And fair to them is the customer getting the absolute bare
minimum, while they get instant millions for work they didn't do. Moreover –
and this is the most important part – they believe they should get permanent
protection from the ravages of the market, i.e., from one another's
competition. Imagine Jack Nicholson on the witness stand, dressed in a
repairman's uniform and tool belt. Who's gonna fix those refrigerators?
You? You, Lieutenant Weinberg? You can't handle the truth!
That, ultimately,
is what this case was about. Capitalism is a system for determining objective
value. What these Wall Street criminals have created is an opposite system of
value by fiat. Prices are not objectively determined by collisions of price
information from all over the market, but instead are collectively negotiated
in secret, then dictated from above.
"One of the
biggest lies in capitalism," says Eliot Spitzer, "is that companies
like competition. They don't. Nobody likes competition."
To the great
credit of the jurors in the Carollo case, they didn't buy Wall
Street's ludicrous defense. On May 11th, nearly a month after the trial began,
they handed down convictions to all three defendants. Carollo, Goldberg and
Grimm, who will be sentenced in October, face as many as five years in jail.
There are some who
think that the government is limited in how many corruption cases it can bring
against Wall Street, because juries can't understand the complexity of the
financial schemes involved. But in USA v. Carollo, that turned out
not to be true. "This verdict is proof of that," says Hausfeld, the
antitrust attorney. "Juries can and do understand this material."
In the end,
though, the conviction of a few bit players seems like far too puny a
punishment, given that the bid rigging exposed in Carollo involved
an entrenched system that affected major bond issues in every state in the
nation. You find yourself thinking, America's biggest banks ripped off
the entire country, virtually every day, for more than a decade! A
truly commensurate penalty would be something like televised stonings of the
top 10 executives of every guilty bank, or maybe the forcible resettlement of
every banker and broker in Lower Manhattan to some uninhabited Andean
wasteland... anything to
address the systemic nature of the crime.
No such luck.
Instead of anything resembling real censure, a few young executives got
spanked, while the offending banks got off with slap-on-the-wrist fines and
were allowed to retain their pre-eminent positions in the municipal bond
market. Last year, the two leading recipients of public bond business, clocking
in with more than $35 billion in bond issues apiece, were Chase and Bank of
America – who combined had just paid more than $365 million in fines for their
role in the mass bid rigging. Get busted for welfare fraud even once in
America, and good luck getting so much as a food stamp ever again. Get caught
rigging interest rates in 50 states, and the government goes right on handing
you billions of dollars in public contracts.
Over the years,
many in the public have become numb to news of financial corruption, partly
because too many of these stories involve banker-on-banker crime. The notorious
Abacus deal involving Goldman Sachs, for instance, involved a hedge-fund
billionaire ripping off a couple of European banks – who cares? But the
bid-rigging scandal laid bare in USA v. Carollo is a totally
different animal. This is the world's biggest banks stealing money that would
otherwise have gone toward textbooks and medicine and housing for ordinary
Americans, and turning the cash into sports cars and bonuses for the already
rich. It's the equivalent of robbing a charity or a church fund to pay for lap
dances.
Who ultimately
loses in these deals? Well, to take just one example, the New Jersey Health
Care Facilities Finance Authority, the agency that issues bonds for the state's
hospitals, had their interest rates rigged by the Carollo defendants
on $17 million in bonds. Since then, more than a dozen New Jersey hospitals
have closed, mostly in poor neighborhoods.
As Carollo showed
us, in open court, this is what Wall Street learned from the Mafia: how to
reach into the penny jars of dying hospitals and schools and transform their
desperation and civic panic into fat year-end bonuses and the occasional
"big lunch." Unlike the Mafia, though, they were smart enough to do
their dirt without anyone noticing for a very long time, which is what defense
counsel in this case were talking about when they argued that towns and cities
"were not harmed" by the rigged bids. No harm, to them, means no visible harm,
i.e., that what taxpayers didn't know couldn't hurt them. This is logical
thinking, to the sociopath – like saying it's not infidelity if your wife never
finds out. But we did find out, and the scale of betrayal unveiled in Carollo was
epic. It was like finding out your husband didn't just cheat, but had a
frequent-flier account with every brothel in North America for the past 10
years. At least now we know how bad it was. The trick is to find a way to make
the cheaters pay.
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