One of the criticisms I have issued at New York Attorney General Eric Schneiderman’s lawsuit against JPMorgan Chase was that it was filed so late, it allowed much of the statute of limitations to run out, in the process capturing just a small sliver of the actions of Bear Stearns in their issuance of mortgage backed securities. Furthermore, if this was the model suit, Schneiderman had even less time to file the rest without losing nearly all of the legal exposure on the MBS deals, which petered out around mid-2007.
However, it turns out that Schneiderman signed tolling agreements with 12 firms, including JPMorgan Chase. This means that the clock on the statute of limitations stops for a prescribed time.
New York Attorney General Eric Schneiderman is looking into the mortgage securities practices of at least a dozen financial institutions that have agreed to suspend a deadline for him to bring fraud claims, according to a person familiar with the matter.
Schneiderman, who sued JPMorgan Chase & Co. (JPM) this week for defrauding mortgage bond investors, has so-called tolling agreements with 12 institutions that preserve claims that could expire during a state investigation, according to the person, who declined to be named because the matter isn’t public [...]
The tolling agreements, reached this year, stop the clock on the six-year statute of limitations and ensure Schneiderman can bring civil fraud claims against banks for conduct going as far back as 2006, said the person. The agreements don’t necessarily mean that suits will be filed, the person said.
Actually, they create a strong possibility that other cases won’t be filed, or that they will be filed in a very narrow fashion.
A financial firm or any other defendant doesn’t allow a tolling agreement out of the goodness of its heart. It comes out of a negotiated process. The prosecutor gets to stop the clock on the statute of limitations but must give up something in return. Maybe they’re given the opportunity to stop Schneiderman from filing a case at all, or maybe they’ve moved immediately to the settlement phase. Or maybe Schneiderman got the tolling agreement in exchange for agreeing not to prosecute or name any individuals in the cases. A tolling agreement isn’t free, in other words. And it would be good to know the cost of this.
I still have to call into question the need for a tolling agreement, the equivalent of filing an extension with the IRS. As evidenced in the JPMorgan filing, there are no new or innovative legal theories here. The NY AG built off work done by private litigants, work that JPMorgan Chase’s lawyers have handled for years now, and which they know implicitly. It would have been both better for the case and would have made an agreement of this type unnecessary to charge earlier.
Meanwhile, the existence of a tolling agreement can be time-limited in its own right. It doesn’t stop the clock forever. And the other unknown is whether federal participants in the RMBS working group also have agreements in hand. If not, they could see their ability to prosecute go away, not that they’re doing anything with that.




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Filing the lawsuit now worked out well for Obama’s re-election.
My first response to this news, David, is that it is Kabuki.
It allows the political class, principally Schneiderman, but also Obama and the Democrats, by extension, to claim that they are, indeed, “tough” on the banksters and it supplies the appearance of substance.
In the longer “run”, it will allow both the political class and the banksters to claim that the banksters “cooperated”, willingly, with the “investigation’, and will serve as a basis to lessen any “punishments” that might, just might, be possibly meted out … because, and this “agreement” proves it so, the banksters are just as vexed and concerned about “wrong-doing” as the public, itself.
“Prosecution” is not the primary intent in this or any other of the gyrations the political class have pretended … protection of the banking elite and the free-for-all “nature” of current and future “regulation” is the purpose.
Had you and other perceptive observers not made considerable “noise” over the expiring statutes of limitation, none of this “legal” maneuvering would have been, likely, necessary or “desirable from a PR standpoint.
Frankly, I am somewhat surprised that any effort is being made to sex-up the charade, at all … it must be the drip, drip, of other scandals related to the world banking “game”, LIBOR, and other such things, as well as restive “general populations” the world over … the PTB and the MUTU must have some wee, small qualms yet … surprising as that very idea certainly seems.
In any case, my continuing appreciation, DDay, for your stellar and ongoing efforts to make useful sense of the goings-on, that the rest of us might have even the vaguest of clues.
If we’ve not a functioning Rule of Law, then the pretense must serve some “useful” purpose … at least, so far and at the moment.
DW
Mine as well. It would have been much more impressive with criminal charges against
individual campaign contributorsbankers.Boxturtle (I also still want a pony)
Is there any possibility that the tolling agreements were a condition of Schneiderman signing onto the massive settlement? I remember that there was a lot of talk about Schneiderman and Harris holding out for special conditions, and their ability to prosecute later. The banks might have been willing to trade limited New York prosecutions, for the massive get out of free card everywhere else?
“Limited’ is still the operative word here.
Dreadfully sorry, old chap, however you shall have to settle for an ass in the White House, looking forward …
(A pony? A hay-burner? Of what conceivable value is such a lumbering quadruped to the likes of a sleek and wise turtle, who, where ever he is, is always at home?)
;~DW
That is a lovely portrayal of BoxTurtle. Perhaps even turtles have fantasies…
Far be it from me, bittersweet, to seek to hinder a turtle’s pursuit of happiness, fantasy or not, but, as a practical matter, I should not like to see one of my favorite turtles saddled with the burden of caring for an ornery beast whose forebears (foreponies?) were three-toed critters the size of an opossum … which heritage not one single equine has forgotten or forgiven.
Of course, to be fair, we “primates” are not long descended from our ancestral trees and, of late, say the last forty-thousand years, have done little, those of us at the self-proclaimed “top” of the evolutionary adventure, that would recommend us to the care and tolerance of a wee planet, which we are more likely to take for granted than appreciate as paradise.
Turtles, having been around much longer, even gazing upon dinosaurs, have an enviable heritage and a record quite unbesmirched with some of the “things” we featherless bipeds ought well be ashamed of.
However, I digress …
;~DW
This is standard judicial corruption in favor of banks as we have seen in the past few years. There is nothing of value in this case. A prosecutor who has to ask a defendant’s permission to file charges has nothing to show for. He might as well chew his own balls for breakfast.
A financial firm or any other defendant doesn’t allow a tolling agreement out of the goodness of its heart. It comes out of a negotiated process.
Bingo. We’ll agree to hold the statute if you’ll agree to reduce the charges to something equivalent to tearing the tag off the mattress.
Should have thrown the book at them right out of the gate. That this was not done pretty much tells the tale.
agreed. Sorry DDay. I imagine you’re a very hopeful person. But with the MOTU running the show, I see no reason to believe that this is for real.