Thursday, February 19, 2015
A WHISTLEBLOWER'S HORROR STORY
19 February 15
his is the age of the whistleblower. From Chelsea Manning to Edward Snowden to the latest cloak-and-dagger lifter of files, ex-HSBC employee Hervé Falciani, whistleblowers are becoming to this decade what rock stars were to the Sixties — pop culture icons, global countercultural heroes.
But one of America's ugliest secrets is that our own whistleblowers often don't do so well after the headlines fade and cameras recede. The ones who don't end up in jail like Manning, or in exile like Snowden, often still go through years of harassment and financial hardship. And while we wait to see if Loretta Lynch is confirmed as the next Attorney General, it's worth taking a look at how whistleblowers in America fared under the last regime.
One man's story in particular highlights just about everything that can go wrong when you give evidence against your bosses in America: former Countrywide/Bank of America whistleblower Michael Winston.
I visited with Michael in California last year and spoke with him over the phone several times in recent weeks. If you think you've had a tough year, wait until you hear his story.
Two years ago this month, Winston was being celebrated in the news as a hero. He'd blown the whistle on Countrywide Financial, the bent mortgage lender that one could plausibly argue nearly blew up the global economy in the last decade with its reckless subprime lending practices.
He described Countrywide's crazy plan to give anyone who could breathe a mortgage in a memorable January, 2013 episode of Frontline called "The Untouchables," a show that caught the eyes of several influential politicians in Washington. The documentary inspired Senate hearings and even the crafting of new legislation to combat too-big-to-jail corruption in the financial world.
Winston was later featured in the New York Times as the man who "conquered Countrywide." David Dayen of Salon described Winston as "Wall Street's greatest enemy."
But today, Winston is tasting the sometimes-extreme downside of being a whistleblower in modern America.
He says he's spent over a million dollars fighting Countrywide (and the firm that acquired it, Bank of America) in court. At first, that fight proved a good gamble, as a jury granted him a multi-million-dollar award for retaliation and wrongful termination.
But after Winston won that case, an appellate judge not only wiped out that jury verdict, but allowed Bank of America to counterattack him with a vengeance.
Last summer, the bank vindictively put a lien on Winston's house (one he'd bought, ironically, with a Countrywide mortgage). The bank eventually beat him for nearly $98,000 in court costs.
That single transaction means a good guy in the crisis drama, Winston, had by the end of 2014 paid a larger individual penalty than virtually every wrongdoer connected with the financial collapse of 2008.
When Winston protested his preposterous punishment on the grounds that a trillion-dollar company recouping legal fees from an unemployed whistleblower was unreasonable and unnecessary, a California Superior Court judge denied his argument — get this — on the grounds that Winstonfailed to prove a disparity in resources between himself and Bank of America!
This is from the court's ruling:
Plaintiff argues that the disparity in the resources between the individual plaintiff and the defendant Bank of America make it unfair to place the cost of the premium on plaintiff. Plaintiff offered no evidence in support of this argument; it is rejected.
"I mean, Carlos Slim, the world's richest individual, is nothing next to Bank of America," says Winston today. "I just have to shake my head at all of it."
An articulate, well-educated family man who speaks with great pride about his two grown children, who've stood by him throughout his troubles, Winston's life has been turned upside down by his experience.
"I've never in my life not worked, but I'm unemployable now," says Winston, a longtime high-level executive at blue-chip corporations like McDonnell-Douglas and Lockheed Martin. Although he spent most of a lifetime scrupulously saving, he says he's "worried now that there will be a time when I won't be able to support my family."
Even worse, while the bank was going after his savings, Winston was diagnosed with laryngeal cancer. He has been undergoing painful treatment ever since and is literally fighting for his life now, on top of everything else.
"It's been a very difficult year," he says.
Yet Winston would likely bear all of this more easily were it not for bitterness over the fact that the sacrifices of whistleblowers like himself have too often resulted in dead ends or worse in recent years.
In the finance sector, many of the biggest cooperators have seen their evidence disappeared into cushy settlement deals that let corporate wrongdoers off the hook with negligible fines.
In fact, many of the companies mentioned in that once-damaging Frontline report have since been allowed to painlessly pay their way out of trouble. The whistleblowers featured back then have been vindicated factually, but many are still waiting for action.
Cozy deals with firms like Citigroup (read on to see who negotiated that deal) and JP Morgan Chase have threatened to reduce the gutsy actions of whistleblowers like Richard Bowen and Alayne Fleischmann to footnotes in an increasingly corrupt grand scheme of things.
This is a serious problem, given that anyone considering coming forward is usually paying at least some attention to how the government has dealt with other cooperators.
"Anyone thinking about becoming a whistleblower looks at what happened to whistleblowers before," says Fleischmann.
"What I worry about," says Winston today, "is that someone is going to see wrongdoing, and then see what's happened to people like me, and decide it's not worth it."
Winston joined Countrywide, which was booming financially at the time, in 2005.
Unbeknownst to him, his new firm was at the forefront of a mass movement to pump the global economy full of fraudulent, born-to-lose subprime loans, a movement destined to rapidly overinflate the global economy with debt and cause a catastrophic recession.
In essence, his firm was mass-producing and then selling financial snake oil. Countrywide, Winston says, would give home loans to anyone who could "fog a mirror."
The firm didn't really bother to hide what it was up to.
"In most places, trying to find evidence of fraud is like looking for a needle in a haystack," says Winston. "At Countrywide, it was like finding a haystack on a pile of needles. It was impossible to miss."
He told Frontline a story about seeing a personalized license plate in the company parking lot. It read, "FUND 'EM." Alarmed, he asked a fellow executive what the plate meant.
He was told that "FUND 'EM" was "[CEO] Angelo Mozilo's growth strategy" and that the company had "a loan for every customer."
A fiscal (and, at the time, political) conservative who had been raised in staid, risk-averse corporations like Lockheed and Motorola, Winston flipped. There was no way handing out loans to everyone was good business. As he explained to Frontline, he tried to get an explanation from his new bosses, asking:
"What if the person doesn't have a job?
"Fund 'em," the guy said.
And I said, "What if he has no income?"
"What if he has no assets?"
And he said, "Fund 'em."
Winston tried to sound the alarm within the company. He thought he was doing the firm a favor, that the bosses somehow just didn't realize their mistake.
As it turned out, Countrywide execs knew exactly what they were doing, and Winston quickly went the way of most whistleblowers, losing his job when Bank of America acquired the firm in 2008.
He sued for improper retaliation and wrongful termination, and in 2011, after a month of testimony, a jury voted to award him $3.8 million. He'd declined a hefty settlement offer in order to get his day in court.
"I was offered a lot of money to make it all go away, quietly, but I thought to myself, do I want to be that person?" he said. "And I realized that I couldn't take it. I needed to see someone held accountable."
After his 2011 jury win, that seemed like not only the right move, but a smart one.
Eventually, reporters latched on to his story. The Frontline documentary so angered a group of Senators that it led directly to one of Eric Holder's most embarrassing moments as Attorney General — the infamous (I'm paraphrasing) Yes, Senators, some banks are too big to prosecute testimony before the Senate Judiciary Committee.
But four years later, we're still waiting for the first criminal conviction against any individual for crisis-era corruption. And while politicians like Ohio's Sherrod Brown have spent upwards of half a decade now fighting to bring the "Too Big to Jail" issue to a vote, there's been no significant reform there, either.
What we've seen instead is a series of cash deals with the most corrupt companies. Curiously, the most egregious deals seemingly all involved companies whose secrets had been exposed by a whistleblower.
Winston's old company got one of the best deals. Last summer, Bank of America — now responsible for all of Countrywide's liability — was allowed to buy its way out of years of fraud and other abuses with a "historic" $17 billion settlement.
Crucially, the deal left many of the facts of the company's years of misconduct hidden, as the government never submitted any part of the deal to a judge to review.
I visited with Winston in California this past summer right after that Bank of America deal had been announced. He was in a highly stressed state, because of what he was going through with his own battles with the bank. Since winning his $3.8 million award, Winston's case had taken one nightmare turn after another.
In 2013, Bank of America's lawyers somehow convinced a higher appellate court to review the verdict. A panel of judges, eschewing the usual appellate mission of focusing on errors of law, then tossed his case out on evidentiary grounds.
The case was so bizarre that it led to an investigation by the Government Accountability Project, which called the case "vitally important" and worried about the precedent of a jury verdict being "nullified" by an appellate judge.
In the context of all of this, Winston was almost too angry to speak about Holder's sweetheart deal with Bank of America.
"I just can't believe, after all of this, that it all gets swept under the rug," he said, shaking his head.
The BOA deal came after Holder had already orchestrated a similar deal with J.P. Morgan Chase, which was allowed to pay $13 billion (really, $9 billion, after a closer look) to get out from a similar litany of abuses, including a seemingly airtight case of fraud reported by Alayne Fleischmann, the Canadian attorney profiled in Rolling Stone last fall.
Then there was Citigroup, which paid $7 billion to get out from under basically identical charges that it knowingly packaged and resold massive amounts of defective home loans to sucker customers around the world.
In Citi's case, the loans were so bad that its own internal analyst wrote that "we should start praying," and "I would not be surprised if half these loans went down."
Richard Bowen, at the time the bank's chief underwriter, wrote a memo to senior bank executives (including board chairman, key Obama advisor, and former Clinton Treasury Secretary Bob Rubin), issuing a stark warning. He said that as much as 60 percent of the mortgages the bank was acquiring and packaging did not meet the company's credit guidelines.
Bowen noted the urgency of the situation and even gave company bigwigs like Rubin his cell number, so that they could call him over the weekend. "Please contact me. You need to know the details behind this," he said. "There are risks to the company."
Of course, those risks were ignored, and Citi ended up broke and throwing itself at the taxpayer's ankles. It ended up receiving the single largest federal bailout, around $476 billion in cash and federal guarantees.
Why bring this up now? Because like Winston's tale, the Citigroup story has a shocker punch line. The investigation into that bank, and the subsequent whitewashing deal, was led by the U.S. Attorney for the Eastern District of New York, a prosecutor with a reputation for being a highly professional, old-school law-and-order type: Loretta Lynch.
Many lawyers who've dealt with Lynch describe being impressed by her professionalism and her fairness ("Solid. Not an ideologue. Much less of a dope than Holder," was one interesting comment by a New York lawyer who has opposed her in court) and the story is not meant to disparage her.
But it's important to understand, as Lynch staggers toward approval for Holder's old job, that she was part of a Justice Department enforcement policy that for years dealt out soft landings for the very companies that have harassed cooperators and made the term "Too Big to Jail" famous.
The Snowden and Manning cases are extreme examples of a phenomenon that's been raising eyebrows in and around American law enforcement for years, one where whistleblowers are themselves treated as problems, or even targeted for investigations themselves.
Gary Aguirre is a onetime SEC investigator who famously won a $755,000 wrongful termination award after blowing the whistle on the SEC, which had improperly quashed his investigation into an insider trading case involving an influential Wall Street figure.
He now represents whistleblowers in private practice and says senior government investigators are sometimes wary of wrapping their arms too tightly around such cooperators, since doing so might queer their inevitable returns to the corporate defense community.
"I would say the people who head government," says Aguirre, "are always thinking about their return to the public sector, where whistleblowers are perceived as a threat, something to be exterminated."
Even the government's attempts to encourage whistleblowers were misguided. Eric Holder talked extensively about aiding cooperators by making more resources available to them — essentially, offering them higher monetary rewards for coming forward.
But nobody in the financial services industry comes forward just for the money. The easy money is already there to be had, just by keeping your mouth shut. What Wall Street whistleblowers really need, above all else, is to see real cases made using their evidence, which is exactly what we haven't seen in recent years. Otherwise, the sacrifices — which range from merely miserable to life-altering and catastrophic — aren't worth it.
The newest scandal involving HSBC and its global tax-evasion scheme provides an example of how things are broken. That, too is a whistleblower case, one in which the French-Italian cooperator Falciani delivered a cache of secret tax files to French authorities close to seven years ago.
According to multiple reports, the United States gained access to Falciani's information as far back as 2010, yet the state still went on in 2012 to give HSBC a cushy deferred prosecution deal on money laundering charges.
The nominee Lynch also handled that settlement, which involved no criminal charges and not even any individual fines for executives who'd admitted to laundering over $800 million for Mexican and South American drug cartels.
Winston points to HSBC as another example of mishandled evidence. "It's yet another instance of a big bank engaged in illicit activities and being aided and abetted by the government," he says. "I can hear Roger Daltrey singing it now: 'Meet the new boss, same as the old boss.'"
Aguirre is equally skeptical that anything will change. "The Lynch thing is a cross-section of government corruption put under an electron microscope showing the same DNA everywhere present," he says.
The pattern of whistleblowers coming forward and seeing their information either misused or absorbed into pain-free cash settlements may push the next generation of potential witnesses in a more cynical direction.
"The number one concern is that it incentivizes people to do nothing," Fleischmann says. "The likely thing people will do in the future is just quit."
Winston today insists he would do the same thing, if he had to do it all over again. But unless the next Attorney General radically changes the policy toward whistleblowers, the future might see even fewer people come forward.
"People won't worry about it now," says Winston. "But one day they'll wonder why their air is polluted or their drinking water isn't safe. And this will be the reason why."