Posted on Thu, Jun. 02, 2011
last updated: June 02, 2011 07:58:03 PM
WASHINGTON — In the absence of federal prosecutions over Wall Street's role in the nation's financial crisis, the Manhattan district attorney has subpoenaed Goldman Sachs regarding allegations that the giant investment bank bet heavily against its clients in risky mortgage deals, two people familiar with the matter said Thursday.
The subpoena relates, at least in part, to four offshore deals that were the focus of a two-year inquiry by a Senate subcommittee, the individuals said, speaking on the condition they remain anonymous given the sensitivity of the matter.
The Senate Permanent Investigations Subcommittee alleged in April that Goldman had effectively preyed on investors in those deals by coaxing them to buy more than $3 billion in securities without disclosing that it and a hedge fund client were betting on their failure.
Goldman earned at least $2 billion in profits on the deals, the panel found.
It couldn't be learned whether the office of newly elected District Attorney Cyrus Vance Jr. also is examining any other of 27 offshore deals pegged to the performance of $28 billion in risky mortgage securities that Goldman peddled in 2006 and 2007. The Senate panel limited its inquiry to four of those deals and alleged improprieties in each.
Vance's plunge into the complex mortgage dealings blamed for exacerbating the worst financial meltdown since the Great Depression is of little surprise. Vance, the son of a late U.S. secretary of state, inherits a job held from 1975 to 2009 by Robert Morgenthau, who gained fame for his prosecution of white-collar crimes, especially securities fraud, often filling voids due to inaction by federal law enforcement agencies.
Vance not only stepped into an office staffed with investigators schooled in sleuthing sophisticated financial crimes, but he also has an extra tool: the Martin Act, a 1921 state business law that gives New York state prosecutors extraordinary powers, including the right to subpoena any document.
The law, used extensively by former New York Attorney General Eliot Spitzer in the Enron scandal, gives subpoenaed individuals no right to counsel during questioning and no Fifth Amendment right against self incrimination, and it permits fraud cases for deceptive practices without proof of criminal intent.
A spokeswoman for Vance's office, Erin Duggan, declined to comment on the subpoena, first disclosed by Bloomberg News.
Goldman Sachs spokesman David Wells said only: "We don't comment on specific regulatory or legal issues, but subpoenas are a normal part of the information request process and, of course, when we receive them we cooperate fully."
Word of Vance's action comes amid expressions of dismay by academics and financial industry watchdogs over the failure of the Securities and Exchange Commission, the Justice Department and other federal regulators to hold Wall Street accountable for its role in the meltdown triggered by a tidal wave of defaults on mortgages to marginal borrowers.
Goldman and other Wall Street firms securitized $2.5 trillion in mortgage-backed securities and another $1.4 trillion in complex deals sold offshore, many of them filled with securities carrying dubious investment-grade ratings. Borrowers' creditworthiness on hundreds of billions of dollars of the underlying mortgages either was inflated, outright fraudulent or lacked documentation.
Goldman wasn't the biggest player in mortgage-backed securities, but it has received the closest scrutiny because it weathered the financial crisis far better than its rivals. As a McClatchy investigation documented in 2009, Goldman sold tens of billions of dollars in mortgage securities to pension funds, insurance companies and other investors as the housing market crested in late 2006 and 2007, while secretly betting that the value of many of those securities would nosedive.
The dealings drew attention to whether Goldman's securities sales force was fully insulated from its mortgage traders who assembled some of the exotic deals in which Goldman earned billions of dollars by betting against some of the company's own mortgage securities. Both units were overseen by the same executive, Dan Sparks, who later left the firm.
The SEC sued Goldman and one of its young mortgage traders, Fabrice Tourre, on civil fraud charges in April 2010 over a 2007 deal known as Abacus-AC1, in which Goldman allowed the hedge fund of Paulson & Co. to help select the securities and then secretly bet they'd default. Paulson scored a $1 billion profit, while investors lost that much.
Less than three months after the suit was filed, without admitting wrongdoing, Goldman agreed to pay $550 million to settle the suit. The case against Tourre is pending, the only enforcement action still ongoing against a Wall Street figure.
Release of the report by the Senate panel, chaired by Democratic Sen. Carl Levin of Michigan, renewed the possibility of further enforcement action.
The subcommittee asked the Justice Department to determine whether Goldman Chief Executive Lloyd Blankfein, Sparks and five other company executives committed perjury in sworn testimony. Some of the executives denied under oath to the panel that their firm's net position in 2007 was massively against the housing market and stated that they thought the dicey mortgages would perform well. In recent congressional testimony, Attorney General Eric Holder said that the Senate transcripts were being reviewed by department lawyers.
Goldman has said that its executives' testimony "was truthful and accurate," but that it took "seriously the issues explored by the subcommittee."
Even if none of the executives committed perjury, the department also could consider whether they engaged in obstruction of Congress, a law carrying potential criminal penalties against anyone who corruptly "endeavors to influence, obstruct or impede the due and proper exercise of the power of inquiry."
In its investigative report, the panel found that Goldman reaped a $1.7 billion profit on the biggest of the four deals _ known as Hudson, without telling investors who put up $2 billion that it was betting that a bundle of mortgage securities would default.
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