What You Need to Know
- The crackdown is now expected to result in about 10 financial firms paying fines.
- The regulators have taken the view that any use of personal devices for business communications is problematic.
- A Moses Singer lawyer expects more records preservation cases to come from the markets watchdogs as a result of much of the world of finance working from home during the early months of the pandemic and as more firms accept hybrid work.
Record fines that the world’s biggest investment banks are expected to pay in the coming months reflect years of frustration among U.S. regulators that their investigations were being hampered by unmonitored messaging among bankers.
Investigators at the Securities and Exchange Commission and Commodity Futures Trading Commission were repeatedly hindered by firms not archiving communications as required, according to people familiar with the matter.
The watchdogs worried that missives on bankers’ personal phones about cutting deals, trading and courting clients were being completely lost and would ultimately make it harder to look for wrongdoing.
At the SEC, separate probes revealed a troubling dynamic: key conversations across finance were happening beyond the government’s reach, according to one of the people.
At the CFTC, similar concerns grew as officials probed whether banks were manipulating the interest rates swaps market and they found that many communications were happening outside of official channels, people said.
The scrutiny intensified at the SEC after Chair Gary Gensler took over in April 2021. After investigating JPMorgan Chase & Co. over the lapses, the regulator opened an industrywide sweep across Wall Street to figure out how many business-related communications were missing.
The crackdown is now expected to result in about 10 banks paying fines totaling around $2 billion, with lenders from Goldman Sachs Group Inc. to Barclays Plc saying they expect comparable penalties to JPMorgan, which announced in December it would pay $200 million in penalties to the SEC and CFTC. That dwarfs the $15 million Morgan Stanley agreed in 2006 after being accused of similar lapses.
“There is some sticker shock,” Howard Fischer, partner at law firm Moses Singer and former senior SEC trial attorney, said of the fines. “They’re basically as large as they can go, while both representing a great headline for the enforcement agencies without actually threatening the continuation of anyone’s business,” he added.
The speed of the dragnet caught some by surprise.
“We were not anticipating the $200 million charge,” Credit Suisse Group AG’s Chief Financial Officer David Mathers said on an earnings call last month. “I think you will be seeing that across the industry, but I wasn’t expecting that at the end of the first quarter.”
Representatives at the SEC and CFTC declined to comment.