Meet Jed Rakoff, the Judge Who Exposed the "Rigged Game"
“We have mass incarceration for the poor, and it’s totally hands-off for the rich, and that’s pretty hard to stomach.” Justice Jed Rakoff on his new book, and his famous challenge to the system
On November 27, 2011, a federal judge named Jed Rakoff threw out a $285 million regulatory settlement between Citigroup and the Securities and Exchange Commission, blasting it as “neither fair, nor reasonable, nor adequate, nor in the public interest.” The S.E.C. and Citigroup were stunned. Expecting to see their malodorous deal wrapped up, the parties were instead directed “to be ready to try this case” the following summer.
Try a case? Was the judge kidding? A pattern had long ago been established in which mega-companies like Citigroup that were implicated in serious offenses would be let off with slaps on the wrist, by soft-touch regulators who expected judges to play ball. These officials in many cases were private sector hotshots doing temporary tours as regulators, denizens of the revolving door biding time before parachuting back into lucrative corporate defense jobs. A judge who refused to sign the settlements such folks engineered was derailing everyone’s gravy train.
Citigroup had replicated a scheme employed by numerous big banks of the era, helping construct a “born to lose” portfolio of rotten mortgage securities to be unloaded on customer-dupes, who were unaware the bank intended to bet against them. A similar case involving a Goldman, Sachs deal called “Abacus” had concluded the previous year with a hefty fine, but, infamously, no admission of wrongdoing.
In the Citigroup version, the bank earned $160 million in profits, customers lost $700 million, and the S.E.C. wanted to impose a $285 million fine. As noted by papers like the Washington Post at the time, the S.E.C.’s logic was to ask the bank to return the money ($160 million plus interest equaled $190 million) and pay a $95 million civil penalty on top.
Citigroup that quarter alone earned $3.8 billion in profits, which meant the S.E.C. proposed to charge the bank — which had been functionally bankrupt in 2008 and was booming again thanks to a massive public bailout, engineered in part by former Citi officials by the way — a fee of 2.5% of its quarterly profits. In a country where an ordinary schlub could get multiple years in prison for something like third-degree attempted theft of a car, seeking no individual penalties and asking shareholders to forego a tiny fraction of earnings as restitution for stealing $160 million was a joke.
The fine was “pocket change to any entity as large as Citigroup,” noted Rakoff, in a blistering 15-page opinion. Objecting to the practice of allowing corporate crooks to walk away without admission of wrongdoing, he noted that Citigroup had already begun asserting its right to deny the allegations, both in litigation and to the media. This, he said, left the public despairing “of ever knowing the truth in a matter of obvious public importance.”
Such a policy, he concluded, would reduce the court to “a mere handmaiden to a settlement privately negotiated on the basis of unknown facts.” And, well, screw that.
There was cheering in the legal community and even in the press (“Judge Jed Rakoff Courageously Rejects SEC-Citigroup Settlement” was the Post headline) for a few minutes. Then came the inevitable plot twist. Citigroup and the S.E.C., robber and cop, joined together to appeal the decision, forcing Rakoff to retain counsel. Before long, Rakoff was overturned. An appeals court judge ruled he had stepped out of bounds by demanding the “truth” behind allegations, saying “consent decrees are primarily about pragmatism.”
The original dirty deal was re-routed back to Rakoff, who was then forced by the appeals court to approve it. “That court has now fixed the menu, leaving this court with nothing but sour grapes,” Rakoff wrote in a succinct but seething opinion, adding one parting warning:
This court fears that, as a result of the Court of Appeal’s decision, the settlements reached by governmental regulatory bodies and enforced by the judiciary’s contempt powers will in practice be subject to no meaningful oversight whatsoever.
The symbolism of the Rakoff episode was striking. Citigroup had been created by something like the ultimate insider deal. The merger of Citicorp and the insurance conglomerate Travelers had been struck in the late nineties despite apparently conflicting with several laws, including the Glass-Steagall Act and the Bank Holding Company Act of 1956.
The merger to create the first American “supermarket bank” only happened because a temporary waiver was granted by Alan Greenspan’s Federal Reserve. This held up in time for Bill Clinton to sign a bipartisan piece of legislation called the Gramm-Leach-Bliley Act, sanctifying the deal after the fact. Former Clinton Treasury Secretary Bob Rubin then skedaddled to a job at the new super-bank that Citi itself described as having “no line responsibilities,” but nonetheless would go on to earn Rubin $115 million, a transaction that grossed out even the Wall Street Journal.
Thus the way the S.E.C. and the Appellate Courts essentially joined hands with this particular firm to strike down Rakoff’s ruling was a graphic demonstration of the self-defense capability of what one former Senate aide I know calls “The Blob,” i.e. the matrix of interconnected (and, not infrequently, intermarried) lawyers, lobbyists, politicians, and executives who run the country from the Washington-New York corridor. I don’t think it’s an accident that politicians in both parties, ranging from Bernie Sanders to Donald Trump, began scoring political points by talking about the “rigged game” just after Rakoff’s Capra-esque gesture was overturned. What did Rakoff himself think?