An Obama administration task force established to investigate misconduct that fueled the financial crisis is turning to a little-used statute that may make such cases easier to bring, according to people familiar with the matter.
The federal statute, FIRREA, was passed in the wake of the savings-and-loan scandals in the 1980s. It requires a lower burden of proof than criminal charges, has a longer statute of limitations than other financial laws and potentially could bring big fines.
But it has appeared in only a few dozen cases since it was enacted in 1989.
The task force, which is in the Justice Department, used FIRREA earlier this year when it issued more than a dozen civil subpoenas to top financial institutions, including Citigroup, the people familiar with the matter said.
The subpoenas ask for documents related to mortgage-backed securities offerings between 2006 and 2008.
President Barack Obama announced the task force during his State of the Union address in January and hailed it as a way to hold accountable those who broke the law and contributed to the housing crisis.
The Securities and Exchange Commission has brought a handful of high-profile cases related to the 2007-2009 financial crisis, including against former Countrywide Financial Chief Executive Angelo Mozilo and Wall Street giant Goldman Sachs. But the Justice Department has struggled to bring criminal charges.
The frustration, in part, has been because such charges involve securing evidence that shows beyond a reasonable doubt a defendant intended to break the law.
For example, a federal jury in 2009 acquitted two former Bear Stearns hedge fund managers accused of continuing to push souring investments as sound.
Jurors said prosecutors did not prove the case, which relied on e-mail evidence, beyond a reasonable doubt. Since then, the Justice Department has brought few major prosecutions tied to the subprime crisis.
But people familiar with the thinking of the task force say the group believes FIRREA – the Financial Institutions Reform, Recovery, and Enforcement Act – may prove a critical tool.
FIRREA allows the government to bring civil charges if prosecutors believe defendants violated certain criminal laws but have only enough information to meet a threshold that proves a claim based on the “preponderance of the evidence.”
Adam Lurie, a lawyer at Cadwalader, Wickersham & Taft who worked in the Justice Department’s criminal division until last month, said that although criminal cases based on problematic e-mails without a cooperating witness could be difficult to prove, the same evidence could meet a “preponderance” standard.
That means a jury must only find that something is more likely than not. It is “a much easier case to make,” he said.