Financial Crisis Inquiry Commission: Commissioners Appointed; Commission Likely to Begin Investigations in September

July 15, 2009

The Gibson, Dunn & Crutcher Financial Markets Crisis Group is closely tracking government responses to the turmoil that has catalyzed a dramatic and rapid reshaping of our capital and credit markets.

We are providing updates on key regulatory and legislative issues, as well as information on legal and oversight issues that we believe could prove useful as firms and other entities navigate these challenging times.

This update focuses on the individuals appointed to lead Congress’s recently created Financial Crisis Inquiry Commission. The bipartisan Commission is charged with examining the domestic and global causes of the current U.S. financial and economic crisis. This alert also summarizes the Commission’s broad investigatory mandate, its subpoena and other coercive powers, its charge to gather information from private and public entities, and commentary on various topics.

Congress Appoints Commissioners to the Financial Crisis Inquiry Commission

Today, House and Senate Leaders announced the Financial Crisis Inquiry Commission’s membership.

• Phil Angelides, jointly appointed by House Speaker Pelosi and Senate Majority Leader Harry Reid, will chair the Commission. Mr. Angelides served formerly as California’s State Treasurer from 1999 to 2007.
• Bill Thomas, jointly appointed by House Minority Leader John Boehner and Senate Minority Leader Mitch McConnell will serve as the Commission’s vice-chair. Mr. Thomas is a former House Ways & Means Committee Chairman.

Importantly, the Chairperson and Vice Chairperson will jointly select the staff director and other staff of the Commission.

House and Senate Democratic Leaders also appointed the following individuals:

• Brooksley Born, former Chair of the Commodities Futures Trading Commission during the Clinton administration.
• Byron Georgiou, Las Vegas-based businessman and attorney who serves on the advisory board of the Harvard Law School Program on Corporate Governance.
• Senator Bob Graham, former U.S. Senator and Chair of the Senate Intelligence Committee and former Governor of Florida.
• Heather Murren, retired Managing Director for Global Securities Research and Economics at Merrill Lynch.
• John Thompson, Chairman of the Board of Directors of Symantec Corporation.

House and Senate Republican Leaders also appointed the following individuals:

• Doug Holtz-Eakin, former Director of the Congressional Budget Office and former Chief Economist of the President’s Council of Economic Advisers.
• Keith Hennessey, former Director of the National Economic Council during the George W. Bush administration.
• Peter Wallison, Co-Director for Financial Policy Studies at the American Enterprise Institute and former Counsel to President Ronald Reagan.    Mr. Wallison is a retired former partner of Gibson, Dunn & Crutcher.

Financial Crisis Inquiry Commission Key Provisions

Functions of the Commission. The statute directs the Commission to examine twenty-two enumerated possible causes of the current financial and economic crisis in the United States. The list includes the following:

• Fraud and abuse in the financial sector, including fraud and abuse towards consumers in the mortgage sector.
• Federal and State financial regulators, including the extent to which they enforced or failed to enforce statutory, regulatory, or supervisory requirements.
• Global imbalance of savings and international capital flows and fiscal imbalances of various governments.
• Monetary policy and the availability and terms of credit.
• Accounting practices, including mark-to-market and fair value rules and treatment of off-balance sheet vehicles.
• Tax treatment of financial products and investments.
• Capital requirements and regulations on leverage and liquidity, including the capital structures of regulated and non-regulated financial entities.
• Credit rating agencies in the financial system, including reliance on credit ratings by financial institutions and Federal financial regulators, the use of credit ratings in financial regulation, and the use of credit ratings in the securitization markets.
• Lending practices and securitization, including the originate-to-distribute model for extending credit and transferring risk.
• Affiliations between insured depository institutions and securities, insurance, and other types of non-banking companies.
• The concept that certain institutions are “too-big-to-fail” and its impact on market expectations.
• Corporate governance, including the impact of company conversions from partnerships to corporations.
• Compensation structures.
• Changes in compensation for employees of financial companies, as compared to compensation for others with similar skill sets in the labor market.
• The legal and regulatory structure of the United States housing market.
• Derivatives and unregulated financial products and practices, including credit default swaps.
• Short selling.
• Financial institution reliance on numerical models, including risk models and credit ratings.
• The legal and regulatory structure governing financial institutions, including the extent to which the structure creates the opportunity for financial institutions to engage in regulatory arbitrage.
• The legal and regulatory structure governing investor and mortgagor protection.
• Financial institutions and government-sponsored enterprises.
• The quality of due diligence undertaken by financial institutions.

The statute further requires that the Commission examine the causes of the collapse of each major financial institution that failed (including institutions that were acquired to prevent their failure) or was likely to have failed if not for the receipt of exceptional Government assistance from the Department of Treasury during the period beginning in August 2007 through April 2009.

The statute instructs the Commission to refer to the Attorney General of the United States and any appropriate State attorney general any person that the Commission finds may have violated the laws of the United States in relation to the financial crisis.

Commentary

This list of twenty-two enumerated areas for investigation is unusually broad and unusually detailed for a Congressional investigatory commission. The various areas for investigation listed fall generally into two groups: those more focused on informing the development of a new regulatory regime and those more likely to lead to institutional and individual liability. The Commission’s investigations into due diligence, risk management, fraud and abuse toward consumers, mortgage securitization, and accounting practices could pose particular risks of subsequent Executive Branch investigations through referrals from or information made public by the Commission.

The statute’s inclusive language about who can be investigated reflects Congress’s aim to uncover the events that took place at the institutions that have received the most government assistance, learn how these institutions came to require assistance, and create a detailed record of what happened.  According to Senate Committee on Banking, Housing, and Urban Affairs staff, the statute’s drafters had twelve to fourteen specific institutions in mind to target for investigations and defined the Commission’s scope accordingly to include them.

The criminal referral provision distinguishes this commission from the 9/11 Commission, which did not provide for referrals explicitly. The Financial Crisis Inquiry Commission would have had referral power even without an explicit provision. By including the provision, however, Congress created an expectation that the Commission will make referrals in appropriate cases. Besides increasing the potential for criminal liability, the Commission’s work could well create fact trails leading to civil enforcement and other regulatory and supervisory sanctions.

Powers of the Commission. Like most Congressional committees, the Commission has the power to hold hearings, take testimony, receive evidence, and administer oaths. The Commission can also issue subpoenas and has two distinct procedures for enforcing them. The general enforcement procedure involves a district court ordering the subpoenaed person to appear or produce evidence. Failure to obey may be punished as a contempt of that district court. The Commission can also enforce a subpoena through Congress’s criminal contempt statute. Under the statute, failure to obey a subpoena can lead to a fine of up to $100,000 and up to one year imprisonment. The Commission cannot issue subpoenas on a purely partisan basis. The affirmative vote of at least one Republican appointee is required.  Importantly, the statute likely also provides for staff deposition authority.

Commentary

The Commission has two particularized processes for enforcing subpoenas. Responding to either of them requires expertise in dealing with not just subpoenas, but with Congressional subpoenas specifically. Although the general subpoena enforcement procedure is similar to the procedure for enforcing SEC investigation subpoenas, it is an unusual and judicially untested procedure in the context of Congressional investigations. Defenses to subpoena enforcement actions under Congress’s criminal contempt statute do exist, but courts rarely give them much weight. Private individuals or entities must, in most instances, respond to a Congressional subpoena if they do not invoke Fifth Amendment rights. In practice, formal subpoena enforcement actions occur rarely. Instead, Congress often enforces subpoenas through public pressure generated through a variety of means that generally involve negative press attention.

The staff deposition authority is uncommon among Congressional committees. Without this authority, commissioners themselves would have to convene in order to take testimony from a witness. With staff deposition authority, however, a single staff member or group of staff members could take testimony from a witness without the commissioners needing to meet. The ability of staff to take depositions thus not only provides the Commission with more flexibility, but also expands the potential number of witnesses who could be questioned in the time available.

Information gathering. The statute provides that the Commission “should seek” testimony and information from principals and other representatives of government agencies and private entities that were significant participants in the financial and housing markets during the crisis. The Commission can also secure “any information related to any inquiry of the Commission,” including confidential information, from any federal agency.

Commentary

By charging the Commission with gathering information directly from private entities, Congress virtually assured that the Commission will hold public hearings and call officers and possibly directors of systemically significant institutions to testify.  The Pecora Commission, an inquiry conducted in the 1930s about the causes of the Great Depression, employed aggressive information gathering tactics. As one historical account describes, the staff of the Pecora inquiry would “descend upon a banker or broker and go through his records, file drawer after file drawer, page by page, selecting and photostating documents. Staff lawyers and accountants would assemble this material to reconstruct the motivations, discrepancies, delinquencies, and frauds involved.”  While there is no reason to believe that the Financial Crisis Inquiry Commission will be similarly aggressive, it is sobering to recall how similar authorities have been, and could be, used.

Any information or documents provided to the Commission will be subject to disclosure at the Commission’s discretion.  Generally, absent an agreement with the Commission to the contrary, institutions should assume that information provided to the Commission will become public. Information could be made public through hearings, reports, leaks to the press, and other means.

Information and documents provided could also impact existing litigation and existing SEC or other regulatory investigations. Institutions should be thinking ahead about how to handle a possible inquiry from Commission staff. They should be prepared to have their current or even former officers and directors called to testify or provide information through interviews or depositions. For public companies, contact with the Commission could, in certain circumstances, constitute a disclosable event.

Besides acquiring information from private parties directly, federal agencies must provide the Commission with any information it requests. This potentially means that Commission staff could request auditor reports from the SEC, exposing institutional weaknesses that exist but normally do not have to be publicly disclosed. The Commission may also be able to compel information from the SEC and DOJ about investigations that are not yet concluded and still in the confidential stage.  Taxpayer information might also be obtainable.

Regardless of how the Commission obtains information, its investigations will likely produce embarrassing fact patterns, even for institutions that consider themselves best-in-class. Revelations about the interactions of those responsible for corporate governance with those responsible for risk management may be particularly damaging for many institutions. Questions are likely to arise about whether institutional leaders listened to risk managers and the reasons for choosing to follow or not to follow their advice. Questions associated with securitizations are likely to focus on what institutions knew about risk in this area and when they knew it.

Reporting. On December 15, 2010, the Commission will submit a report to the President and Congress “containing the findings and conclusions of the Commission on the causes of the current financial and economic crisis in the United States.” The statute also authorizes the Commission, at the chairperson’s discretion, to report specific findings on financial institutions that the Commission investigates.

Commentary

The statute does not discuss the possibility of interim reports, but such reports may be issued depending on the progress and needs of the regulatory reform debate in Congress. While the Commission is not charged with making recommendations to Congress, its existence and resources provides Congress with an opportunity to discover facts that may shape regulatory reform, and Congress may try to employ the Commission to produce facts that would better inform the discussion.

Funding. The statute creating the Commission authorizes appropriations to the Treasury Secretary “such sums as are necessary to cover the costs of the Commission.”

Commentary

Congress already has appropriated $8 million to the Commission to conduct its fifteen-month investigation of the financial markets crisis.  This is roughly equivalent to the yearly budget of a major Congressional committee.  If the Commission runs short on funds, it could seek additional appropriations from Congress.

Concluding Observations

Institutions with any ties to the financial and economic crisis should be concerned about the Commission’s broad and detailed mandate for investigation. Much of the Commission’s work will likely focus on discovering the causes of the financial crisis, uncovering details about the institutions and individuals associated with the crisis, and creating a record of events leading up to it.

In terms of timing, it is possible that a regulatory reform bill will be enacted before the Commission’s final report comes due in December of 2010. The Commission’s precise effects on regulatory reform will depend largely on how the investigation and any relevant legislation move forward. The existence of the Commission means that, if legislation is enacted before it reports, there is likely to be a second round that responds to the final report.

Going forward, institutions should recognize the Financial Crisis Inquiry Commission’s unique set of functions and powers. The Commission will not proceed from the same authorities and motivations as the executive agencies with which most institutions are used to working. Institutions should start planning ahead to prepare themselves should they be contacted or investigated by the Commission.

© 2009 Gibson, Dunn & Crutcher LLP

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