08/16/2010 04:23 pm ET Updated May 25, 2011

Don't Bank on Subprime Indictments Anytime Soon

In filings this month in federal court in Los Angeles, lawyers for former Countrywide Financial Corp.'s chief executive Angelo Mozilo argued that the Securities and Exchange Commission now admitted that the home lender had fully disclosed to investors the increasingly risky mortgages that Countrywide was originating. They called for the case against him to be dismissed. The SEC has yet to respond. Whether emboldened by the perceived lackluster performance so far from regulators investigating subprime loans or merely a tactical move, Mozilo's grandstanding in the face of both an SEC complaint and an on-going federal criminal investigation is likely a reaction to the government's track record -- or lack of one -- in bringing successful major prosecutions in connection with the subprime mortgage crisis.

In fact, three years after the start of the biggest collapse in the home loan market in history and despite the announcement of criminal investigations into Goldman Sachs, Countrywide, AIG and others, investors are still waiting for a conviction of a major player for conduct related to the subprime mortgage crisis. Contrast that with the dotcom collapse in 2000 which led to a string of highly successful, big name prosecutions of CEO's and CFO's at companies such as Enron, Tyco, Adelphia and WorldCom to name just a few. It is fair to wonder if these criminal prosecutions are ever coming. The answer is, maybe not, and certainly not in the numbers that the public had expected. If you're still waiting for a wave of high profile criminal prosecutions to emerge from the haze of the subprime mortgage meltdown, it may be time to readjust your expectations.

To be fair to prosecutors, it's not for lack of desire. In fact, shortly after the implosion of Bear Stearns, DOJ prosecutors obtained indictments of two former Bear Stearns hedge fund managers alleging that they knowingly misled investors about the future prospects of their fund. Armed with a series of seemingly bullet proof, smoking gun emails in which the defendants appeared to be trashing the very investments they were promoting to their investors, prosecutors painted a vivid portrait of Wall Street insiders telling one story to their investors, while privately maintaining an altogether different opinion of the long-term health of the fund. But in the end, prosecutors were unable to convince jurors that the defendants should be held responsible for failing to predict the global economic crisis that swept their funds, along with much of the U.S. economy, into a tailspin. Both defendants were acquitted of all charges.

While prosecutors have yet to follow up with any major indictments, SEC regulators have moved ahead, recently announcing settlements with Citigroup and their biggest prize to date -- Goldman Sachs. The agency had charged Goldman with intentionally misleading clients by selling a mortgage-security product that they failed to disclose was designed in part by another Goldman client that was betting on the housing market to crash. Despite the record-setting settlement of $550 million, the SEC resolved the matter on terms that suggest that a criminal prosecution is unlikely to follow. Indeed, buried in the Goldman settlement, which was only approved by a federal judge this month, are signs that perhaps their civil case was weaker than originally billed and that federal prosecutors would face an even more daunting task in trying to build a criminal case where the standard of proof is higher.

Generally the SEC will demand that a defendant settle on the most serious allegation made in its complaint. Instead, regulators struck a deal that essentially watered down the toughest charge. The SEC complaint contained an allegation that Goldman violated Rule 10b of the securities laws, which includes a broad antifraud provision covering trading in securities. This allegation is one of the most potent weapons in the SEC's arsenal. Instead, Goldman settled on Rule 17a, which carries a lesser stigma for a financial firm and can involve unintentional fraud as well as negligence. The fact that regulators were willing to back off their claim of intentional wrongdoing is a strong indication that they had doubts as to whether they could ultimately make the charges stick.

In addition, while the terms of the Goldman settlement contained an unusual provision which required Goldman to issue a statement that it was "a mistake" to fail to disclose the role of the other Goldman client, that "admission" contrasted incongruously with other language in the settlement in which Goldman expressly denied any wrongdoing.

Both the Goldman settlement and the Bear Stearns acquittals show just how difficult it will be to pin criminal intent on the salesmanship that pervades Wall Street. The reality is that this financial meltdown was far more complex and affected by many more external factors than those that followed the dotcom collapse. Cases like Enron and WorldCom were more self-contained. In those prosecutions, since the criminality occurred within the company, cause and effect were easier to demonstrate to jurors. In this case it will be more difficult to draw direct lines of causation between defendants and losses since there are likely going to be many other factors to take into account.

While it is still too early to count prosecutors out in the government's efforts to hold someone accountable for the staggering losses to investors, the presence of lax regulations that clearly contributed to the crisis creates significant difficulties for establishing criminal liability which requires evidence of clear cut wrongdoing. In the wake of a financial crisis it is always tempting to promise that those who are responsible will be brought to justice. But it is one thing to witness a crime and then search for those who committed it. It's an entirely different matter when prosecutors have to find both the crime and the criminals. In the end, it's hard to image any outcome in which the victims won't still far outnumber the villains.

Robert A. Mintz is the former Deputy Chief of the Organized Crime Strike Force of the U.S. Attorney's Office in the District of New Jersey and is currently the head of the Government Investigations and White Collar Criminal Defense practice group at McCarter & English, LLP.