Former Washington Mutual Chief Executive Officer Kerry Killinger and two other bank officials are in settlement talks with the Office of the Comptroller of the Currency, the last chapter in the government’s probe of the largest U.S. bank failure.
The regulator is weighing a settlement with Killinger, former chief operating officer Stephen Rotella and David Schneider, former head of the home-loan division, over claims they mismanaged the Seattle-based thrift, according to a person who was briefed and spoke on condition of anonymity because the talks aren’t public.
The person, who said the talks have entered the final stage, didn’t describe the terms being discussed. The details of a deal would need the approval of senior OCC officials.
Washington Mutual, which was the nation’s largest savings- and-loan and one of the largest subprime lenders, became a public symbol of the excesses of the housing bubble. The thrift and its subprime arm “engaged in a host of shoddy lending practices that contributed to a mortgage time bomb,” the Senate Permanent Subcommittee on Investigations said in a 2011 report.
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The bank was seized by regulators in September 2008 after reporting that it faced $19 billion in losses from soured mortgages. JPMorgan Chase & Co. bought remnants of the thrift and has since struggled to unwind itself from liability for Washington Mutual’s faults.
In 2011, Killinger, Rotella and Schneider reached a $64 million settlement with the Federal Deposit Insurance Corp., which liquidated the bank. The FDIC sued the three executives for failing to tend to the thrift’s safety while they received more than $95 million in compensation from 2005 until its collapse. Most of their payments under the settlement were covered by Washington Mutual’s insurance policy.
The OCC’s separate investigation stems from the agency’s 2011 merger with the Office of Thrift Supervision, which had supervised Washington Mutual.
Daniel W. Turbow, a lawyer at Wilson Sonsini Goodrich & Rosati who has represented Killinger, 64, declined to comment. Rotella, 60, now CEO of New York-based StoneCastle Cash Management, didn’t immediately respond to a request for comment. Schneider, who until this year was CEO of Vericrest Financial, an Irving, Texas, mortgage servicer, didn’t return a message left at a phone number listed to his name in New Jersey.
Bryan Hubbard, an OCC spokesman, declined to comment on the talks.
A Justice Department investigation into Washington Mutual ended in August 2011 without charges filed.
The report from the Senate panel, which is led by Sen. Carl Levin, a Michigan Democrat, found that Washington Mutual “produced hundreds of billions of dollars of poor quality loans that incurred early payment defaults, high rates of delinquency, and fraud.”
Killinger advised his bank’s board in June 2006 that the company should be “in position to grow its market share” in high-risk lending — including subprime loans — according to an internal memo published in the Senate investigation. The report said Killinger pushed a plan to “significantly curtail” low-margin, safer loans in a shift toward higher risk.
Two months earlier, Schneider had given a presentation suggesting the bank should almost double its subprime volume by 2008, according to the Senate report. Emails between Rotella and Killinger in 2005 showed Rotella also encouraging subprime and home-equity loan growth, according to the report.
Killinger said in court filings in the FDIC lawsuit that examiners from the FDIC and OTS were stationed at the bank and aware “in real time” of business decisions the FDIC later challenged. Killinger, Washington Mutual’s CEO for 18 years, told Levin’s panel in 2010 that his bank could have survived the crisis but U.S. officials denied Washington Mutual help offered to other financial firms.
When the FDIC deal was announced, Levin noted that the executives wouldn’t have to pay much of the settlement themselves. “The OCC, which inherited OTS’ jurisdiction over WaMu, may be able to impose civil monetary penalties against the former executives which likely would have to come out of their pockets,” he said in a statement at the time.
Ronald R. Glancz, a former litigation division chief at the OCC who heads Venable’s financial-services group, said any penalties arising from the probe would factor in the seriousness of the behavior and the net worth of the individuals. Insurance policies wouldn’t typically cover such payments, he said.
In addition to imposing a penalty, the OCC could seek restitution and block the officials from future banking jobs.
“Those are the three powers they have,” Glancz said.
Still, Glancz said, it’s “a bit of injustice” for multiple agencies to pursue people for the same behavior. He said that in some matters stemming from the 2008 credit crisis, regulators “are sort of piling-on” to high-profile cases.
Washington Mutual — in business for 119 years — had enjoyed a string of acquisitions and explosive growth in its final years, adopting a new advertising slogan in the months before its collapse: “Whoo hoo!” In U.S. history, the scale of its bankruptcy was eclipsed only by Lehman Brothers Holdings.
JPMorgan, as part of its $13 billion settlement with the government last month, agreed it wouldn’t continue to press the FDIC to cover some of the losses from defective mortgage securities sold by Washington Mutual before it was acquired.