Record fines that the world's biggest investment banks are expected to pay in the coming months reflect years of frustration among U.S. regulators that their investigations were being hampered by unmonitored messaging among bankers.
Investigators at the Securities and Exchange Commission and Commodity Futures Trading Commission were repeatedly hindered by firms not archiving communications as required, according to people familiar with the matter. The watchdogs worried that missives on bankers' personal phones about cutting deals, trading and courting clients were being completely lost and would ultimately make it harder to look for wrongdoing.
At the SEC, separate probes revealed a troubling dynamic: key conversations across finance were happening beyond the government's reach, according to one of the people. At the CFTC, similar concerns grew as officials probed whether banks were manipulating the interest rates swaps market and they found that many communications were happening outside of official channels, people said.
The scrutiny intensified at the SEC after Chair Gary Gensler took over in April 2021. After investigating JPMorgan Chase over the lapses, the regulator opened an industrywide sweep across Wall Street to figure out how many business-related communications were missing.
The crackdown is now expected to result in about 10 banks paying fines totaling around $2 billion, with lenders from Goldman Sachs Group to Barclays saying they expect comparable penalties. JPMorgan announced in December it would pay
That dwarfs the $15 million Morgan Stanley agreed in 2006 after being accused of similar lapses.
"There is some sticker shock," Howard Fischer, partner at the law firm Moses Singer and former senior SEC trial attorney, said of the fines. "They're basically as large as they can go, while both representing a great headline for the enforcement agencies without actually threatening the continuation of anyone's business," he added.
The speed of the dragnet caught some by surprise.
"We were not anticipating the $200 million charge," Credit Suisse Group Chief Financial Officer David Mathers said on an earnings call last month. "I think you will be seeing that across the industry, but I wasn't expecting that at the end of the first quarter."
Representatives at the SEC and CFTC declined to comment.
Tense meeting
During a tense meeting over allegations that JPMorgan executives routinely shirked surveillance duties by tapping out work communications on personal messaging platforms and email, SEC officials said previous fines shouldn't serve as guideposts for the penalty the bank would have to pay to settle the case.
Enforcement Director Gurbir Grewal said past punishments hadn't gotten banks to take recordkeeping seriously enough, according to people familiar with the conversation.
The irregularities included "records preservation requirements applicable to broker-dealer firms, swap dealers and futures commission merchants," according to JPMorgan's 2021 annual report. The CFTC said in December it became aware of such breaches at the lender as it conducted a separate "investigation into certain of JPMorgan's trading," without providing further details.
Despite believing that their actions had been less severe than those uncovered at U.S. competitors, executives at some European banks decided to try to settle as soon as possible, two people familiar with the matter said. The regulators have taken the view that any use of personal devices for business communications is problematic, they said.
Beyond planning to pay hefty fines, some banks have already let go traders for improperly exchanging information on personal mobiles. HSBC Holdings Plc, which said in February it was facing a US probe over the issue, recently fired a trader in London after scrutinizing the personal mobile phones of some staff in relation to the WhatsApp probe.
Fischer, the Moses Singer lawyer, expects more records preservation cases to come from the markets watchdogs as a result of much of the world of finance working from home during the early months of the COVID-19 pandemic and as more companies accept hybrid work.
There will likely be a renewed push at some of the larger banks reminding staff to operate through official channels and preserve records, but that's unlikely to stop the widespread use of communications apps and personal devices, Fischer said.
Wall Street banks are concerned how realistically they can comply with the records rules "when they really run counter to the way a lot of business is done today," he said.
— With assistance from Steven Arons.
