Why It’s Unlikely Anyone Will Go to Jail Over Wells Fargo’s Massive Fraud Scheme

Photo: Justin Sullivan/Getty Images

In the last few years, a bunch of Wells Fargo employees committed serious crimes. That’s the clear takeaway from the Consumer Finance Protection Bureau’s announcement that it is levying its largest-ever fine against the bank. Wells Fargo will have to pay out $100 million to the CFPB, plus $85 million to other authorities, for a pattern of fraud, dating back to 2011, in which its employees opened up a vast number of new checking and credit accounts without account holders’ consent or knowledge. The employees, about 5,300 of whom have since been fired, were hoping to rack up incentives the bank provided to employees for roping customers into new accounts.

Naturally, those 1.5 million checking accounts and half a million credit cards caused giant headaches for the consumers who didn’t sign up for them: In addition to the fact that they were charged overdraft and maintenance fees, some customers also dealt with — and, surely, are currently dealing with — significant hits to their credit scores as a result of not staying current on accounts they didn’t even know they had. They’ll likely have difficulty securing home and car loans at reasonable rates for years to come, simply because their bank decided to defraud them. This was criminal activity on a massive scale, and it is going to have lingering effects on innocent people’s abilities to live their lives.

It’s worth asking: Will anyone go to jail for this? The fine, after all, makes for a good headline but is actually something of a pittance: $185 million is just 3.3 percent of the $5.6 billion in net income Wells Fargo pulled in in the second quarter of this year. And whatever monetary penalties were assessed, there’s a strong case to be made, here as anywhere else, that individuals who engage in fraud should, well, be prosecuted for committing fraud. That’s sort of the point of the legal system.

The depressing answer is that it’s quite unlikely anyone will face criminal sanctions for Wells Fargo’s scheme. While the CFPB has left that door open, the Department of Justice is very unlikely, if recent history is any guide, to walk through it. (The DoJ is the agency that matters here, since the CPFD itself doesn’t have the power to launch criminal investigations, but can refer its cases to the DoJ for further investigation and potential prosecution.)

If you took a cursory glance at the agreement that has been struck between the CFPB and Wells Fargo, you might find reason to be optimistic about the possibility of a full-blown criminal investigation by the feds. While the document does grant immunity to the bank itself for any of the crimes that have been uncovered up to this point, it specifically mentions that other than that, nothing in the agreement prevents other government agencies from continuing the investigation — meaning the DoJ is still free to go after individuals. (A CPFB spokesperson said the agency doesn’t comment on possible referrals to the DoJ, and the DoJ declined to comment. I have an email out to the DoJ itself, and will update this post if the agency responds.)

But Jimmy Gurulé, a law professor at Notre Dame who specializes in money laundering and terrorist financing, and who has closely followed federal responses to malfeasance on the part of big banks, said he’s quite skeptical. In a phone call, he rattled off many recent instances of banks engaging in massive criminal activity, and coming away only with monetary punishments.

To take just a handful of them: In 2012, Standard Chartered was found to have violated the U.S.’s economics sanctions by moving hundreds of billions of dollars for Iran, and settled for $330 million. In 2012, federal investigators found that HSBC had, as the Times put it, “transferred billions of dollars for nations under United States sanctions, enabled Mexican drug cartels to launder tainted money through the American financial system, and worked closely with Saudi Arabian banks linked to terrorist organizations.” HSBC paid $1.92 billion. Then there was Barclays in 2010 — a fine of $298 million for illegal dealings with Cuba, Iran, Libya, Sudan, and Myanmar (before reluctantly approving the settlement, the judge in that case called it a “sweetheart deal”). Also, Credit Suisse in 2009: it settled for $536 million in connection with similar charges.

In many of these cases, the banks entered into what are called deferred prosecution agreements, with the DoJ effectively saying, “We have what we need to issue indictments right now, but if you make certain reforms, and pay a fine, we’ll table and eventually drop the charges.” Each scandal is different, but they share one commonality, other than the massive sums of money involved: “In all those cases I’ve listed, not one single individual spent a single day in jail for the criminal activity that justified those monetary penalties,” said Gurulé. And as he pointed out, full-blown investigations have benefits beyond simple punishment and deterrence: Authorities with subpoena powers can uncover important details about exactly who played the biggest roles in orchestrating and perpetuating a pattern of illegal activity, helping regulators and others prevent repeat acts in the future.

The question of why the feds basically never target individuals in these cases is complicated. It would seem like an easy political, moral, and social-norm win: Punish the individuals who committed huge financial crimes, making it clear that such conduct is unacceptable and can’t be paid for with cash alone. But as one former government official who had been involved in money-laundering cases told me in 2012, sometimes building a strong case against individuals can be difficult given how big and complicated banks are, and sometimes, even when there is evidence, that evidence points not to the C-suite suits, but middle-manager types. It may be, he explained, that at the start of an investigation, there’s an appetite among investigators for convictions, but that a few months or a year in, the government realizes that its most favorable bang-for-the-buck outcome is the announcement of a rich-seeming deferred prosecution deal.

As for the Wells Fargo case, nobody thinks what the bank did is as serious as laundering unfathomable sums of money for terrorists and drug kingpins. But it’s the exact same pattern, best summed up by imagining how a rational bank employee would weigh the risks and benefits of breaking the law when that possibility presents itself. If the question is how likely it is they’ll go to jail for engaging in lawbreaking that could be extremely profitable for themselves or their company, the answer is obvious: basically zero.

“It’s very troubling for me,” said Gurulé. “I’ve been harping on this issue for at least the last four or five years — that at the end of the day, no one individual is held accountable.” At this point, he said, the country seems to be mired in a “double standard of justice” when it comes to crimes committed by banks. “If you or I failed to pay our federal income taxes, we could and would be indicted and convicted for a felony,” he said. “But if you’re working for a big bank and you engage in a huge, massive fraud scheme that generated hundreds of millions of dollars of criminal proceeds over an extended period of time, no one goes to jail. That strikes me as wrong, and it really undermines the public’s confidence in the criminal justice system.”

Why No One Will Go to Jail Over Wells Fargo’s Fraud Scheme