This one’s for my friends and family in Charlotte.
Brian Moynihan is the CEO of Bank of America. Last May, unbeknownst to most of us, he was deposed by lawyers for insurance companies suing Bank of America and Countrywide, the “mortgage” company that BofA acquired. The insurance companies lost a metric shit-ton of money because Countrywide spent years originating a boatload of mortgages to anyone with a pulse, mortgages that were doomed to fail, and then packaged and sold them as AAA-grade bonds, which were even more attractive investments at the time because MBIA and other prominent companies had insured them.
When BofA acquired Countrywide, for no small amount of money despite the company’s obvious worthlessness at that point, Moynihan famously promised to make good on all his company’s new acquisition’s misdeeds, a promise that, if kept, could render BofA so much more insolvent that even the government wouldn’t be able to ignore it any longer. And I haven’t kept close track, so this may all be over and done with, but Moynihan also may have legal problems with BofA stockholders who have claimed they weren’t fully informed of Countrywide’s problems at the time of the acquisition, as securities law requires.
Anyway, this little Q&A between MBIA lawyers and Moynihan runs on to 223 pages, and if we are to take its protagonist at his word — a dangerous thing to do, as we shall see in a moment — then he not only has no business serving as the CEO of anything more important than watching moss grow, he also desperately needs full-time dementia care. (And having had friends and relatives with Alizheimer’s, I don’t throw that metaphor out lightly.)
Moynihan essentially had three choices in answering these questions. He could tell the truth and, in all likelihood, admit under oath to securities fraud, conspiracy and a host of other crimes. Or he could lie and say these things did not happen on his watch when they manifestly did, and face perjury charges. Or he could say he didn’t recall. (I suppose he had a fourth possibility, taking the Fifth Amendment, but a quick scan suggests he either didn’t do that or else did it very obliquely.)
Well, to absolutely no one’s surprise, Brian the Job Creator chose Door No. 3. At the moment, if you Google the phrase “great amnesiacs of history” in quotes, you get no hits. I suspect that’s about to change, as Matt Taibbi of Rolling Stone comments:
If you’re a court junkie, or have the misfortune (as some of us poor reporters do) of being forced professionally to spend a lot of time reading legal documents, the just-released Moynihan deposition in MBIA v. Bank of America, Countrywide, and a Buttload of Other Shameless Mortgage Fraudsters will go down as one of the great Nixonian-stonewalling efforts ever, and one of the more entertaining reads of the year.
In this long-awaited interrogation – Bank of America has been fighting to keep Moynihan from being deposed in this case for some time – Moynihan does a full Star Trek special, boldly going where no deponent has ever gone before, breaking out the “I don’t recall” line more often and perhaps more ridiculously than was previously thought possible. Moynihan seems to remember his own name, and perhaps his current job title, but beyond that, he’ll have to get back to you. …
Taibbi’s account alone is both hilarious and outrageous. Now that the semester is over, I can’t wait to read the actual deposition. (Hey, it’s how I roll.)
In the deposition, attorney Peter Calamari of Quinn Emmanuel, representing MBIA, attempts to ask Moynihan a series of questions about what exactly Bank of America knew about Countrywide’s operations at various points in time.
Early on, he asks Moynihan if he remembers the B of A audit committee discussing Countrywide. Moynihan says he “doesn’t recall any specific discussion of it.”
He’s asked again: In the broadest conceivable sense, do you recall ever attending an audit committee meeting where the word Countrywide or any aspect of the Countrywide transaction was ever discussed? Moynihan: I don’t recall.
Calamari counters: It’s a multi-billion dollar acquisition, was it not?
Moynihan: Yes, it was.
[Q:] Well, isn’t that the kind of thing you would talk about?
Moynihan: not necessarily . . .
This goes on and on for a while, with the Bank of America CEO continually insisting he doesn’t remember ever talking about Countrywide at these meetings, that you’d have to “get the minutes.” Incredulous, Calamari, a little sarcastically, finally asks Moynihan if he would say he has a good memory.
“I would – I could remember things, yes,” Moynihan deadpans. “I have a good memory.”
Calamari presses on, eventually asking him about the state of Countrywide when Moynihan became the CEO, leading to the following remarkable exchange, in which the CEO of one of the biggest companies in the world claims not to know anything about the most significant acquisition in the bank’s history (emphasis mine):
Q: By January 1st, 2010, when you became the CEO of Bank Of America, CFC – and I’m using the initials CFC, Countrywide Financial Corporation – itself was no longer engaged in any revenue-producing activities; is that right?
Moynihan: I wouldn’t be the best person to ask about that because I don’t know.
There are no sound effects in the transcript, but you can almost hear an audible gasp at this response. Calamari presses Moynihan on his answer.
“Sir,” he says, “you were CEO of Bank Of America in January, 2010, but you don’t know what Countrywide Financial Corporation was doing at that time?”
In an impressive display of balls, Moynihan essentially replies that Bank of America is a big company, and it’s unrealistic to ask the CEO to know about all of its parts, even the ones that are multi-billion-dollar suckholes about which the firm has been engaged in nearly constant litigation from the moment it acquired the company.
“We have several thousand legal entities,” is how Moynihan puts it. “Exactly what subsidiary took place [sic] is not what you do as the CEO. That is [sic] other people’s jobs to make sure.”
The exasperated MBIA lawyer tries again: If it’s true that Moynihan somehow managed to not know anything about the bank’s most important and most problematic subsidiary when he became CEO, well, did he ever make an effort to correct that ignorance? ”Do you ever come to learn what CFC was doing?” is how the question is posed.
“I’m not sure that I recall exactly what CFC was doing versus other parts,” Moynihan sagely concludes.
The deposition rolls on like this for 223 agonizing pages. The entire time, the Bank of America CEO presents himself as a Being There-esque cipher who was placed in charge of a Too-Big-To-Fail global banking giant by some kind of historical accident beyond his control, and appears to know little to nothing at all about the business he is running.
In the end, Moynihan even doubles back on his “we’ll pay for the things Countrywide did” quote. Asked if he said that to a Bloomberg reporter, Moynihan says he doesn’t remember that either, though he guesses the reporter got it right.
Well, he’s asked, assuming he did say it, does the quote accurately reflect Moynihan’s opinion?
“It is what it is,” Moynihan says philosophically.
There’s nothing surprising about any of this – it’s natural that a Bank of America executive would do everything he could to deny responsibility for Countrywide’s messes. But that doesn’t mean it’s not funny. By about the thirtieth “I don’t recall,” I was laughing out loud.
It’s also more than a little infuriating. In the pre-crash years, Countrywide was the biggest, loudest, most obvious fraud in a marketplace full of them …
One of the biggest indictments you can level against U.S. news media is that U.S. financiers were engaging in this level of world-historical theft, fraud and conspiracy right out in the open for a decade and more, and yet no one of consequence has done any hard time for it.
If we are to take Moynihan at his word, the only way you could have been more delusional and out of touch than he was to have believed on election night that Mitt Romney was going to win big. But as the deposition makes clear, taking Brian Moynihan at his word would make a box of rocks look like a Davidson valedictorian.