The Worse CEO of All times: Jamie Dimon of JP MORGUE Chase and The FDIC
Summary of Claim - Overview
35. In and around 2004, JPMC's then-Chief Operating Officer, James Dimon, resolved to improve JPMC's lack of market presence on the West Coast and in the south.
Dimon would, in 2005, take over JPMC as Chairman and Chief Executive Officer. JPMC' sshareholders had been clamoring for Washington Mutual's network of bank branch holdings on the West Coast and south, and its large deposit base. Dimon, in response, promised to acquire banks in "fast-growing markets such as Florida, New Jersey and California," according to a March 28, 2005 Business Week article.
36. On July 29, 2004, at a company meeting with JPMC's branch managers, Dimon declared "Retail is not only here to stay, but you are a tremendous asset" Dimon promised to push to expand the retail business. Later that month, Dimon told analysts on a conference call that JPMC would be in position to make a "major acquisition" by early 2006. Upon information and belief, the intended "major acquisition" referred to by Dimon was Washington Mutual.
37. In January of 2005, in order to place insiders in his targeted company, Dimon sent a number
of senior and junior executives to Washington Mutual to begin "new chapters"in their lives. The most significant transfer to Washington Mutual was Stephen J. Rotella, an I8-year veteran of JPMorgan Chase, who held the posts of chief executive officer for Chase Home Finance, executive vice president for JPMorgan Chase, and member of the JPMorgan Chase executive committee. At Washington Mutual, Rotella took the job of president and chief operating officer.
38. In addition to Rotella, at least four senior vice presidents and a chief financialofficer transferred from JPMC to Washington Mutual as plants in late 2004 and 2005. These included, Steve Fortunato, a 12 year veteran ofJPMC serving as Senior Vice President, Chase Home Finance, who was responsible at JPMC for, among other things, merger analysis, forecasting and mortgage servicing valuation; Tai Bindm, Chief Financial Officer and Executive Vice President for Chase Home Finance; John Berens, senior vice president of default services, managing over 2,000 JPMC employees; Youyi Chen, PhD, senior vice president responsible for managing the interest rate risks of JP Morgan Chase's mortgage servicing rights (MSR) portfolio; and Bill Murray, a senior vice president, led the MSR valuation, pricing and reporting functions for JPMC's Capital Markets group. Upon information and belief, Rotella and the other JPMC executives that transferred to Washington
Mutual understood and agreed to help with Dimon's long term plan and goal for JPMC to acquire Washington Mutual, and thereafter provided substantial assistance to that end.
39. JPMC's and CEO Dimon's strategy of gaining an insider position was a well-trodden approach for them. They used this approach in 2006 to gain confidential information regarding a client's natural gas derivatives trading positions, Amaranth. JPMC and Dimon used this confidential information and misstatements about Amaranth's solvency to prevent
attempts to sell a block of its natural gas position to an outside party. JPMC inserted itself into the deal and reaped a profit of more than $725 million. As reported by an online news source on November 15, 2006 and later cited in Amaranth's lawsuit against JPMC, a JPMC executive boasted of JPMC's ability to leverage its inside information sources:
"We are not exposed from a credit perspective, materially, which allows us to
respond quickly to opportunities when they come up. Amaranth was one
obvious example of that. I imagine there will be others as we go through time
where our ability to be on the inside, but not compromised, is extremely
powerful."
40. From 2005 to 2007, upon information and belief, JPMC gathered non-public
information from Rotella and the other former .JPMC executives placed at Washington Mutual relating to Washington Mutual's banking and mortgage markets, and statuses in those markets.
In addition, JPMC gathered this information regarding Washington Mutual and other banks from government regulators and monetary policymakers at the Office of the Comptroller of the Currency, OTS, FDIC, Federal Reserve, and other individuals in governmental positions of power. JPMC used this information to build a "fortress balance sheet," from which it could later acquire Washington Mutual.
41. In 2006, Washington Mutual's credit rating was securely investment grade.
However, beginning in 2006 and continuing through 2008, lending institutions faced a difficult business environment due to a deteriorating housing market, an increase in mortgage delinquencies and foreclosures, illiquidity and loss of value of asset-backed and mortgage-backed securities, and a general downturn in the global credit markets.
42. In April of 2008, despite having posted significant losses, Washington Mutual'scredit was still investment grade and the company was solvent and liquid. At this time, JPMC made its first attempt to acquire Washington Mutual, making a public offer to purchase Washington Mutual for $8 a share, or about $7 billion, in JPMC stock. Washington Mutual declined, and instead accepted a capital infusion by a private investor group of approximately $7 billion, at $8.75 per share.
43. The rejection did not deter JPMC, however. Instead, upon information and belief, JPMC began to exert pressure on the OTC, FDIC and other regulators to intensify oversight and reporting requirements of Washington Mutual, with the end goal of closing Washington Mutual in a seamless transfer of the valuable, cherry-picked, assets, while leaving the liabilities, to .JPMC. his was not the first time JPMC pressured government officials to gain undue advantage in its efforts to bid for an ailing competitor. As Reuters and the Washington Post reported in articles published on October 22, 2008, according to an "anonymous but specific" complaint to Senator Chuck Grassley, the ranking Republican on the Senate Finance Committee, the general counsel for JPMC and the enforcement director for the U.S. Securities and Exchange Commission had inappropriately discussed the details of SEC investigations into Bear Stearns in relation to JPMC's efforts to acquire Bear Stearns in March of 2008. Sen. Grassley, in a letter to SEC Chairman Christopher Cox, stated that Linda Thomsen, the SEC enforcement director, gave inside information to Stephen Cutler, the General Counsel ofJPMC (and himself a former SEC enforcement director), about the state of SEC investigations intoBear Stearns, which enabled JPMC to put together a low-ball bid to purchase Bear Stearns. JPMC ultimately won the Bear Stearns bidding with a bid of $2 per share, after the company had previously traded at $30.85 per share. JPMC later agreed to raise the price to about $10 per share. As Sen. Grassley's stated regarding JPMC's misuse of its personal relationship with an SEC official,
"This inside information, gotten through a personal relationship, would be critical in helping Morgan put together a low-bid Bear and the US government.”
45. In the Washington Mutual case, because of JPMC's pressure, U.S. Treasury
helping Secretary Henry Paulson in July of 2008 personally telephoned Washington Mutual's Chief Executive Officer and advised him to sell Washington Mutual to JPMC. As reported in a Morgan
November 9, 2008 Seattle Times article citing Washington Mutual executives, Paulson warned the Washington Mutual's then-CEO, Kerry Killinger, "You should have sold to JP Morgan Chase in the spring, and you should do so now. Things could get a lot more difficult for you."
46. During the summer of 2008, Defendants (JP Morgan Chase) engineered a campaign involving adverse media "leaks," stock sales, and deposit withdrawals designed to distort the market and regulatory perception of Washington Mutual's financial health. Defendants (JP Morgan Chase) continued this campaign up until the seizure of WMB.
47. On or about September 4, 2008, the FDIC and JPMC discussed FDIC's oversight of Washington Mutual, according to a Wall Street Journal article dated September 29, 2008. The article cited "people familiar with the situation," who stated that the FDIC told JPMC that "the FDIC was carefully monitoring WaMu and that a seizure of its assets was likely." In addition, the FDIC told JPMC it wanted to immediately auction off the assets after the seizure. Therefore, upon information and belief, at or about the time of this communication, JPMC and the FDIC agreed to a plan whereby federal regulators would seize WMB and certain valuable assets would be passed to .JPMC, and certain liabilities excluded. From September 4, 2008 to September 25, 2008, JPMC and FDIC continued discussions regarding seizure of WMB and JPMC's purchase of WMB's valuable assets and stripping away WMB’s liabilities.
48. During late July and early September of 2008, the FDIC exerted pressure upon the OTS to seize WMB. A Wall Street Journal article dated September 27, 2008, stated that this pressure, and OTS's reluctance to downgrade Washington Mutual, continued for weeks.
49. On September 7, 2008, Washington Mutual entered into a memorandum of understanding with the OTS concerning "aspects of the banks operations, principally in several areas of its risk management and compliance functions, including its Bank Secrecy Act. compliance program." In this memorandum of understanding, Washington Mutual committed to provide the oars "an updated, multi-year business plan and forecast for its earnings, asset quality, capital and business segment performance." However, the business plan did not require the company to raise capital, increase liquidity or make changes to the products and services it provides to customers.
50. On September II, 2008, Washington Mutual released preliminary third quarter financial results, which showed that the company was well capitalized and liquid. In its release, the company stated "Mlle company continues to maintain a strong liquidity position with
approximately $50 billion of liquidity from reliable funding sources. The
company's tier I leverage and total risk-based capital ratios at June 30, 2008
were 7.76% and 13.93%, respectively, which were significantly above the
regulatory requirements for well-capitalized institutions. The company expects
both ratios to remain significantly above the levels for well-capitalized
institutions at the end of the third quarter."
51. On or about September 12, Washington Mutual hired Goldman Sachs as an advisor to help find a buyer for Washington Mutual.
52. On September 12, 2008, the Bloomberg financial news organization reported
that .JPMC was in "advanced talks" to buy Washington Mutual. Negotiations were described as being conducted "at the highest levels of both companies" and included JPMC's CEO Dimon and Washington Mutual's CEO Alan Fishman. The government was not involved.
53. Based on its ongoing negotiations with the FDIC and the manner in which .JPMC later obtained Washington Mutual's assets, JPMC's "negotiations" with Washington Mutual were a sham and a pretext designed to gain access Washington Mutual's confidential
financial information. JPMC misrepresented to Washington Mutual that it would negotiate in good faith for the purchase of the company. It is apparent from the fact that the Washington Mutual board of directors and officers were unaware of the inuninent seizure and simultaneous sale of WMB to JPMC, that JPMC did not disclose that it was negotiating separately with the FDIC for the seizure of WMB and purchase of its asgets. The fact that JPMC made no serious offer to Washington Mutual during September of 2008 for the purchase of the entire entity, but instead negotiated with the FDIC for the purchase of the cherry-picked assets out of receivership indicates that JPMC never had any intention to directly deal with Washington Mutual regarding purchase of Washington Mutual or any part thereof.
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20. In September of 2008, motivated by greed and unrestrained by moral or legal boundaries, the Defendants (JP Morgan Chase) exploited a perceived liquidity crisis in the banking industry to improperly and illegally take advantage of the financial difficulties of Washington Mutual, Inc.
("WM1'), the nation's largest savings and loan association. Defendants (JP Morgan Chase) used the crisis as a backdrop and lever to negotiate the seizure and sale of the banking operations of WMI--Washington Mutual Bank, Henderson, NV and Washington Mutual Bank, FSB, Park City, UT (together, "Washington Mutual Bank" or "WMB")--stripped of liabilities, from federal regulators. In negotiating with the federal regulators, JPMC misused confidential financial information of WMI and WMB (collectively referred to as "Washington Mutual") that it had gained through deceptive means and under false pretenses. JPMC's purchase of WashingtonMutual's core operations from federal regulators culminated a years-long scheme designed to wrongfully exploit the opportunity of a financial crisis in Washington Mutual.
21. On September 25, 2008, after weeks of pressure by the Defendants (JP Morgan Chase) upon Federal
Deposit Insurance Corporation (the "FDIC") and other federal regulators, the FDIC and the Office of Thrift Supervision (the "OTS") agreed to the Defendants (JP Morgan Chase)' terms. On that day, the OTS seized Washington Mutual Bank ("WMB"), passed the bank to the FDIC as receiver, and the FDIC sold the crown jewels of Washington Mutual to ..JPMC at a fire sale price. In the deal, JPMC acquired the extensive banking franchise of Washington Mutual for the severely undervalued sum of 31.9 billion. In one scene of the movie, Wall Street: Money Never Sleeps, big time capitalists, Bretton James and Louis Zabel, are negotiating a stock bailout for Zabel’s firm, Keller Zabel Investments. In doing so, they reveal two powerful negotiating techniques that can help you secure the best deal.
James offers Zabel a measly $2 per share. “Under these conditions”, starts off James, “… [James and co] are prepared to risk $2 a share”.
“2 bucks?”, questions Zabel, breaking out in a nervous laughter shocked by the ridiculously low offer. “You're out of your mind. The stock was trading at 79 a month ago. Our building alone is worth more than 2 bucks a share. My board will never accept this. There is no way I'm going to sell for 2 bucks a share.”
The government representative steps in to back up James, telling Zabel that the government could never justify a high price for his firm and that he has no other option. If he doesn’t sell then he faces bankruptcy.
But Zabel remains unmoved. “I'll take my chances in bankruptcy court before I sell to that barracuda” angrily responds Zabel.
A blanket of silence falls over the room. It looks like the deal is off. Neither party is willing to pay the price the other is wanting.
The Defining Moment
Realising that the negotiation has reached stalemate, James decides to do something completely unexpected. While he really wants to buy Zabel’s firm and knows he is getting a great deal, he decides to walk away.
“Then we have nothing more to talk about” says James as he gets up out of his chair and turns to walk away.
But just as James reaches the door, Zabel calls out "6". It’s a counter offer.
“3 and that's it” responds James.
“5”
“3”
“Alright, we'll call it an even 4. So we don't look so god damn pathetic.”
James pauses for a moment, looks at his colleague for confirmation, who nods back at him in agreement, before taking a step forward. “3, and not a dime more,” says James and locks in the deal.
There are two key negotiation techniques used in the scene above.
Negotiation Technique 1: Use Anchoring and Adjustment
James started at $2 and Zabel started at $6. In what is called Anchoring and Adjustment (see Those Clever People at Wikipedia and a little phenomenon called anchoring) initial values, regardless of how extreme, have a strong affect on final values. In this case, James used a $2 anchor, not because he thought he would get it for such a low price but because he knew it would get Zabel to start thinking low values. To counter that effect, Zabel used a $6 counter anchor to get James to start thinking higher values.
If you are selling, start by asking a high price. If you are buying, start with a low price. The technique will subtly but strongly influence the figure the other party has in their mind, therefore allowing you to get the best price.
Despite the effectiveness of the technique, however, many people will not feel comfortable asking for an excessively high or low figure because they don't want to appear unreasonable. That is, they don’t want to risk the Zabellian response, ‘are you out of your mind?’
For those people, negotiation technique two provides for a more comfortable approach.
Negotiation Technique 2: Walk Away
Who wins in a negotiation? The one who is willing to walk away.
Guess what? Be willing to walk away. Even if you are willing to pay the asking price, pretend like you can walk away. This technique is especially useful for people who don’t see themselves as hard line negotiators.
Why? Because you do not have to haggle, you do not have to offer unreasonable figures, and you do not have to have a big mouth to use this technique. All it requires is that you risk not making the purchase on that very day, which, for most purchases worth negotiating for, is worth risking for.
Here’s How You Do It:
Next time you are negotiating with a business supplier, nicely tell the person:
“Thanks for your help but the price you’re offering is beyond my budget” (or whatever reason you want to give).
“But I’ll tell you what I’ll do. I’ll leave you my name and number and if you can do me a better deal, then give me a call and we can take it from there."
Now if that is the best price the salesperson can do then you probably will not get a phone call, in which case you can just go back the next day or so and buy the product. But if they can do you a better deal then they will call you. After all, you have already proved to them that you are not willing to pay their asking price.
What is more, 9 times out of 10 you will not even have to come back. If the salesperson is able to do a better deal, they will usually offer it to you on the spot. It will probably be along the lines of, “alright let me try asking my manager again and see if we can do you a better deal”.
Having been on both sides of the negotiation table (as a salesperson and as a buyer), I have seen this technique work over and over for all deals great and small. It is not only one of the most powerful negotiation techniques, but also one of the easiest and comfortable to use, which makes it all the more useful in securing yourself the best deal.
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