Get the DealBook newsletter to make sense of major business and policy headlines — and the power-brokers who shape them.
__________

Goldman Sachs, facing one of the most significant scandals in its history, has turned to a well-worn defense: the rogue employee narrative.

But the Wall Street firm seems unlikely to be able to slough off its role in the looting of a multibillion-dollar Malaysian government investment fund as the work of a few miscreants.

Goldman’s shares are down nearly 13 percent since Thursday’s close because of concern over whether the firm’s leaders might be dragged into the case.

Companies often claim that misconduct was just the product of “rogue” employees who do not reflect the true corporate culture of their organization. And so far that’s the defense Goldman has put forth. On the sidelines of the DealBook conference this month, Lloyd C. Blankfein, Goldman’s chairman and former chief executive, tried to brush the case aside: “These are guys who evaded our safeguards, and lie. Stuff like that’s going to happen.”

If only it were just some questionable shenanigans in the back room.

Three Goldman Sachs partners have been implicated in paying bribes to win business from the investment fund, 1Malaysia Development Berhad, or 1MDB, as part of a multibillion-dollar fraud. Tim Leissner, who led Goldman’s Southeast Asia business until 2016, pleaded guilty to charges of conspiracy to commit money laundering and conspiracy to violate the Foreign Corrupt Practices Act, which prohibits bribery of foreign officials to win business. His former deputy, Roger Ng, is named in an indictment that also accuses the Malaysian businessman Jho Low of looting 1MDB of billions of dollars. A third Goldman partner, Andrea Vella, a co-head of the firm’s Asian investment banking business who has been placed on leave, has been identified as an unindicted co-conspirator.

Goldman earned $600 million from helping to arrange bond offerings of about $6.5 billion for 1MDB in 2012 and 2013. Goldman’s management was sure to notice fees of that size, and it has been reported that Mr. Blankfein met with the former Malaysian prime minister Najib Razak, Mr. Low and Mr. Leissner. But those fees were apparently not enough to raise questions about how the firm won a lead role in the transactions.

An important question for prosecutors in determining Goldman’s potential liability will be whether the company made any effort to review how the deals were approved or whether those responsible for vetting the transactions simply took the word of Mr. Leissner and Mr. Ng.

The charges in the 1MDB case offer a fairly damning description of how the firm conducted itself, which will make it difficult to claim that the violations were the work of a few miscreants. According to Goldman’s quarterly filing made the day after the charges were announced, the indictment highlighted how Mr. Leissner and Mr. Ng misled the firm’s compliance committee and legal department about Mr. Low’s role with 1MDB. The indictment also alleged that Goldman’s “internal accounting controls could be easily circumvented” and that the culture in Southeast Asia “prioritized consummation of deals” ahead of complying with the law.

It will be interesting to see how hard a line the government takes, especially when there is evidence that hundreds of millions of dollars were diverted to fund questionable purchases, like a Picasso painting, and to finance the Hollywood movie “The Wolf of Wall Street.”

The Foreign Corrupt Practices Act has become an important tool used by the Justice Department and the Securities and Exchange Commission to police organizations that operate in parts of the world where bribery is an almost accepted means of doing business. A corporation like Goldman can be held responsible for criminal violations when one of its employees acts to benefit the firm through misconduct. Mr. Leissner and Mr. Ng, along with lining their own pockets, clearly sought to bolster Goldman’s bottom line at the expense of their client. The usual resolution of a case like this is a deferred prosecution agreement, in which the defendant admits to violations and makes an agreement with the S.E.C. not to violate the law again.

But the Trump administration has not aggressively penalized corporate misconduct. An analysis by The New York Times found that there has been a sharp decline in the penalties imposed on companies since Mr. Trump took office. That includes a 72 percent drop in corporate fines during Jeff Sessions’s first 20 months asattorney general, compared with an equivalent period during the Obama administration.

Any settlement will be an indication of how tough the federal government will be in a case involving clear violations of the anti-bribery law. One likely penalty will be repayment of the $600 million in profits made from the bond deals, and perhaps a fine on top of that.

It may be that only a few Goldman employees were responsible for the 1MDB violations, but they were not just functionaries who lost their way. A partnership at Goldman is one of the most coveted positions on Wall Street, so labeling high-level managers as uncontrolled rogues as a way to avoid criminal charges may not play well with prosecutors, especially when the deals were so lucrative for the company.

Source: Read Full Article