Sheila Bair and the FDIC’s No Press Release Policy

Sheila Bair was chair of the Federal Deposit Insurance Corporation (FDIC) from 2006 to 2011.

Thanks to a report in the Los Angeles Times last week by E. Scott Reckard, we now know that during that period, the FDIC was engaged in a practice of secret settlements with big banks.

One such settlement was with Deutsche Bank.

“The FDIC collected $54 million from Deutsche Bank in a settlement over unsound loans that contributed to a spectacular California bank failure,” the Times reported. “The deal might have made big headlines, given that the bad loans contributed to the largest payout in FDIC history, $13 billion. But the government cut a deal with the bank’s lawyers to keep it quiet: a ‘no press release’ clause that required the FDIC never to mention the deal “except in response to a specific inquiry.”

Bair is currently with the Systemic Risk Council of the Pew Charitable Trusts in Washington, D.C.

She’s been on tour touting her book – Bull by the Horns: Fighting to Save Main Street from Wall Street and Wall Street from Itself (Free Press, 2012).

In the book, she boasts that “transparency generally served us well in dealing with the media.”

“I tried to accommodate all requests for interviews, and under my direction our press office tried to respond openly and in detail to requests for information,” she writes. “The only exception was requests that would violate our rules involving confidentiality of the supervisory process or employees’ privacy. That had not been the culture when I  arrived at the agency. Indeed, the past leadership of our public affairs office had had a somewhat antagonistic attitude toward the press.”

Since leaving the FDIC, Bair has given many interviews, including a one hour sit down in January 2013 with Brian Lamb of C-Span.

Did the transparent chair of the FDIC know of these secret settlement deals with Deutsche Bank and the other big banks?

Did she approve of the policy?

We called up her office.

All of a sudden, Sheila Bair is not returning press calls.

Pew spokesperson Jeremy Ratner says that “unfortunately, Sheila is not able to comment.”

Why not?

Ratner won’t say.

The Times’ Reckard reported that “since the mortgage meltdown, the FDIC has opted to settle cases while helping banks avoid bad press, rather than trumpeting punitive actions as a deterrent to others.”

Reckard points out that “under the Federal Deposit Insurance Corp. Improvement Act of 1991, passed in the aftermath of the savings and loan crisis of the 1980s, the settlements can’t be kept secret.”

The FDIC promised defendants — either in writing or orally — that the FDIC would not put out a press release announcing the settlement.

Or in the words of one of the settlements: “FDIC will not issue a press release regarding the agreement or the settlement of the parties as to the litigation.”

But the agency apparently thought it was getting around the prohibition by telling defendants the FDIC would have to release the settlements if anyone asked for them.

No one asked until Reckard filed a Freedom of Information Act request.

“This policy of attempting to evade the statute with secret settlements, which are disgustingly weak, occurred under Sheila Bair’s leadership,” William Black of the University of Missouri-Kansas City told Corporate Crime Reporter. “It appears impossible that she would not have known and approved both the policy and the settlements.”

In a statement, FDIC spokesman David Barr said that “the FDIC has a long standing commitment to transparency in the conduct of its public responsibilities.”

“The FDIC is in the process of reviewing the over 300 professional liability settlements that the FDIC has reached with directors, officers, other professionals and insurance companies related to the failure of FDIC insured institutions since January 2007,” Barr said.

“While these settlements were available to the public upon request, the FDIC will now also make them available on its website. . . Going forward, any new professional liability settlements will be posted on a regular basis and integrated with the existing monthly reporting of authorized professional civil actions.”

“With respect to the use of so called ‘will not initiate press release clauses’ in settlements, the review indicates that they have been used very rarely,” Barr said.

“However, the FDIC agrees that there should be no constraint on the release of public information and as a matter of policy will no longer agree to such clauses in future settlements.”

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