DOVER, Del. (AP) — The former president of the only financial institution to be criminally charged in connection with the federal bank bailout program in the wake of the 2008 financial crisis has reached a settlement with federal securities regulators in a related civil action.
In a court filing Tuesday, an attorney for the Securities and Exchange Commission asked a federal judge in Delaware to approve a consent judgment against former Wilmington Trust President Robert Harra Jr.
Under the proposed consent judgment, Harra would pay a civil penalty of $100,000, be prohibited from acting as an officer or director of a public company, and be prohibited from violating federal securities laws that were the basis of the SEC’s civil suit.
Harra, along with former Wilmington Trust Chief Financial Officer David Gibson, former Chief Credit Officer William North and former controller Kevyn Rakowski, were convicted in 2018 on criminal charges of fraud, conspiracy and making false statements regarding the bank’s troubled commercial loan portfolio.
The bank itself also was criminally charged but reached a $60 million settlement with prosecutors just as a trial was set to start. Wilmington Trust’s settlement included a civil forfeiture of $44 million and $16 million it previously paid to the SEC.
The executives received prison sentences ranging from three to six years, but a federal appeals court panel last year reversed their convictions for making false statements and ordered that judgments of acquittals be entered. The panel also ordered a retrial of the conspiracy and securities fraud charges, but prosecutors later opted to drop the case altogether.
Meanwhile, Gibson and Rakowski finalized settlements in the SEC’s civil action in 2019, agreeing to pay more than $70,000 and $44,000, respectively, to the agency. Approval of Harra’s settlement would leave North the only defendant in the lawsuit, in which SEC claimed the executives knowingly or recklessly made false disclosures regarding the bank’s loan portfolio. An attorney for North did not immediately respond to an email seeking comment Tuesday.
In a separate civil action, Wilmington Trust agreed to pay $200 million cash to settle a shareholder lawsuit alleging fraudulent concealment of billions of dollars in bad loans. Auditing firm KPMG agreed to pay an additional $10 million as part of the settlement.
In the criminal case, prosecutors alleged that in the wake of the financial crisis, the executives misled regulators and investors about Wilmington Trust’s massive amount of past-due commercial real estate loans before the bank was hastily sold in 2011 while bordering on collapse.
Founded by members of the DuPont family in 1903, the bank imploded despite receiving $330 million from the federal Troubled Asset Relief Program.
Prosecutors said bank officials waived millions of dollars in matured loans from reporting requirements if they were designated as “current for interest” and in the process of being extended. To ensure that loans well past their repayment dates were purportedly exempt from reporting requirements, the bank lent even more money to struggling developers just to make the interest payments.
In the fourth quarter of 2009, bank officials reported only $10.8 million in commercial loans as 90 days or more past due, concealing more than $316 million in past-due loans subject to the waiver practice, according to prosecutors.
After a meeting to discuss matured loans and “how to make them go away” by year’s end, bank officials went beyond the waiver practice and decided on a mass extension that involved temporarily extending more than 800 commercial loans worth $1.3 billion, prosecutors said. In an email to Harra, North referred to certain loans as “credit turds.”
Meanwhile, before its 2011 fire sale to M&T Bank, Wilmington Trust raised $287 million in a 2010 stock offering, intended partly to help repay the TARP funds, while hiding the truth about its shaky financial condition from investors, prosecutors said.
Defense attorneys argued that the waiver practice had been in place for decades and was no secret. They also maintained that instructions for filing reports with the Federal Reserve and for disclosing financial information in SEC filings were ambiguous, and that the term “past due” was not clearly defined.
The appeals court agreed that the reporting requirements were ambiguous.