MBS Settlements--Following the Money

Financial crisis litigation has been going on for several years now and has been resulting in lots of piecemeal settlements. As a result, it's easy to miss the big picture.  There's actually been quite a lot of settlements covering a fair amount of money.  (Not all of it is real money, of course, but the notionals add up).  

By my counting, there have been some $94.6 billion in settlements announced or proposed to date dealing with mortgages and MBS.  

This count excludes things like CDO litigation and Lehman Brothers litigation. I've also likely missed some settlements (although not the big ones), and the terms of some settlements are private. I'm also excluding things like the National Mortgage Servicing Settlement (another $25 billion, although a lot isn't cash payment) and OCC/FRB consent orders. Any PMI settlements are also excluded. On the other hand, I'm including some multi-billion proposed MBS trustee settlements that have not gone through yet. In other words, what I'm trying to cover are settlements for fraud and breach of contract against investors/insurers of MBS and buyers of mortgages.

Settlements aren't the same as litigation wins, and I don't know the strength of the parties' positions in detail in many of these cases, but $94.6 billion strikes me as rather low for a total settlement figure. Of course, financial crisis litigation hasn't all run its course yet.

Beyond the total figure, however, what's interesting is where the money has gone--and where it hasn't. As the graphs below show, the lion's share of settlement dollars has gone to the government and GSEs.  Very little has been recovered by private investors and most of that is from the trustee settlements (rotten though the Bank of America-BONY settlement was). What's really astonishing is how little has been recovered in private securities litigation. The RMBS litigation settlements to date total $1.6271 billion. That's a quarter of what the monoline insurers recovered, even though most RMBS did not have bond insurance. 

With the caveats that the litigation isn't over yet and that one might quibble with my characterization or counting of some of the settlements (but probably not the overall directional picture), I think the distribution of the recoveries points to two things.

First, it shows that legislative reforms and court rulings have seriously impeded the effectiveness of securities class action litigation. If ever there were an area ripe for private securities litigation, private-label RMBS is it, yet almost all of the recoveries are from six settlements.  This should be no surprise, but it's rare to see numbers put on the effect.  This is what securities issuers and underwriters have long wanted, and the opposition has mainly been the plaintiffs' bar, but perhaps investors will take note of the effect too.  

Second, the distribution shows how badly non-GSE investors got shafted. Remember, that private-label securitization was over 60% of the market in 2006. Yet investors have recovered only 38% of that which the GSEs/FHFA have recovered, and most of that is from the trustee settlements or proposed settlements (I'm not sure that any have actually closed). Private securities litigation has recovered a mere 4% of what the GSEs/FHFA have recovered.  

The real question is whether investors have learned that they cannot rely on either trustees or the securities laws to protect them from fraud, and if they have, what they plan to do about it. One sensible thing would be simply to invest in other asset classes. The other would be to try and reform the trustee system and/or the securities laws.