BofA Whistle-Blower Missed Big Payday in DOJ Fraud Case

, The Litigation Daily

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Wednesday's fraud verdict against Bank of America Corporation wasn't just a big win for federal prosecutors in Manhattan. The jury's decision also vindicates former Countrywide Financial executive Ed O'Donnell and his Missouri lawyer, David Wasinger, who first trained the spotlight on a Countrywide mortgage program nicknamed "the hustle." But the victory for Wasinger is bittersweet: He and his client once stood to take home as much as a quarter-billion dollars for their trouble, until a ruling this summer left their recovery capped at under $2 million.

As we've reported, the government alleges that the purpose of the hustle (short for "High-Speed Swim Lane," or HSSL) was to crank out as many loans as possible in order to feed Wall Street's mortgage securitization machine in the run-up to the financial crisis. Prosecutors claimed that Countrywide deliberately ignored underwriting standards and other quality controls under the scheme beginning in 2007, and that after its 2008 Countrywide acquisition BofA kept the program running through 2009.

The jury on Wednesday found Bank of America and former Countrywide exec Rebecca Mairone liable on the government's civil fraud claims. (The defense lineup included Williams & Connolly for BofA, Goodwin Procter for Countrywide and Bracewell & Giuliani for Mairone.) It's now up to U.S. District Judge Jed Rakoff to weigh the government's demand for as much as $848.2 million in damages for losses that Fannie Mae and Freddie Mac suffered on the loans.

The world learned about the hustle when the government lodged its claims exactly one year ago. But it was O'Donnell, a Countrywide executive from 2003 to 2009, who first brought the case as a False Claims Act whistle-blower in February 2012.

O'Donnell retained Wasinger of the four-lawyer Wasinger Law Group in St. Louis to file the original complaint, which remained sealed for eight months until prosecutors intervened last October. Observers noted that O'Donnell, as a qui tam whistle-blower, stood to recover as much as $250 million—25 percent of the government's original $1 billion claim.

Alas for O'Donnell and his small firm counsel, things haven't worked out that way. In addition to the False Claims Act, U.S. Attorney Preet Bharara based the government's case on the Financial Institutions Reform, Recovery and Enforcement Act of 1989, a once-neglected antifraud law that's become a favorite of prosecutors in the wake of the meltdown. Judge Rakoff green-lighted the FIRREA claims in an August opinion, but he tossed the FCA claims after finding the law didn't apply to Fannie and Freddie's losses at the time the loans were sold.

FIRREA does have a provision for rewarding whistle-blowers, but the maximum award is $1.6 million. O'Donnell and Wasinger won’t walk away from the case with hundreds or even tens of millions. But they sure got everybody’s attention.

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