This Note addresses why the Self-Affecting Theory misinterprets § 1833a. This Note argues that in cases where the DOJ could bring, but is unwilling or unable to bring, criminal actions, a federally insured financial institution should not be held civilly liable under § 1833a for engaging in fraudulent conduct "affecting" that same institution. The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") does not define what it means to "affect a federally insured financial institution." Congressional intent demonstrates that Congress enacted § 1833a in response to the pervasive insider abuse and fraud of the savings and loan crisis ("S&L Crisis") and was not intended to punish financial institutions for losses incurred from their own conduct. Under this perspective, the Self-Affecting Theory presents an impermissible reading of § 1833a.
Filmon M. Sexton,
The Financial Institutions Reform, Recovery, and Enforcement Act of 1989: The Effect of the “Self-Affecting” Theory on Financial Institutions,
N.C. Banking Inst.
Available at: http://scholarship.law.unc.edu/ncbi/vol19/iss1/15