The CSR Sham

October 16th, 2014 by Phil Mattera

Varkey“We are committed to using our resources to increase opportunity, protect the environment, advance education, and enrich community life.” That declaration comes from the chief executive of the computer systems company Oracle, which is featured in a new report on spending by large companies on corporate social responsibility, or CSR. Statements like this, which are de rigueur these days in corporate communications, seek to give the impression that big business is largely a philanthropic endeavor – that the pursuit of profit and community betterment are not only consistent but are often indistinguishable from one another.

The report on CSR spending was prepared by the consulting firm EPG on behalf of the Business Backs Education campaign, which is based in Britain – where CSR is an even bigger deal than in the United States – and is said to be “led by UNESCO, the Varkey GEMS Foundation, and Dubai Cares under the auspices of the Global Education and Skills Forum.” Bill Clinton has lent his name to the effort.

I was unable to find a copy of the full report posted online, so I am depending on a summary published by the Financial Times. The main finding is that U.S. and UK companies in the Fortune Global 500 spending about $15.2 billion a year on CSR activities.

It’s not clear whether that number is supposed to be impressive, but it is worth noting that the 128 U.S. companies on the list alone account for $8.6 trillion in annual revenue. But even more significant than the amount of CSR expenditures is what they are being spent on. According to the report, 71 percent of the spending by U.S. companies consisted of in-kind contributions, often consisting of the firm’s own products. Oracle, which the FT calls “one of the biggest CSR spenders,” is said to grant “its software to secondary schools, colleges and universities in about 100 countries.” Pharmaceutical companies often donate their own drugs.

Not only is such in-kind giving much cheaper than cash contributions – it also serves to promote the company’s products. The giveaways are in effect marketing campaigns to raise the profile of and increase the future demand for those products.

EPG appears to have used a narrow definition of CSR, consisting of spending that is more commonly defined as philanthropic. CSR also includes broader initiatives on issues such as the environment. Such activities present another set of problems, given that those voluntary initiatives are often used by business as a way of thwarting more rigorous regulatory oversight.

The report is part of the Business Backs Education effort to get corporations to increase the portion of their CSR spending that goes to education. That sounds like a worthwhile mission, but when you look at who is behind the campaign, it all seems somewhat less altruistic.

One of the key backers is the Varkey Gems Foundation, which was established by Sunny Varkey (photo), a Dubai-based entrepreneur who founded and runs Gems Education, the largest operator of private schools in the world and a for-profit provider of services to public schools. Forbes estimates Varkey’s personal wealth at $1.8 billion.

In other words, Varkey is pushing corporations to contribute more to educational budgets that in many cases will be spent on purchasing services that will enrich him and his company even more. And he’s doing this under the banner of CSR and with the imprimatur of UNESCO and the former president of the United States.

From the findings of the EPG report to Varkey’s broader plans, all this is a glaring example of how much of CSR is a sham, a way for large companies and the superrich to promote their self-interest while pretending to be humanitarians.

Corporate Benefit Cutters Still Shifting Costs to Taxpayers

October 9th, 2014 by Phil Mattera

walmart_jwj_subsidiesWal-Mart’s recent announcement that it will snatch health coverage away from 30,000 part-timers is not just the latest in a long series of Scrooge-like actions by the giant retailer. It is also a sharp reminder of both the necessity of the Affordable Care Act and the deficiencies of that law.

If we think back to the time before Obamacare became a political lightning rod, we may recall that it was precisely the behavior of corporations such as Wal-Mart that created the need for healthcare reform.

In addition to paying low wages, Wal-Mart had long been criticized for providing inadequate benefits to its employees. In 2003 the Wall Street Journal published an article describing the various ways in which the company kept its spending on health benefits as low as possible. This was explored in more detail in an AFL-CIO study that came out about the same time.

This evidence, combined with reports that the company was encouraging its workers to apply for Medicaid and other government social safety net programs, prompted critics to argue that Wal-Mart was in effect shifting some of its labor costs onto taxpayers. In 2004, the Democratic staff of the House Committee on Education and the Workforce published a report estimating that the average Wal-Mart employee used federal safety net programs costing $2,103 per year.

Over the following few years, state governments were encouraged to reveal which employers accounted for the most enrollees (including dependents) in Medicaid, the State Children’s Health Insurance Program and other forms of taxpayer-funded health coverage. For those states that did disclose those lists, Wal-Mart was almost always at or near the top. My colleagues and I at Good Jobs First still maintain a compilation of these disclosures, though most of the data is now woefully out of date.

Healthcare reform should have put an end to all this, ideally by creating a system of Medicare for all funded with higher taxes on business. Of course, what we got was something else. Ironically, one of the most positive aspects of the Affordable Care Act – the expansion of Medicaid eligibility in some states – may be increasing the amount of hidden taxpayer costs generated by employers such as Wal-Mart. Yet that’s less important that the extension of those benefits to families desperately in need.

The ACA’s impact on the large portion of the workforce not enrolled in public programs is even more complicated. Although the law depends heavily on private insurance, it does not, strictly speaking, require employers to provide group coverage. Instead, what is often called the law’s employer mandate is a half-baked arrangement that will simply require larger companies (50 or more FTEs) that fail to provide adequate group coverage to pay a penalty.

That penalty is likely to be less than the cost of providing coverage and it will kick in only if at least one full-time employee of a company ends up getting federally subsidized coverage through the state or federal exchanges created by the ACA. It thus appears that companies such as Wal-Mart, Target and Home Depot that dump part-timers from their plans will be able to avoid the penalties, which in any event are not yet in effect as a result of several postponements by the Obama Administration.

While the ACA is helping more people get coverage, it does nothing to thwart low-road employers from continuing to shift what should be their health coverage costs onto taxpayers. It also appears to do nothing to help us discover which corporations are guilty of this practice, since there are no explicit provisions for making public the coverage reports that large employers will be required to file with the IRS.

Not only does the ACA fail to impose a meaningful employer mandate; it also misses an opportunity to shame those freeloading employers which expect taxpayers to pick up the tab for their failure to provide decent coverage to all their workers.

Another Healthcare Website Contractor Mess

October 2nd, 2014 by Phil Mattera

big-pharma-pills-and-moneyThe Obama Administration’s struggle with healthcare information technology is once again on display, with the release of the first wave of disclosure mandated by the Affordable Care Act on payments by drug and medical device corporations to doctors and hospitals. These payments include consulting fees, research grants, travel reimbursements and other gifts Big Pharma and Big Devices lavish on healthcare professionals to promote the use of their wares — in other words, what often amount to bribes and kickbacks. The new Open Payments system is said to document 4.4 million payments valued at $3.5 billion for just the last five months of 2013.

This sleazy practice certainly deserves better transparency. Yet in announcing the data release, the Centers for Medicare & Medicaid Services (CMS) seemed to be sanitizing things a bit: “Financial ties among medical manufacturers’ payments and health care providers do not necessarily signal wrongdoing.”

Perhaps, but very often that is exactly what they signal. Let’s not forget that many of the big drugmakers have been prosecuted for making such payments as part of their illegal marketing of products for unapproved (and thus potentially dangerous) purposes. In 2009 Pfizer paid $2.3 billion and Eli Lilly paid $1.4 billion to settle such charges. Novartis consented to a $422 million settlement in 2010. That same year, AstraZeneca had a $520 million settlement. Illegal marketing inducements were among the charges covered in a $3 billion settlement GlaxoSmithKline consented to in 2012. The list goes on.

While the release of the aggregate numbers is useful, there are serious snafus in the rollout of the search engine providing data on specific transactions. As ProPublica is pointing out, the new site is all but unusable for such purposes. It is set up mainly to allow sophisticated users to download the entire dataset, yet even the wonks at ProPublica found that it did not function well in that way either.

Even if one overcomes these obstacles, the ability to analyze financial relationships between corporations and specific healthcare providers is limited by the fact that some 40 percent of the records — accounting for 64 percent of payments– are missing provider identities.

What makes the disappointing Open Payments rollout all the more infuriating is that it is being brought to us by the same infotech contractor, CGI Federal, that was primarily responsible for the much bigger fiasco surrounding the Healthcare.gov enrollment website a year ago. The contractor is part of Canada’s CGI Group, which as I noted in 2013, had a history of performance scandals both in its home country and in the United States.

Problems with the Open Payments site began even before its official public debut. Over the summer, the portion of the site through which providers could register to review the data attributed to them had to be taken offline during a critical period for nearly two weeks to resolve a “technical issue.”

As with Healthcare.gov, it is likely that the government bashers will succeed in putting most of the blame for the shortcomings of the Open Payments system on the CMS. Yet the real lesson of the websites, along with that of the U.S. healthcare as a whole, is that the dependence on for-profit corporations –whether they be pharmaceutical manufacturers, managed care providers or information technology consultants — is always going to generate bloated costs and plenty of inefficiency.

Paying for Protection from Protests

September 25th, 2014 by Phil Mattera

grasberg_mine_11Responding to pressure from groups such as the International Corporate Accountability Roundtable, the Obama Administration has just announced that the United States will finally adopt a national action plan on combating global corruption, especially when it involves questionable foreign payments by transnational corporations that serve to undermine human rights. The White House statement notes that “the extractives industry is especially susceptible to corruption.”

True that. In fact, U.S.-based mining giant Freeport-McMoRan is an egregious case of a company that is reported to have made extensive payments to officials in the Indonesian military and national police who have responded harshly to popular protests over the environmental, labor and human rights practices of the company, which operates one of the world’s largest gold and copper mines at the Grasberg site (photo) in West Papua. There have been reports over the years that the U.S. Justice Department and the Securities and Exchange Commission were investigating the company for violations of the Foreign Corrupt Practices Act, but no charges ever emerged.

Here is some background on the story: Freeport moved into Indonesia in 1967, only two years after Suharto’s military coup in which hundreds of thousands of opponents were killed. The company developed close ties with the regime and was able to structure its operations in a way that was unusually profitable. Benefits promised to local indigenous people never fully materialized, and the mining operation caused extensive downstream pollution in three rivers.

Until the mid-1990s these issues were not widely reported, but then Freeport’s practices started to attract more attention. In April 1995 the Australian Council for Overseas Aid issued a report describing the oppressive conditions faced by the Amungme people living near the mine. It also described a series of protests against Freeport that were met with a harsh response from the Indonesian military. A follow-up press release by the Council accused the army of killing unarmed civilians. An article in The Nation in the summer of 1995 provided additional details, including an allegation that Freeport was helping to pay the costs of the military force.

In November 1995, despite reported lobbying efforts on the part of Freeport director Henry Kissinger, the Clinton Administration took the unprecedented step of cancelling the company’s $100 million in insurance coverage through the Overseas Private Investment Corporation because of the damage its mining operation was doing to the tropical rain forest and rivers (the human rights issue was not mentioned).

The company responded with an aggressive public relations campaign in which it attacked its critics both in Indonesia and abroad. Freeport also negotiated a restoration of its OPIC insurance in exchange for a promise to create a trust fund to finance environmental initiatives at the Grasberg site. Within a few months, however, Freeport decided to give up its OPIC coverage and proceeded to increase its output, which meant higher levels of tailings and pollution.

The criticism of Freeport continued. It faced protests by students and faculty members at Loyola University in New Orleans (where the company’s headquarters were located at the time) who called attention both to the situation in Indonesia and to hazardous waste dumping into the Mississippi River by Freeport’s local phosphate processing plant. Another hotbed of protest was the University of Texas, the alma mater of Freeport’s chairman and CEO James (Jim Bob) Moffett and the recipient of substantial grants from the company and from Moffett personally, who had a building named after him in return.

After its ally Suharto resigned amid corruption charges in 1998, Freeport had to take a less combative position. The company brought in Gabrielle McDonald, the first African-American woman to serve as a U.S. District Court judge, as its special counsel on human rights and vowed to share more of the wealth from Grasberg with the people of West Papua. But little actually changed.

Freeport found itself at the center of a new controversy over worker safety. In October 2003 eight employees were killed in a massive landslide at Grasberg that an initial government investigation concluded was probably the result of management negligence. A few weeks later, the government reversed itself, attributing the landslide to a “natural occurrence” and allowing the company to resume normal operations.

In 2005 Global Witness published a report that elaborated on the accusations that Freeport was making direct payments to members of the Indonesian military, especially a general named Mahidin Simbolon. In an investigative report published on December 27, 2005, the New York Times said it had obtained evidence that Freeport had made payments totaling $20 million to members of the Indonesian military in the period from 1998 to 2004. (A 2011 estimate by Indonesia Corruption Watch put company payments to the national police at $79 million over the previous decade.)

Reports such as these raised concerns among some of Freeport’s institutional investors. The New York City Comptroller, who oversees the city’s public pension funds, charged that the company might have violated the Foreign Corrupt Practices Act.

Back in Indonesia, protests escalated. In 2006 the military responded to anti-Freeport student demonstrations by instituting what amounted to martial law in the city of Jayapura. Around the same time, the Indonesian government released the results of an investigation by independent experts concluding that the company was dumping nearly 700,000 tons of waste into waterways every day. In 2006 the Norwegian Ministry of Finance cited Freeport’s environmental record in Indonesia as the reason for excluding the company from its investment portfolio.

In 2007 workers at the Grasberg mine staged sit-down strikes to demand changes in management practices along with improved wages and benefits. More strikes occurred in 2011. Two years later, more than two dozen workers were killed in a tunnel collapse at Grasberg. Indonesia’s National Commission on Human Rights charged that the company could have prevented the conditions that caused the accident.

Freeport’s questionable labor, environmental and human rights practices continue, yet aside from that OPIC cancellation two decades ago it has faced little in the way of penalties. It remains to be seen whether the new Obama Administration policy changes this sorry state of affairs.

—————-

Note: This piece draws from my new Corporate Rap Sheet on Freeport-McMoRan, which can be found here.

Taking the Anti Out of Antitrust

September 18th, 2014 by Phil Mattera

brewopolyThe early episodes of the new Ken Burns documentary on the Roosevelts showing on PBS highlight Teddy’s role as a trust-buster, even addressing the debate between those like TR who wanted to more strictly regulate the giant conglomerates and those who wanted to dismantle them.

Today, much of the “anti” seems to have gone out of antitrust, as little in the way of either regulation or dismemberment is on the agenda. Some of the largest players in already highly concentrated industries have no compunction about trying to take over one another and grow larger still. They take it for granted that such combinations will be sanctioned outright or with cosmetic changes to make the outcomes slightly less anti-competitive.

The latest example of one big fish seeking to swallow another is the reported pursuit by Anheuser-Busch InBev of fellow beer leviathan SABMiller. Those who reach for a Bud or a Miller Lite may not realize that those familiar beverages are no longer all-American products. Anheuser-Busch InBev is a Belgian-Brazilian company that took its name after acquiring A-B in 2008 for more than $50 billion. The combined firm grew much larger after buying Mexico’s Grupo Modelo in 2013. Today AB InBev has more than 200 beer brands around the world and some $43 billion in annual revenue.

Its target, London-based SABMiller, is the result of the 2002 purchase of Miller Brewing by South African Breweries. In 2008 SABMiller created a joint venture with Molson Coors (a 2005 marriage) called MillerCoors to sell their brands together in the United States.

The combination of AB InBev and SABMiller would take an already super-concentrated industry and make competition even more of a joke. Sure, there are a few independents left — such as Pabst, Yuengling and Boston Beer Company, maker of Sam Adams — but they would be up against a company with more than three-quarters of the U.S. market.

AB InBev’s move is just the latest in a series of takeover attempts among companies that are already effective oligopolies. In July, number two U.S. tobacco company Reynolds American announced plans to acquire number three, Lorillard. Dollar General, the largest deep-discount retailer, is seeking to purchase the second-largest, Family Dollar, thereby overturning a deal to acquire that firm by Dollar Tree, the third largest player. Earlier, Sysco announced it would purchase rival distribution giant US Foods.

Not every deal goes through: Rupert Murdoch’s 21st Century Fox dropped its bid for Time Warner and Sprint abandoned its bid for T-Mobile. Comcast, one hopes, will not succeed in its attempt to take over Time Warner Cable. But the fact that these deals were even floated is an indication that mergers that were once unthinkable are now considered serious possibilities.

All this is good news for investment bankers, who have been celebrating the fact that merger activity in the first half of 2014 was the highest in seven years and shows no signs of abating. But it does little for the rest of us.

Increased concentration tends to reduce employment, prop up prices, restrict consumer choices and discourage innovation. There was a time when employees of oligopolies had an easier time winning wage increases, but the weakening of labor unions has largely eliminated even that limited benefit.

Such drawbacks were known at the time of Teddy Roosevelt and became only clearer during the following decades. Today these lessons are frequently forgotten. A country that supposedly celebrates free competition instead bows to the desire of large corporations to absorb their competitors and dictate terms to the market. J.P. Morgan’s arrogant statement “I owe the public nothing,” is echoed every time one of these megadeals is announced.

Business Success and Economic Failure

September 11th, 2014 by Phil Mattera

familydollarWhat does it say that an all-out takeover battle is being waged for a chain of no-frills stores selling cheap merchandise at outlets typically located in the most downscale parts of town? The answer is that deep-discount retailing, which entered the mainstream during the recession of the late 2000s, remains a lucrative business as much of the country struggles with stagnating income levels.

The focus of the current bidding war is Family Dollar Stores, the second largest chain of deep discounters, also known as dollar stores. A couple of months ago, Dollar Tree, the third largest chain, announced plans for an $8.5 billion purchase of Family Dollar, which had been targeted by several corporate raiders such as Carl Icahn, who bought a 9 percent stake in the firm.

Family Dollar’s management seemed willing to throw in its lot with Dollar Tree and create a combined company with about 13,000 stores that could not only neutralize Icahn but also challenge the current leviathan of the industry, Dollar General with its 11,000 stores.

Dollar General, which long had its eye on Family Dollar, did not take kindly to the prospect of being relegated to second place. It launched its own fatter bid for Family Dollar, and after being rebuffed, it is now going hostile. It has announced a tender offer under which Family Dollar investors could sell their shares for $80 each, well above the $74.50 that Dollar Tree said it would pay.

As interesting as this may be to analysts of mergers & acquisitions, the takeover battle is not the most significant story here. First, there is the alarming fact that it is taken for granted that the marriage of two giant dollar-store chains can receive antitrust approval. The original Dollar Tree-Family Dollar deal has been promoted by the two companies with the argument that it was likely to be blessed by the Federal Trade Commission. Dollar General argues that its promise to sell off 1,500 outlets would make its deal palatable to the federal regulators. Why shouldn’t any combination among the three chains be considered unacceptable? And what about the even more controversial possibility, as has been widely rumored, that Wal-Mart might try to take over one of the dollar chains to shore up its faltering small-store strategy? Are we to assume that would get approved as well?

At the same time, there has been surprisingly little discussion of how these companies operate. For example, there’s the matter of their labor practices. Dollar General, Family Dollar and Dollar Tree are not often mentioned alongside Wal-Mart, yet they are also low-paying, non-union employers that have been involved in numerous wage & hour controversies. The dollar stores, whose outlets have much smaller staffs than those at Supercenters, have mainly been accused of improperly denying overtime pay to so-called store managers and assistant managers who spend most of their time on non-managerial tasks such as stocking shelves and unloading trucks. Family Dollar, for instance, fought one such case all the way to the U.S. Supreme Court, where it lost and finally had to pay a $33 million judgment.

And then there’s the issue of the basic business model of the dollar stores. This is a sector that to a great extent profits from economic desperation. Although a small portion of its customers are middle-class people looking for a bargain, most are lower-income individuals who cannot afford to shop at the likes of Wal-Mart, much less non-discount chains.

The deep-discount chains were supposed to have shrunk once the economy was in recovery. Their continued growth is a symptom of ongoing wage stagnation, and their business success is a sign of a broader economic failure.

Introducing the Dirt Diggers Digest Guide to Strategic Corporate Research

September 4th, 2014 by Phil Mattera

GoodjobsdetectiveWhat is the quantity of greenhouse gas emissions coming from Duke Energy’s Hanging Rock power plant in Ironton, Ohio?

What are the terms of a typical agreement between McDonald’s and one of its franchisees?

Which insurance companies hold the most bonds issued by Monsanto?

Is BP on the list of companies excluded from doing business with the federal government?

How much are members of Verizon’s board paid and how many shares of stock does each director own?

Which watchdog groups monitor the paper industry?

If you deal with questions such as these, you are probably a corporate researcher for a union, environmental group or other progressive organization, and you will be interested to know about the new Dirt Diggers Digest Guide to Strategic Corporate Research.

This is an updated and greatly expanded version of a guide that I began publishing under the auspices of the Corporate Research Project more than ten years ago. Until now it has had three main parts covering sources of general company information, sources for analyzing a company’s key relationships (institutional investors, creditors, major customers, etc.), and sources for reconstructing a company’s accountability record (legal entanglements, labor relations, environment compliance, political influence, etc.).

Designed to be a resource for a wide variety of activist researchers, the guide focused on sources that applied to a broad range of businesses. Along with dozens of additional entries in the existing parts, the new version of the guide contains a section which for the first time provides detailed lists of industry-specific sources in the following categories:

  • Specialized directories and data compilations
  • Trade associations
  • Trade publications
  • Unions representing workers in the industry
  • Watchdog groups monitoring the industry
  • Regulatory agencies and disclosure documents

The guide provides hundreds of such sources for all major industries, among them aerospace, chemicals, electric utilities, mining, pharmaceuticals, semiconductors, steel, telecommunications, and trucking. The directories, trade publications and data compilations include many resources known mainly to industry insiders. The lists of unions include both those representing workers in each sector in the United States as well as international labor federations bringing together unions from around the world dealing with the industry. The lists of watchdog groups include diverse organizations working to get companies in the sector to act in a more responsible manner.

Below is the full table of contents for the guide with links to the individual sections. Happy hunting!

PART I. GETTING STARTED: THE KEY SOURCES OF COMPANY INFORMATION

A. Sources for basic corporate profiles

B. Company websites

C. State corporation filings and property records

D. Securities and Exchange Commission filings

E. D&B and other sources on privately held firms

F. Media coverage

 

PART II. EXPLORING A COMPANY’S ESSENTIAL RELATIONSHIPS

A. Parent company/subsidiaries

B. Outside directors (plus various sources on individuals)

C. Institutional shareholders

D. Wall Street analysts

E. Creditors

F. Customers, suppliers and franchisees

 

PART III. ANALYZING A COMPANY’S ACCOUNTABILITY RECORD

A. Accountability profiles and ratings; case studies; dissident websites

B. Court proceedings

C. Federal regulatory matters

D. Labor relations and employment practices

E. Workplace safety and health

F. Environmental compliance

G. Campaign contributions and lobbying

H. Public relations, corporate philanthropy and sponsored research

I. Executive compensation

J. Government subsidies

 

PART IV. INDUSTRY-SPECIFIC SOURCES

A. Multi-Industry

B. Aerospace and Military Contracting

C. Automobiles and Auto Parts

D. Banking, Investment, Insurance & other Financial Services

E. Chemicals, Plastics and Coatings

F. Computers: Hardware and Software, Semiconductors, Consumer Electronics

G. Construction and Engineering; Real Estate

H. Energy: Coal, Oil & Gas, Nuclear, Solar & Wind, Utilities

I. Entertainment: Broadcasting, Cable, Film, Music

J. Food and Beverages; Agriculture; Tobacco

K. Forest Products

L. Pharmaceuticals, Hospitals and other Healthcare

M. Publishing: Books, Newspapers, Magazines, Internet

N. Restaurants, Hotels & Casinos

O. Retailing & Wholesaling; Apparel

P. Steel and other Metals; Mining

Q. Telecommunications

R. Transportation: Airlines, Railroads, Shipping, Trucking

Burger King’s Tax Dodge is Just the Latest of Its Restructuring Schemes

August 28th, 2014 by Phil Mattera

mergerkingNothing says America like hamburger chains such as Burger King, yet the fast-food giant is the latest company to put tax dodging above national loyalty.

The home of the Whopper wants to carry out one of the so-called inversions that are all the rage among large U.S. corporations. Burger King is proposing to merge with the much smaller Canadian doughnut and coffee chain Tim Hortons and register the combined company north of the border, where it would be able to take advantage of lower tax rates on its U.S. revenues.

An interesting twist is that a large part of Burger King’s financing for the deal is coming from Warren Buffett, who apart from his investment prowess is known for his statements calling on the wealthy (individuals, at least) to pay more in federal taxes.

While many are criticizing Buffett for hypocrisy, the sage of Omaha seems to be taking refuge behind Burger King’s claim that the deal is not tax-driven but is instead a growth opportunity. That does not pass the laugh test, but it is true that Burger King has been willing to submit to frequent restructuring in its never-ending quest to emerge from the shadow of its much larger rival McDonald’s.

In its 60-year history, Burger King has undergone many changes. In 1967 founders James McLamore and David Edgerton sold the chain to the flour giant Pillsbury, which for two decades struggled to find the right formula for the company. In 1989 Pillsbury was taken over by Britain’s Grand Metropolitan, which continued the ceaseless experimentation. After Grand Met merged with Guinness to form Diageo, Burger King did not fit well with a global company focused on alcoholic beverages.

In 2002 the burger chain was taken over by private equity firms Texas Pacific Group (now TPG Capital) , Bain Capital and Goldman Sachs Capital Partners. After they extracted what they could from the company, the buyout firms arranged for an initial public offering that would allow them to profit even more. Four years after the IPO, the chain was taken over by another private equity firm, 3G Capital of Brazil. After only two years, 3G took a portion of Burger King public again. Now 3G, which partnered with Buffett on the takeover of H.J. Heinz, is at it again with the Tim Hortons deal.

One thing that is clear from this history is that Burger King is not, in fact, a purely American company. But that doesn’t legitimize the Canadian inversion. All it shows is that Burger King’s problems predated the Tim Hortons deal.

The chain has gone through a dizzying series of ownership changes that have probably done little to help its underlying business. And there’s also the issue of how that business is structured. As the Wall Street Journal points out, Burger King is essentially an “assetless company.” It owns less than 1 percent of its nearly 14,000 worldwide outlets, with the rest in the hands of franchisees.

This means that the company is largely removed from the day-to-day operations of its outlets and is instead focused on the royalties it collects from the franchisees. This means that it, even more than other fast-food chains, can claim to be uninvolved in controversial matters such as wage rates and other employment practices.

That posture may no longer be tenable. The recent ruling by the National Labor Relations Board holding McDonald’s jointly liable for labor and wage violations by its franchise operators may very well be applied to other chains.

For decades, Burger King has been treated as a pawn in the financial machinations of global corporations and buyout firms. Now its owners want U.S. taxpayers to help underwrite the latest scheme. Hopefully, they won’t get their way this time.

The Environmental Prosecution Gap

August 21st, 2014 by Phil Mattera

With reports of a $16 billion Justice Department settlement with Bank of America following on the heels of other big payouts by misbehaving banks, it may seem that corporate crime these days is mainly an issue for the financial sector. The big banks have plenty of blemishes on their record, but then again so do other large corporations when it comes to areas such as environmental compliance.

After all, it was only four months ago that Anadarko Petroleum had to pay $5.1 billion to resolve federal charges that had been brought in connection with the clean-up of thousands of toxic waste sites around the country resulting from decades of questionable practices by Kerr-McGee, now a subsidiary of Anadarko. This settlement set a record for an environmental case, surpassing the $4 billion in penalties BP had to pay in 2012 as part of its guilty plea on criminal charges relating to the Deepwater Horizon disaster in the Gulf of Mexico.

Despite high-profile cases such as these, environmental offenses are being prosecuted in a less than vigorous manner. This problem is brought home in a recent analysis by The Crime Report website produced at the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York.

In a review of enforcement data in the EPA’s ECHO database, The Crime Report found that the agency has become increasingly disinclined to bring criminal rather than civil charges against violators. In recent years, the report notes, fewer than one-half of one percent of violations trigger criminal investigations, which require the involvement of the Justice Department to proceed in court.

Part of the problem is that criminal cases are much more difficult to pursue. The Crime Report quotes attorney Mark Roberts of the non-profit Environmental Investigation Agency as saying: “I think a criminal prosecution will be defended much harder … If you’re in that tiny percentage that gets charged criminally, you want to win.”

While delivering the bad news about weak prosecution, The Crime Report makes it easier for researchers and activists to access data about environmental violations. It took data from ECHO and created an interactive map that provides summaries by EPA region and by urban area, and also allows zooming in on specific facilities. When an urban area is chosen on the map, a table appears below showing the largest penalties overall, with breakdowns by categories such as Clean Air Act violations and Clean Water Act violations.

This is especially useful for clusters of heavily polluting facilities such as those in what is informally known as Cancer Alley between Baton Rouge and New Orleans. Yet a look at the data for this area shows the limitations not only of the EPA’s criminal prosecutions but its enforcement activity in general. Drilling down shows dozens of facilities that were often found to be in non-compliance yet were hit with little or nothing in the way of penalties during the past five years.

There are some fairly significant fines, such as the $198,000 paid by PCS Nitrogen in Geismar and the $84,000 paid by the Total Petroleum Styrene Monomer Plant in Carville. Yet, for the most part, the data paint a picture that is a far cry from the right’s depiction of the EPA as a tyrannical force preying on defenseless businesses.

Whether it is in banking or petrochemicals, aggressive prosecutions are the only way to get large corporations to clean up their act.

 

Payday Predators Become the Prey

August 14th, 2014 by Phil Mattera

shark-week-cover2Every industry has its faults, but there are only a few for which it can be said that society would be better off if they did not exist at all. One member of that special group is payday lending, the business of providing short-term cash advances to desperate people at unconscionably high interest rates with the expectation that they will not be able to repay the money and thereby get caught in an ever-worsening debt trap.

National People’s Action and other groups fighting predatory lending are highlighting this problem with their Shark Week Campaign. An NPA fact sheet does a good job of summarizing what’s wrong with payday lending and links to some of the best research on the subject, including a 2013 report by the Center for Responsible Lending that makes the case for stronger federal regulation. The issue was also the focus of a brilliant segment on John Oliver’s HBO show that included a mock public service ad narrated by Sarah Silverman arguing that the best alternative to payday loans is “anything else.”

While stricter rules are clearly needed, the good news is that the sharks are no longer operating with total impunity. The Dodd-Frank Act opened the door to federal action on payday lending, and the Consumer Financial Protection Bureau is starting to act on that authority. Last November, the agency ordered Cash America International, one of the largest predators, to pay $19 million ($5 million in fines and $14 million in refunds to customers) for using illegal robo-signing in preparing court documents in debt collection lawsuits. The company was also charged with violating special rules involving lending to military families. In addition, Cash America was accused of destroying documents relevant to the agency’s investigation of its practices.

In the wake of that case, the CFPB took its first action against an online payday lender, suing CashCall Inc. for engaging in “unfair, deceptive, and abusive practices, including debiting consumer checking accounts for loans that were void.” In July, the bureau announced that Ace Cash Express would pay $10 million to settle charges that it engaged in “illegal debt collections tactics — including harassment and false threats of lawsuits or criminal prosecution — to pressure overdue borrowers into taking out additional loans they could not afford.”

Last March, the bureau held a field hearing on payday lending and issued a report finding that more than 80 percent of loans by the industry are rolled over or followed by another loan. The Justice Department is reported to be carrying out an investigation of the role of banks in financing payday lenders.

The sharks are also under attack at the state and local level. Manhattan District Attorney Cyrus Vance Jr. just announced the criminal indictment of a group of online payday lenders and the individuals who control them. The case is an effort to get at companies that use complicated corporate structures and offshore registration to get around the interest rate caps that states such as New York have adopted.

In June, officials in Maryland announced that South Dakota-based Western Sky Financial and CashCall would pay about $2 million to settle charges that they engaged in “abusive payday lending and collections activities” that included loans with annual interest rates of more than 1,800 percent. The settlement also permanently barred the companies from doing any business in the state that required licensing.

Last October, five payday lending companies had to pay $300,000 to settle charges brought by the New York State attorney general, and the year before Sure Advance had to hand over $760,000 to settle allegations that it charged illegal rates as high as 1,564 percent.

Payday lenders have also been targeted in class action lawsuits. Cash America agreed to pay up to $36 million to settle one such case that had been brought under Georgia’s usury and racketeering laws.

Faced with a dwindling number of states in which they can operate as they please, along with tighter federal rules, some of the payday companies are giving up. For example, giant Cash America is reportedly planning to spin off its payday lending operations and focus instead on the supposedly more reputable business of pawn shops.

Most stories about attempts to control abusive commercial practices end up with corporations finding a way to prevail. Payday lending may turn out to be that rare case in which the predators lose.