Violation Tracker and Toy Safety

November 19th, 2015 by Phil Mattera

The holidays are nearly upon us, and that means that millions of parents are facing the annual ordeal of shopping for toys. Along with designating children as naughty or nice, shoppers may want to pay attention to the track record of the companies producing and selling the items that show up on wish lists.

Violation Tracker, the new database of corporate misconduct, can help identify which companies have the worst safety records when it comes to toys and other items for children. Among the agencies from which the database has collected environmental, health and safety enforcement data is the Consumer Product Safety Commission, which pays close attention to hazards in items used by young people.

The CPSC maintains a database of voluntary recalls and sends letters to companies asking for corrective action, but it also imposes civil penalties in cases of egregious violations. The following list, taken from Violation Tracker, shows the companies with the largest CPSC penalties since the beginning of 2010.

Techtronic Industries, headquartered in Hong Kong, was, via its subsidiary One World Technologies, fined $4.3 million for violating CPSC reporting rules in connection with its Baja Motorsports mini-bikes and go-carts. The CPSC said that gas caps on the vehicle could leak or detach from the fuel tank, posing fire and burn hazards, and that sticky throttles could result in sudden acceleration.

Discount clothing retailer Ross Stores was fined $3.9 million in connection with the sale of thousands of children’s garments with neck or waist drawstrings that posed a strangulation risk. The CPSC had previously determined that such garments created a “substantial product hazard.”

Phil & Teds, a manufacturer of strollers and related baby gear, was fined $3.5 million for failing to report that its MeToo clip-on high chair could detach from a table and cause an infant to fall to the ground.  If only one side of the high chair detached, a child’s fingers could become crushed between the bar and the clamping mechanism, resulting in amputation. The company had received multiple reports of such accidents, including two amputation cases, but did not report them to the CPSC in a timely manner.

The American subsidiary of Japan’s Daiso Industries was fined $2.05 million and had to stop importing children’s products and toys into the United States. The CPSC had determined that the company was distributing and selling toys with illegal levels of lead content, lead paint and phthalates; toys intended for young children containing small parts that posed choking hazards; and products that lacked required warning labels.

Michigan-based retailer Meijer was fined $2 million for selling a dozen different recalled consumer products, most of which were for children. Among these were SlingRider Baby Slings (risk of suffocation), Refreshing Rings Infant Teethers/Rattles imported by Sassy (ingestion hazard), and the Harmony High Chair manufactured by Graco Children’s Products (fall hazard).

Burlington Coat Factory, owned by Bain Capital, was fined $1.5 million for the same violation as Ross Stores: selling children’s clothing with drawstrings deemed to be a strangulation hazard. Among the garments were hooded jackets and sweatshirts involved in a 2010 recall announced by the CPSC in cooperation with the company. Macy’s was fined $750,000 in another drawstring case.

Spin Master Inc. was fined $1.3 million for failing to reports hazards associated with its product called Aqua Dots, a children’s craft kit and toy that consisted of tiny beads of different colors that stuck together when sprayed with water. According to the CPSC, Spin Master had received reports that children (and a dog) had become ill and received emergency medical treatment after ingesting Aqua Dots, which contained a substance that could damage kidneys and the central nervous system.

Henry Gordy International, a subsidiary of Exx Inc., was fined $1.1 million for failing to report that its toy dart gun sets contained parts that could be inhaled into a child’s throat and cause suffocation. The CPSC also alleged that the company made a material misrepresentation to agency staffers during their investigation.

Violation Tracker data currently goes back only to the beginning of 2010, but toy safety problems began well before that. One perennial problem was the sale of items containing lead or lead paint, especially by the dollar store chains. In 2009 Dollar General was fined $100,00 and Family Dollar (now owned by Dollar Tree) $75,000 as part of a CPSC crackdown on the dangerous practice.

Santa Claus may put lumps of coal in some children’s stockings, but unscrupulous corporations can do a lot worse.

Using Violation Tracker to Research Oil Transport Hazards

November 12th, 2015 by Phil Mattera

ViolationTracker_Logo_Development_R3In their disappointed responses to President Obama’s rejection of the Keystone XL project, proponents argued that the decision would do nothing more than force tar sands oil producers to use more dangerous forms of transport such as rail.

It’s true that freight railroads have had their share of accidents, but pipelines are hardly risk-free. The new Violation Tracker database provides documentation on the hazards of both modes of moving dirty oil.

Pipeline regulation is under the purview of the Pipeline and Hazardous Materials Safety Administration (PHMSA), a division of the U.S. Department of Transportation. Violation Tracker has collected data on more than 200 significant enforcement cases brought by the agency since the beginning of 2010. These cases have resulted in total penalties of $28 million.

The largest share of that total comes from Enbridge, the Canadian pipeline giant with extensive operations in the United States. It has had five PHMSA cases with total penalties of $6.3 million. These include a $3.7 million penalty linked to a 2010 accident that spewed more than 800,000 gallons of oil into Michigan’s Kalamazoo River, a major waterway that flows into Lake Michigan. The agency followed the penalty announcement with a statement that there was a “lack of a safety culture” at Enbridge, which had previously been fined $2.4 million for an accident in Minnesota in which two workers were killed when the oil in a leaking pipeline ignited. (For more on Enbridge’s dubious track record, see its Corporate Rap Sheet.)

Second among the top PHMSA violators is BP with $4.6 million in penalties, most of which came from a provision of a larger settlement also involving the Justice Department and the EPA concerning a spill on the North Slope of Alaska. Third is Buckeye Partners with 18 cases involving just under $2 million in PHMSA penalties. Four other companies have been penalized in excess of $1 million by the agency since 2010: Kinder Morgan, Enterprise Products Partners, Exxon Mobil and Marathon Petroleum.

The biggest single penalty from this group was the $1,045,000 fine imposed on Exxon Mobil in connection with a 2011 rupture of a pipeline in Montana that sent more than 40,000 gallons of crude oil into the Yellowstone River.

This is the track record that Keystone XL advocates seem to think argues in favor of pipelines. As noted, they are on stronger ground when criticizing railroads. They can point to incidents such as the derailment of a CSX oil train in West Virginia that caused a fire that burned for days and forced the evacuations of hundreds of people.

The Federal Railroad Administration tends to impose modest penalties but Violation Tracker shows that half a dozen lines have managed to accumulate $1 million or more in safety fines since 2010. In the lead is Union Pacific, with $11.1 million in penalties, including the agency’s single largest fine of $565,000. Second is Berkshire Hathaway (parent of BNSF) with $7.4 million, followed by CSX with $2.7 million and Norfolk Southern with $3.4 million. All of the Class I railroads are well represented on the penalty list.

The debate between pipelines and supposedly safer railroads is a false one. The major companies in both industries have track records that make oil transport a hazardous proposition.


New in Corporate Rap Sheets: Dollar Tree, now leading the retail sector targeting those too poor to shop at Walmart.

Also note: POGO’s Federal Contractor Misconduct Database, one of the inspirations for Violation Tracker, has been revamped.

Using Violation Tracker to Analyze Workplace Safety and Labor Relations

November 5th, 2015 by Phil Mattera

ViolationTracker_Logo_Development_R3It’s widely known that BP has a terrible workplace safety record, especially at its Texas City refinery, where 15 workers were killed in a 2005 explosion blamed in large part on management. In 2010 BP had to pay a record $50 million to settle OSHA allegations relating to the incident and the serious deficiencies in its subsequent remediation efforts.

Figuring out which other companies have created the greatest hazards for their workers has been more difficult — until now, that is. Violation Tracker, a new database on corporate misconduct, brings together information on some 100,000 environmental, health and safety cases filed by OSHA and a dozen other federal regulatory agencies since 2010. The database links the companies involved in the individual cases to their corporate parents, and the penalties are aggregated. Here I look at the largest OSHA violators identified by Violation Tracker and discuss a key characteristic they tend to have in common.

Companies with the most OSHA penalties, 2010-August 2015

  • BP: $63,860,860
  • Louis Dreyfus (parent of Imperial Sugar): $6,063,600
  • Republic Steel: $2,635,000
  • Tesoro: $2,532,355
  • Olivet Management: $2,359,000
  • Dollar Tree: $2,153,585
  • Ashley Furniture: $1,869,745
  • Kehrer Brothers Construction: $1,822,800
  • Renco: $1,535,475
  • Black Mag LLC: $1,218,500

(Source: Violation Tracker. Amounts are totals of “current penalties” for serious, willful or repeated violations of $5,000 or more after any negotiated reductions in OSHA’s initial proposed fines.)

Last February, members of the United Steelworkers union walked off the job at BP refineries in Ohio and Indiana as part of a strike focusing on safety problems in the industry. USW president Leo Girard stated at the time: “Management cannot continue to resist allowing workers a stronger voice on issues that could very well make the difference between life and death for too many of them.” BP’s $63 million in OSHA fines and settlements since 2010, far more than any other company, have put it at the forefront of that deadly resistance.

Tesoro, another unionized oil refiner criticized by the USW for its safety shortcomings, has the fourth highest OSHA penalty total ($2.5 million) among the companies in Violation Tracker. In 2014 the union called on the company to develop a “comprehensive, cohesive safety program” after an accident at a California refinery in which two workers were seriously injured. The USW also took the company to task for disputing a report by the U.S. Chemical Safety Board citing “safety culture deficiencies” among the causes of a 2010 explosion at a Tesoro refinery in Anacortes, Washington that killed seven workers.

Kehrer Brothers Construction, on the top-ten list of OSHA violators with $1.8 million in penalties, is nominally a union contractor, but it was the subject of a 2010 lawsuit by the Roofers union complaining about wage theft. Earlier this year, OSHA accused the company of bringing in non-English speaking workers under H-2B visas and knowingly exposing them to asbestos on the job.

Not all of the largest OSHA violators are rogue unionized employers. Some are firms that have managed to keep unions out. Chief among those is Imperial Sugar, which in 2010 had to pay $6 million to settle more than 120 violations linked to a 2008 explosion at its non-union plant in Port Wentworth, Georgia that killed 14 people and seriously injured dozens of others. (Imperial, acquired by Louis Dreyfus in 2012, had unions at some of its other facilities.)

Dollar Tree, which has racked up more than $2 million in OSHA fines since 2010, is one of the large deep-discount retailers that target the portion of the population that cannot afford to shop at Walmart. The non-union chain has been cited repeatedly for piling boxes in storage areas of its stores to dangerous heights and blocking emergency exits.

Ashley Furniture was fined $1.8 million by OSHA earlier this year at its non-union plant in Arcadia, Wisconsin for 38 willful, serious or repeated violations stemming from the company’s failure to protect workers from moving equipment parts. One worker lost three fingers while operating a woodworking machine lacking required safety protections. OSHA recently proposed another $431,000 in fines for similar problems at another Ashley facility in Wisconsin.

A more obscure company in the OSHA top ten is Olivet Management, a real estate developer fined more than $2.3 million for exposing its own workers and contractor employees to asbestos and lead during clean-up activities at the site of the former Hudson Valley Psychiatric Center in Dover Plains, New York. The company was created by Olivet University, which calls itself “a private Christian institution of biblical higher education.”

There’s a smaller third category of top OSHA violators, represented by Republic Steel: a company with decent union relations that appears to have gotten sloppy in its safety practices. In 2014 Republic agreed to pay $2.4 million as part of a settlement with OSHA resolving violations at its facilities in Ohio and New York. The settlement, which also involved the creation of a comprehensive illness and injury prevention program, was praised by the USW. Yet this year Republic was fined another $162,400 for repeated and serious violations at its plant in Lorain, Ohio.

The lesson of all this seems to be that workers face the greatest hazards in non-union companies and rogue unionized firms, but they also need to be vigilant in workplaces with decent labor-management relations.

Note: This is the first in a series of posts using information from the new Violation Tracker database. For more on Violation Tracker, see the Huffington Post.

Introducing Violation Tracker

October 27th, 2015 by Phil Mattera

Violation TrackerViolationTracker_Logo_Development_R3, the first national database on corporate crime, has arrived. For me it is the culmination of nine months of work collecting enforcement data, matching some 25,000 companies in the agency records to their corporate parents and designing the site, all of this done with the help of Rich Puchalsky of Grassroots Connection.

My involvement in this kind of project actually goes back 35 years. While a young researcher for Fortune magazine, I was assigned to a story whose dubious premise was that lawbreaking was a lot more common among small businesses than large corporations. I had serious doubts about that notion and set out to collect as much information as I could about wrongdoing by the Fortune 500.

Even with a narrow definition of misconduct, I found that 117 of the companies that had appeared on the 500 list during the previous decade–including Fortune’s parent company Time Inc.–had been convicted (or signed a consent decree) for bribery, criminal fraud, illegal political contributions, tax evasion or criminal antitrust violations. My editors were not happy, but to their credit they published the full list (as part of an article written by Irwin Ross) in the December 1, 1980 issue of the magazine.

The urge to document and tabulate corporate crime has been with me ever since. I’ve given in to that urge numerous times, most notably in 2012, when I began producing Corporate Rap Sheets on many of the worst violators under the auspices of the Corporate Research Project of Good Jobs First.

Now I’m able to take it to the next step with Violation Tracker, a database that in its initial form covers all environmental, health and safety cases with penalties of $5,000 or more brought since the beginning of 2010 by 13 federal regulatory agencies, including those they referred to the Justice Department. Additional violation categories (bribery, price-fixing, financial offenses, wage & hour infractions, etc.) will be added in the future.

Violation Tracker uses the same parent-subsidiary matching system my colleagues and I at Good Jobs First created for our Subsidy Tracker database. In Violation Tracker the companies named in the individual violations are linked to more than 1,600 parent companies. The site has summary pages for each of the parents (along with the individual entries) as well as overviews by industry, agency and parent headquarters location.

Along with the database the Corporate Research Project is releasing a report entitled BP and Its Brethren summarizing what the information in Violation Tracker shows about the biggest violators (using a broad definition of penalties that includes both fines and other mandatory outlays such as supplementary environmental projects that are often part of settlements). Here are some highlights from the report:

  • The corporations with the most penalties are: BP ($25.4 billion), Anadarko Petroleum ($5.2 billion), GlaxoSmithKline ($3.8 billion), Johnson & Johnson ($2.4 billion), Abbott Laboratories ($1.5 billion), Transocean ($1.4 billion), Toyota ($1.3 billion) and Alliant Energy ($1.0 billion). The penalty total of all entries in Violation Tracker is about $60 billion.
  • BP’s $25 billion puts oil and gas at the top of the ranking of industries by total penalties. The pharmaceutical industry is second, due to a series of major cases involving the promotion of medications for uses not approved as safe by the Food and Drug Administration. Utilities rank third, due to cases involving power plant emissions. In fourth place is the auto industry, thanks mainly to a $1.2 billion penalty paid by Toyota and a $900 million fine against General Motors, both for safety issues. The chemical industry, with a wide range of violations, is fifth.
  • Large corporations are responsible for the vast majority of the penalties. Companies on the Fortune 500 and the non-U.S. portion of the Fortune Global 500 together account for 81 percent of Violation Tracker’s total penalty universe.
  • Foreign companies operating in the United States represent a large share of the violations. In fact, given that BP is one of those foreign parents, the penalty total for that group is larger than for U.S.-based firms: $34 billion vs. $21 billion. Even without BP, foreign parents account for $9 billion in penalties. Companies that have reincorporated abroad for tax reasons are excluded from this breakdown.
  • There are substantial overlaps between the companies penalized by the different agencies, especially between EPA and OSHA. Some companies show up on more than one of the lists of top-ten penalized firms by agency. BP shows up on four: EPA, OSHA, the Pipeline & Hazardous Materials Safety Administration, and multi-agency cases handled by the Justice Department.
  • A comparison of the 100 parents with the most penalties in Violation Tracker to the 100 most-subsidized in Subsidy Tracker finds 16 overlaps, mainly automakers such as Toyota and General Motors.
  • Along with actual foreign companies, the most penalized parents include some companies that have “inverted” (reincorporated or merged abroad) and thus claim to be foreign to dodge U.S. taxes. The tax runaway with the largest penalty total is Transocean, which leased the ill-fated Deepwater Horizon drilling rig to BP and which was fined a total of $1.4 billion in connection with the accident. “Inverted” firms have $2.9 billion in penalties.
  • Leading federal contractors are among the most-penalized companies. Of the 100 largest contractors in FY2014, ten are also among the biggest penalty parents in Violation Tracker, including: four pharmaceutical producers (GlaxoSmithKline, Merck, Pfizer and Sanofi); two oil giants (Royal Dutch Shell and Exxon Mobil) and three military contractors (Honeywell, General Electric and Boeing). Conglomerate Berkshire Hathaway is also on the list.

We’re living in an age of widespread corporate misconduct, illustrated most recently by the Volkswagen scandal. Violation Tracker is designed not only to help people keep track of which company was involved in which wrongdoing but also to serve as a tool for a wide range of campaigns promoting corporate accountability.

Reining in the Beltway Bandits

October 22nd, 2015 by Phil Mattera

moneybagsontherunA New York Times op-ed by lawyer Eric Havian argues that the best way to punish corporate fraudsters is to bar them from government contracts. Debarment of companies is an established practice, but it’s usually been employed in a half-hearted way such as the temporary exclusion of BP in the wake of the Deepwater Horizon disaster.

Havian, however, highlights the little known power of federal agencies to exclude individual executives from working in regulated industries, sometimes for life, if they are shown to have engaged in unsavory practices. He argues that bringing about such exclusions is much easier than prosecuting executives on criminal charges, as the Justice Department says it plans to do more often.

This is an intriguing idea but the problem is always the uncertainty as to whether getting tough with executives, even high-level ones, will succeed in changing corporate behavior. Ultimately, all individuals are expendable in large corporations, so the desire to boost profits by breaking the rules is likely to trump any inclination to behave properly to protect those in the executive suite.

The need to do something to prevent rogue companies from getting or keeping government contracts is highlighted in some of the data my colleagues and I at the Corporate Research Project of Good Jobs First have collected for our Violation Tracker database, which will be released next week.

Following the path blazed by the Project On Government Oversight’s Federal Contractor Misconduct Database, we found that ten of the 100 largest federal contractors are also among the 100 companies accounting for the most environmental, health and safety violations since 2010 (the scope of the initial version of Violation Tracker).

Four of the group are pharmaceutical manufacturers (GlaxoSmithKline, Merck, Pfizer and Sanofi); two are oil and gas giants (Royal Dutch Shell and Exxon Mobil) and three are big military contractors (Honeywell, General Electric and Boeing). Conglomerate Berkshire Hathaway is also on the list.

The drug company penalties stem mainly from cases in which they had to pay big settlements to resolve cases in which they were accused of marketing medications for uses not approved as safe by the Food and Drug Administration. GlaxoSmithKline, for instance, pled guilty to three criminal counts in 2012 and had to pay $3 billion to resolve allegations concerning the unlawful promotion of Paxil and Wellbutrin, failure to report certain safety data to the FDA, and false price reporting. That marketing allegedly included kickbacks paid to doctors and other health professionals to get them to prescribe and promote the drugs for those unauthorized uses.

In FY2014 GSK was awarded federal contracts worth more than $780 million, mostly from the Department of Health and Human Services and the Pentagon. Those agencies apparently had no problems dealing with a corporate criminal.

The penalty amounts attributable to federal contractors are likely to be much greater when we expand Violation Tracker to include other offenses such as false claims against government agencies. Such fraud is pretty much the basic business model of many of the large military contractors, for example.

Federal agencies need to use Havian’s exclusion idea, criminal prosecutions and all other tools at their disposal to rein in the Beltway Bandits.

Breaking Up Is Hard to Do

October 15th, 2015 by Phil Mattera

Alcoa is doing it. So is Hewlett-Packard.

They’re following the lead of corporations such as General Electric, Time Warner, Gannett and W.R. Grace. The “it” is splitting up the company into two independent firms.

The reasons for these break-ups are not always clear. In announcing the plan for Alcoa, Klaus Kleinfeld declared: “In the last few years, we have successfully transformed Alcoa to create two strong value engines that are now ready to pursue their own distinctive strategic directions.” Why those “engines” cannot remain under the same corporate roof was not explained. Kleinfeld described the split as “the next step” for two businesses ready to “seize the future.”

What are really being seized are the giant fees charged by investment banks to cook up these schemes, often for companies that previously retained their services to arrange marriages they are now seeking to undo. Like much of what passes for corporate strategies, “demergers” as well as mergers are expensive guesses as to what will result in maximum profits. They need not be taken too seriously.

Yet sometimes breakups are a lot less benign. Take the case of chemical giant DuPont, which a few months ago split itself up with the creation of a spinoff called Chemours. Sounding like the Alcoa guy, then-DuPont CEO Ellen Kullman announced the plan late last year by saying that the parts of the company being divided from one another had “distinct value creation strategies.”

Yet it turned out that the businesses to be transferred to Chemours included those with the most serious environmental, health and safety problems. There was immediate concern expressed by groups such as Keep Your Promises DuPont that the ownership change would impair the commitments DuPont had made to deal with toxic waste sites and other contaminated areas.

One of those areas was Parkersburg, West Virginia, where DuPont had produced Teflon. In 2004 the Environmental Protection Agency charged that for two decades DuPont failed to report signs of health and environmental problems linked to perfluorooctanoic acid (or PFOA), which is used in making Teflon. Residents living near the plant sued the company, which agreed to pay out about $100 million to settle the case and spend up to $235 million on medical monitoring of residents, which is ongoing. That obligation has presumably transferred to Chemours, but there are concerns that the new firm may not be able to handle the costs.

DuPont’s initial SEC filing about Chemours disclosed that the new company would begin life with some $298 million in environmental liabilities but acknowledged that the total could rise to 3.5 times that amount.

If DuPont thinks that it has washed its hands completely of these liabilities as a result of the Chemours spinoff, a case involving Anadarko Petroleum suggests that it may be mistaken. A decade ago, Anadarko acquired Kerr-McGee, on oil and nuclear fuel company made infamous in the scandal involving Karen Silkwood. In preparation for the takeover, Kerr-McGee had broken itself up, dumping its major liabilities into a new firm called Tronox, which later when bankrupt.

A legal battle over Tronox’s environmental obligations was finally resolved earlier this year with Anadarko having to pay more than $5 billion to cover cleanup costs. DuPont and Chemours, like Anadarko and Kerr-McGee and Tronox, may learn that breaking up can indeed be hard to do.

Note: The Anadarko settlement turns out to be the second largest entry in the Violation Tracker database my colleagues and I at the Corporate Research Project of Good Jobs First will release on October 27.

Tracking and Trouncing Corporate Crime

October 8th, 2015 by Phil Mattera

If there were any question as to which corporation has racked up the largest quantity of business penalties, the issue has been resolved with the announcement that BP will pay more than $20 billion to resolve the outstanding federal and state civil claims connected to the 2010 Deepwater Horizon disaster in the Gulf of Mexico.

While the true cost to the company is lessened by the fact that it will be able to deduct about three-quarters of the total, the after-tax bite will still be in the billions. This is on top of the $4 billion BP had to pay in 2012 to resolve related criminal charges plus billions more in fines and settlements relating to the company’s other environmental and workplace safety sins.

All these amounts will be tallied in the Violation Tracker database my colleagues and I at the Corporate Research Project of Good Jobs First will release later this month.

BP’s reign as the penalty “leader” will soon face a new challenge from Volkswagen, which is looking at massive payouts in connection with its scheme to circumvent federal emissions regulations. VW’s new chief executive Matthias Muller just admitted that the $7 billion the company has set aside to deal with the problem “will not be enough.”

Although it is difficult to avoid a feeling of schadenfreude in light of the German company’s apparently unscrupulous behavior, Muller’s statement that employment cuts may be necessary is troubling. Those who lose their jobs at VW’s operations, perhaps including the plant in Chattanooga, Tennessee, will undoubtedly be workers who had nothing to do with the emissions cheating.

A broader question raised by Muller’s comment is that of what will be enough to get big business to stop behaving badly. At one time, the notion of extracting billions of dollars in payments from a large corporation was seen as a radical idea, something akin to appropriation. Now it is commonplace.

Yet has this done more than allow prosecutors to give the impression they are tough on corporate crime? I’m as fond as the next corporate critic of seeing corporate miscreants pay heavily for their misdeeds — after all, I’ve been spending months preparing a database on that very subject — but the ultimate goal is to prevent the wicked behavior.

That is going to require aggressive new measures, though it is difficult to say exactly what those should be. Those angry French workers who stormed a boardroom and ripped the clothes off executives had an intriguing approach.

The first step is to acknowledge the extent of the corporate crime problem and focus more public attention on the issue. That won’t be easy, given that all too many policymakers in this country are adherents of the Reaganite notion that government is always the problem.

But I’d like to believe that at some point the accumulation of corporate mayhem and harm it causes will change enough minds that strong action is inevitable. Then all unethical executives will have to hold on tightly to their shirts.

Volkswagen Deserves Its Day in Criminal Court

October 1st, 2015 by Phil Mattera

Volkswagen’s scheme to circumvent federal emissions regulations for millions of its cars cries out for tough prosecution. Yet it turns out that a little known loophole in the Clean Air Act exempts the automobile industry from criminal penalties.

EPA and Justice Department prosecutors are apparently considering whether criminal charges can be brought under other statutes, but it remains to be seen whether they will be successful. An inability to do so would be a major embarrassment for DOJ, which recently proclaimed its intention to move away from deferred prosecution agreements and get tougher with corporate culprits.

In case anyone questions the appropriateness of criminal charges in environmental cases, it is worth recalling that this approach has ample precedents. While it is true that many of the cases in the EPA’s criminal docket involve individuals at fly-by-night firms, that’s not always the case.

In fact, as part of the preparation for the Violation Tracker database my colleagues and I at Good Jobs First will release later this month, I’ve been going through the records. Here are some of the highlights:

The granddaddy of criminal environmental cases was the prosecution of BP for its role in the 2010 Deepwater Horizon disaster that killed 11 people and did untold damage to the Gulf of Mexico. In November 2012 BP pled guilty to environmental crimes (involving the Clean Water and Migratory Bird Treaty Acts) as well as felony manslaughter and obstruction of Congress. It was required to pay criminal fines and penalties of $4 billion.

In February 2013 Transocean, the company from which BP leased the ill-fated drilling rig, pleaded guilty to charges of violating the Clean Water Act in the period leading up to the accident and was sentenced to pay $400 million in criminal fines and penalties. Halliburton, which was responsible for cement work at the site, pleaded guilty to a charge of destroying evidence.

Oil companies are not the only defendants. In 2013 Wal-Mart Stores pleaded guilty to six counts of violating the Clean Water Act by illegally handling and disposing of hazardous materials at its retail outlets across the country. It had to pay $81 million in penalties.

This year, Duke Energy pleaded guilty to nine criminal violations of the Clean Water Act at several of its facilities in North Carolina and paid a $68 million criminal fine and was required to spend $34 million on environmental projects.

Volkswagen certainly belongs on this dishonor roll of environmental culprits. In fact, it probably deserves harsher punishment than even BP, given the brazen and intentional aspects of its behavior.

In reporting on the auto industry loophole, the Wall Street Journal quoted former Michigan Rep. John Dingell as justifying the provision by saying that civil penalties were “easier, speedier quicker” than criminal sanctions and warning regarding the latter: “The risk of them going out of business is very real.”

In cases such as this one, the convenience of prosecutors should not be a priority, and there are many people who may think that VW’s disappearance would not be a bad thing.

Think Irresponsible

September 24th, 2015 by Phil Mattera

volkswagen-clean-diesel-ad.w529.h352In the competition among industries to see which can act in the most irresponsible manner, we have a new winner. After nearly a decade during which banks and oil giants like BP were the epitome of corporate misconduct, the big automakers are now on top.

The news that Volkswagen inserted devices in millions of its “clean diesel” cars to disguise their pollution levels is the latest in a series of major scandals involving car companies. It comes on the heels of criminal charges against General Motors for failing to report a safety defect linked to more than 100 deaths. The Justice Department, unfortunately, deferred prosecution of those charges in a deal that required GM to pay $900 million. That looks like a bargain compared to the possibility that the EPA could sock Volkswagen, which once employed an ad campaign called Think Small, with penalties of some $18 billion.

Last year, Justice announced a deferred prosecution agreement with Toyota that required the Japanese company to pay $1.2 billion to settle charges that it tried to cover up the causes of a sudden acceleration problem. Later that year, Hyundai and Kia had to pay $100 million to settle DOJ and EPA allegations that they understated greenhouse gas emissions from more than 1 million cars and trucks.

This past July, Fiat Chrysler was hit with by the National Highway Traffic Safety Administration with a fine of $105 million — a record for that agency, which long had a cozy relationship with the industry — for deficiencies in its recall of defective vehicles.

Even Honda, which once had a squeaky clean reputation, was fined $70 million earlier this year by NHTSA for underreporting deaths and injuries relating to defective airbags. Those airbags were produced by the Japanese company Takata, which resisted making changes in its production process despite incidents in which the devices exploded violently, sending shrapnel flying into drivers and passengers.

The ascendance of the auto industry to the top of the corporate wrongdoing charts is actually an encore for what was a long-running performance. During the 1960s, GM inadvertently gave rise to the modern public interest movement in its ham-handed response to the issues raised by a young Ralph Nader about the safety problems of its Corvair compact. The 1970s were the era of the Ford Pinto with its fragile fuel tanks that blew up in even mild rear-end collisions. The 1990s were marked by the scandal over defective tires produced by Bridgestone/Firestone.

Although carmakers were not in the forefront of corporate misbehavior during the past decade, the industry’s record was far from unblemished. In 2005 VW presaged its current problems when it paid $1.1 million to the Justice Department to settle allegations that it failed to notify regulators and correct a defective oxygen sensor in more than 300,000 Golfs, Jettas and New Beetles.

And to make matters worse, through these decades the auto giants kept up a drumbeat of criticism of supposed regulatory excesses and, in the cases of GM and Chrysler, did not hesitate to ask for large bailouts when their markets collapsed.

The American love affair with the automobile has also put us in bed with corporate irresponsibility on a major scale.

What’s Good for GM is Good for GM’s Executives

September 17th, 2015 by Phil Mattera

gm-ignition-switch-accident-victims_0The famous statement from the 1950s to the effect that what was good for General Motors was good for the country needs to be updated.

Based on a settlement just announced by the Justice Department, we should be saying: what is good for GM is good for Mary Barra and bad for the country.

Barra, the chief executive of the automaker, and the company’s other top executives are celebrating the fact that they were able to negotiate a deal with federal prosecutors that contains no charges against individuals in connection with the failure to disclose a safety defect that has been linked to more than 120 deaths.

This came just a week after the adoption of a new policy by Justice that was supposedly going to make sure that individuals, including high-level executives, are targeted in major cases of corporate misconduct. That policy states that companies are not supposed to receive cooperation credit (lighter penalties) unless they hand over evidence relating to actual persons. Yet GM apparently got such credit.

What’s even more shocking about the GM deal is that the company did not have to enter a guilty plea on the criminal charges that had been brought against it. Instead, it was given the opportunity to enter into a deferred prosecution agreement — the widely criticized practice of letting a company buy its way out of legal jeopardy by promising to be good in the future.

The Justice Department was supposedly moving away from what had become virtually automatic use of this device in cases involving large corporations. The GM deal diverges from the guilty pleas that had been extracted in several cases such as those involving major banks such as Citi and JPMorgan Chase.

Finally, the settlement is a disappointment because the amount of the penalty extracted, $900 million, is hardly punitive for a company of GM’s size and is well below the $1.2 billion Toyota had to pay to resolve similar charges last year.

An unwillingness to come down hard on large corporate malefactors is all too common, but what sets the GM case apart is that it is one of those rare instances in which the misconduct has been directly linked to many deaths. The automaker was, in a sense, being accused of murder — actually, of being a serial killer. And real people were involved in the irresponsible decisions that led to those deaths.

Yet GM was offered a deal that is the equivalent of probation and a fine, while its executives did not even get a slap on the wrist. If a street murder case were resolved with such light punishment, the prosecutor would be tarred and feathered. But when it comes to corporate crimes — and crimes involving corporate executives — the rules are very different.