What was Done with the Banks’ $110 Billion?

March 10th, 2016 by Phil Mattera

Over the past few years, the Justice Department and state prosecutors have collected tens of billions of dollars in fines and settlements from large banks in a series of cases stemming from fraudulent practices in the period leading up to the financial meltdown of 2008.

Much of the debate on these cases has focused on whether the financial penalties, pursued in lieu of criminal charges against bank executives, were the most appropriate response to widespread bank misconduct. Or else the issue was whether the penalties, especially after accounting for the fact that they were in part tax-deductible, were big enough.

The Wall Street Journal has just published a front-page story addressing yet another facet: what was done with the money, which totaled some $110 billion in cases relating to toxic mortgage-backed securities, foreclosure abuses and related issues. The largest of the cases involved nearly $17 billion from Bank of America in 2014.

Roughly half of the overall total stayed with the federal government, with little disclosure of how it is being used. It appears that most of the roughly $50 billion has simply gone into the Treasury and was comingled with other federal funds.

The Journal states: “Bank executives grumble privately about the opaque process and are critical the government didn’t ensure more money went to housing-related issues.” Opinions of the culprits should not count for much in this discussion. The fact that the Journal cites them adds to the suspicion that paper is in some way trying to discredit the feds for their handling of the cases.

That posture is more explicit when it comes to the share of the money that ended up with the states. The Journal implies there is something wrong with New York’s decision to use some of its settlement funds to replace the Tappan Zee Bridge north of New York City and to provide high-speed internet access in rural communities — or the decision of other states to direct settlement funds into state pension funds. One can disagree with the particular uses, but they are all valid public purposes.

After devoting most of the article to these imaginary scandals, the Journal finally gets to what is really the most important issue: what the banks themselves are doing with the roughly $45 billion of the total that was supposed to be devoted to consumer relief. It’s important to realize that the banks were not required to simply distribute these funds to abused customers in the form of reparations (which might have been a good idea).

Instead, the banks get credit toward the consumer relief settlement portions ($7 billion in the case of BofA) when they modify existing mortgages or make new loans to low-income consumers who lost their homes to foreclosure. In other words, they are being credited for restoring loans to more reasonable terms and thereby increasing the chances that the homeowners will avoid default. This is good for the homeowners but it also benefits the banks.

The Journal article describes the case of one homeowner who did not benefit much from her mortgage modification. On the other hand, Eric Green, the monitor of the BofA settlement has glowing words for the program in his most recent report. He says that first lien principal reductions have averaged 51 percent, that the average loan-to-value ratio has been brought down from 179 percent to 75 percent, that the average interest rate has been cut in half, and that the average monthly payment has been reduced 38 percent, or more than $600.

There may be more to the story, but this is what the Journal should be investigating rather than implying that it was a mistake to extract large sums from banks to pay for their sins.

Why Don’t More Corporate Executives Commit Suicide?

March 3rd, 2016 by Phil Mattera

The business news is abuzz with reports that the fatal car crash of fracking executive Aubrey McClendon a day after he was indicted on federal bid-rigging charges may have been intentional. The high speed at which McClendon’s SUV was apparently travelling at the time of the collision and the absence of skid marks are generating speculation that he deliberately drove into a bridge support.

If McClendon did indeed take his own life for reasons connected to his indictment, it would not be the first case of scandal-induced corporate suicide. In 2002, for instance, J. Clifford Baxter, former vice chairman of the notorious energy company Enron, was reported to have shot himself in the head, leaving a note saying “where there was once great pride now it’s gone.”

Yet in comparison to the high degree of corporate misconduct, executive suicides are quite rare. Part of the reason is that so few executives are prosecuted individually, as was McClendon, and thus are less likely to feel the intense shame that usually prompts acts of self-destruction. And when those prosecutions do occur, some executives remain defiant, depicting themselves of victims of overzealous prosecutors.

A prime example of such defiance was former Massey Energy CEO Don Blankenship, who insisted he was targeted for political reasons despite the extensive evidence against him in a case stemming from the deaths of 29 miners in the Upper Big Branch disaster in 2010. Blankenship was convicted of conspiracy to violate federal mine safety laws but acquitted of lying to regulators.

It’s significant that McClendon’s possible suicide occurred after he was indicted on the relatively abstract charge of conspiring to rig bids for oil and natural gas leases in Oklahoma. While the charges are serious, they do not directly involve harm to people and the environment.

On the other hand, Chesapeake Energy, which McClendon co-founded in 1989 and ran until 2013, has been involved in numerous cases involving allegations of such harm in the course of fracking. In the Violation Tracker my colleagues and I at Good Jobs First created, we found more than 30 cases since 2010 in which the company has paid more than $10 million in EPA fines and settlements. Apparently, there was no shame in that.

Although it would be ghoulish to suggest that anyone commit suicide, there is no shortage of other executives who should also at least be feeling more intense shame for their actions. A number of them are at companies in the business of producing vehicles like the one in which McClendon was driving at the time of his death. McClendon’s Chevrolet Tahoe is produced by General Motors, which had to pay a fine of $900 million to resolve criminal charges in connection with an ignition switch defect linked to more than a dozen deaths.

Then there’s the case of Japan’s Takata, which is embroiled in a controversy over the production of millions of defective airbags that in some cases ruptured and sent shrapnel flying at drivers and passengers. Or else Volkswagen, which has admitted wholesale cheating on auto emissions tests, leading to untold additional amounts of air pollution.

There are plenty of additional past and present examples from industries such as chemicals, mining, tobacco and asbestos. The answer is not for more top executives to take their own lives, but for them to end their reckless behavior to protect the lives of the rest of us.

Will Big Oil Survive Long Enough to Pay for Its Climate Sins?

February 25th, 2016 by Phil Mattera

“Times are tough, you’d almost call them brutal right now. But we will adapt. We will make it.” So insisted the deputy chief executive of BP at a conference in Houston where industry leaders put on a brave face amid a worsening crisis for the petroleum sector.

Other speakers were even more explicit about the Darwinian environment. “We will be one of the last guys standing,” declared the CEO of Suncor Energy, which once prospered from the tar sands boom in Alberta and is now selling off assets.

Several dozen oil and gas producers have had to file for bankruptcy protection since the beginning of last year. More such moves are expected. The business consulting firm Deloitte has issued a report estimating that more than one-third of all petroleum exploration and production companies are in precarious financial condition, with dozens likely to make the trip to bankruptcy court.

Even the oil majors are in trouble. Chevron reported a fourth-quarter loss of $588 million, while BP lost over $2 billion in the quarter and more than $5 billion for 2015 as a whole. Exxon Mobil and Shell are still in the black but their profits are down sharply. The industry’s problems are already depressing stock prices and are starting to cause heavy losses at the banks that lent extravagantly to the energy sector during the boom time.

It’s difficult to summon much sympathy for the oil companies, given the damage they have wrought. As shown in the Violation Tracker database I and my colleagues created, the petroleum industry has racked up more than $31 billion in environmental, health and safety penalties since the beginning of 2010, far more than any other industry. Much of this is the result of the massive fines and settlements paid by BP in connection with the Deepwater Horizon disaster in the Gulf of Mexico.

Yet there is one reason to hope for the survival of the petroleum producers: we need them to survive in some form so they can be taken to court over the role they’ve played in denying the reality of the climate crisis.

As Bill McKibben notes in a recent article, we’re now at the beginning of an investigation of what may prove to be one of the biggest corporate scandals in American history — the climate coverup.

At the center of the scandal is Exxon Mobil, the biggest fossil fuel corporation on earth and the one that is probably most culpable for suppressing evidence of the impact of its products on climate change. As path-breaking research by Inside Climate News showed, Exxon — reported to be the subject of current investigations by state prosecutors in New York and California — knew about global warming as early as the 1970s and quietly used that knowledge for its own benefit while keeping it from policymakers and the public.

Forty years later, the nature of the climate crisis is public information, but Exxon Mobil and the other oil companies continue to do business as usual. In fact, their obsession with exploration and production even at a time of softening demand has helped bring about the current price nosedive.

Exxon Mobil today has assets of more than $340 billion. Soon it may have to stop using those resources to produce more harmful fossil fuels and instead pay out substantial sums in damages to communities struggling to deal with the climate mess the industry has caused.

Business Fights FASB on Corporate Welfare Disclosure

February 18th, 2016 by Phil Mattera

Time Magazine

Large corporations spend a lot of time complaining about their obligations to government, such as paying taxes and complying with regulations, while saying very little about what they get from taxpayers in the form of financial assistance. The organization that sets corporate accounting standards now wants to see the magnitude of that assistance disclosed in financial statements, and the business world is howling in protest.

In November, the Financial Accounting Standards Board (FASB) issued a proposal that would require publicly traded corporations to disclose details on a wide range of government assistance — such as tax incentives, cash grants, and low-interest loans — when that help is the result of an agreement between a public agency and a specific firm, as opposed to provisions in tax codes that any business can claim. The proposal mirrors the one adopted by the Governmental Accounting Standards Board (GASB) that will require state and local government agencies to disclose the amount of revenue they are losing as a result of tax incentive deals.

The FASB proposal has some flaws, such as the decision not to require companies to provide estimates of the value of multi-year subsidy deals and a lack of clarity on the degree to which the information would have to be disaggregated. Still, it would be a major advance in financial transparency, giving investors and others important information on the extent to which companies are dependent on the public sector.

The business world sees it differently. During a recently completed three-month comment period, about two dozen trade associations and large corporations submitted statements on the proposal that were overwhelmingly negative.

At the center of the backlash are the U.S. Chamber of Commerce and the National Association of Manufacturers, which submitted joint comments arguing that the scope of the accounting standard is “overly broad,” that compliance costs would be “significant,” and that companies could place themselves in “legal jeopardy” by disclosing the information proposed by FASB.

The big-business-sponsored Council on State Taxation also invoked the privacy rights of corporate taxpayers and warned that the disclosures would “assist those who wish to harass a company regarding credits or incentives received pursuant to an economic development agreement.” Similar objections were presented by the American Banking Association, which represents entities that received trillions of dollars in assistance from the Federal Reserve and the U.S. Treasury in the wake of the financial meltdown that some of those same entities brought about.

Perhaps most infuriating are the negative comments submitted by large companies that are among the biggest recipients of public assistance. We know who they are because numerous government agencies already reveal a substantial amount of company-specific subsidy data, which my colleagues and I at Good Jobs First have collected for our Subsidy Tracker search engine. Although we’ve gotten a lot from the agency disclosure, having more information in the financial reports of all public companies would allow us to make Subsidy Tracker even more complete.

Several of the corporations commenting against the FASB rule have received more than $1 billion each in federal, state and local subsidies, including two whose totals put them among the top ten recipients: General Motors ($5.7 billion) and Ford Motor ($4 billion). These totals do not include the tens of billions they received in loans and loan guarantees, whose value after repayments is difficult to calculate.

GM, which survived only after being taken over by the federal government, whines that the FASB disclosure proposal “would be costly and difficult to prepare given the complexity of global entities and the wide variations of such arrangements” and claims that the information could be “misleading” or could benefit “special interest groups questioning tax incentives offered by governments as perceived abuses of the current taxation system.”

In what might be a dig at its competitor, Ford Motor, which did not require a federal takeover, suggests that FASB limit its disclosure requirement to bailouts and exclude “incentives” that are offered in exchange for a commitment to invest or create jobs.

IBM, which has been awarded some $1.4 billion in subsidies, asserts that the costs of the disclosure would outweigh the benefits and says that if FASB moves ahead with the new standard it should “not require disclosure of specific terms and conditions, which may include confidential or proprietary information for both governments and entities.” In other words, make it as vague as possible.

In case there was any doubt, these comments confirm that big business is in favor of transparency only when what is to be disclosed puts a company in a favorable light. Let’s hope FASB stands fast and joins with GASB in bringing corporate welfare out of the shadows.

Dealing with Corporate Culprits

February 11th, 2016 by Phil Mattera

The Big Short movie and the Bernie Sanders presidential campaign are not the only things reminding us about the role of bank misconduct in the financial meltdown. Federal and state prosecutors are continuing to wrap up cases brought against the main culprits.

The Justice Department just announced that Morgan Stanley will pay $2.6 billion to settle allegations relating to the sale of toxic residential mortgage-backed securities, with another $550 million going to New York State and $22.5 million to Illinois. This comes a few weeks after Goldman Sachs disclosed that it expects to pay up to $5 billion to resolve similar allegations, while Wells Fargo is paying $1.2 billion to settle allegations that it engaged in reckless underwriting and fraudulent loan certification for thousands of loans insured by the Federal Housing Administration that ultimately defaulted.

These are the latest in a string of settlements that included a $16.7 billion payout by Bank of America in 2014 and $13 billion by JPMorgan Chase the year before.

Donald Trump harps on the notion that the government makes lousy deals. Can that be said of these bank settlements?

In one respect, they are a big improvement in the terms on which the feds resolved cases of corporate malfeasance in the past. Compelling companies to cough up billions of dollars begins to bring enforcement into the 21st Century. By comparison, regulatory agencies such as OSHA, bound by outdated legislation, are still fining companies only a few thousand dollars for serious violations.

The magnitude of the bank settlements is lessened by the fact, as U.S. PIRG tirelessly points out, that some portions of the payouts are tax deductible. Even so, the after-tax costs can have an impact. For example, Deutsche Bank, which last year had to pay out some $2.5 billion to settle charges relating to manipulation of the LIBOR interest rate index (and earlier settled a toxic securities case for $1.9 billion), recently cited legal costs as a key factor in announcing an annual loss of more than $7 billion.

The big U.S. banks, however, remain quite profitable and have had little difficulty handling their settlement costs, parts of which are stretched out over years. Their punishment has entailed limited pain.

By all rights, the discussion of this issue should not be framed simply in terms of dollars. We should also be talking about the appropriate length of the prison sentences for the banking executives who should have been personally prosecuted for the abuses.

Unfortunately, the type of criminal justice reform now being discussed for street offenses has already been in effect for many years with regard to white collar crime. Corporate crooks do not have to worry about mandatory minimums, given that they are rarely prosecuted at all. The decriminalization being discussed for the drug trade has long been the norm for the more respectable branches of commerce.

Even if the political will were present, it is too late to begin prosecuting those responsible for the financial meltdown. Yet there is little doubt that new frauds are in the works and will eventually break out into the open. Unless things change, the culprits will once again beat the rap. And that’s a bad deal for the rest of us.

Amazon’s New Assault on Independent Booksellers

February 4th, 2016 by Phil Mattera

My first reaction to reports that Amazon intends to open brick-and-mortar bookstores around the country was to assume it was a joke — an Onion satirical piece that somehow ended up in the business section.

While the claim by the CEO of General Growth Properties that Amazon was planning hundreds of such outlets has now been withdrawn, the online commerce giant is not denying its interest in physical bookstores at some level. In fact, it turns out Amazon already opened such a store in Seattle in November.

Whatever the scope of Amazon’s plans, such an initiative is infuriating. Amazon is responsible for decimating the bookstore business in the United States over the past two decades. It effectively put Borders out of business, crippled Barnes & Noble and brought about a steep decline in the number of independent booksellers.

Now it seems that Amazon cannot abide the fact that bookstores such as Powell’s in Portland, Oregon and Politics and Prose in Washington, DC survived its onslaught and found ways to survive in an age of online commerce.

On one level, the Amazon move simply makes no sense. This is a company whose success is based on replacing traditional retail outlets with a vast website and giant distribution centers that can process orders at lightning speed and in some cases can now deliver products within hours. Why would Amazon want to return to the inefficient approach it has worked so hard to eradicate?

Yet the company undoubtedly noticed that independent bookstores are enjoying a bit of a revival. Despite the ease of online ordering from Amazon (and the fact that in many cases no sales taxes were collected), it turns out that people like to browse shelves of physical books, value the assistance of knowledgeable booksellers and are drawn to the warm atmosphere of many small stores.

Although this mode of retailing is out of keeping with Amazon’s general approach, the company’s obsession with increasing its revenue is stronger than its commitment to a particular business model. After all, Amazon has been experimenting with other low-tech initiatives such as delivering food from local restaurants.

While it is far from clear that Amazon could succeed in the physical bookstore business, it is troubling to think what impact its effort might have on independent booksellers. How many locally owned stores might fail before Amazon ends its experiment and returns to an exclusive focus on web sales?

Amazon has already done considerable damage to the independent retail sector in America. A recent report produced by the research group Civic Economics for the American Booksellers Association estimates that Amazon’s operations have effectively displaced more than 30,000 retail outlets in the United States and eliminated more than 135,000 retail jobs. In the process, many downtown business districts have languished, and local governments are losing an estimated $420 million a year in property taxes.

It is true that Amazon has created many jobs of its own and is building many new distribution centers. Yet, as I noted in a previous post, the working conditions for those positions are often brutal. And in many cases Amazon has negotiated deals that minimize the property taxes it is paying on those facilities.

We may not be able to do anything about Amazon’s increasing domination of online commerce, but the company should not be allowed to destroy what remains of independent bookselling and other locally owned, human-scale retailing.

Amazon Delivers Exploitation

January 28th, 2016 by Phil Mattera

workhardThe 2015 financial results just announced by Amazon.com leave no doubt: the “everything store” is well on its way to dethroning Wal-Mart as the king of retail. Unfortunately, it also seems intent on taking over the role of the worst employer.

Amazon’s revenues leaped 20 percent last year to $107 billion as it dominated online commerce, especially during the holiday season. Profitability remained weak, but that’s a result of heavy spending to build a network of distribution centers enabling superfast delivery. It’s not because Amazon is generous to its 150,000 employees.

On the contrary, lousy working conditions have been a fact of life at Amazon since its earliest years. In 1999 the Washington Post published a story about the pressure put on customer service representatives to work at breakneck speed. “If it’s hard for you to go fast,” one Amazon manager told the newspaper, “it can be hard for you here.”

Amazon — which adopted the employee motto “Work hard, have fun and make history” — successfully opposed union organizing drives at its distribution centers using traditional retrograde employer tactics such as captive meetings and the closing of facilities where pro-union sentiment ran too high.

In the absence of unions, Amazon was able to go on using temp agencies to hire workers, who could thus be easily terminated if they did not meet the company’s unreasonable productivity demands. Amazon even skimped on things such as providing a tolerable temperature level in its vast warehouses. In 2011 the Allentown (Pennsylvania) Morning Call published a lengthy exposé on working conditions at Amazon’s sprawling Lehigh Valley distribution center, where temperatures rose so high during the summer that the overtaxed workers suffered from dehydration and other forms of heat stress. People collapsed so frequently that Amazon arranged for ambulances to be standing by outside the facility. It was only after the story gained national coverage that Amazon broke down and installed air conditioning.

The intense pace of work has also contributed to accidents. In June 2014 the Occupational Safety and Health Administration cited third-party logistics company Genco and three staffing services for serious violations in connection with a December 2013 incident in which a temp worker was crushed to death at an Amazon distribution center in Avenel, New Jersey. OSHA proposed fines of $6,000 against each of the companies. The agency said it was also investigating a fatality at another Amazon distribution center in Carlisle, Pennsylvania. Amazon itself was fined $7,000 at its warehouse in Campbellsville, Kentucky.

Amazon has also been the subject of complaints regarding violations of the Fair Labor Standards Act, including the failure to compensate workers for time spent waiting in long lines at the end of shifts to be searched to make sure they aren’t stealing merchandise. In October 2015 drivers for the Amazon Prime Now delivery service in California filed a class action lawsuit charging that they were being misclassified as independent contractors and thus denied protection under state laws governing minimum wages, overtime pay and business expense reimbursement.

Reports about harsh working conditions have also surfaced in connection with Amazon’s facilities in Europe. In 2013 a German television program documented the brutal treatment of temp workers brought in from Poland, Spain and other countries to help with the Christmas rush at Amazon’s German distribution centers. The abuses were said to be carried out by black-uniformed guards employed by a security company hired by Amazon, which responded to the scandal by ending its relationship with the firm. Amazon was also confronted by its regular German distribution center employees, who began staging strikes to support demands for higher pay. Amazon, unlike most domestic and foreign employers, refused to cooperate with the country’s powerful labor unions.

Labor protests have also taken place in response to conditions at Amazon distribution centers in the United Kingdom. In 2013 the BBC sent an undercover reporter to work at one of those centers and aired a program describing the hectic work pace and quoting an academic expert as saying that it created “increased risk of mental illness and physical illness.”

Rather than improving working conditions, Amazon has focused on replacing workers with automation, a move assisted by the 2012 purchase of the robotics company Kiva Systems. A February 2015 article in the Seattle Times reported that a new Amazon warehouse in Washington was “teeming with hundreds of Kiva robots. Those are the squat, coffee table-sized gadgets that buzz around, lifting and moving shelves of products, delivering them to workers who pluck items to be shipped off to customers.” It seems that the robots are not making things easier for workers; instead, they are probably helping to intensify the pace at which the reduced workforce is expected to toil.

Labor controversies are not limited to distribution centers. Charges of abysmal working conditions have also been raised in connection with Mechanical Turk, a service created by Amazon to parcel out repetitive online tasks to thousands of individuals who are paid on a piecework basis. It’s been estimated that these “crowdworkers” earn an average of about $2 an hour.

In August 2015 the New York Times published an investigation of Amazon’s white-collar workforce, describing a situation in which employees were compelled to work long hours and were encouraged to criticize one another mercilessly. The rigid system was said to be governed by a series of principles promulgated by company founder and CEO Jeff Bezos that everyone was expected to follow. Those who failed to adjust to the system were dismissed.

When Amazon released its diversity data for the first time in 2014, the percentage of the U.S. workforce that was black or Hispanic was nearly 25 percent, far higher than at other tech companies. Yet subsequent data indicated that many of those minorities were employed at its warehouses and in other relatively low-skill jobs. Just 10 percent of Amazon’s executive and technical employees are black or Hispanic.

Speed-up, wage theft, union-busting, safety and health abuses: Amazon stocks the full inventory of exploitative labor practices.

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New in Corporate Rap Sheets: Food giant ConAgra, touting its Healthy Choice brand, has been involved in a long series of food and workplace safety controversies.

A Struggling Arch Coal Deserves Little Sympathy

January 21st, 2016 by Phil Mattera

archcoalArch Coal recently became the latest and largest coal producer to seek protection in Chapter 11. The company has also lost its listing on the New York Stock Exchange. Arch vows to go on operating but faces a very uncertain future.

It’s difficult to summon much sympathy for Arch or its struggling competitors. While its workers deserve a just transition to new livelihoods, Arch deserves to fade away. The main reason, of course, is the coal industry’s outsize contribution to the climate crisis, but a look at Arch’s track record shows a string of other major negative impacts.

Pollution. Arch’s first big environmental controversy occurred in 1996, when a massive mine waste spill at the operations of its Lone Mountain subsidiary in Virginia contaminated 30 miles of rivers and streams, killing thousands of fish. The company was hit with a $1.4 million state fine, one of the largest in Virginia’s history.

Arch also became a bigger target for environmental activists when it escalated its involvement in mountaintop-removal mining in Appalachia. It took advantage of the Bush Administration’s support for the controversial practice and resisted when the Obama Administration moved to tighten the rules. In 2010 an Arch subsidiary sued the Environmental Protection Agency over the planned revocation of a permit for a large mountaintop project in West Virginia that the agency decided would do irreversible damage to the environment. The EPA stood its ground, and when the revocation for the Spruce No.1 Mine was formally announced, Arch said it was “shocked and dismayed” and charged that the decision “will have a chilling effect on future U.S. investment.” Arch took the case all the way to the Supreme Court and was rebuffed at every stage.

In 2011 the EPA and the Justice department announced that Arch would pay $4 million to settle alleged violations of the Clean Water Act in Kentucky, Virginia and West Virginia. As part of the settlement, Arch was required to take steps to prevent an estimated two million pounds of pollution from entering waterways, including the implementation of a system to reduce selenium discharges. That same year, Arch paid $2 million to settle a lawsuit brought environmental groups over the selenium issue in West Virginia.

In 2015 Arch had to pay another $2 million to the federal government to settle similar alleged violations by 14 subsidiaries connected to its International Coal Group operations in five states.

Federal Leasing. Arch is one of a handful of companies taking advantage of a non-competitive program that allows coal operators to lease federal land at below-market rates. A 2012 report by the Institute for Energy Economics and Financial Analysis estimated that over 30 years the Treasury lost $28.9 billion in revenue from the failure to obtain fair market value for the coal extracted from the Powder River Basin of Wyoming and Montana, the country’s largest coal-producing region. A report released by the U.S. Government Accountability Office in 2014 also found a pattern of undervaluing coal leases, as did a 2015 report by Headwater Economics estimating that two reform options would have generated additional revenue ranging from $850 million to $5.5 billion for the 2008-2012 period.

In 2014 the Western Organization of Resource Councils and Friends of the Earth filed a lawsuit asking that the Interior Department’s Bureau of Land Management be required to prepare a comprehensive environmental impact review of the federal leasing program. The last time such an assessment was done was in 1979. Arch’s Chapter 11 filing came just days before the Obama Administration announced the suspension of new federal coal leases.

Mine Safety. A 2003 inspection of Arch Coal’s Black Thunder mine in Wyoming by the federal Mine Safety and Health Administration resulted in more than 50 violations. Two miners had been killed at the massive operation in the previous 12 months. In 2015 MSHA issued an imminent danger order at Black Thunder.

There have been other fatalities at Arch operations, including one at a Kentucky mine in 2013 that MSHA found had occurred after the company knew of a significant danger but failed to take proper precautions.

The most serious accident associated with Arch was the 2006 disaster at the Sago Mine run by a subsidiary of International Coal Group, which became part of Arch in 2011. Twelve miners died in a methane gas explosion at the West Virginia operation, which had been cited by MSHA for “combustible conditions” and “a high degree of negligence.” During 2005 the mine had received more than 200 violations, nearly half of which were serious and substantial. Investigations of the accident by the state and the company suggested that lightning had set off the explosion, whereas a United Mine Workers report concluded that sparks generated by falling rocks inside the mine were the cause.

According to the Violation Tracker database, Arch’s current operations have been fined a total of more than $6.4 million by MSHA since the beginning of 2010.

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Note: This post is drawn from my new Corporate Rap Sheet on Arch Coal, which can be found here.

Too Big to Be Honest

January 14th, 2016 by Phil Mattera

breakingupFor a long time the big financial institutions of the United States had an unrelenting urge to grow bigger. Acting on the principle that only the big would survive, banks and related entities spent the 1990s and the early 2000s gobbling up one another at a furious pace. The result was a small group of mega-institutions such as Citigroup and Bank of America that nearly brought down the whole financial system in 2008.

Federal regulators declined to break up the giants, which in recent years have grown only larger. But now some of the rules put in place in the wake of the meltdown are having the desired effect. Some major financial players are deciding to split themselves up in the hope of evading the more stringent capital requirements imposed on companies designated as systemically important (SiFi) institutions.

The latest firm to bow to this pressure is insurance behemoth MetLife, which just announced it is exploring a spinoff of its retail life and annuity business in the U.S. into a new presumably non-SiFi company. The move comes in the wake of moves by General Electric to dismantle large parts of its huge GE Capital business. Among the businesses that contributed to GE Capital’s heft was the banking operation it purchased from MetLife in 2011 as part of a previous move by the insurer to reduce its regulatory oversight.

Now other large insurers such as Prudential Financial and American International Group, the latter the recipient of a $180 billion federal bailout, may take similar steps. Apart from the regulatory pressures, AIG has been dealing with breakup calls from investors such as John Paulson and Carl Icahn, who dubbed it “too big to succeed.”

It remains to be seen whether the big banks will succumb to the breakup. For the moment they are resisting, but that’s the stance MetLife had long maintained. Their sagging stock prices make them susceptible to a move by someone like Icahn.

It’s gratifying to see regulation working as designed to make the country less vulnerable to large reckless institutions and a bit less enthralled with financialization. GE’s announcement that it is moving its headquarters to Boston is part of its retreat from finance.

Yet more still needs to be done to get the banks to clean up their act. Stricter capital rules are fine, but the likes of B of A and JPMorgan Chase need to feel more pressure to obey the law. They’ve had to cough up larger and larger financial settlements and in a few cases have even had to plead guilty to criminal charges. Yet they haven’t gotten the message.

Perhaps what’s needed are “honesty requirements” to go along with the more stringent capital requirements. In other words, banks that break the law would have to sell off the businesses involved in the misconduct. This would accelerate the move away from overly large financial institutions and hopefully put more operations in the hands of firms that are willing to play by the rules.

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Note: the Dirt Diggers Digest Enforcement page, which provides links to the compliance data posted by more than 50 federal regulatory agencies, has just been updated and expanded.

DOJ’s Sputtering Case Against Volkswagen

January 7th, 2016 by Phil Mattera

An activist of the environmental protection organization 'Greenpeace' holds a protest poster in front of a factory gate of the German car manufacturer Volkswagen in Wolfsburg, Germany, Friday, Sept. 25, 2015, where the supervisory board meet to discuss who to name as CEO after Martin Winterkorn quit the job this week over an emissions-rigging scandal that's rocking the world's top-selling automaker. (AP Photo/Michael Sohn)

There’s a scene in “The Wolf of Wall Street” in which a federal prosecutor tells Jordan Belfort (played by Leonardo DiCaprio) that the case against him for securities fraud was a “Grenada,” meaning that it was as unloseable as the 1983 U.S. invasion of that poorly defended Caribbean island.

The Justice Department has had another Grenada in recent months with the case against Volkswagen for systematically cheating on auto emissions tests. As the scope of the deception broadened to include millions of vehicles, VW effectively admitted guilt and put aside the equivalent of about $7 billion to resolve the issue, later acknowledging that sum would not be enough.

After three months of preparation, Justice has filed its case yet is failing to make full use of its leverage against the automaker. As a result, it could end up with only a modest win against one of the most egregious cases of corporate environmental fraud this country has ever seen.

The biggest disappointment is DOJ’s decision to forgo criminal charges and handle this solely as a civil matter. Admittedly, prosecutors were confronted with the fact that a little known loophole in the Clean Air Act exempts the auto industry from criminal penalties. Yet there appeared to be ways to get around this limitation by alleging fraud, for instance, given that there was apparently a deliberate effort to deceive the federal government about emissions. It’s not clear why DOJ rejected this approach and did not even use the frequent gambit of pursuing a criminal case and then offering the company a deferred- or non-prosecution agreement. Those options are problematic, but with them criminal charges are at least part of the picture rather than being left out entirely.

Also frustrating is the failure of Justice to bring charges (civil or criminal) against individual VW executives. This flies in the face of the department’s hyped announcement in September of a new policy of holding individuals accountable for corporate misconduct. Charging senior VW officers was all the more important in light of indications that the company has been seeking ways to place the blame on lower-level engineers.

It is disturbing to think that VW may have intimidated DOJ away from an aggressive prosecution. Although the scope of the scandal has widened, taking in more of the company’s brands in more countries, VW seems to be adopting a less conciliatory posture than it did earlier in the case. In fact, the DOJ complaint accuses the company of impeding and obstructing the investigation through “material omissions and misleading information” — accusations that make the absence of criminal charges all the more bewildering.

It is likely that VW will have to pay billions of dollars to resolve the charges against it. This is right and proper, but is it enough? Corporations from BP to Bank of America have gotten used to buying their way out of legal jeopardy, treating fines and settlements as (often tax deductible) costs of doing business. Those costs have been rising — BP has had to pay out more than $24 billion in connection with its Gulf of Mexico disaster — but there is little evidence that the penalties are having the intended deterrent effect.

Criminal charges are not a panacea. They’ve been brought against BP, several large banks and other companies yet no longer have the same bite. Several banks, for instance, have received waivers from SEC rules barring criminals from the securities business.

Yet at least there is the possibility of applying criminal penalties more aggressively. Going the purely civil route, as Justice is doing with VW, guarantees from the start that the case will be little more than a financial transaction. In a case of deliberate and widespread deception with severe environmental and health impacts, that’s simply not good enough.