Phil Mattera

Freedom to Pollute

freedomindustries Recent news reports out of West Virginia sound like they were written as part of a parody of modern business: the company responsible for a chemical leak that contaminated the water supply of hundreds of thousands of people is named Freedom Industries and was cofounded by a two-time convicted felon.

The situation, however, is far from a joke. Freedom Industries spilled a substantial quantity of a substance called 4, methylcyclohexane methanol (MCHM) into the Elk River near the intake valve for a water treatment plant serving the Charleston area, sending more than 150 people to the hospital and forcing residents to use bottled water for drinking, cooking and bathing. The plume is now heading toward Cincinnati.

As is all too common in such incidents, it turns out that the 75-year-old facility where the rupture took place had not been visited by government inspectors for more than 20 years. In fact, as a storage rather than a production facility, it was subject to little in the way of federal or state oversight. So much for the idea of regulatory excess.

Given that MCHM is used to process coal, this accident adds to the heavy toll that mining has taken on West Virginia—from the Buffalo Creek flood in 1972 to the Upper Big Branch disaster in 2010 in which 29 miners were killed. It is also significant that Freedom Industries purchases MCHM, for which it serves as a distributor, from a subsidiary of Georgia-Pacific, which in turn is controlled by the rabidly anti-regulation Koch Brothers.

To all this can be added the fact that Freedom Industries was cofounded by an individual named Carl Lemley Kennedy II. As the Charleston Gazette has reported, Kennedy filed for personal bankruptcy in 2005 after he was hit with federal charges of tax evasion and failure to remit employee withholding taxes. He is reported to have admitted to diverting more than $1 million that should have gone to the Internal Revenue Service.

Kennedy’s involvement in Freedom Industries, the Gazette notes, does not seem to have been affected by the fact that he had once pleaded guilty to selling cocaine in connection with a scandal that involved the mayor of Charleston. The paper quotes the current mayor, who is said to have known Kennedy since the 1980s, as an “edgy guy.”

Another remarkable aspect of the story reported by the Gazette is that Freedom Industries was struggling in 2009, and its Elk River facility was able to go on functioning only after the Army Corps of Engineers dredged that portion of the river using federal stimulus funds.

To summarize: a tax evader and drug dealer helped to establish a largely unregulated chemical company that benefitted from the federal stimulus but apparently did little in the way of preventive maintenance and set the stage for large-scale drinking water contamination.

Large corporations such as Dow Chemical and Exxon Mobil have caused vast amounts of environmental damage, but it shouldn’t be forgotten that small-time operators such as Freedom Industries can also do substantial harm. And it is not just producers of hazardous materials but also distributors that can be the culprits. It was another small distributor, West Fertilizer, that was involved in the ammonium nitrate explosion in Texas last April that killed 15 people. Much of the reporting in the wake of that event, particularly with respect to holes in the regulatory system, could have been recycled for the new West Virginia accident.

As long as the illusion of regulation is perpetuated in place of the real thing, these accidents will continue to happen, and the right to pollute will trump the right to be safe from pollution.

J. Ponzi Morgan

morgan_madoff It’s bad enough that for years JPMorgan Chase failed to alert federal authorities about the suspicious transactions being conducted by its customer Madoff Securities in what would later be revealed as a massive Ponzi scheme.

What’s equally damning in the criminal case the bank just resolved with federal prosecutors is that at times JPM seemed to want to get in on Madoff’s action.

The Statement of Facts to which JPM stipulated tells an interesting story about how, beginning in 2006, the bank began investing substantial sums (initially $343 million) of its own money in Madoff feeder funds in addition to issuing derivates tied to those funds and selling them to investors. In 2007 this business seemed so appealing that JPM’s London branch sought to write more than $1 billion in Madoff-linked derivatives.

This move had to be approved by the bank’s chief risk officer, who in 2007 nixed the plan after being told by a colleague that there is a “well-known cloud over the head of Madoff and that his returns are speculated to be part of a Ponzi scheme.” While he was unwilling to risk $1.3 billion under such circumstances, the officer did allow the Madoff exposure to remain up to $250 million.

The JPM London trading desk subsequently became more uneasy about Madoff Securities. It pulled out of the Madoff feeder funds, and in 2008 it filed a report with UK regulators expressing concerns that Madoff’s returns were probably “too good to be true.” JPM failed to do the same in the United States, and that turned out to be an expensive oversight.

JPM’s messy history with Madoff illustrates an interesting point about the relationship between individual white-collar crime and collective corporate crime. There’s long been a tendency to see corruption for self-enrichment (such as embezzlement) as being separate from misconduct by groups of people to enrich corporations (for example, price-fixing conspiracies).

In the case of Madoff and JPM, the two were closely connected. Madoff, who was working through his firm but was essentially running a one-man Ponzi operation, created conditions that were exploited (up to a point) by JPM to enhance the profits of the bank’s derivatives business. Even when that opportunity was deemed too risky by JPM, the bank failed to warn U.S. regulators and went on doing profitable banking business with Madoff.

In other words, the individual fraud being committed by Madoff was a source of profit for JPM, which in a sense became his co-conspirator.

The distinction between individual crime and corporate misbehavior is also a matter of perennial debate when it comes to punishment. Business apologists like to claim that corporations cannot really commit crimes and that only individuals should be prosecuted, knowing full well that such cases are much harder to prove.

What’s needed is a more aggressive approach toward the prosecution of both corporations and the higher-level executives responsible for their misconduct.

The JPM-Madoff case shows the limitations of the current system. No individuals were charged, and the bank was able to take advantage of the kind of deferred prosecution agreement that the Justice Department uses in almost every corporate case. Neither JPM nor the stock market seems to be fazed by the $2.6 billion payout. In fact, this is just the latest in a series of large settlements that JPM has made with prosecutors. Just two months ago, it agreed to pay $13 billion to resolve a variety of federal and state charges relating to the sale of toxic mortgage-backed securities.

Madoff himself was not able to buy his way out of a criminal conviction and prison time (150 years of it). There was a broad consensus that he deserved every penalty that could be imposed, to ensure that he could never defraud again.

We’re still waiting for a system of punishment that provides that kind of definitive treatment for rogue corporations such as J. Ponzi Morgan.

The 2013 Corporate Rap Sheet

The ongoing corporate crime wave showed no signs of abating in 2013. Large companies continued to break the law, violate regulations and otherwise misbehave at a high rate. Whatever lip service the business world gives to corporate social responsibility tends to be overwhelmed by bad acts.

Continuing the trend of recent years, 2013 saw an escalation of the amounts that companies have to pay, especially in the United States, to get themselves out of their legal entanglements. In November JPMorgan Chase set a record with its $13 billion settlement with the U.S. Department of Justice and other state and local agencies on charges relating to the sale of toxic mortgage-backed securities. JPMorgan’s legal problems are not over. There have recently been reports that it may face criminal charges and pay $2 billion in penalties in connection with charges that it turned a blind eye to the Ponzi scheme being run by Bernard Madoff while it was serving as his primary bank.

Other banks have also been shelling out large sums to resolve disputes over the sale of toxic securities in the run-up to the financial crisis. Much of the money has gone to settlements with mortgage agencies Fannie Mae and Freddie Mac. Bank of America alone agreed to pay out $10.3 billion ($3.6 billion in cash and $6.75 billion in mortgage repurchases) to Fannie.

Here are some of the year’s other highlights (or lowlights):

FORECLOSURE ABUSES. In January, ten mortgage servicing companies–including Bank of America, Citibank and JPMorgan Chase–agreed to an $8.5 billion settlement to resolve allegations by federal regulators relating to foreclosure abuses.

LIBOR MANIPULATION. In February, U.S. and UK regulators announced that the Royal Bank of Scotland would pay a total of $612 million to resolve allegations relating to rigging of the LIBOR interest rate index. In December, the European Union fined RBS and five other banks a total of $2.3 billion in connection with LIBOR manipulation.

ILLEGAL MARKETING. In November, the Justice Department announced that Johnson & Johnson would pay more than $2.2 billion to settle criminal and civil allegations that it improperly marketed the anti-psychotic drug Risperdal for unapproved use by older adults, children and people with development disabilities.

SALE OF DEFECTIVE MEDICAL IMPLANTS. Also in November, Johnson & Johnson agreed to pay more than $2 billion to settle thousands of lawsuits charging that the company sold defective hip implants, causing many individuals to suffer severe pain and injury from metallic debris generated by the faulty devices.

INSIDER TRADING. In March, the SEC announced that an affiliate of hedge fund giant SAC Capital Advisors had agreed to pay $602 million to settle SEC charges that it participated in an insider trading scheme involving a clinical trial for an Alzheimer’s drug being jointly developed by two pharmaceutical companies. At the same time, a second SAC affiliate agreed to pay $14 million to settle another insider trading case. Later, SAC agreed to pay $1.2 billion to settle related criminal and civil insider trading charges.

PRICE-FIXING. In July, German officials fined steelmaker ThyssenKrupp the equivalent of about $115 million for its role in a price-fixing cartel. In September, the U.S. Justice Department announced that nine Japanese automotive suppliers had agreed to plead guilty to price-fixing conspiracy charges and pay more than $740 million in criminal fines, with the largest amount ($195 million) to be paid by Hitachi Automotive Systems.

MANIPULATION OF ENERGY PRICES. In July, the Federal Energy Regulatory Commission ordered Barclays and four of its traders to pay $453 million in civil penalties for manipulating electricity prices in California and other western U.S. markets during a two-year period beginning in late 2006.

BRIBERY. In May, the Justice Department announced that the French oil company Total had agreed to pay $398 million to settle charges that it violated the Foreign Corrupt Practices Act by paying bribes to officials in Iran.

VIOLATION OF DRUG SAFETY RULES. In May, DOJ announced that generic drug maker Ranbaxy USA Inc., a subsidiary of the Indian company Ranbaxy Laboratories, had pleaded guilty to felony charges relating to the manufacture and distribution of adulterated drugs and would pay $500 million in fines.

VIOLATION OF RULES ON THE SALE OF NARCOTICS. In June, the U.S. Drug Enforcement Administration announced that the giant Walgreen pharmacy chain would pay a record $80 million in civil penalties to resolve charges that it failed to properly control the sales of narcotic painkillers at some of its stores.

DEALINGS WITH ENTITIES SUBJECT TO SANCTIONS. In June, New York officials announced that Bank of Tokyo Mitsubishi-UFJ had agreed to pay $250 million to settle allegations that it violated state banking laws by engaging in transactions with entities from countries such as Iran subject to sanctions.

LABOR LAW VIOLATIONS. In November, the National Labor Relations Board found that Wal-Mart had illegally disciplined and fired workers involved in protests over the company’s labor practices. A Wal-Mart spokesperson was found to have unlawfully threatened employees who were considering taking part in the actions.

CLEAN WATER ACT VIOLATIONS. In May, the Environmental Protection Agency announced that Wal-Mart had pleaded guilty to charges that it illegally disposed of hazardous materials at its stores across the country. The company had to pay $81.6 million in civil and criminal fines.

HEALTH AND SAFETY CODE VIOLATIONS. In August, Chevron pleaded no contest and agreed to pay $2 million to settle charges that it violated state health and safety regulations in connection with a fire at its refinery in Richmond, California that sent thousands of people to hospital for treatment of respiratory problems.

DELAYS IN RECALLING UNSAFE VEHICLES. In August, Ford Motor was fined $17.4 million by the National Highway Traffic Safety Administration for taking too long to recall unsafe sport utility vehicles.

PRIVACY VIOLATIONS. In November, Google agreed to pay $17 million to 37 states and the District of Columbia to settle allegations that the company violated privacy laws by tracking online activity of individuals without their knowledge.

Note: For fuller dossiers on many of the companies listed here, see my Corporate Rap Sheets.

Contractor Entitlement Reform

nn_thomp_refineryfire_050324.300w The fiscal austerity crowd is preoccupied with the size of government, but what they rarely acknowledge is that more than $500 billion in annual federal outlays take the form of purchases of goods and services from the private sector. Uncle Sam’s role as the country’s biggest consumer means that federal agencies are in a good position to expect the highest standards of conduct from contractors.

A new report by the majority staff of the Senate Health, Education, Labor and Pensions Committee shows that the federal government is not doing a good job of enforcing such standards when it comes to working conditions at contractor companies. In fact, the report shows that violations of occupational safety and health regulations as well as wage and hour laws are rampant among the contractors.

Some key findings of the report:

Eighteen federal contractors were among those companies receiving the 100 largest penalties issued by the Occupational Safety and Health Administration between 2007 and 2012. Contractors accounted for 48 percent of the dollar value of those penalties.
Thirty-two federal contractors were among the companies receiving the large back-wage assessments ordered by the Wage and Hour Division (WHD) of the Department of Labor between 2007 and 2012.
The 49 federal contractors in these categories were found to have been cited for 1,776 separate violations and paid $196 million in penalties and assessments. In fiscal year 2012, these same companies were awarded $81 billion in federal contracts.

Misconduct by contractors is an old story, but legislation passed in 2008 was supposed to make it easier for federal agencies to identify bad actors and disqualify them from contract awards. The law provided for the development of an official database along the lines of the Federal Contractor Misconduct Database created by the Project On Government Oversight.

That database did come into being and is known as the Federal Awardee Performance and Integrity Information System, or FAPIIS. In its current state, FAPIIS is a big disappointment. The Senate report points out that of the 49 contractors on the lists of largest labor violations only one has such instances of misconduct included in its FAPIIS entry. As the report states with understandable outrage:

In perhaps the most astonishing example of the failures of FAPIIS, BP, despite the deaths, injuries, and massive environmental damage, as well as the billion dollar settlements resulting from the Deep Water Horizon incident, and despite the deaths, injuries and fines resulting from the Texas City refinery explosion [photo], and despite holding $2 billion in contracts in 2012, has no misconduct entries in FAPIIS.

The Senate report does not just point out the limitations of FAPIIS but also demonstrates how more aggressive information-gathering on companies can be done. Its authors delved into the enforcement databases of both OSHA and the WHD to identify which contractors were serial violators. The results are presented both in summary tables in the report and in a 448-page appendix with key data on several dozen of the worst offenders.

In the occupational safety and health category, it is no surprise that the company at the top of the list of violators is BP, which is a rare example of a large company that was actually debarred (albeit temporarily) from doing business with the federal government because of its misconduct.

On the wage and hour side, it is also not surprising that the company appearing most often in the list of the biggest back pay assessments is Wal-Mart, though the company does a miniscule amount of business with the federal government. Also on high up on the list are companies focused on government contracting, such as private prison operator Management & Training Corporation and Pentagon outsourcer IAP Worldwide Services (owned by the private equity company Cerberus Capital Management).

While the Senate report calls on the General Services Administration, which oversees FAPIIS, to clean up the database, it also urges the Department of Labor to do more to publicize the names of contractors that were found to be violators of federal labor laws.

But why stop with DOL? Shouldn’t every regulatory agency take pains to highlight bad actors and make sure federal procurement officials know who they are?

There is much talk of entitlement reform with regard to safety net programs. What we need instead is more attention on corporations that think they are entitled to receive contracts from the federal government even when they show little regard for federal regulations.

Forward-Looking Corporations and the Backward-Looking Ones

Google_ALEC Large corporations like to think of themselves as engines of progress. Sometimes they are, though the progress they engender may be a mixed blessing. Other times, however, they are retrogressive, working to preserve the worst practices of the past.

Both of these tendencies have been on display in the news in recent days. In the forward-looking category we have Amazon and Google, which have let it be known that they are exploring what sound like science-fiction options for home delivery of goods.

Amazon revealed it is developing a system of drones that would fly packages from a distribution center to a customer’s home in a matter of minutes after an order is placed. Meanwhile, Google is reported to be working on a delivery system consisting of driverless cars and robots.

Of all the ways that technology could improve everyday life, it is hard to believe that the most compelling is the ability to have a 10-pack of tube socks flown directly to one’s doorstep. It is also unfortunate that these companies are apparently paying little attention to the massive job losses that their innovations could bring about. Yet by some uniquely corporate definition, such innovations would amount to progress.

In the thoroughly backward-looking category we have the American Legislative Exchange Council, the big-business-dominated organization that puts corporate-designed model bills into the hands of conservative state legislators. The Guardian has been publicizing a new batch of leaked ALEC documents that shed new light on the Neanderthal thinking of the organization.

Among the revelations is that ALEC has been working to promote legislation discouraging homeowners from installing solar panels. Dubbed the Electricity Freedom Act, the model bill calls on states to repeal or limit their renewable portfolio standards, which provide the basis for pressuring utilities to purchase excess power generated by houses with the panels. Rather than seeing those homeowners as helping to address climate change problems, an ALEC official told the Guardian that they are “freeriders.”

Discouraging renewable energy is far from the only way that ALEC encourages retrograde policies. The organization has received a torrent of criticism for its role in promoting voter suppression and “stand your ground” gun laws, which represent a return to the eras of Jim Crow and the Wild West.

ALEC has also had disturbing influence over state policymaking through its publication of a series of Rich States, Poor States reports that purport to give a road map to prosperity. A report written by Peter Fisher and published by Good Jobs First (in which I played a small role) shows how these prescriptions—which include shrinking the public sector, suppressing wages and rolling back regulation—amount to nothing but snake oil.

Thanks to other internal ALEC documents just disclosed by the Guardian, we now know that the latest edition of Rich States, Poor States project was funded by $175,000 from the Searle Freedom Trust and $150,000 from the Claude R. Lambe Charitable Foundation. The latter is actually listed in the report as “Koch/Claude Lamb,” which helps make it clear that the foundation is controlled by the Koch Brothers and/or Koch Industries. See more on the foundation here.

It comes as no surprise that the Kochs would be bankrolling such a report, but what’s the story with the Searle Freedom Trust? As Sourcewatch has documented, it is a large funder of rightwing groups such as the American Enterprise Institute at the national level as well as state-level policy groups under the State Policy Network (SPN) umbrella. The trust is featured in the StinkTanks website created by ProgressNow and the Center on Media and Democracy. Another piece just published in the Guardian based on leaked ALEC documents notes that Searle’s connection to the SPN is through its advisor Stephen Moore, an editorial writer at the Wall Street Journal and one of the co-authors of the Rich States, Poor States propaganda.

The money behind the trust comes from the inherited wealth of the late Daniel Searle, who once ran the G.D. Searle pharmaceutical corporation. That corporation, which was acquired by Monsanto in 1985, is largely forgotten. Yet back in the 1980s it was notorious for its Copper-7 birth control device, which was linked to many cases of pelvic infections and infertility. Searle, headed after Daniel Searle’s retirement by Donald Rumsfeld, was found to have been negligent in its testing and marketing of the device.

It is the financial legacy of such corporate irresponsibility which is helping to finance the current rightwing policy agenda. As much as they purport to be forward-looking, today’s corporations supporting that agenda are just as guilty as the Searle Freedom Trust of trying to bring us back to the laissez-faire society of the Gilded Age.

That includes Google, which joined ALEC a couple of months ago (at a time when many corporations are fleeing the group), thus making a mockery of its “do no evil” motto. Equitable public policy, not robotic delivery systems, is what we really need.

Note: The latest addition to my Corporate Rap Sheets collection is about South Korean conglomerate LG and its amazing record of price-fixing scandals.

Challenging Wal-Mart’s Freeloading Ways

Countless words have been published about the retrograde labor practices of Wal-Mart, but none of that writing conveyed as much as the short message recently reported to have been taped to a bin in an employees-only area at one of the company’s stores in Ohio: “Please donate food items here so Associates in Need can enjoy Thanksgiving Dinner.”

My first reaction was that this was a stunt staged by the Yes Men to embarrass the giant retailer. Yet it was all too real. In fact, a corporate spokesperson saw nothing amiss, saying it showed how much the company’s employees care about each other. No doubt they do, but the problem is that Wal-Mart is so deliberately obtuse about its obligation to provide a decent living to those on its payroll.

Leaving it to hard-pressed workers to support their colleagues is just one of the ways Wal-Mart shifts its costs to others. The company puts a much bigger burden on taxpayers, who end up paying for the healthcare coverage that so many of its employees must get from public programs such as Medicaid.

In the early 2000s some states began to disclose which employers accounted for the most low-wage workers and their dependents in these programs. Wal-Mart was invariably at or near the top of these lists. (See the Good Jobs First compilation here.)

Unfortunately, fewer of these lists are being released (and the Affordable Care Act will apparently do nothing to help). Yet the few recent disclosures show Wal-Mart is still creating more of these hidden taxpayer costs than any other company. For example, in July the Dayton Daily News obtained data from the Ohio Department of Job and Family Services indicating that Wal-Mart had more employees or household members on Medicaid or food stamps than any other employer in the state. The most recent compilation of employers accounting for the largest number of recipients in Connecticut’s Husky program (its version of Medicaid) also had Wal-Mart as number one.

Another approach was taken in a recent report by the Democratic staff of the U.S. House Committee on Education and the Workforce, which estimates that the workforce of a typical Wal-Mart Supercenter costs taxpayers some $250,000 a year for Medicaid services (as part of at least $904,000 a year in overall federal safety net costs per store).

These hidden costs are not the only way Wal-Mart sticks taxpayers with the bill. The company has traditionally also been shameless in demanding special tax breaks and other forms of financial assistance when it opens a new store or distribution center. My colleagues and I at Good Jobs First have been tracking this practice since 2004, when we published a report estimating that the company had collected some $1 billion in such subsidies. We later updated the report, finding that the total had risen to $1.2 billion, and we assembled all the data in a website called Walmart Subsidy Watch.

In many of its more controversial urban siting efforts in recent years, Wal-Mart has put less emphasis on special subsidies, which we like to think is because we made the practice more radioactive. Yet the company cannot resist its giveaway demands entirely.

Recently, for example, the company sought tax breaks totaling some $5.4 million for a Supercenter and Sam’s Club it is proposing to build in the Chicago suburb of Tinley Park. Thankfully, the plan was shot down by the board of the Summit Hill School District, which took its vote after a hearing in which one resident described Wal-Mart as a “corporate monster.”

In Texas, however, Wal-Mart seems to be on track to receive a property tax abatement worth $3 million in connection with its plan to build an e-commerce distribution center near Fort Worth Alliance Airport. (For other recent awards, see the company’s entries in the Good Jobs First Subsidy Tracker database, which covers all companies; be sure to search under the official corporate name Wal-Mart as well as the brand name Walmart).

The spirit of the Summit Hill School District is reflected in the activism of rank and file workers, who with the assistance of OUR Walmart are planning to resume protests at company stores on Black Friday. Their efforts will help replace food drives with a living wage and eventually get Wal-Mart to change all its freeloading ways.

Standing Up to the Boeing Bully

Large corporations are generally not bashful about throwing their weight around, but Boeing is in a class by itself. While other companies may at various times make demands on their workers or on the communities in which they operate, the aerospace giant is willing to exert both forms of pressure at the same time and in a big way. In recent days it has been doing exactly that in Washington State, though not everything has gone according to its plan.

Boeing let it be known that it would build its new 777X airliner and its carbon fiber wing in the Puget Sound area, its traditional manufacturing home, only if it got major concessions from the taxpayers of the state and from its unionized workers.

The first consisted of a 16-year extension of a lucrative aerospace industry corporate tax break estimated to be worth $8.7 billion to Boeing (mostly) and its suppliers. This is the largest state subsidy package in U.S. history. Gov. Jay Inslee hurriedly called a special session of the state legislature to ratify the deal. Although some legislators grumbled, they voted overwhelmingly to give Boeing what it wanted.

This was a replay of what happened a decade ago, when Boeing got Inslee’s predecessor Gary Locke to push through the original aerospace industry giveaway at a price tag of $3.2 billion. Those lawmakers apparently thought that Boeing, having gotten what it wanted, would stay put.

Yet Boeing’s concerns did not end at tax avoidance. The company has long sought to neutralize the power of its unionized employees, who in the Puget Sound area have been a lot less willing than the state legislature to give in to all of Boeing’s demands.

In 2009 the company took the brazenly anti-union step of announcing that it would locate a new assembly line for its Dreamliner in South Carolina, where it would in all likelihood be able to use non-union labor. In addition to a more pliant workforce, Boeing took advantage of a state and local subsidy package estimated to be worth more than $900 million. This year it was awarded another $120 million for an expansion of the facility.

Getting massive subsidies has been so easy for Boeing that in Kansas it walked away from a $200 million deal and sold off its Wichita operations. Citizens for Tax Justice just pointed out that over the past decade Boeing has paid aggregate state corporate income taxes of less than zero (it got net rebates of $96 million).

Boeing apparently assumed that the threat of more runaway production would enable it to steamroll its Puget Sound unionized employees, the largest portion of whom are members of the Machinists union (IAM). Along with the tax deal, the company made its siting decision on the 777X contingent on the willingness of IAM members to give up some of the most important gains they have made through decades of difficult collective bargaining.

Those proposed concessions included a freezing of the contract’s traditional defined-benefit pension plan and its replacement with a defined-contribution, 401(k)-type plan as well as substantial increases in deductibles, co-pays and other employee health insurance costs. In an attempt to make those givebacks more palatable, Boeing offered a one-time $10,000 signing bonus.

Boeing seriously misjudged the mood of the rank and file. Rather than succumbing to the company’s pressure tactics, IAM members just voted overwhelmingly to reject the contract concessions. Press reports suggested that union members were most angered by the way in which the company tried to impose its will.

The next step is unclear. Boeing says that it will now hold a competition for the 777X work, and there are no doubt numerous states and localities that will make extravagant subsidy offers. Yet it turns out that shifting production to a new workforce is not as easy as the company implies. Boeing’s operations in South Carolina have reportedly not met output projections.

Boeing may very well come back to IAM members with less draconian contract terms that workers may decide to accept. But for now the vote stands as a strong rebuke to corporate imperiousness.

New in Corporate Rap Sheets: critical profiles of two more giants of mismanaged care—WellPoint and Humana.

Where Healthcare’s Bare Bones are Buried

junk_insurance President Obama may very well have blundered in leaving out the nuances when he pledged during the Congressional deliberations over the Affordable Care Act that “if you like what you have, you can keep it.” Yet it would have been difficult to anticipate in 2009 that only a few years later the opponents of the ACA would succeed in creating an atmosphere in which much of the public has been made to believe that the government can do nothing right and the private sector nothing wrong when it comes to healthcare reform.

It is amazing how little attention is being paid to the insurance companies whose cancellation notices are what created the current furor over Obama’s supposed betrayal. These companies, with the encouragement of penny-pinching employers, created the substandard plans that must now be eliminated to comply with the minimum coverage provisions of the ACA.

One of the original culprits was Aetna, which in 1999—not long after merging with the controversial HMO pioneer U.S. Healthcare, introduced one of the first bare-bones plans under the name Affordable HealthChoices. The plan, put forth as way to reduce the ranks of the uninsured, was rolled out with the support of groups such as the U.S. Chamber of Commerce and the National Federation of Independent Businesses, which were eager to have an alternative to greater government involvement in healthcare coverage.

Affordable HealthChoices was indeed more affordable than conventional insurance, but that was because it was full of holes. At the time of Aetna’s announcement, the Wall Street Journal (5/4/1999) quoted consumer advocate Ron Pollack of Families USA as saying: “The bottom line for anybody who buys [this plan] is, ‘Don’t get sick,’ because if you get sick you are going to wind up with enormous bills.” Some states barred Aetna from selling the plans.

Another proponent of cut-rate coverage was Wal-Mart, which in the early 2000s, was putting its workers in plans with deductibles that were far above the norm and which excluded many kinds of preventive care. In many cases, the plans did not pay for any treatment of pre-existing conditions during the first year of coverage (Wall Street Journal, 9/30/2003). These provisions, along with premium costs that were difficult for many of the company’s low-wage workers to handle, prompted many Wal-Mart employees to turn to taxpayer-funded programs such as Medicaid. Nonetheless, Wal-Mart touted its high-deductible approach as a model for other employers.

Unfortunately, other companies followed Wal-Mart’s lead. By 2006 there were estimates that nearly one million people had enrolled in what were often called mini-medical plans, while millions more were in plans with more extensive benefits but high deductibles. Other major insurers such as WellPoint, UnitedHealth Group, Cigna and Coventry (now owned by Aetna) jumped into the market to sell what Consumer Reports has called “junk insurance.”

These companies targeted their bare-bones offerings not only at parsimonious companies but also at those with no employer coverage who turned to the individual insurance market, especially younger people more inclined to take a chance on getting by with catastrophic benefits.

Mini-meds contributed to the epidemic of bankruptcies among people with serious health conditions and helped drive home the reality that underinsurance was becoming as serious an issue as those who lacked coverage entirely.

This threat was highlighted by Democrats on the Senate Commerce Committee, led by Jay Rockefeller of West Virginia, who held a hearing in late 2010 entitled “Are Mini Med Policies Really Health Insurance?” Sen. Rockefeller took special aim at the mini med offered by McDonald’s, which capped benefits at $2,000 per year. At the hearing several Aetna customers described how they were covered for only a small portion of their expenses when they had major health problems. For example, a woman who had to go to the emergency room when she lost feeling in one of her arms and ran up more than $16,000 in bills received only $500 in coverage from Aetna.

The ACA was designed to reduce the number of people in bare-bones plans, but the law did not call for their complete elimination. Insurers can no longer cap the dollar value of annual benefits, but strange as it sounds, larger employers can offer low-cost plans that exclude categories of coverage such as hospitalization and still qualify under the new law. In other words, the real problem may be that not enough policies are being cancelled.

Whatever falsity was involved in President Obama’s pledge does not begin to compare with the deception practiced by insurance companies and miserly employers when they make holders of bare bones policies think that they have something that deserves to be called coverage.

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

UnitedHealth Group Haunts Obamacare

unitedhealth_100121_mn Kathleen Sebelius’s “hold me accountable” line at the latest House hearing on the botched rollout of Healthcare.gov was a deft political move. It flummoxed Republican interrogators who expected the HHS Secretary to pass the buck.

Yet the line was dismaying in that it continued the Obama Administration’s practice of deflecting most criticism away from the contractors that were responsible for building the portal, at a cost of hundreds of millions of dollars.

Not only have the contractors been shielded, but one of those at the center of the debacle was just chosen to head up the rescue of the project. In the world of government outsourcing, failure is no impediment to getting rehired with even more responsibility.

The anointed company is QSSI, previously an obscure player in the world of healthcare IT. What makes the kid-glove treatment of this firm all the more galling is that QSSI is owned by UnitedHealth Group, also the parent of UnitedHealthcare, one of the two behemoths (the other is WellPoint) of the private health insurance industry.

In other words, one of the large corporations that the Affordable Care Act is propping up (despite their abysmal record) is now profiting from cleaning up the mess that one of its unit caused in trying to create a system designed to help people enroll in plans sold by its own parent company and its competitors.

If this were not bizarre enough, it is worth recalling that this is not the first time a UnitedHealth subsidiary has been involved in a scandal involving a healthcare database. In 2008 the company’s Ingenix unit was the target of allegations that its tool for determining how much patients should be reimbursed for out-of-network medical expenses was seriously flawed. Then-New York Attorney General Andrew Cuomo brought suit against UnitedHealth, calling the widely used Ingenix database part of a scheme to “to deceive and defraud consumers.”

In 2009 UnitedHealth settled with Cuomo by agreeing to spend $50 million to build a new database and then agreed to pay $350 million to settle class action lawsuits that had brought over the issue. Ingenix subsequently changed its name to Optuminsight, which by the way is now the parent of QSSI.

Another UnitedHealth subsidiary, Lewin Group, has generated controversy of another sort: presenting itself as an impartial healthcare consulting company when it is part of a corporation with a big vested interest in the policy options Lewin evaluates. During the Congressional deliberations over healthcare reform in 2009 Lewin produced analyses concluding that the adoption of a public option would result in a mass exodus from private plans and jeopardize their future. A Lewin executive made the alarmist statement that the private insurance industry “might just fizzle out altogether” and helped to sway lawmakers to omit the option from the Affordable Care Act. Like QSSI, the Lewin Group is a unit of Optuminsight.

UnitedHealth is also tied to what is emerging as the new focus of anti-Obamacare rage: reports that insurance companies are cancelling large numbers of policies. This is being portrayed as a betrayal of Obama’s earlier promise that people with coverage would be able to keep it. Yet what is really going on is that insurers are complying with provisions of the ACA that bar them from continuing to sell substandard policies.

Those policies—with huge deductibles and big holes in coverage—were sold not only by fly-by-night companies. Aetna, for example, was pushing these bare-bones plans as early as 1999. UnitedHealth Group made a big push into this market in 2003 when it acquired Golden Rule Financial, which specialized in low-cost individual plans, for $500 million. The spread of such policies was one of the main justifications for healthcare reform.

The repeated appearances of UnitedHealth subsidiaries amid the tribulations of the ACA are reminders that the Obama Administration made a Faustian bargain with the private sector in designing healthcare reform. The question now is whether it can reclaim its soul.

Note: This piece draws from my new Corporate Rap Sheet on UnitedHealth Group, which can be found here.

The Outsourcing Customer is Always Wrong

The corporate executives who testified at a House hearing on the botched rollout of the federal healthcare portal apparently sprayed themselves with Teflon before heading to Capitol Hill. Blame for the fiasco did not stick to these contractors as Republican members of the Energy & Commerce Committee sought to implicate the Obama Administration and the Democrats focused on defending the Affordable Care Act.

Representatives from four contractors — CGI Federal, QSSI, Serco and Equifax — took advantage of the situation by denying any serious shortcomings on their part. In fact, they each claimed that their individual pieces of Healthcare.gov were working fine and claimed to be puzzled as to why the overall system was not working properly. When pressed, they implied that the federal agency that had commissioned their work — the Centers for Medicare and Medicaid Services — had not given them adequate time for testing. In other words, they acted as if they were innocent bystanders at someone else’s train wreck.

Yet these were companies that received the lion’s share of the lucrative contracts awarded by CMS for the creation of the federal portal. CGI and QSSI alone received a total of $143 million. They were not the people who delivered the Chinese food or emptied the wastebaskets while the real work was being done by others.

These contractors present themselves quite differently when touting their services. On its website, CGI brags: “With deep experience in developing and integrating business, clinical and IT solutions for public and private sector health organizations across Europe and North America, CGI helps clients anticipate challenges and achieve real transformation.” Speaking specifically about health insurance exchanges (HIX), the site says: “Because exchanges must provide many different functions, the soundest approaches bring together expertise and best practices in federal and state health programs, commercial insurance, data exchange, portals, e-commerce over the cloud, and financial management. CGI brings all of this expertise to the table, along with direct experience in developing sustainable HIX programs.”

Similar boasts are made by QSSI, which stands for Quality Software Services Inc.: “Bringing together the most talented personnel in the industry, QSSI collaborates with both the public sector and private sector to maximize performance and create sustainable value for our customers.” The website of QSSI’s parent OptumInsight declares: “We’re making the most of our leadership position in health and human services technology by helping to transform government agencies into efficient, cost-effective programs with decision support, informatics, and program analysis.”

There is a special irony in the presence of QSSI and OptumInsight at the center of this scandal. OptumInsight, which purchased QSSI last year, is a unit of UnitedHealth Group, whose UnitedHealthcare unit is one of the country’s largest health insurance providers.

In other words, one of the for-profit insurers that the Affordable Care Act went to such great lengths to preserve — despite their countless abuses — is closely linked to the mess surrounding the web portal that is supposed to help people in 36 states sign up for the coverage that it and its counterparts will provide.

Last year Iowa Sen. Chuck Grassley and House Energy Chair Fred Upton, both Republicans, raised questions about potential conflicts of interest in the wake of UnitedHealth’s purchase of QSSI, but that issue seems to have been forgotten in the quest to blame the Obama Administration for all the ills of Healthcare.gov. Also largely overlooked is the fact that the Inspector General of the Department of Health and Human Services has criticized QSSI, whose employees have access to sensitive information on individuals, for not sufficiently implementing CMS security protocols with regard to thumb drives.

In his testimony before the House Energy committee, Andrew Slavitt of QSSI’s parent company, said: “We do understand the frustration many people have felt since Healthcare.gov was launched,” yet he in effect denied any responsibility for causing that frustration.

So it goes in the world of outsourcing: the customer is always wrong and the company, whatever its shortcomings, gets off scot free.