Antitrust

The (Price) Fix is In

Conventional economists and the policymakers who follow their advice continue to insist that the market is an inevitable force to which we must all pay homage. Belief in the power of the “invisible hand” is used to justify all manner of conservative policies, including resistance to living wage ordinances.

Yet there is plenty of evidence that influences other than supply and demand play a role in commercial activity, even when government is not involved. A key example concerns the setting of prices, which is supposedly the purest of free market activities but is frequently the result of collusion among supposed competitors.

Anyone who read Adam Smith in college may have been exposed to his observation that “people of the same trade seldom meet together even for merriment and diversion, but the conversation ends in a conspiracy against the public or some contrivance to raise prices.”

I was reminded of the enduring truth of that statement in the course of gathering data for the forthcoming expansion of the Violation Tracker database I oversee as part of my work for the Corporate Research Project of Good Jobs First. The bulk of that expansion will cover the many sins of the banking sector, but it will also include other commercial offenses such as price-fixing.

Since the beginning of 2010, the Antitrust Division of the Justice Department has resolved price-fixing cases against more than 80 companies. This is one of the few areas in which corporations routinely face criminal charges and usually have to enter guilty pleas rather than getting off with a deferred-prosecution or non-prosecution agreement.

Those 83 companies have had to pay a total of more than $4 billion in fines, with the individual amounts ranging as high as $500 million in the case of Taiwanese electronics company AU Optronics, which pleaded guilty to fixing prices of LCD displays used in computers and televisions in the United States. A federal jury found that the company conspired with its competitors during monthly meetings secretly held in hotel conference rooms, karaoke bars and tea rooms around Taiwan.

AU Optronics is one of five Taiwanese companies that have faced U.S. price-fixing charges in recent years, but the largest number of defendants in these cases come from Japan. Forty-nine Japanese companies have paid a total of $2.8 billion in penalties. Adding in the two defendants from South Korea and one from Singapore, Asian companies accounted for more than two-thirds of the cases and three-quarters of the penalties.

Price-fixing, however, is not an exclusively Asian proclivity. The list of defendants include 14 U.S. companies, seven from Germany, two from Switzerland and one each from Bermuda, Chile and Sweden.

The industry that has dominated U.S. price-fixing prosecutions in recent years is auto parts, which accounts for 42 defendants that have paid some $2.6 billion in penalties. More defendants come from the freight industry but the average penalties have been lower, totaling $449 million. The electronic components sector accounts for $583 million, mainly as a result of AU Optronics.

While many of the culprits are lesser known manufacturing and service companies, the list also includes corporations familiar to consumers. Among these are Bridgestone, Panasonic and Samsung.

Keep these cases in mind the next time someone insists that the market is sacrosanct

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Note: Violation Tracker 2.0 — which will add banking offenses, money-laundering, defrauding of consumers, foreign bribery and export-control/sanctions violations as well as price-fixing — is scheduled to be released on June 28.

Monsanto’s German Suitor Has Its Own Tainted Record

Monsanto, one of the most controversial corporations in the United States, now finds itself the target of a takeover campaign by German pharmaceutical and chemical giant Bayer. Would a change in ownership improve the behavior of the biotechnology company dubbed “Mutanto” by its critics?

Answering that question requires a look at Bayer’s own track record, which is far from unblemished. Most Americans associate Bayer with aspirin. The company created the analgesic in 1899, but during World War I the U.S. government seized Bayer’s American assets and allowed other firms to sell aspirin under the Bayer name until the German company bought back the rights in 1994.

In the 1920s Bayer was absorbed into the massive IG Farben cartel, which used slave labor and supported the Nazi regime. After the Second World War it re-emerged as one of the companies created through the break-up of IG Farben. During the 1950s it began to return to the U.S. market through efforts such as a joint venture with Monsanto (in its pre-agribusiness era) called Mobay Chemical.

As Bayer has stepped up its U.S. involvement over the past two decades it has gotten embroiled in one scandal after another. In 1997 one of its subsidiaries based in New Jersey pled guilty to criminal price-fixing and had to pay a $50 million fine. In 2000 Bayer had to pay $14 million to the federal government and the states to settle allegations that it inflated prices on drugs sold to the Medicaid program. In 2001 it was accused of price-gouging on the antibiotic Cipro, which was then in high demand because of the anthrax scare. It later had to pay $257 million to settle a federal lawsuit on Cipro overcharging.

In 2003 documents emerged suggesting that Bayer was aware of serious safety problems with its cholesterol drug Baycol long before the medication was withdrawn from the market. In 2004 Bayer had to pay a $66 million fine in another criminal price-fixing case. A 2008 explosion at a Bayer pesticide plant in West Virginia that killed two workers led to regulatory penalties including a $5.6 million settlement with the EPA. A report found that management deficiencies played a significant role in creating the conditions that caused the explosion.

That’s just the quick version of Bayer’s controversies. For more see the website of the Coalition against BAYER-dangers, a German watchdog group that has been monitoring the company for more than 30 years.

Perhaps most troubling is the fact that Bayer has already been active in the businesses in which Monsanto has gained its checkered reputation: agricultural chemicals and genetically modified seeds. Before the Monsanto bid, Bayer was in the news most often because of concerns that its pesticides were responsible for sharp drops in bee populations.

The chances that a Bayer takeover of Monsanto will get the U.S. company to clean up its act seem slim indeed. In fact, the combined company will probably be an even bigger threat.

The 2015 Corporate Rap Sheet

The ongoing corporate crime wave showed no signs of abating in 2015. BP paid a record $20 billion to settle the remaining civil charges relating to the Deepwater Horizon disaster (on top of the $4 billion in previous criminal penalties), and Volkswagen is facing perhaps even greater liability in connection with its scheme to evade emission standards.

Other automakers and suppliers were hit with large penalties for safety violations, including a $900 million fine (and deferred criminal prosecution) for General Motors, a record civil penalty of $200 million for Japanese airbag maker Takata, penalties of $105 million and $70 million for Fiat Chrysler, and $70 million for Honda.

Major banks continued to pay large penalties to resolve a variety of legal entanglements. Five banks (Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland and UBS) had to pay a total of $2.5 billion to the Justice Department and $1.8 billion to the Federal Reserve in connection with charges that they conspired to manipulate foreign exchange markets. The DOJ case was unusual in that the banks had to enter guilty pleas, but it is unclear that this hampered their ability to conduct business as usual.

Anadarko Petroleum agreed to pay more than $5 billion to resolve charges relating to toxic dumping by Kerr-McGee, which was acquired by Anadarko in 2006. In another major environmental case, fertilizer company Mosaic agreed to resolve hazardous waste allegations at eight facilities by creating a $630 million trust fund and spending $170 million on mitigation projects.

These examples and the additional ones below were assembled with the help of Violation Tracker, the new database of corporate misconduct my colleagues and I at the Corporate Research Project of Good Jobs First introduced this year. The database currently covers environmental, health and safety cases from 13 federal agencies, but we will be adding other violation categories in 2016.

Deceptive financial practices. The Consumer Financial Protection Bureau fined Citibank $700 million for the deceptive marketing of credit card add-on products.

Cheating depositors. Citizens Bank was fined $18.5 million by the CFPB for pocketing the difference when customers mistakenly filled out deposit slips for amounts lower than the sums actually transferred.

Overcharging customers. An investigation by officials in New York City found that pre-packaged products at Whole Foods had mislabeled weights, resulting in grossly inflated unit prices.

Food contamination. In a rare financial penalty in a food safety case, a subsidiary of ConAgra was fined $11.2 million for distributing salmonella-tainted peanut butter.

Adulterated medication. Johnson & Johnson subsidiary McNeill-PPC entered a guilty plea and paid $25 million in fines and forfeiture in connection with charges that it sold adulterated children’s over-the-counter medications.

Illegal marketing. Sanofi subsidiary Genzyme Corporation entered into a deferred prosecution agreement and paid a penalty of $32.6 million in connection with charges that it promoted its Seprafilm devices for uses not approved as safe by the Food and Drug Administration.

Failure to report safety defects. Among the companies hit this year with civil penalties by the Consumer Product Safety Commission for failing to promptly report safety hazards were: General Electric ($3.5 million fine), Office Depot ($3.4 million) and LG Electronics ($1.8 million).

Workplace hazards. Tuna producer Bumble Bee agreed to pay $6 million to settle state charges that it willfully violated worker safety rules in connection with the death of an employee who was trapped in an industrial oven at the company’s plant in Southern California.

Sanctions violations. Deutsche Bank was fined $258 million for violations in connection with transactions on behalf of countries (such as Iran and Syria) and entities subject to U.S. economic sanctions.

Air pollution. Glass manufacturer Guardian Industries settled Clean Air Act violations brought by the EPA by agreeing to spend $70 million on new emission controls.

Ocean dumping. An Italian company called Carbofin was hit with a $2.75 million criminal fine for falsifying its records to hide the fact that it was using a device known as a “magic hose” to dispose of sludge, waste oil and oil-contaminated bilge water directly into the sea rather than using required pollution prevention equipment.

Climate denial. The New York Attorney General is investigating whether Exxon Mobil deliberately deceived shareholders and the public about the risks of climate change.

False claims. Millennium Health agreed to pay $256 million to resolve allegations that it billed Medicare, Medicaid and other federal health programs for unnecessary tests.

Illegal lobbying. Lockheed Martin paid $4.7 million to settle charges that it illegally used government money to lobby federal officials for an extension of its contract to run the Sandia nuclear weapons lab.

Price-fixing. German auto parts maker Robert Bosch was fined $57.8 million after pleading guilty to Justice Department charges of conspiring to fix prices and rig bids for spark plugs, oxygen sensors and starter motors sold to automakers in the United States and elsewhere.

Foreign bribery. Goodyear Tire & Rubber paid $16 million to resolve Securities and Exchange Commission allegations that company subsidiaries paid bribes to obtain sales in Kenya and Angola.

Wage theft. Oilfield services company Halliburton paid $18 million to resolve Labor Department allegations that it improperly categorized more than 1,000 workers to deny them overtime pay.

Same-Industry Marriages

mergers Same-sex unions are not the only kind of marriage on the rise. In the business world, same-industry combinations are happening at breakneck speed as large corporations join with their rivals.

The same-industry marriages that will probably affect the largest number of people are those being proposed in the health insurance industry, where Aetna is seeking to buy Humana, and Anthem (formerly known as Wellpoint) is playing the mating game with Cigna, though UnitedHealth may get in on the act. Additional concentration does not bode well for keeping insurance premiums under control.

There’s a lot more going on. This was driven home to me recently while I was updating the parent-subsidiary linkages in the Subsidy Tracker database I oversee in my role as research director of Good Jobs First. I had to make adjustments relating to dozens of recently completed mergers.

Among these are the combination of Heinz and Kraft Foods arranged by Warren Buffett and the Brazilian investment firm 3G Capital, the union of deep-discount chains Dollar Tree and Family Dollar, and the merger of packaging giants MeadWestvaco and Rock-Tenn into a combined firm called WestRock.

An interesting trend is increasing German control over what remains of the U.S. industrial sector. Siemens recently completed its purchase of the industrial equipment firm Dresser-Rand, and ZF Friedrichshafen acquired TRW Automotive.

Other deals still in the pipeline include Staples’ bid for Office Depot, Expedia’s plan to acquire Orbitz (after gobbling up Travelocity), Monsanto’s offer for Syngenta, and AT&T’s plan to buy Dish Network, which in the meantime is looking to acquire T-Mobile.

Thanks to all this activity, 2015 could set a new record for M&A activity. Along with the economic benefit of consolidation, large companies are taking advantage of the mostly lax regulatory climate. Business apologists complain when the occasional deal — such as the attempted mergers of Sysco and US Foods, and Comcast and Time Warner Cable — is blocked, but the fact is that a large portion of proposed combinations face little opposition. And when regulators do protest, they can often been placated with relatively minor concessions, such as the requirement that Dollar Tree sell off only 330 out of the more than 8,000 outlets in the Family Dollar chain.

These corporate combinations are all about profit. In a country that claims to revere free competition, large corporations tend to move in the opposite direction: they want to control markets. While human marriages, as Justice Kennedy put it, are all about dignity, these business unions are about power and are thus one kind of marriage we should not be celebrating.

Dual Perils Confront the ACA

scylla-and-charybdis-bookpalace The Affordable Care Act is a Rube Goldberg-like contraption based on both private-sector competition and government subsidies. Both of those elements are in danger of collapse.

The disappearance of the federal subsidies that enable millions of lower-income people to purchase the coverage they are now required to have is, of course, a possible outcome of an imminent Supreme Court ruling. It is mind-boggling that the King v. Burwell case, a brazen effort by diehard Obamacare opponents to exploit an obvious drafting error in the ACA, has gone this far and might actually succeed. It says a lot about the mangled state of public policy in this country that we see a front-page story in the New York Times about the growing panic among conservatives that they might win and be held responsible for the ensuing chaos. Apparently, they forgot there is a difference between taking meaningless votes in the House and bringing a case to a high court with a significant contingent of Justices inclined to take ideological posturing seriously.

Also at risk is the system in which private insurance carriers are supposed to compete against one another to provide coverage in the exchanges to their expanded pool of captive customers. In many places, that competition was not very robust to begin with, but now it may become even more diminished.

According to reports in the business press, the biggest for-profit health insurance companies are looking to gobble up their slightly smaller rivals. The Wall Street Journal says UnitedHealth Group has its eye on Aetna, which in turn is said to be exploring some form of cooperation with Humana, whose success in selling supplementary insurance to Medicare enrollees is attractive. At the same time, the Journal reports, Anthem has been in negotiations with Cigna, which is also said to be talking to Humana.

We can see where all this is going. Unless antitrust regulators show some backbone, the current private health insurance oligopoly could turn into a duopoly. The non-profit portion of the market does not provide much help. The 37 independently owned companies that make up the Blue Cross and Blue Shield network are increasingly inclined to divvy up markets and avoid competing with one another, according to lawsuits now pending in federal court. The litigation charges that the behavior of the Blues, some of which are controlled by for-profits such as Anthem, is driving up premium costs for customers while at the same time pushing down payment rates for physicians and other healthcare providers. These predatory practices threaten both the ACA and traditional employer-provided plans.

In the eyes of the Administration, the big insurers are the good guys. Initially suspicious of the ACA, the companies came to accept the law and even turned into major boosters. They embraced ACA’s Medicaid expansion component, seeing opportunities for managed care business in some states, and supported the Administration’s position in King v. Burwell. A SCOTUS ruling in the other direction would take a big hit on their soaring stock prices.

That’s where mainstream healthcare reform has left us — caught between predatory insurance providers on the one side and nihilistic ideologues on the other.

Resisting Oligopoly

comcast-time-warner-cable-merger-is-dead Comcast spent tons on lobbying and image-burnishing philanthropy while its CEO golfed with President Obama, yet the telecom giant was blocked from carrying out its anti-competitive $45 billion acquisition of Time Warner Cable. It’s encouraging to see that large corporations do not always get their way in Washington.

Another good sign came a few days later, when two of the largest semiconductor machinery producers, Applied Materials of the United States and Tokyo Electron of Japan, called off their planned merger after the U.S. Justice Department said the deal would restrict competition. Another problem was that Applied Materials planned to reincorporate in Japan after the acquisition to dodge U.S. taxes.

It would be nice to think that these aborted mergers are signs of an antitrust revival in the United States, but there is more evidence pointing in the opposite direction. Large, competition-inhibiting mergers are being announced all the time.

For example, Teva Pharmaceuticals recently made a $40 billion bid for its generic drug rival Mylan NV, seeking to trump a $28 billion offer Mylan had previously made for a third company, Perrigo. Berkshire Hathaway and Brazil’s 3G Capital, which took over Heinz in 2013, are seeking to merge the company with Kraft Foods. Earlier, Staples announced plans to acquire one of its few remaining competitors, Office Depot.

Last year, AT&T proposed to buy DirecTV for $48 billion, Halliburton offered $34 billion for Baker Hughes, and Reynolds American announced plans to buy competing tobacco company Lorillard for $27 billion. The list could go on.

It remains to be seen whether the Justice Department and the Federal Trade Commission will block these deals. Chances are that most of them will be allowed to proceed intact or with only limited concessions. The Wall Street Journal reported in March that the FTC, facing pressure from Republicans in Congress, was revising its procedures in a way that might make it easier for deals such as Sysco’s proposed purchase of US Foods, which the agency had challenged, to go through.

Ironically, while U.S. antitrust policy may be weakening, China is beefing up its enforcement. It February, U.S. telecom and chip company Qualcomm was fined the equivalent of $975 million for violating the Chinese anti-monopoly law.

The sad truth is that oligopoly is increasingly the norm in the U.S. economy, and consumers feel the consequences. The low rate of overall inflation has dampened the impact, but the signs are there. As Andrew Ross Sorkin of the New York Times pointed out, the decline of competition in the airline industry through deals such as American’s purchase of US Airways has kept air fares high despite the savings the carriers are enjoying from plummeting fuel costs. The proposed acquisition of Orbitz by Expedia would not help things.

To reverse the troubling trend, what happened with Comcast needs to become the norm rather than the exception.

Tarnished Heroes of the Drug Industry

teva Generic drugmakers are supposed to be the heroes of the pharmaceutical business, injecting a dose of competition in what is otherwise a highly concentrated industry and thus putting restraints on the price-gouging tendencies of the brand-name producers.

Just recently, the Food and Drug Administration approved a generic version of Copaxone, paving the way for the first multiple sclerosis medication that is not wildly overpriced.

Yet some generic producers are acting too much like Big Pharma. Israel’s Teva Pharmaceuticals just announced a $40 billion offer for its rival Mylan NV, which had recently made its own bid for another drugmaker, Perrigo. A marriage of Teva and Mylan would create the world’s largest generic drugmaker with more than $30 billion in revenue from customers in 145 countries.

Bigger would not be better, at least for customers. A stock analyst told the New York Times: “Last year taxes were one of the main drivers,” referring to deals in which Mylan and Perrigo reincorporated abroad to avoid federal taxes and Pfizer sought to do the same. “Now the main driver is getting bigger. Getting bigger gives you better pricing and better leverage.”

Even before the Mylan deal, Teva’s shining armor has been getting tarnished. Recently, its subsidiary Cephalon agreed to pay $512 million to settle allegations that it made questionable payments to other generic producers to keep their cheaper versions of the narcolepsy drug Provigil off the market.

Last year the Federal Trade Commission sued Teva and AbbVie for colluding to delay the introduction of a lower-priced version of the testosterone replacement drug AndroGel. While AbbVie filed what the agency called “baseless patent infringement lawsuits,” it also entered into an “anticompetitive pay-for-delay” deal with Teva. Mylan’s record also has blemishes. It once had to pay $147 million to settle price-fixing allegations.

A weakening of the deterrent power of generics is troubling at a time when the brand-name producers remain sluggish in their introduction of new drugs and are doing everything possible to milk their existing offerings. Their idea of innovation seems focused these days on what are known as “biosimilars,” close copies of certain brand-name drugs that are somewhat less expensive but much more costly than traditional generics. In March the FDA approved the first biosimilar, a cancer drug called Zarxio made by Sandoz. Pfizer indicated its intention to compete in this arena by announcing plans to acquire biosimilar pioneer Hospira.

Rising drug costs are, of course, a concern not only for individuals but also for taxpayers. The Medicare program, which thanks to the Bush Administration and Congress cannot negotiate with pharmaceutical companies, now spends about $76 billion a year providing drug benefits.

To be fair, Part D costs in recent years have been lower than the Congressional Budget Office had previously projected, but the CBO attributed the difference in large part to the increased use of generics. If generic producers continue to consolidate — and collude with brand-name producers — those savings will evaporate and we will be completely at the mercy of Big Pharma.

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New Resource: Greenpeace has introduced the Anti-Environmental Archives, a collection of thousands of documents on the efforts of corporations and their surrogates to undermine the environmental movement and government regulation.

Taking the Anti Out of Antitrust

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

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

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

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

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

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

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

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

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

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

Real Abuses, Sham Reforms

bosses_900 It is now a full century since the Progressive Era ended some of the worst abuses of concentrated economic power. This year is the 100^th anniversary of the Clayton Act and the Federal Trade Commission Act. It is 103 years since the dissolution of the Standard Oil trust, 108 years since the passage of the Pure Food and Drug Act.

Yet even a casual reading of the business news these days suggests that we live in an economy disturbingly similar to the age of the robber barons.

Back then, the trusts shifted their incorporation to states such as New Jersey and Delaware that were willing to rewrite their business laws to accommodate the needs of oligopolies. Today large corporations are reincorporating themselves in foreign tax havens to dodge taxes. The practice is reaching epidemic proportions in the pharmaceutical industry.

Back then, unscrupulous drug companies and meatpackers sold adulterated products that could sicken or even kill their customers. Today General Motors is caught in a growing scandal about ignition switch defects that resulted in at least 13 deaths. The news about the automaker’s recklessness grows worse by the day, with the New York Times now reporting that company withheld information from federal regulators about the cause of fatal accidents.

Back then, wheeler-dealers such as James Fisk peddled dubious securities in companies that later collapsed, impoverishing investors. Today we’re still trying to get over the impact of the toxic mortgage-backed securities that the big banks packaged and sold during the housing bubble. Just the other day, Citigroup became the latest of those banks to settle charges brought by the Justice Department. Yet the $7 billion extracted from Citi, like the amounts obtained from the other banks, will cause little pain for the mammoth institution and will thus do little to deter future misconduct. The provision in the settlement for “consumer relief” is too little, too late.

And, of course, back then, the trusts got to be trusts by eliminating their competition. Today concentration is alive and well. Recently, the second largest U.S. tobacco company, Reynolds American, proposed a takeover of Lorillard, the number three in the industry. If this deal goes through, it won’t be long before Reynolds tries to marry Altria/Philip Morris, putting virtually the entire carcinogenic industry in the hands of one player, the way it was a century ago during the reign of the American Tobacco Company, aka the Tobacco Trust.

The movement toward a Media Trust just accelerated with the revelation that Rupert Murdoch’s 21^st Century Fox, already huge, is seeking to take over Time Warner. The deal would put a mind-boggling array of entertainment properties under one roof. Murdoch offered to sell off Time Warner’s CNN – a meaningless concession given that the news network has struggled to survive against Murdoch’s despicable Fox News. Murdoch’s move comes as another media octopus, Comcast, is awaiting approval for its deal to take over Time Warner’s previously spun off cable business.

While we have all too many indications of a new Gilded Age, still scarce are signs of an effective response. We’ve got a good amount of muckraking journalism and a fair number of people (and even a few elected officials) who calls themselves progressives. Yet somehow this does not add up to a movement that can take a real bite out of corporate crime.

Part of the problem is that many of those in power professing progressive values are not serious about challenging corporate power. Some historians argue that the original Progressives were, like the New Dealers who came later, mainly concerned with saving capitalism from itself rather than changing the system. Yet they still managed to impose significant restrictions on big business through antitrust and other forms of regulation.

Today’s progressive officials often seem to want nothing more than to give the appearance of reform. That’s the story at the Justice Department, which has raised settlement levels and extracted some token guilty pleas but still allows corporations to buy their way out of serious legal jeopardy. Meanwhile, antitrust enforcement is tepid, and as the GM case increasingly shows, regulation is often a joke.

A resurgence of robber-baron behavior requires real, not sham reform.

Liar’s LIBOR

Mainstream economics would have us believe that interest rates are determined by the “invisible hand” of the market, except on those occasions when the Federal Reserve or other central banks intervene to modulate borrowing costs. One of the benefits of the current scandal embroiling the British bank Barclays is that it reveals the flimsy and fishy nature of one of the key rate-setting mechanisms of the global financial system.

That mechanism is the British Bankers’ Association’s London Interbank Offered Rate, an interest rate index that has been around since the 1980s. While LIBOR’s primary function is to represent what it costs big banks to borrow from one another over the short term, it has become the linchpin of hundreds of trillions of dollars of financial transactions ranging from complex interest-rate swaps to adjustable-rate home mortgages.

One would think that something so crucial to the efficient functioning of capitalism would be determined in a rigorous way. LIBOR rates, it turns out, are assembled in a remarkably arbitrary manner. They are based on figures submitted each day by major banks on what they think they would have to pay at that time to borrow in ten different currencies for 15 different periods of time. The upper and lower ends of the range are removed before the actual index is calculated by Thomson Reuters on behalf of the bankers’ association, but the figures are still based on what the banks decide to report as their perceptions.

While there has been debate since the beginning about the use of perceptions rather than actual transactions, serious questions about the integrity of LIBOR date back to the early stages of the financial meltdown in 2008. In April of that year the Wall Street Journal noted growing concerns that banks, whose individual LIBOR figures are made public, were adjusting those submissions downward to disguise the fact that their increasingly shaky condition was forcing them to pay higher rates for short-term loans.

The Journal then published its own analysis concluding that banks such as Citigroup and J.P. Morgan Chase, to avoid looking desperate for cash, had been reporting significantly lower borrowing costs to LIBOR than what other indicators suggested should have been the case.

By 2011, LIBOR discrepancies had moved from the realm of financial analysis to that of government oversight. The Swiss bank UBS disclosed that its LIBOR submissions were being reviewed by U.S. and Japanese regulators, and there were reports that other institutions were involved in the probes. It soon emerged that a group of megabanks were being investigated in various countries for colluding to manipulate the LIBOR rate. This, in turn, prompted a wave of lawsuits filed by institutional investors as well as by municipal governments whose interest rate swaps became less beneficial because of artificially low LIBOR rates.

Barclays is the first bank to be penalized for LIBOR shenanigans. The $453 million it is paying to U.S. and U.K. regulators to settle the case is more an embarrassment than a serious financial burden. Moreover, no executives or traders were charged, despite the smoking-gun emails quoted in the UK Financial Services Authority’s summary of the case. And, in an arrangement that is standard operating procedure for corporate miscreants these days, Barclays negotiated a deal with the U.S. Justice Department that allows it to avoid a criminal conviction.

It was satisfying to see the bank’s CEO Robert Diamond (phot0) forced to resign after the revelation of evidence suggesting that senior executives knew very well what was going on with the LIBOR manipulation. (Diamond, an American, also had to step down as a co-host of a fundraising event in London for Mitt Romney.) Yet we then had to put up with the ridiculous spectacle of Diamond testifying to a parliamentary committee that regulators were partly to blame.

The highlight of the hearing was when Labour MP John Mann told Diamond: “Either you were complicit, grossly negligent or incompetent.” After a pause, Diamond asked. “Is there a question?”

There is no question that the big banks are corrupt and that an interest-rate-setting system that depends on honest reporting by representatives of those institutions has no legitimacy.