Archive for the ‘Corporate Crime’ Category

Immunity Disorders

Thursday, October 24th, 2019

Immunity was once a term used mainly in discussing medical conditions, but Donald Trump and his defenders have seized on it as an all-purpose defense in dealing with the Mueller investigation and now the Ukraine probe. Trump’s lawyers just made preposterous claims about the scope of Presidential immunity in appellate court arguments seeking to block a subpoena for Trump Organization business records.

The claim is based on the dubious argument that having to respond to a criminal case would unduly distract the president from his duties. Given that Trump seems to relish doing battle with those who dare to investigate him, it is unlikely that an indictment would change his behavior much. If Trump is successful in his immunity claims, that would go a long way in putting the presidency above the law.

At least the debate on presidential immunity is being conducted in the open. There is another form of effective immunity that is rarely described as such but is also dangerous to our society.

That is the de facto immunity that chief executives of large companies enjoy in cases of egregious corporate misconduct. Consider some of the issues that dominate the business news these days.

  • Large pharmaceutical manufacturers and distributors stand accused of fostering an opioid epidemic that has resulted in tens of thousands of overdose deaths.
  • Johnson & Johnson is involved in a series of controversies about asbestos in baby powder, dangerous pelvic mesh and improper marketing of an anti-psychotic drug.
  • Boeing is facing allegations that it covered up serious safety hazards in a new jetliner that was involved in two fatal crashes before being taken out of service.
  • Exxon Mobil is facing lawsuits accusing it of suppressing for many years internal evidence of the costs and consequences of climate change exacerbated by its own operations.
  • PG&E is alleged to be responsible for wildfires in California that took scores and lives and destroyed thousands of homes.

What all these situations have in common is that the defendants are the corporations themselves rather than the individual executives ultimately responsible for the actions or policies that created the harms. We have come to take it for granted that corporations can shield their officers and board members from liability and use the company’s coffers to buy their way out of legal jeopardy.

This is, of course, nothing new. Top executives of the big banks escaped individual prosecution for their role in the financial meltdown, as did CEOs in many other scandals.

There have been a few exceptions. Enron CEO Jeffrey Skilling was sentenced to 24 years in prison for his role in that company’s giant fraud, but he used his resources to fight the sentence and ended up spending only half that amount of time behind bars.

In Violation Tracker we have 380,000 cases of corporate misconduct, including 84 in which a company paid a penalty of $1 billion or more. If we had chosen to compile data on convictions of corporate executives rather than companies, the list would fit on a single page.

If we are lucky, the courts will strike down the spurious claims of presidential immunity. Yet we must also find ways to make sure that rogue chief executives also remain within the reach of the law.

Capital Punishment

Thursday, October 3rd, 2019

Some corporate critics have argued that the only way to deter egregious misconduct by companies may be to give prosecutors the option to seek the “death penalty”—revocation of the firm’s charter and the closing of the business.

Ever since the dismantling of Arthur Andersen after its conviction on criminal charges relating to its auditing of Enron, prosecutors at the federal level have avoided seeking that harsh remedy. In fact, they moved sharply in the other direction by adopting dubious arrangements known as deferred prosecution and non-prosecution agreements that allow companies essentially to buy their way out of criminal jeopardy. A recent report from Public Citizen found that these arrangements have been a failure in deterring corporate wrongdoing.

Yet what has received less attention is the fact that the corporate death penalty is alive and well at the state level. Numerous state AGs have been using this method to deal with those firms considered unredeemable bad actors.

For example, the Delaware AG Kathy Jennings recently announced that she had filed actions in the state Court of Chancery to dissolve 15 Delaware business entities for involvement in criminal activities. Her press release stated: “State law allows the Attorney General to petition for cancellation of an entity’s Delaware formation document when its powers, privileges, or existence have been abused or misused.”

Among the firms she moved to dissolve were LOAV Ltd., Davis Manafort International LLC, DMP International LLC, BADE LLC, Jupiter Holdings Management, LLC, and Davis, Manafort & Stone, Inc. The principals of these companies, the AG noted, were Paul Manafort and Richard Gates, who pleaded guilty in 2018 to charges involving money laundering, failing to register as a foreign agent, failure to report bank transactions, and making false statements. Manafort was also convicted in 2018 by a jury of tax and bank fraud charges. The charges against the two men included allegations that they used the named businesses to illegally conceal from the United States government millions of dollars in income received from the Ukrainian government as well as evading roughly $1.4 million in personal income taxes owed to the IRS while funding lavish personal expenditures.

The AG also proposed to dissolve Essential Consultants LLC, which was used by former Trump fixer Michael Cohen to facilitate a hush-money payment of $130,000 to Stormy Daniels.

Previously, the Delaware AG was successful in forcing four LLCs linked to the now defunct website Backpage.com to relinquish their state certificates of formation in the wake of allegations that the site promoted prostitution and human trafficking.

Not all the companies forced to dissolve are quite so well known. In the course of collecting data for our recent report on state AGs, my colleagues and I came across numerous cases in which obscure firms such as home contractors or used-car dealers were forced out of business.

For example, in July 2011 the Oregon AG announced that a company called S&S Drywall Assemblies was ordered dissolved as part of the resolution of criminal racketeering and antitrust charges brought against the company and its owner.

In some cases a state AG would carry out what amounted to a partial death sentence by banning an out-of-state company from continuing to operate in the AG’s state while it may continue to function elsewhere. We found numerous cases of this in North Dakota, which rarely penalized in-state companies but did not hesitate to ban misbehaving out-of-state ones. One of these targets was a traveling asphalt paving company.

We did not include these cases in our report or the state AG data we added to Violation Tracker because the dissolutions or state bans usually did not include monetary penalties, the common denominator among the varied cases contained in our database.

Clearly, it’s much easier for state AGs to dissolve smaller firms than it would be for federal prosecutors to do the same to large corporations with thousands of employees and shareholders. States also have the advantage that corporate chartering is a function that they, not the feds, control.

There is a feeling of satisfaction that comes from seeing a rogue company shut down that does not go along with a deferred prosecution agreement and a far-from-confiscatory monetary penalty. There has to be some way to bridge the gap.

Sweet Deals for Corporate Wrongdoers

Thursday, September 26th, 2019

We have been hearing plenty this year about the unwillingness of the Justice Department to bring criminal charges against Donald Trump, but a new report from Public Citizen shows there is an even bigger non-prosecution scandal when it comes to lawbreaking by large corporations.

Soft on Corporate Crime is a detailed analysis of the long-standing yet still disturbing practice by which big companies found to be involved in serious misconduct are given a sweet deal not typically available to individual criminals. These deals, known as non-prosecution and deferred prosecution agreements, allow the company to avoid criminal charges if it admits to the wrongdoing, pays a penalty, and signs an agreement that leaves open the prospect of future prosecution if the bad behavior continues.

Using data from the Corporate Prosecution Registry, Public Citizen examined the 535 NPAs and DPAs the Justice Department has entered into since 1992. The report finds that the practice originated in the Clinton Administration and has been used widely during both Democratic and Republican presidencies. The Trump Administration’s DOJ has continued the trend amid its overall reduction in corporate prosecutions.

NPAs and DPAs are part of a fundamental unwillingness of the U.S. justice system to get really tough with corporate miscreants, no matter how egregious their behavior. The argument for using these agreements is that conventional prosecutions of large corporations could result in their demise—as happened in the Arthur Andersen case of the early 2000s—and thereby cause great harm to employees and shareholders.

The theory is that having companies admit responsibility for the misconduct and pay substantial monetary penalties would be enough to deter future wrongdoing. Yet Public Citizen’s research makes it clear that the deterrent effect of NPAs and DPAs is quite weak.

The report finds 38 examples in which companies that had signed those agreements were later the subject of a new criminal enforcement action by DOJ. The problem is that DOJ rarely punishes repeat offenders for violating NPAs and DPAs. Public Citizen found only seven examples, and of these only three corporations—UBS, Barclays and Aibel Group—faced full prosecution for their recidivism. In other cases, the penalty, if you can call it that, was simply to extend the terms of the NPA or DPA and sometimes an additional monetary penalty.

Public Citizen highlights seven egregious examples of corporate repeat offenders that have received multiple DPAs and/or NPAs. These include four banks (HSBC, Deutsche Bank, JPMorgan Chase and Societe Generale) along with Bristol-Myers Squibb, Zimmer Biomet and Las Vegas Sands.

Although the report focuses on corporate criminal recidivism, it is worth pointing out that many of these companies were embroiled in civil misconduct cases in the period during which they were supposed to be on their best behavior to comply with the NPA or DPA.

For example, as shown in Violation Tracker, in the period since JPMorgan entered into its first NPA in 2011 it has paid more than $26 billion in civil penalties (including settlements). A substantial portion of that total comes from actions that date back to the 2000s, but there is still a strong indication that the NPA did not do much to change the bank’s overall behavior.

The bank’s civil and criminal wrongdoing seemed to have little effect on DOJ’s treatment of the company either. It’s true that JPMorgan had to plead guilty in 2015 to conspiring with other banks to manipulate global currency exchange rates, yet the following year it was offered an NPA in another case.

Public Citizen concludes that the Justice Department’s NPA/DPA system has been a failure, finding that instead of deterring future misconduct the agreements have “enabled further wrongdoing.” At the very least, the report concludes, DOJ should stop offering the agreements to repeat offenders but the ultimate fix would be to end the practice completely and prosecute corporations to the fullest.

Note: Violation Tracker has 360 NPA or DPA entries dating back to 2000. A list can be found here.

Bipartisan Corporate Crime Fighting by the States

Monday, September 16th, 2019

A new report from the Corporate Research Project of Good Jobs First on lawsuits filed by state attorneys general shows that the current cases against the drug companies and the tech sector are part of a long-standing practice of bipartisan cooperation in fighting corporate misconduct.

The report focuses on 644 cases in which AGs from multiple states took on companies over issues ranging from mortgage abuses to illicit marketing of prescription drugs and collected more than $100 billion in settlements over the past two decades.

These multistate cases are a subset of more than 7,000 state AG actions compiled for the latest expansion of Violation Tracker and now available for searching on the database.

In at least 260 multistate cases, a majority of the states signed on as plaintiffs. In 172 of the cases, 40 or more states participated. State AGs are split almost evenly between Democrats and Republicans, meaning that the cases with large numbers of state participants are necessarily bipartisan.

In 362 of the cases, the defendants were giant companies included in the Fortune 500 or the Fortune Global 500. The parent company with the most cumulative multistate AG penalties is, by far, Bank of America, with more than $26 billion in settlements over issues such as mortgage abuses and the sale of toxic securities. It is followed by the Swiss bank UBS ($11 billion), Citigroup ($8 billion), JPMorgan Chase ($6 billion) and BP ($4.9 billion).

The most frequent defendant has been CVS Health, which has paid out more than $215 million in 14 settlements, most of them involving the alleged submission of false claims to state Medicaid programs and the payment of illicit kickbacks to healthcare providers.  Another 47 parent companies have been involved in three or more multistate AG cases.

In 118 multistate AG cases, corporations have paid penalties of $100 million or more; in 19 of these the amount exceeded $1 billion. The biggest individual settlement was an agreement by UBS to repurchase $11 billion in investments known as auction-rate securities whose safety it allegedly misrepresented to investors. The second largest was an $8.7 billion agreement by Bank of America to resolve claims relating to predatory home mortgage practices by its Countrywide Financial subsidiary. (The recently announced multistate settlement with Purdue Pharma is not included because it is still tentative.)

Banks and other financial services companies account for far and away the largest monetary share of penalties paid in multistate AG cases — $70 billion from 122 settlements involving 65 different parent companies. In second place is the pharmaceutical industry with $10.4 billion in penalties from 137 settlements.

Consumer protection and price-fixing cases are the most numerous kinds of multistate AG lawsuits, but investor protection and mortgage abuse lawsuits against the big banks have generated the greatest monetary penalties.

In 243 of the multistate cases, the U.S. Department of Justice or another federal agency was also involved in the settlement and often led the negotiations. These actions, which accounted for $31 billion of the $105 billion in total penalties, include cases in which the federal entity, usually DOJ, initiated the investigation and brought in the states — as well as ones in which federal and state prosecutors were involved from the start.

Multistate AG lawsuits originated in the 1980s, when state prosecutors grew concerned at rollbacks in federal enforcement by the Reagan Administration and decided they needed to fill the gap. They scored a big win with the master tobacco settlement of the late 1990s and continued their actions through both Republican and Democratic presidential administrations.

There is every reason to believe that the number of multistate AG settlements will continue to grow. The pending cases against opioid and generic drug producers, as well as emerging antitrust investigations of the tech sector, could add billions more to the penalty totals.

Crossing Party Lines to Fight Corporate Crime

Thursday, September 12th, 2019

The state attorneys general seem to be divided on how big a settlement they should extract from the Sackler family and Purdue Pharma to resolve a lawsuit concerning their involvement in the opioid crisis. According to one report, the split is largely on party lines, with Democratic AGs calling for a bigger payout and Republican prosecutors settling for less.

More on the diverging negotiating positions will probably come to light in the days ahead. This disagreement should not, however, obscure the bigger story: states with very different partisan orientations have been cooperating for years on cases involving corporate misconduct.

On policy issues, state AGs exhibit strong ideological tendencies. Democratic AGs have been suing the Trump Administration repeatedly over issues such as the travel ban and migrant family separation. In the same way, Republican AGs went to court to try to undermine Obama Administration initiatives such as the Affordable Care Act.

Yet in the area of corporate crime-fighting, bipartisanship is the norm.

My colleagues and I at the Corporate Research Project of Good Jobs First have been documenting this fact in the course of collecting data for the latest expansion of our Violation Tracker database. We’ve compiled more than 600 cases in which two or more state AGs successfully sued a corporation and collected monetary penalties, usually in the form of a settlement in which the company did not admit guilt.

Next week we will post the data on Violation Tracker and publish a report that analyzes the multistate AG cases. I can’t give away the main findings until then, but I can say that the new entries will make a major addition to penalty totals in the database.

Currently, there are 61 parent companies with $1 billion or more in cumulative penalties (our entries go back to the beginning of 2000). With the AG cases, that number increases to 84.

The penalty totals for many of the individual corporations, especially the big banks, will rise dramatically. The combined state and federal penalty total for Bank of America, for instance, will be in excess of $80 billion.

Although the report will focus mainly on the multistate AG cases, we also collected data on 7,000 single-state AG cases from across the country that will be added to Violation Tracker. These include lots of relatively minor consumer protection cases (crooked used car dealers and the like), but there are also plenty of major settlements, including 70 cases with corporate payouts of $100 million or more.

There have been a few state AGs who have shown less enthusiasm about pursuing corporate miscreants. One example was Scott Pruitt, when he held that post in Oklahoma before being chosen as the Trump Administration’s first administrator of the EPA.

As state AG, Pruitt brought few actions against companies on his own and did not sign on to many of the multistate cases. Fortunately, he was far from typical, even among the reddest states.  

Facebook Joins the Multi-Billion-Dollar Penalty Club

Thursday, July 25th, 2019

It is a sign of how jaded we have become to corporate misconduct that the $5 billion fine imposed on Facebook by the Federal Trade Commission for privacy violations is being shrugged off by the company, by the market and by the public. Many are describing it as a slap on the wrist.

It’s true that a ten-figure penalty is no longer such a rarity. According to Violation Tracker, 35 parent companies have had to pay that amount in at least one case in the United States. Eleven corporations have been hit with billion-dollar-plus penalties more than once. Of these, nine are big banks: Bank of America, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Morgan Stanley, Royal Bank of Scotland and Wells Fargo. The other two are BP and Volkswagen.

Bank of America, whose penalty total is far greater than that of any other corporation, has racked up seven ten-figure cases, including three in excess of $10 billion.

BofA’s rap sheet is perhaps the most persuasive evidence that escalating penalties are not having the desired effect of deterring corporate wrongdoing. Even at the higher levels, the fines are seen by large companies as a tolerable cost to pay for continuing to do business more or less as before.

The Justice Department and the regulatory agencies seem to be aware of this and are at least making noises about taking other steps to deter and punish miscreants.

In the case of Facebook that includes provisions in the FTC settlement that will put more responsibility on the company’s board to make sure that privacy protections are enforced. It also enhances external oversight by an independent third-party monitor.

All of this might be more impressive if Facebook had not already signed a previous settlement with the FTC in 2012 that was supposed to establish strong privacy protections—provisions that the company has clearly evaded.

Also contained in the Facebook settlement is a provision that will require Facebook CEO Mark Zuckerberg to personally certify that the company is adhering to privacy protections. This would only have an impact if it is rigorously enforced, with non-compliance putting him behind bars rather than just triggering another big payout.

There is also renewed discussion of stepped up antitrust enforcement, especially against the big tech companies. This would be more effective if federal authorities were willing to try breaking up the likes of Facebook, Alphabet/Google and Amazon rather than seeking limited restrictions on their market power. That approach has largely been shunned for the past two decades, ever since the effort to split up Microsoft collapsed and the DOJ had to settle for more modest remedies.

Prosecutors and policymakers continue to struggle with the issue of how to deal with large companies. Often it seems they are mainly concerned with little more than giving the appearance of getting tough. Only when faced with sustained public pressure will they come up with effective ways to rein in rogue corporations.

One Less Wheeler Dealer

Thursday, July 11th, 2019

It’s unfortunate that 18,000 people will lose their jobs in the process, but it is good news that Deutsche Bank is leaving the investment banking business. The world is better off with one less wheeling and dealing financial player that has repeatedly flouted all kinds of laws and regulations.

That tarnished record dates back to the late 1990s, when Deutsche Bank acquired New York-based Bankers Trust, which was testing the limits of what a commercial bank could do while getting embroiled in a series of scandals.

Just a few months after the acquisition was announced, Bankers Trust pleaded guilty to criminal charges that its employees had diverted $19 million in unclaimed checks and other credits owed to customers over to the bank’s own books to enhance its financial results. The bank paid a $60 million fine to the federal government and another $3.5 million to New York State.

Deutsche Bank was also having its own legal problems during this period. In 1998 its offices were raided by German criminal investigators looking for evidence that the bank helped wealthy customers engage in tax evasion. In 2004 investors who purchased what turned out to be abusive tax shelters from DB sued the company in U.S. federal court, alleging that they had been misled (the dispute was later settled for an undisclosed amount). That litigation as well as a U.S. Senate investigation brought to light extensive documentation of DB’s role in tax avoidance.

In the 2000s, DB was penalized repeatedly by financial regulators, including a 2004 settlement with the Securities and Exchange Commission in which it had to pay $87.5 million to settle charges of conflicts of interest between its investment banking and its research operations, and a $208 million settlement with federal and state agencies in 2006 to settle charges of market timing violations.

In 2009 the SEC announced that DB would provide $1.3 billion in liquidity to investors that the agency had alleged were misled by the bank about the risks associated with auction rate securities. 

In 2010 the U.S. Attorney for the Southern District of New York announced that DB would pay $553 million and admit to criminal wrongdoing to resolve charges that it participated in transactions that promoted fraudulent tax shelters and generated billions of dollars in U.S. tax losses.

In 2011, the Federal Housing Finance Agency sued DB and other firms for abuses in the sale of mortgage-backed securities to Fannie Mae and Freddie Mac (the case was settled for $1.9 billion in late 2013).

In 2012 the Southern District of New York announced that DB would pay $202 million to settle charges that its MortgageIT unit had repeatedly made false certifications to the Federal Housing Administration about the quality of mortgages to qualify them for FHA insurance coverage.

In 2013 DB agreed to pay a $1.5 million fine to the Federal Energy Regulatory Commission to settle charges that it had manipulated energy markets in California in 2010.

In 2013 Massachusetts fined Deutsche Bank $17.5 million for failing to inform investors of conflicts of interest during the sale of collateralized debt obligations. That same year, DB was fined $983 million by the European Commission for manipulation of the LIBOR interest rate index. (Later, in 2015, it had to agree to pay $2.5 billion to settle LIBOR allegations brought by U.S. and UK regulators.)

In 2015 the SEC announced that DB would pay $55 million to settle allegations that it overstated the value of its derivatives portfolio during the height of the financial meltdown. Later that year, DB agreed to pay $200 million to New York State regulators and $58 million to the Federal Reserve to settle allegations that it violated U.S. economic sanctions against countries such as Iran.

In January 2017 the bank reached a $7.2 billion settlement of a Justice Department case involving the sale of toxic mortgage securities during the financial crisis. That same month, it was fined $425 million by New York State regulators to settle allegations that it helped Russian investors launder as much as $10 billion through its branches in Moscow, New York and London.

In March 2017 Deutsche Bank subsidiary DB Group Services (UK) Limited was ordered by the U.S. Justice Department to pay a $150 million criminal fine in connection with LIBOR manipulation. The following month, the Federal Reserve fined DB $136 million for interest rate manipulation and $19 million for failing to maintain an adequate Volcker rule compliance program. Shortly thereafter, the Fed imposed another fine, $41 million, for anti-money-laundering deficiencies. In October 2017 DB paid $220 million to settle multistate litigation relating to LIBOR.

In 2018 DB paid a total of $100 million to the Commodity Futures Trading Commission–$70 million for interest-rate manipulation and $30 million for manipulation of metals futures contracts.

As a result of all these and other cases, Deutsche Bank ranks seventh among parent companies in Violation Tracker, with more than $12 billion in total penalties.

Not all these cases arose out of DB’s investment banking business. Its commercial banking operation, which will continue, was responsible for keeping the Trump Organization afloat when other banks shunned the shaky company. And it has just come to light that DB  provided loans to the notorious Jeffrey Epstein.

Deutsche Bank’s history of controversies may not be over.

Will Prosecutors Get Tough with the Largest Corporate Lawbreakers?

Thursday, June 13th, 2019

By the standards of corporate law enforcement, the Justice Department is throwing the book at Insys Therapeutics. To resolve a civil and criminal case alleging that the company paid illegal kickbacks to healthcare providers to market its powerful opioid Subsys, DOJ required Insys to pay a total of $225 million in fines and forfeitures. Its operating subsidiary had to plead guilty to five counts of mail fraud.

A few weeks earlier, a federal jury in Massachusetts delivered guilty verdicts against the Insys founder John Kapoor (photo) and four former top executives on racketeering charges relating to the kickbacks and other actions such as misleading insurance companies about the need for Subsys, which was supposed to be used in limited circumstances by cancer patients but which Insys tried to get prescribed more widely.

Although Insys itself was offered a deferred prosecution agreement, the company has felt the effects of these legal setbacks. It has been forced to file for Chapter 11 bankruptcy, its stock price has plunged, and it has agreed to sell off Subsys.

If Insys ends up going out of business entirely – and if Kapoor and the others end up in prison for a substantial period of time – this will serve as a warning to other players in the pharmaceutical industry that there can be dire consequences for serious misconduct.

Yet the challenge for prosecutors is whether they can apply similar punishments to larger malefactors in the drug business and related sectors. Insys, after all, had only $82 million in revenue last year and has a workforce of only 226. Its disappearance from the scene would not cause major disruptions.

Consider the case of Johnson & Johnson, with over $80 billion in annual revenues and about 135,000 employees. Despite a carefully cultivated image of purity in connection with its products for infants, J&J has been involved in a series of scandals over the past decade. Violation Tracker shows that it has paid out more than $3 billion in penalties.

The company has received a lot of unfavorable attention in recent months in connection with allegations that it covered up internal concerns about possible asbestos contamination of its baby powder and other talc-based products. J&J has been hit with a flood of lawsuits and has already received some massive adverse verdicts.

The company is also on the defensive for its role in the opioid crisis, facing a lawsuit brought by the state of Oklahoma, which has already collected substantial settlements in related cases brought against Purdue Pharma and Teva Pharmaceutics. J&J may wish it had settled.

An expert witness in the case recently accused the company of contributing to a “public health catastrophe” and charged that its behavior in some ways was even worse than that of widely vilified Purdue. It remains to be seen whether a company of the size and prominence of J&J will be subjected to the same kind of federal prosecutorial offensive launched against Insys. It is only when business giants face existential threats for their misdeeds that we may see real change in corporate behavior.

Prosecuting Corporate Drug Dealers

Thursday, April 25th, 2019

It looked like another of the countless perp walks in which a newly arrested drug dealing suspect is paraded before the cameras by prosecutors. But this time the individual in handcuffs was a 75-year-old former chief executive of a major corporate pharmaceutical distributor.

The U.S. Attorney for the Southern District of New York charged Laurence F. Doud III with one count of conspiracy to distribute controlled substances – opioids – which carries a maximum sentence of life in prison and a mandatory minimum sentence of 10 years, and one count of conspiracy to defraud the United States, which carries a maximum prison term of five years.

It is rare enough for corporate executives (or in this case, a retired executive) to be individually prosecuted for anything in the United States. It was even more amazing in this case to see such a person facing the kind of charges normally brought against figures such as El Chapo.

U.S. Attorney Geoffrey Berman made it clear he was sending a message with the prosecution of Doud, who until 2017 ran the Rochester Drug Cooperative (RDC), which is among the top ten pharmaceutical distributors. Berman vowed that in combating the opioid epidemic his office would target not only street-level dealers but also “the executives who illegally distribute drugs from their boardrooms.”

In addition to Doud, Berman brought charges against William Pietruszewski, the company’s former chief compliance officer. Pietruszewski pled guilty to the charges and is said to be cooperating with prosecutors. Doud’s lawyer maintained his client’s innocence and claims Doud is being scapegoated by others at the company.

RDC itself was also targeted in the case, but the company was offered a non-prosecution agreement in exchange for a $20 million fine and an admission that it intentionally violated the federal narcotics laws by distributing dangerous, highly addictive opioids to pharmacy customers that it knew were being sold and used illicitly.

RDC’s deal is just the latest in a series of drug cases brought against companies. Violation Tracker lists about 90 instances in which corporations have been penalized under the Controlled Substances Act, but only six of these were criminal cases.

SDNY has opened an important new front in the battle against corporate involvement in the opioid crisis, complementing the wave of class action lawsuits brought against the likes of Purdue Pharma.

But for the offensive to be truly effective, it needs to target not just former executives like Doud but also those still in their posts. And it needs to go higher up the ladder from the likes of RDC to executives at the big three distributors: AmerisourceBergen Corporation, Cardinal Health, Inc., and McKesson Corporation.

These companies together generate more than half a trillion dollars in annual revenue and control more than 90 percent of the U.S. pharmaceutical wholesale market.

The opioid epidemic is the outcome of one of the most egregious cases of corporate irresponsibility in U.S. history. Both the companies themselves and those who ran them need to prosecuted to the full extent of the law.

A Reputation for Purity is Now in Tatters

Thursday, February 21st, 2019

For the tens of millions of baby boomers in the United States, the first large corporation whose products they encountered was probably Johnson & Johnson. That’s because the vast majority of parents in the postwar period used the company’s baby shampoo, oil and powder on their precious bundles of joy. Carefully cultivating an image of purity, J&J established itself as an indispensable part of infant care.

That image is now in tatters. The company just disclosed that it is being investigated by the Justice Department, the Securities and Exchange Commission and Congress in connection with possible asbestos contamination of its baby powder and other talc-based products. These probes were prompted by investigative reporting in outlets such as the New York Times alleging that J&J executives raised internal concerns about the asbestos issue decades ago but the company never acknowledged these publicly.

These revelations gave more credence to thousands of lawsuits filed against J&J in recent years by women, including many who used the company’s baby powder on themselves as well as their infants, charging that the products caused them to develop ovarian cancer. J&J has been losing a lot of these cases, including one in which a jury awarded $4.7 billion in damages to a group of 22 women.

Rarely has a product’s reputation fallen so far, and rarely has a company once held in such high esteem come to be regarded as morally equivalent to cigarette manufacturers. Yet a closer look at J&J’s track record shows that its immaculate reputation has been deteriorating for quite some time.

Over the past decade the company has been involved in a series of scandals and has been forced it to pay out large sums in civil settlements and criminal fines.

The most serious of those cases involved allegations that several of its subsidiaries marketed prescription drugs for purposes not approved as safe by the Food and Drug Administration, thus creating potentially life-threatening risks for patients.

For example, in 2013 the Justice Department announced that J&J and several of its subsidiaries would pay more than $2.2 billion in criminal fines and civil settlements to resolve allegations that the company had marketed it anti-psychotic medication Risperdal and other drugs for unapproved uses as well as allegations that they had paid kickbacks to physicians and pharmacists to encourage off-label usage. The amount included $485 million in criminal fines and forfeiture and $1.72 billion in civil settlements with both the federal government and 45 states that had also sued the company.

Other J&J problems resulted from faulty production practices. During 2009 and 2010 the company had to announce around a dozen recalls of medications, contact lenses and hip implants. The most serious of these was the massive recall of liquid Tylenol and Motrin for infants and children after batches of the medication were found to be contaminated with metal particles.

The company’s handling of the matter was so poor that its subsidiary McNeil-PPC became the subject of a criminal investigation and later entered a guilty plea and paid a criminal fine of $20 million and forfeited $5 million.

J&J also faced criminal charges in an investigation of questionable foreign transactions. In 2011 it agreed to pay a $21.4 million criminal penalty as part of a deferred prosecution agreement with the Justice Department resolving allegations of improper payments by J&J subsidiaries to government officials in Greece, Poland and Romania in violation of the Foreign Corrupt Practices Act. The settlement also covered kickbacks paid to the former government of Iraq under the United Nations Oil for Food Program.

All of this has been a humiliating comedown for a company that was once regarded as a model of corporate social responsibility and which set the standard for crisis management in its handling of the 1980s episode in which a madman laced packages of Tylenol with cyanide. While the company was then being victimized, in the subsequent crises it mainly has itself to blame. Off-label marketing, faulty production practices and foreign bribery are bad, but the current scandal over asbestos contamination and the alleged cover-up pose a threat to the survival of the company.