Blowing the Whistle on Procurement Fraud

A federal judge recently ordered Gen Digital Inc. to pay $53 million in damages for cheating the federal government. The case against the company—formerly known as NortonLifeLock, a spinoff of Symantec Corp.—originated in a lawsuit filed by whistleblower Lori Morsell, who stands to receive a share of the payout. While working at Symantec more than a decade ago, Morsell discovered that the company was failing to provide federal agencies the discounts it made available to other customers.

Gen Digital is the latest in a long line of federal contractors whose misconduct has been punished through what are known as qui tam lawsuits. (Qui tam is derived from a Latin phrase meaning “who sues on behalf of the king as well as for himself.”) These are cases enabled by the False Claims Act in which someone with information about fraud against a public entity can file a suit on behalf of the government. The practice in the U.S. dates back to the Civil War era.

In many situations, the Justice Department will choose to intervene in the matter, in effect taking over the prosecution, but the whistleblower is typically awarded a portion of the damages or settlement. A large portion of the more than 2,500 False Claims Act cases documented in Violation Tracker, which account for $60 billion in penalties, began as qui tam actions.

Federal prosecutors do not intervene in every whistleblower case. Given that the plaintiff may not have the resources to pursue the matter independently, most of these cases end up being dropped. Yet substantial settlements are sometimes achieved without government involvement, though the feds share in the proceeds. Here are some examples.

In 2022 State Farm Fire & Casualty Co. agreed to pay $100 million to settle allegations it violated the False Claims Act in connection with claims improperly submitted to the National Flood Insurance Program after Hurricane Katrina.

In 2011 Medline Industries agreed to pay $85 million to settle allegations that it violated the False Claims Act by paying illegal kickbacks to healthcare providers who purchased its medical supplies using federal funds.

In 2016 Novartis agreed to pay $35 million to settle allegations it violated the False Claims Act by marketing the eczema cream Elidel for use on infants, even though it was only approved for older patients.

Also in 2016, Ocwen Loan Servicing agreed to pay $30 million to settle allegations that two of its subsidiaries violated the False Claims Act by submitting incorrect information to the Treasury Department’s Home Affordable Modification Program.

Successful qui tam cases have become so common that it is easy to take them for granted and assume that this practice is widespread in other countries. That is not the case, even in the United Kingdom, where the practice originated centuries ago but later fell into disuse.

This could change. Recently, Nick Ephgrave, the director of the UK’s Serious Fraud Office gave a speech in which he endorsed the idea of compensating whistleblowers. Such a move would give a major boost to the prosecution of procurement fraud in the UK, which lags far behind the United States in dealing with this perennial problem.

Back here, the legal status of whistleblowers has been strengthened even as the power of regulatory agencies has been challenged. This applies both to False Claims Act cases and those brought under other laws with whistleblower provisions, such as the Sarbanes-Oxley Act. Recently, the U.S. Supreme Court ruled unanimously that whistleblowers seeking compensation after being fired for exposing misconduct do not need to prove an employer acted with retaliatory intent.

The U.S. has a long and impressive history of using qui tam whistleblower cases to fight corporate fraud against the public. The UK would do well to revive its own use of this effective tool.

Negotiating with Crooks

The pharmaceutical industry is indignant that the Biden Administration is actually moving ahead with plans to implement the provision of the Inflation Reduction Act that allows Medicare to negotiate drug prices. Responding to an announcement of the first ten medications that will be targeted, the trade association PhRMA complained about a “rushed process,” even though the law was passed a year ago and the negotiated prices will not become effective until 2026.

The industry is not just complaining—it is fighting the law in court and doing everything possible to retain its longstanding power to set prices at astronomical levels. The price-gouging is just part of the problem. Drugmakers also have an abysmal compliance record in their dealings with government healthcare programs.

Take the eleven companies which produce the medications included in the first round of negotiations: AbbVie, Amgen, AstraZeneca, Boehringer Ingelheim, Bristol-Myers Squibb, Eli Lilly, Johnson & Johnson, Merck, Novartis, Novo Nordisk and Pfizer.

Over the past two decades, these companies and their subsidiaries have been penalized in more than 100 cases brought under the False Claims Act (FCA) or related laws relating to government contracting. As shown in Violation Tracker, they have paid a total of more than $5 billion in fines and settlements for overcharging federal agencies and others forms of fraud.

Six of the companies—AbbVie, AstraZeneca, Johnson & Johnson, Merck, Novartis and Pfizer–have each been involved in ten or more FCA cases, paying out enormous sums in penalties.

Pfizer, for example, has paid $1.15 billion in fines and settlements linked to 16 different FCA cases. The biggest of these was a $784 million payment by Pfizer and its subsidiary Wyeth to resolve allegations that Wyeth knowingly reported to the government false and fraudulent prices on two of its proton pump inhibitor drugs.

Novartis has paid $926 million to resolve a dozen different FCA cases. Among these is a $642 million settlement of allegations that included the payment of illegal kickbacks to doctors to get them to prescribe its products.

Merck has also been involved in a dozen FCA cases, paying total penalties of $796 million. The bulk of the total came from a $650 million settlement of allegations that included both illegal kickbacks and failure to offer Medicaid the same rebates it was offering hospital systems.

Johnson & Johnson’s $556 million FCA penalty total comes from four kickback cases as well as several involving the submission of inflated wholesale prices used in setting the rates for Medicaid reimbursements.

Among AstraZeneca’s FCA cases is a $354 million settlement of civil and criminal charges that the company provided large quantities of free samples of a prostate cancer drug to urologists, knowing that many of them were giving the medication to patients as free samples and then billing Medicare and Medicaid.

Seventeen of the 21 FCA cases involving AbbVie and its subsidiaries concerned allegations of falsified drug price reporting to federal and state agencies.

What all this shows is that when federal negotiators sit down at the bargaining table, they will be facing a group of companies that for years have not only been charging high prices but have allegedly also used a variety of illegal means to extract even more revenue from taxpayer-financed healthcare programs.

Rather than expressing indignation, Big Pharma should be displaying penitence for its fleecing of the public for so long.

Pharma Fights to Preserve the Gravy Train

Big Pharma has been fleecing its U.S. customers for so long, the industry came to regard it as a right. That arrangement started to come to an end last year, at least as far as one large customer, the federal government, is concerned. The Inflation Reduction Act included a provision empowering Medicare to begin negotiating some drug prices in 2026.

One pharmaceutical giant has decided to fight to preserve the gravy train. Merck just filed a lawsuit challenging the law, claiming that the obligation to negotiate is an infringement of its constitutional rights. The company argues that its Fifth Amendment protection against government seizure of private property would be violated. It also says that having to sign an agreement reached after negotiation would trample its First Amendment free speech rights.

The Fifth Amendment takings argument is a favorite position of conservatives in opposing all manner of government regulation, but the obligation to negotiate prices is not regulation. It is actually a free market correction to the absurd restrictions that have long existed on the ability of Medicare to bring drug prices back down to earth. The First Amendment argument is laughable.

It is not surprising that Merck would try its chances in court once its lobbying efforts against the law failed. The company has a lot at stake. It rakes in several billion dollars of revenue each year from the sale of diabetes and cancer medications through Medicare plans. Even if its lawsuit initially fails, Merck presumably hopes it will receive a more sympathetic hearing if the case reaches the corporate-friendly Supreme Court.

Freedom from having to negotiate with Medicare is not the only way in which Big Pharma has managed to evade competition. As I described in a report on antitrust cases published in April, drug companies have repeatedly been caught engaging in illegal schemes to block the introduction of lower-cost generic alternatives to their brand-name medications. Since 2000 the industry has paid a total of $10 billion in fines and settlements in these pay-to-delay cases.

Merck is one of those firms implicated in this practice. For example, in 2017 it agreed to pay $60 million to settle class action litigation alleging that its subsidiary Schering-Plough had taken improper actions to block the introduction of a generic version of K- Dur, which is used to treat potassium deficiencies.

Along with anti-competitive behavior, the pharmaceutical industry has a record of questionable practices in its dealings with the federal government. Merck alone has paid nearly $800 million in fines and settlements relating to alleged violations of the False Claims Act. For example, in 2008 it agreed to pay $650 million to resolve allegations that it failed to pay proper rebates to Medicaid and other government health care programs and paid illegal remuneration to health care providers to induce them to prescribe the company’s products.

These forms of misconduct, along with the immunity from having to negotiate prices with Medicare, have for too long given the drug companies the upper hand in their dealings with the federal government. The Inflation Reduction Act takes an important first step toward correcting that situation. It would be a shame if the courts turn back the clock.

Note: Corporate Crime Reporter reports that the Justice Department has quietly introduced a search engine covering its actions against business entities and individuals. As of this writing, the Corporate Crime Case Database contains only 11 entries but more is promised.

Targeting the Infant Formula Giants

The Agriculture Department’s Women, Infants and Children (WIC) program is one of the many forms of social assistance that could be seriously affected by Republican efforts to cut supposedly wasteful federal spending as a condition of approving an increase in the debt ceiling.

If there is waste in WIC, it’s not being caused by the low-income women receiving nutritional aid. A more likely culprit are the corporations providing the infant formula distributed through the program.

The Federal Trade Commission has revealed that it is investigating whether suppliers have been colluding in their bids for contracts awarded by the state agencies that administer WIC. Any such collusion would be made easier by the fact that the infant formula market in general and the WIC portion of it are dominated by three large companies.

Two of the three—Abbott Laboratories, which produces the Similac brand, and Nestlé, which sells the Gerber brand—have acknowledged that they are involved in the investigation, while Reckitt Benckiser has declined to comment.

This is not the first time these companies have come under regulatory scrutiny. Back in 2003 Abbott and a subsidiary paid a total of $600 million in civil and criminal penalties to resolve charges that the company made illegal payments to institutional purchasers of its tube-feeding products and then encouraged the customers to overbill government health programs.

Over the past two decades, Abbott and various subsidiaries have paid another $98 million in various False Claims Act cases brought by federal and state prosecutors. This does not include hundreds of millions more paid in false claims and antitrust penalties by the portions of Abbott that were spun off as AbbVie in 2013.

Nestlé’s infant formula business has a history of controversy for another reason. During the mid-1970s Nestlé was made the target of a campaign protesting the marketing of infant formula in poor countries. Activists from organizations such as INFACT and progressive religious groups charged that the aggressive marketing of formula by companies like Nestlé was causing health problems, in that poor mothers often had to combine the powder with unclean water and frequently diluted the expensive formula so much that babies remained malnourished.

Nestlé initially responded to the boycott of its products with a counter-campaign, seeking to discredit its critics. The company later changed its posture, agreeing to comply with a marketing code issued by the World Health Organization. In the years that followed, Nestlé was frequently criticized for failing to comply with the code and for engaging in various questionable practices.

In 2019 Reckitt Benckiser, based in the United Kingdom, paid over $1.3 billion in penalties in connection with the improper marketing of the opioid Suboxone. It paid another $50 million to the FTC to resolve allegations of engaging in a deceptive scheme to thwart the introduction of a low-cost generic alternative to that drug.

Reckitt entered the infant formula business through the 2017 acquisition of Mead Johnson, producer of Enfamil. In 2012 Mead Johnson had paid $12 million to settle allegations by the SEC that the company violated the Foreign Corrupt Practices Act through improper payments to healthcare professionals at government-run hospitals in China.

Given these rap sheets, along with controversies over recalls and shortages, it will not come as a surprise if the FTC finds that these companies engaged in bid-rigging. The remedy should involve an effort to attract more suppliers to the WIC infant formula market, especially honest ones.

Building Back Unions

While its Build Back Better bill remains in limbo, the Biden Administration has been doing the smart thing by undertaking significant policy initiatives via executive order. Such steps cannot redistribute income or create big new social programs, but they can do some significant good.

That includes changes in the workplace. Biden recently signed an executive order requiring project labor agreements for all federal construction projects with a cost of $35 million or more. This will ensure that these projects are carried out by well-paid and well-trained tradespeople working with the protection of union contracts.

The order is not flawless. It contains exceptions that would allow agencies to forgo a PLA if they determine it would not advance “economy and efficiency” and under several other circumstances. Hopefully, these loopholes will not be abused. It’s a good sign that the anti-union Associated Builders and Contractors put out a statement blasting the order, claiming it will “needlessly increase construction costs.”

Encouraging the creation of high-quality union jobs by federal contractors is also part of a report just issued by the Administration’s Task Force on Worker Organizing and Empowerment. The document is an unabashed endorsement of unions as a force for raising living standards and workplace standards.

It argues for positioning the federal government as a model for cooperative labor-management relationships within its own workforce and for using the government’s spending power to promote stronger labor standards in private companies from which it purchases goods and services as well as in organizations receiving federal grants and loans.

The Task Force also makes the case for increasing union density in the private sector overall. Yet without legislation such as the Protecting the Right to Organize Act, which is stalled in the Senate, the Administration is limited to providing indirect support. The report includes a list of recommendations such as getting the National Labor Relations Board to use the web and social media to promote better understanding of worker organizing rights under existing federal law. It also suggests that high-level administration officials disseminate the same message through public service announcements.

This is all laudable but unlikely to make much of a difference. The main obstacle to worker organizing is not a lack of understanding of labor law but rather the ability of employers to flout that law with no real consequences.

More promising are the report’s recommendations concerning the enforcement of labor standards. Strong regulation works hand in hand with union organizing to exploitative working conditions.

Among the suggestions is a call for closer cooperation between the Labor Department and the Internal Revenue Service to investigate worker misclassification, a practice which not only undermines overtime pay rules but also interferes with proper payroll tax collection.

Reading the report, one gets the impression that the Task Force was trying to find every last way to use the federal government to help unions. The laundry list includes numerous arcane ideas such as instructing the Department of Education to include labor-management collaboration as a criterion in awarding competitive grants.

After decades in which the spirit of the National Labor Relations Act has been largely ignored by both Republican and Democratic presidents, it is heartening to see an administration so driven to promote labor rights. Yet it is going to take much more substantial measures to reverse the decline of private sector unionization.  

Covid Contracts and the Fraudsters

If you needed a plumber or a caterer, you would avoid a service provider who had in the past tried to bill you for work not performed or grossly overcharged for what was completed. The Trump Administration takes a different approach. In selecting contractors to provide the goods and services the federal government needs to deal with the pandemic, it has turned to dozens of corporations with a history of cheating Uncle Sam.

This finding emerges from a comparison of the recipients of coronavirus-related contracts to the data in Violation Tracker. The analysis focuses on a list of about 175 larger corporations and non-profits that account for nearly half of the roughly $12 billion in contracts awarded so far for laboratory services, medical equipment and much more.

Among this group, 69 contractors, or more than one-third of the total, have paid fines and settlements during the past decade for healthcare fraud and other violations relating to the federal False Claims Act or related laws. They have been involved in 189 individual cases with total penalty payments of $4.7 billion.

These are not trivial matters. Twelve of the contractors paid total penalties of more than $100 million and the average per parent company was $27 million.

The company with the largest penalty total is pharmaceutical giant Pfizer, which received a $13 million contract from the Department of Health and Human Services and whose separate covid-19 vaccine effort is being touted by the Trump Administration. Over the past decade, Pfizer has been penalized in 15 contracting cases, paying out a total of $987 million, most of it stemming from a 2016 lawsuit in which its subsidiary Wyeth had been accused of overcharging federal healthcare programs by misrepresenting its financial relationships with hospitals.

Drug wholesaler McKesson, which has been awarded contracts worth a total of $9 million, has paid penalties of $453 million to resolve allegations such as reporting inflated pricing information for a large number of products, causing Medicaid to overpay for those drugs.

The Walgreens pharmacy chain, which received a $72 million contract for covid-19 testing services, has paid $367 million in contracting penalties, three-quarters of which stemmed from a 2019 case in which the company had been accused of billing federal healthcare programs for hundreds of thousands of insulin pens it knowingly dispensed to beneficiaries who did not need them and that it overcharged Medicaid by failing to disclose lower drug prices it offered the public through a discount program.

Smaller but still significant penalties have been paid by the companies receiving the largest covid-19-related awards. The Dutch company Philips, recipient of $646 million in ventilator contracts, paid a penalty of $34 million through a subsidiary for giving illegal kickbacks to suppliers that purchased sleep apnea masks that were sold to Medicare beneficiaries. AstraZeneca, recipient of $436 million in contracts, has paid $170 million in penalties for False Claims Act and related violations.

The discovery that many covid-19 federal contractors have a history of misconduct in their government business is consistent with the recent finding by Good Jobs First that thousands of companies receiving CARES Act grants and loans have similar track records, including more than 200 healthcare providers that have paid $5 billion in False Claims Act penalties over the past decade.

Some of those aid recipients are also covid-19 contract recipients. Large companies such as Walgreens, Quest Diagnostics and Becton Dickinson are receiving money from the federal government through multiple channels despite having paid penalties in the past for contracting abuses. The awarding of federal contracts to corporations with a history of misconduct dates back long before the pandemic or this administration, but maybe now is the time to begin doing something about this wrong-headed practice.

Small Companies, Big Misdeeds

More than 1 million companies have received financial assistance from the CARES Act. My colleagues and I at Good Jobs First have been seeking to determine how many of those recipients have a track record of misconduct, and we will soon be releasing a report summarizing what we have found.

One conclusion I can share now is that the misbehavior can be found among small companies as well as large ones. While many of the smaller firms and non-profits paid penalties for commonplace offenses, some were involved in more serious cases. Here are some examples:

Coast Produce Company has received a Paycheck Protection Program loan worth between $2 and $5 million (the data was disclosed in ranges). In 2015 it paid $4 million to resolve civil allegations that it fraudulently overcharged the federal government for fresh fruits and vegetables it supplied to military dining facilities and Navy ships in Southern California. As part of a second agreement with criminal prosecutors, it agreed to implement various measures to ensure the company complies with its legal obligations.

The Academy of Art University has received a grant of $1.9 million from the Higher Education Emergency Relief Fund. In 2016 it paid the San Francisco City Attorney $60 million ($20 million in penalties and fees, and units of affordable housing valued at $40 million) in settlement of allegations it had ignored city land use rules, with multiple violations of zoning, signage, environmental, historical preservation and building code requirements.

American Refining Group in Pennsylvania has received a PPP loan worth between $5 and $10 million. In 2019 it had to pay $4.85 million ($350,000 in penalties and $4.5 million in equipment improvements) to resolve allegations by the Environmental Protection Agency that it was violating the Clean Air Act.

Meadows Regional Medical Center in Georgia has received a $9.3 million grant from the Provider Relief Fund. In 2017 it paid more than $12 million to resolve federal and state allegations of violating anti-kickback laws through its financial arrangements with physicians.

The Gagosian Gallery in New York has received a PPP loan worth between $2 and $5 million. In 2016 it paid $4.28 million to the New York Attorney General to resolve allegations that one of its affiliates engaged in sales tax evasion for a decade.

Williamson and McKevie LLC has received an Economic Injury Disaster Loan of $150,000. In a 2018 settlement with the Georgia Attorney General it agreed to give up accounts worth $8.8 million and pay a $20,000 civil penalty to resolve allegations it committed multiple violations of the federal Fair Debt Collection Practices Act and the Georgia Fair Business Practices Act when it repeatedly harassed and deceived consumers.

Adams Thermal Systems has received a PPP loan worth between $2 and $5 million. In 2013 it entered into a deferred prosecution agreement with the U.S. Attorney’s Office and the Occupational Safety and Health Administration to pay more than $1.33 million in criminal penalties and OSHA fines levied as a result of the 2011 death of a worker at the company’s plant in Canton, South Dakota.

These are just a few of the thousands of examples of companies that have gone from being defendants to recipients of federal largesse.

Rescuing the Cheaters

The federal government has been sending tens of billions of dollars in aid to the country’s hospitals under the Provider Relief Fund created by the CARES Act. That’s all well and good. Yet there is an awkward aspect to this: quite a few of the recipients have been accused of cheating the federal government in the past.

I’ve been working closely with the relief fund data in recent days, in order to prepare it for uploading to Covid Stimulus Watch. I’ve noticed that numerous recipients are hospital chains that have been involved in cases brought under the False Claims Act (FCA), the law that is widely used by the federal government to go after healthcare providers and contractors for billing irregularities or other improprieties in their dealings with Uncle Sam.

Matching the Provider Relief Fund recipients to the FCA data my colleagues and I have collected for Violation Tracker, I found more than 100 overlaps for the period extending back to 2010. These include both for-profit and non-profit hospital systems.

The company that has received the most from the basic Provider Relief Fund (there is a separate set of awards to hospitals that have treated large numbers of covid patients) is also the hospital chain that has paid the most in FCA penalties over the past decade: Tenet Healthcare.

In 2016 Tenet and two of its subsidiaries had to pay over $513 million to resolve criminal charges and civil claims relating to a scheme to defraud the United States and to pay kickbacks in exchange for patient referrals. The subsidiaries pled guilty to conspiracy charges.

Community Health Systems, another big for-profit hospital chain participating in the relief fund, has been involved in ten different FCA controversies over the past decade. In 2018 one of its subsidiaries had to pay $260 million to resolve criminal charges and civil claims that it knowingly billed government health care programs for inpatient services that should have been billed as outpatient or observation services; paid remuneration to physicians in return for patient referrals; and submitted inflated claims for emergency department facility fees.

Among the non-profit relief fund recipients with FCA problems is Michigan-based Beaumont Health, one of whose hospitals had to pay $84 million in 2018 to resolve allegations that it made payments to referring physicians that violated the Anti-Kickback Act as well as the FCA.

CommonSpirit Health, the large Catholic health system, has numerous affiliates receiving relief funds that have faced FCA allegations. For example, in 2014 Dignity Health had to pay $37 million to resolve allegations that 13 of its hospitals in California, Nevada and Arizona knowingly submitted false claims to Medicare and TRICARE by admitting patients who could have been treated on a less costly, outpatient basis.

Altogether, at least 103 health systems whose facilities are participating in the relief fund have paid more than $4 billion in False Claims Act settlements and fines over the past decade.

Given the magnitude of the covid crisis, it would be difficult to argue that these providers should be denied assistance. Yet there should at least be additional safeguards put in place to make sure that they do not engage in similar transgressions when it comes to CARES Act funds.

Note: A list of companies receiving $500,000 or more from the Provider Relief Fund can be found here. A list of recipients of the high-impact awards can be found here.

Eliminating All the Prison Privateers

The decision by the Justice Department to end its use of privately operated prison facilities is a long overdue reform and one that should also be adopted by the states. Yet the for-profit prison scandals are not limited to those involving companies such as Corrections Corporation of America that are in the business of managing entire correctional facilities.

There is also now a widespread practice of contracting out specific functions at government-run prisons, often with disastrous results. Numerous states and localities have, for instance, handed over responsibility for feeding prisoners to large foodservice companies such as Aramark operating under lucrative contracts.

Like other providers of outsourced services, Aramark has made grandiose promises about the savings that private operation would provide. Many public officials, especially conservative governors looking to shrink the size of the state workforce, have taken these claims at face value and ignored the dismal track record of privatization.

A case in point is Michigan, where in 2013 the administration of Gov. Rick Snyder gave Aramark a three-year contract worth about $150 million covering the state’s correctional facilities. The plan eliminated some 370 state jobs and was supposed to save $12 million a year.

Instead, it led to a nightmare situation in which Aramark was found to be serving maggot-infested food and employing low-paid and poorly trained workers, some of whom fraternized with prisons and smuggled in contraband. These problems were described at great length in thousands of state documents obtained by the Detroit Free Press through an open records request. One of those documents was an e-mail message from the state official in charge of the contract saying he was “at my wit’s end.”

At one point the state department of corrections fined Aramark $86,000 for violations of the terms of its foodservice contract and another $12,000 for fraternization between company employees and prisoners, but those fines were quietly cancelled. Later the state imposed another $200,000 in fines that apparently were collected. Yet a former Aramark worker later filed a whistle-blower complaint alleging that she was fired for objecting to the falsification of records about unhygienic kitchen practices. In 2015 the state bowed to public pressure and terminated Aramark’s contract.

Michigan is just one of numerous states in which Aramark’s performance under correctional foodservice contracts has been less than sterling. In 2000 it was reported that Aramark secretly negotiated with state corrections officials in Ohio to obtain $1.5 million in additional payments on a pilot contract to provide food services at the Noble Correctional Institution, even though other state officials were recommending that the contract be rebid. In the wake of the controversy, the state decided to return the function to public control yet later switched course. In 2013 Aramark won a foodservice contract for the state’s entire prison system. The following year the company was fined $142,100 for violations that included failing to hire enough employees. More fines followed, including a $130,200 penalty for ongoing problems such as food shortages and a lack of cleanliness.

A 2007 audit by the Florida Department of Corrections Inspector General of Aramark’s contract to provide foodservice for the state’s prisons found that the company was serving fewer meals than anticipated and was using less costly ingredients but was not passing along the savings to the state. Officials later fined the company more than $240,000 for slow meal delivery, insufficient staffing and other violations. In 2013 investigative journalist Chris Hedges reported that Aramark served spoiled food to inmates at prisons in New Jersey.

There was a time when much of the public was indifferent to prison conditions and cared little whether inmates were being food that was inedible. But now that there is much wider understanding of the problem of over-incarceration, we need to make sure that those still behind bars are treated with dignity and not abused by privateers.

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Note: this post draws from my new Corporate Rap Sheet on Aramark, which can be found here.

Reining in the Beltway Bandits

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

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

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

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

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

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

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

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

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

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