Regulation

Corporate Criminals Await Sentencing

A federal court in California will soon decide whether a bold move by the Consumer Product Safety Commission and the Justice Department will pay off. At issue is whether two corporate executives should face prison time for endangering the public.

Judge Dale Fischer is considering what sentence to impose on Simon Chu and Charley Loh, who were convicted last November of conspiracy to defraud the CPSC in the first-ever criminal prosecution brought under the 1972 Consumer Product Safety Act. The two men were part owners and top officers of Gree USA, Inc., a subsidiary of the Chinese-owned Hong Kong Gree Electric Appliances Sales Co., Ltd. Chu and Loh were charged with deliberately withholding information about defective dehumidifiers that could catch fire and selling these units with false certification marks stating that the products met applicable safety standards. They were convicted of conspiracy to defraud the CPSC and failure to meet reporting requirements, though they were acquitted of wire fraud.

The CPSC worked with the Justice Department to prosecute Chu and Loh individually after first bringing a criminal action against the company. That case was resolved through a 2021 deferred prosecution agreement under which Gree was able to avoid a conviction by paying a penalty of $91 million and agreeing to provide restitution for any uncompensated victims of fires caused by its defective dehumidifiers.

It is unusual for a deferred prosecution or non-prosecution deal with a company to be followed by criminal charges against executives at the firm. Given the uncertainties related to cases against individual corporate executives, the convictions won by DOJ sent a strong signal.

The question now is whether Chu and Loh will face a strong punishment. Not surprisingly, lawyers for each of the men submitted filings to the court arguing for no prison time as all. Loh’s filing makes a case for leniency based on the fact that the CPSC failed to bring criminal charges in other instances in which companies and executives failed to promptly report hazards. At the same time, the document tried to downplay Loh’s culpability, claiming his “actions were not those of a ‘typical’ criminal or felon – though those are labels he will have to live with for the rest of his life – but of a well-intentioned man who wrongly opted for self-preservation over economic suicide.”

For good measure, the filing goes on to state: “Numerous family members, friends, and colleagues have written testimonial letters to the Court attesting to Mr. Loh’s true nature, integrity, and charitable endeavors. Their letter provide [sic] a true sense of his good character. They also confirm that he is the sole caretaker for two elderly and infirm people: his 101 year old father who has Alzheimer’s disease and his 90 year old godmother who has advanced stage cancer.”

It remains to be seen whether the judge is swayed by any of this. Prosecutors clearly are not. They are seeking ten-year prison sentences for each of the men.

Although it may not provide justification for leniency in his sentence, Loh’s argument that CPSC had failed to pursue criminal charges in similar cases does raise an awkward issue for the agency. Its position might be stronger if the actions against Loh and Chu were part of a broader effort to tighten enforcement.

That does not appear to be the case. There has been no wave of additional product safety criminal prosecutions. In fact, there has not even been a rise in civil enforcement. The CPSC has not announced any penalty actions in more than six months, and there were only half a dozen in all of last year.

It is commendable that the CPSC has acted aggressively against Gree and its executives, but it should not be a one-off. The agency needs to punish all manufacturers that fail to protect the public.

The $1 Trillion Cost of Corporate Misconduct

When you hear a reference to $1 trillion, it usually is in connection to the stock market capitalization of a handful of the largest tech companies. Yet that ten-figure number can now also be applied to what those companies and others have together paid in fines and settlements to resolve allegations of misconduct.

The total penalties documented in the Violation Tracker database for the period from 2000 through the present now surpass $1 trillion. To mark this milestone, my colleagues and I have just issued a report called The High Cost of Misconduct, which looks back at the last quarter-century of corporate crime and regulatory non-compliance.

Total payouts grew from around $7 billion per year in the early 2000s to more than $50 billion annually in recent years. This amounts to a seven-fold increase in current dollars, or a 300 percent increase in constant dollars.

The $1 trillion total could not have been reached without the massive penalties paid by companies such as Bank of America ($87 billion, mainly in connection with the toxic securities and mortgage abuses scandals of the late 2000s), BP ($36 billion, mainly from the Deepwater Horizon disaster), Wells Fargo ($27 billion, largely from the bogus accounts scandal), and Volkswagen ($26 billion, primarily from the emissions cheating scandal). There are 127 companies with penalty totals of $1 billion or more.

With these companies and many others, their totals reflect flagrant recidivism. Looking only at the more serious cases, two dozen parents have been involved in 50 or more cases in which they paid fines or settlements of $1 million or more. Bank of America has the most, with an astounding 225 such cases.

While the vast majority of the 600,000 cases in Violation Tracker are civil actions, the database contains more than 2,000 entries involving criminal charges. These account for more than 13 percent of the $1 trillion penalty total. Twenty-six parent companies have paid $1 billion or more in criminal cases, with the largest totals coming from the French bank BNP Paribas in connection with economic sanctions violations and from Purdue Pharma for its role in causing the opioid epidemic.

In many of these criminal cases, the companies were able to resolve the matter without having to plead guilty. That is because the Justice Department makes extensive use of arrangements known as deferred prosecution agreements and non-prosecution agreements. These are leniency deals by which companies pay substantial penalties but avoid a criminal conviction. Violation Tracker documents more than 500 cases involving a DPA or an NPA, with total penalties of more than $50 billion.

The theory behind these leniency agreements is that companies will learn from their mistakes and clean up their conduct. Yet there have been numerous instances of companies that signed a DPA or NPA ending up embroiled in another scandal. Amazingly, some of these companies were offered another leniency agreement, thus making a mockery of the deterrence concept. Among the double-dippers are American International Group, Barclays, Boeing, Deutsche Bank, HSBC, and Teva Pharmaceuticals.

The fact that penalties have reached the 10-figure level suggests that during the past quarter century we have been living through a continuous corporate crime wave. Every year, companies pay out billions of dollars for a wide range of offenses. Many large corporations are fined or enter into settlements over and over again, often for the same or similar misconduct.

Monetary penalties are meant in part to deter future transgressions, but there is no indication that is happening. Instead, the fines and settlements seem to be regarded as little more than a cost of doing business. Presumably, the profits from wrongdoing outweigh the penalties.

It is odd that amid a move to return to tougher policies to combat street crime, there is not an analogous effort to crack down on corporate crime. Instead, the Justice Department continues to employ leniency agreements that have frequently been ineffective in getting rogue companies to change their ways. The DOJ also remains reluctant to bring criminal charges against corporate executives, except in the most flagrant circumstances.

In a few cases, DOJ has experimented with different approaches, including forcing companies to exit lines of business in which they behaved illegally. Last year, for example, Teva Pharmaceuticals and Glenmark Pharmaceuticals were not only fined for scheming to fix prices of several generic drugs—they had to divest their operations relating to one of the drugs. That kind of penalty should shake up companies more than fines alone and thus should be used more frequently.

Eliminating the Late Fee Bonanza

A substantial number of working-class Americans have decided that the Biden Administration is not acting in their interest and is instead serving the elites. One area in which that notion most strongly conflicts with reality is the regulation of consumer financial services.

The Consumer Financial Protection Bureau is an agency that has consistently stood up to giant banks, payday lenders and mortgage servicers. In its latest move, the CFPB just issued a rule limiting the late fees large credit card companies can charge to $8 a month.

That’s compared to the current norm of around $32, which generates an estimated $14 billion annual profit for the issuers. The CFPB estimates the cap will deprive banks of more than two-thirds of this bonanza, which has grown despite federal legislation passed in 2009 designed to ban excessive charges.

It is thus no surprise that the credit card industry is up in arms. Trade associations are trotting out fatuous claims that the lower fees will actually harm consumers while preparing lawsuits to challenge the cap.

Banks are unlikely to win much public support in their counter-offensive. That is because they have a long history of mistreating cardholders every way possible.

The CFPB knows this only too well. Over the past dozen years, the agency has brought a series of cases challenging credit card abuses and imposing hefty penalties against the culprits. Here are some examples:

In 2015 the CFPB fined Citibank $35 million and ordered it to provide an estimated $700 million in relief to consumers harmed by allegedly illegal practices related to credit card add-on products and services. Roughly seven million consumer accounts were said to be affected by deceptive marketing, billing, and administration of debt protection and credit monitoring products. The agency also said a Citibank subsidiary deceptively charged expedited payment fees to nearly 1.8 million consumer accounts during collection calls.

Three years later, the CFPB concluded that Citibank was violating the Truth in Lending Act by failing to reevaluate and reduce the annual percentage rates (APRs) for approximately 1.75 million consumer credit card accounts consistent with regulatory requirements, and by failing to have reasonable written policies and procedures to conduct the APR reevaluations consistent with regulation. Citi was ordered to provide $335 million in restitution.

In 2012 the CFPB and the Federal Deposit Insurance Corporation ordered Discover Bank to refund approximately $200 million to more than 3.5 million consumers and pay a $14 million civil money penalty after an investigation found the bank misled consumers into paying for various credit card add-on products.

That same year, the CFPB ordered three American Express subsidiaries to refund an estimated $85 million to approximately 250,000 customers for illegal card practices. This was the result of a multi-part federal investigation which, according to the agency, “found that at every stage of the consumer experience, from marketing to enrollment to payment to debt collection, American Express violated consumer protection laws.” American Express was also required to pay a penalty of $14 million to the CFPB.

Last year, the CFPB ordered Bank of America to pay $90 million in penalties for a variety of abusive practices, such as withholding reward bonuses explicitly promised to credit card customers.

Some of these practices may have been changed, but the industry, with its exorbitant interest rates, is far from a paragon of corporate virtue. The cap on late fees, if it survives court challenges, will help to tip the scales back in favor of customers. The only question is whether they will pay attention to who brought this about.

Koch Industries and the Attack on Regulation

Donald Trump’s rants about the deep state are designed to deflect attention away from his own transgressions. An even more sinister attack on the legitimacy of the federal executive branch is taking place in the U.S. Supreme Court, and the result could strike a serious blow against corporate accountability.

The Court just heard oral arguments in two cases that were purportedly brought by commercial fishermen protesting their obligation to help pay for the cost of monitoring compliance with the Magnuson-Stevens Fishery Conservation and Management Act.

Instead of addressing that narrow issue, the cases are being used to challenge one of the bedrocks of federal regulation—the 40-year-old Chevron doctrine under which courts have given deference to agencies in interpreting laws relating to the environment, consumer protection, and the like.

It is standard procedure for Corporate America to use small businesses as a wedge for achieving changes that provide a lot more benefit to large companies. There was little doubt this was the dynamic at play in the fishing case.

The New York Times made this even more evident in an article revealing that the supposed public interest law firm bringing the fishing case is closely linked to billionaire Charles Koch, who has long sought to weaken government oversight of business as part of a broad rightwing agenda. Charles Koch and his late brother David bankrolled libertarian think tanks such as the Heritage Foundation and the Cato Institute as well as activist groups such as Americans for Prosperity.

This crusade has not been solely a matter of ideology. There is also a great degree of self-interest involved. That’s because Koch is the chairman of Koch Industries, a privately held industrial conglomerate that has for decades clashed with regulators and prosecutors.

In the period since January 2000, the company has, as documented in Violation Tracker, been involved in hundreds of federal, state and local regulatory cases and has had to pay more than $1 billion in fines and settlements.

Most of these penalties have been paid by Koch’s numerous subsidiaries, which do business in industries that often run afoul of environmental and workplace safety rules. These include Flint Hills Resources (petroleum), Georgia-Pacific (pulp and paper), Guardian Industries (glass and coatings), and Invista (polymers and fibers).

Koch Industries has long used its political influence to try to protect the company against the consequences of its regulatory infringements. For example, in 2000 a federal grand jury in Texas returned a 97-count indictment against the company and four of its employees for violating federal air pollution and hazardous waste laws in connection with benzene emissions at the Koch refinery near Corpus Christi.

The company was reportedly facing potential penalties of some $350 million, but in early 2001 it got the newly installed Bush Administration’s Justice Department to agree to a settlement in which many of the charges were dropped and the company pled guilty to concealing violations of air quality laws and paid just $10 million in criminal fines and $10 million for environmental projects in the Corpus Christi area.

Now Koch is trying to achieve a lot more through its friends on the Supreme Court. A decision that overturns the Chevron doctrine would severely weaken the ability of federal regulators to do their job and would be a boon to serial offenders such as Koch.

A New Emissions Cheating Scandal

Cummins Inc. waited until just before the Christmas holiday to announce that it had “reached an agreement in principle to resolve U.S. regulatory claims regarding its emissions certification and compliance process for certain engines primarily used in pick-up truck applications.” After insisting it cooperated fully with regulators, the company went on to claim it “has seen no evidence that anyone acted in bad faith and does not admit wrongdoing.”

That vague and tortuous statement was clarified when the U.S. Justice Department put out its own release saying that Cummins was close to signing an agreement with DOJ and the State of California under which it would pay $1.7 billion to settle allegations it violated the Clean Air Act by installing defeat devices on hundreds of thousands of engines.

Cummins, which produces engines for trucks and heavy equipment, has thus joined the roster of large companies accused of installing technology meant to yield deceptive results on emissions tests and thus conceal the true amount of pollution being generated. DOJ stated that the devices installed by Cummins allowed the engines to produce thousands of tons of excess emissions of nitrogen oxides, which are linked to respiratory conditions such as asthma.

The defeat device revelations began, of course, with Volkswagen. The German automaker has paid out over $20 billion in fines and settlements around the world since the accusations of emissions cheating first emerged in 2015.

Yet there are a number of other large companies that have faced similar allegations. In 2019 Fiat Chrysler (now Stellantis) reached an agreement with federal and California regulators under which it paid over $300 million in fines and spent about $200 million to recall vehicles and make them compliant.

In 2020 Daimler AG (now the Mercedes-Benz Group) reached a similar settlement under which it agreed to pay $945 million in penalties and spend $534 million on vehicle modifications.

Automotive suppliers have also gotten caught up in the controversy. Robert Bosch has paid several hundred million dollars in settlements for its role in producing the defeat devices for Volkswagen. In 2018 IAV GmbH, a German company that designs automotive systems, pled guilty to one criminal felony count and paid a $35 million criminal fine as a result of its work for VW.

After-market companies have also been targeted. The EPA has fined dozens of small firms around the country for illegally installing defeat devices, while the DOJ has gone after some medium-sized suppliers. For example, in 2022, Allied Exhaust Systems, which sells to individuals nationwide, agreed to pay a $1.1 million penalty.

Such cases suggest a remarkable willingness of companies large and small to violate environmental regulations. These are not situations in which firms accidentally exceeded emissions limits. From Volkswagen and Cummins down to the small automotive shops, the defendants were accused of deliberately thwarting emission controls.

The use of defeat devices does not simply involve infringement of abstract standards. They cause vast amounts of extra pollution to be spewed into the air and thus represent a corporate crime against the public’s health.

The 2023 Corporate Rap Sheet

The splashiest corporate crime prosecutions in 2023 came in the crypto sector. Binance pleaded guilty to charges of violating anti-money-laundering regulations and paid over $4 billion in criminal and civil penalties; its founder and CEO Changpeng Zhao was also charged personally and admitted guilt. The Justice Department won a conviction on fraud and conspiracy charges of crypto mogul Sam Bankman-Fried in connection with the collapse of his FTX exchange.

Otherwise, the DOJ has not had many blockbuster cases this year, and many of its bigger successes have involved foreign-based corporate defendants. Among the latter are a $1.4 billion settlement with the Swiss bank UBS in a toxic securities case that originated during the financial crisis a decade ago and a $629 million settlement with British American Tobacco involving a scheme to evade economic sanctions against doing business with North Korea.

While major convictions and settlements lag, DOJ has stepped up its dubious policy of corporate leniency. This includes frequent use of non-prosecution and deferred prosecution agreements under which companies are allowed to sidestep criminal pleas by agreeing to pay monetary penalties and promising to change their behavior—promises that are often broken.

During this year, DOJ has offered companies NPAs and DPAs at least 17 times. Among these are the British American Tobacco case cited above, a price-fixing case against Teva Pharmaceuticals, and a foreign bribery case against the chemical company Albemarle. A DPA was also used by the Occupational Safety and Health Administration to resolve a case against a construction company called Skinner Tank on charges of willfully ignoring safety regulations and creating conditions that led to the death of a worker.

DOJ is also making increasing use of another form of leniency known as a declination. Companies that self-report illegal behavior that occurred under their roof are given a guarantee they will not be prosecuted and are allowed to pay a reduced fine. A DOJ webpage lists three declinations for this year, but a report by Public Citizen suggests that the department may be agreeing to keep some of these deals confidential.

Among most other federal agencies, this year has seen only a sprinkling of large case resolutions against major companies. For example, the Commerce Department’s Bureau of Industry and Security fined Seagate Technology $300 million for export control violations in its sale of disk drives to China’s Huawei Technologies. The Federal Reserve fined Deutsche Bank $186 million for failing to comply with previous consent orders involving sanctions compliance and anti-money-laundering practices.

Although most of its penalties are below $100 million, the Consumer Financial Protection Bureau has brought a steady stream of cases against financial predators. These include a $90 million penalty against Bank of America for imposing unfair overdraft fees, withholding reward bonuses explicitly promised to credit card customers, and misappropriating sensitive personal information to open accounts without customer knowledge or authorization.

The Securities and Exchange Commission has kept up its case volume, but the number of large resolutions in 2023 has been down from the previous year. And a larger portion of those major cases involve civil add-ons to criminal bribery cases brought by the Justice Department under the Foreign Corrupt Practices Act. There are also signs that the SEC is joining the leniency bandwagon. Recently, the agency waived a $40 million penalty against the drug company Mallinckrodt in a case related to its failure to disclose loss contingencies linked to an investigation of its Medicaid billing practices.

The Federal Trade Commission has also tended toward smaller settlements this year, though that agency handles many matters—including merger reviews—that may not involve monetary penalties. The biggest fine it imposed this year was $25 million in a case against Amazon.com for violating the Children’s Online Privacy Protection Act Rule.

The Environmental Protection Agency has held steady in 2023. Its largest settlement has been a $242 million deal with BP in which the oil giant paid a $40 million penalty and agreed to spend $197 million on emission control upgrades at its Whiting refinery in Indiana.

Major cases have been down at the state level. There have been about two dozen resolutions involving penalties of $50 million or more, compared to the previous year’s total of 50, which included numerous opioid-related settlements. This year there has been one such settlement involving a $1.4 billion deal with supermarket chain Kroger.

Year to year changes do not tell the whole story, yet it is discouraging to see a drop-off in successful major enforcement actions. Let’s hope that in 2024 both federal and state regulators and prosecutors find the means to step up the pressure on rogue corporations.

Note: Details on the cases cited above and many more are in Violation Tracker.

The Other Problem with Airline Mergers

A proposed acquisition of Hawaiian Airlines by Alaska Airlines would be bad news for those traveling between the U.S. mainland and Hawaii. The combined company would have a huge share of that market and would thus be in a position to keep fares sky high.

Another negative feature of the deal is that it would enhance the position of a company with a checkered regulatory compliance record. As shown in Violation Tracker, Alaska Air and its subsidiaries have been cited more than 200 times by the Federal Aviation Administration for a variety of safety violations involving issues such as maintenance, hazardous waste and security practices.

All the airlines have such violations, and the larger carriers have been fined more times, reflecting their wider operations. But in relation to its size, Alaska Air’s record is worse than that of its counterparts. Its total of 220 FAA violations is not far behind that of Southwest’s total of 270, even though Southwest carries about four times as many passengers.

Alaska Air’s violations also tend to be more serious. Its 220 cases have generated more than $10 million in fines (the FAA’s penalty structure is not very onerous), while the total from the 539 fines paid by the much larger Delta Air Lines is below $9 million. (All the FAA statistics are limited to cases with fines of at least $5,000.)

Alaska Air has also racked up a series of penalties from the Transportation Department’s Aviation Consumer Protection Division. Including matters involving Virgin America, which Alaska Air acquired in 2016, there have been 13 of those cases with total fines of $777,500.

Then there is the issue of employment practices. Earlier this year, a federal judge in California ordered Alaska Air to pay nearly $31 million to a class of flight attendants who had sued Virgin for failing to pay proper overtime pay and failing to pay for break time as required under California law. The workers originally won $77 million in damages, but the company appealed and got part of the award overturned. Alaska Air also tried to get the U.S. Supreme Court to throw out the rest of the award but the high court declined to hear the case. The matter thus went back to the trial court, where the judge settled on the $31 million payout.

Hawaiian Airlines has a somewhat less egregious regulatory track record. It has been fined 31 times by the FAA and five times by the Transportation Department’s consumer division. There is every reason to suspect that if the merger goes through, its compliance practices would come to look more like that of its new parent.

When antitrust regulators review a proposed merger, they have to give primary consideration to the potential market impacts. Yet it is also worth keeping in mind that as companies grow larger, they often tend to become less mindful of safety matters and other regulatory obligations. Or if they already have a lax approach to compliance, that problem is likely to become worse. All this is just one more reason bigger is usually not better.

Getting Tougher on Product Safety

For most of its history, the Consumer Product Safety Commission has not been the most aggressive federal regulator. Created in 1972, the agency has depended primarily on voluntary recalls of dangerous products by manufacturers. Its budget is below $200 million and its staff numbers around 500, both tiny by DC standards.

While the CPSC has the ability to use monetary penalties when companies fail to disclose hazards, it is relatively restrained in its use of that power. As shown in Violation Tracker, the agency has imposed a total of $397 million in fines against companies since 2000. More than half of that total has come since the Biden Administration took office. By comparison, the Consumer Financial Protection Bureau, which started operating in 2011, has racked up more than $17 billion in fines and settlements.

For all these reasons, it is significant that the CPSC and the Justice Department recently announced that a federal jury in Los Angeles had returned a guilty verdict in the first-ever criminal prosecution brought against corporate executives under the Consumer Product Safety Act.

The defendants in the case were the chief administrative officer and the chief executive officer of Gree USA, Inc., a subsidiary of the Chinese-owned Hong Kong Gree Electric Appliances Sales Co., Ltd. The two men were charged with deliberately withholding information about defective dehumidifiers that could catch fire and selling these units with false certification marks that the products met applicable safety standards. They were convicted of conspiracy to defraud the CPSC and failure to meet reporting requirements, though they were acquitted of wire fraud.

Gree itself has also been targeted by the CPSC. The company has paid more in fines to the CPSC than any other company over the past two decades. That includes a $91 million penalty that was by far the largest single fine brought by the agency during this period. It was also the first criminal enforcement action under the Consumer Product Safety Act.

The impact of that was softened by the decision of the Justice Department to offer Gree a leniency deal in the form of a deferred prosecution agreement by which the company was able to avoid pleading guilty to the charges.

On the other hand, DOJ and CPSC took the bold step of going after the two Gree officials individually. It took four years from the time the two men were indicted, but their conviction sends a powerful message to executives that they can be held personally responsible for brazen disregard of product risks. The Gree executives are scheduled to be sentenced next March and could receive up to five years in prison.

The debate over how to deal with corporate crime is often framed as a choice between penalizing the company and prosecuting executives. The Gree case shows the value of using both approaches at the same time. That makes it more likely the message will get through to everyone in a rogue company that it has to change its practices in a fundamental way.

The CFPB Fights On

The Washington Post recently published a long examination of the obstacles facing the Consumer Financial Protection Bureau in its effort to rein in payday lenders which prey on low-income families. The leading companies in the industry have managed to block various investigations of their practices.

The agency’s difficulties mainly stem from a lawsuit brought by financial industry groups challenging the way in which the CFPB is funded. It is based on disingenuous arguments about the separation of power between the executive branch and Congress. The case made its way to the U.S. Supreme Court, which heard oral arguments last month but has not yet issued a ruling.

The good news is that the CFPB, which is no stranger to opposition from powerful corporate and Congressional foes, is not backing down. While the payday lending cases may be stalled, the agency is aggressively targeting other bad actors.

Last month, the CFPB fined the credit reporting giant TransUnion $23 million for violating the Fair Credit Reporting Act by failing to ensure the accuracy of the information it supplies to landlords for screening of tenant applications. Last week, the agency fined Citibank over $25 million for intentionally discriminating against Armenian Americans in reviewing credit card applications and then lying to those applicants about the reason for the denial.

In its latest action, the CFPB goes after the online lender Enova International Inc. for what the agency calls “widespread illegal conduct including withdrawing funds from customers’ bank accounts without their permission, making deceptive statements about loans, and cancelling loan extensions.”

This is not the first time the CFPB has targeted Enova. In 2019 it fined the company $3.2 million for many of the same practices. That penalty apparently did not get Enova to change its ways. The CFPB found that more than 100,000 customers have been subjected to abuses during the past four years.

To its credit, the CFPB is not just issuing another cease-and-desist order and imposing a larger fine ($15 million) this time around. It is also restricting some of Enova’s business and putting a crimp in the wallets of the company’s top managers.

Specifically, the CFPB is banning Enova for a period of seven years from offering or providing closed-end consumer loans that must be substantially repaid within 45 days. It is also requiring the company to reform its executive pay practices so that compensation is determined in part by compliance with federal consumer financial law.

This approach of restricting a rogue corporation’s business is potentially more effective than simply upping the fine. The same goes for making top executives personally feel some financial pain as a result of their failure to end the misconduct.

In its dozen years of existence, the CFPB has an impressive track record of policing misconduct in the financial services sector. As shown in Violation Tracker, it has imposed more than $17 billion in penalties against miscreants large and small. Let’s hope it is able to go on performing this essential mission.

The Missing Crackdown

Joe Biden came to office vowing to get tough on corporate abuses, reversing the soft-on-white-collar-crime approach of his predecessor. Biden went on making those promises, and they were echoed by Attorney General Garland and other Justice Department officials.

That crackdown, however, has not materialized. A new report from Public Citizen shows that the Justice Department concluded only 110 corporate criminal prosecutions in 2022—lower than in any year of the Trump Administration. In fact, it was the smallest number since 1994.

In addition to the decline in overall cases, Public Citizen points out a drop in the number of those cases in which the defendant company received a leniency deal. These are arrangements known as non-prosecution and deferred prosecution agreements in which a firm can avoid a guilty plea by paying a penalty and promising to change its behavior.

Those pledges are frequently broken, and the companies are charged again. Instead of throwing the book at these recidivists, DOJ often offers them a new leniency agreement, making the whole process a farce.

As Public Citizen notes, a decline in leniency agreements would be a good thing if it went along with an increase in the overall volume of prosecutions. Instead of replacing leniency agreements with conventional cases, the DOJ statistics suggest that the agency is simply choosing not to prosecute at all in many instances.

Public Citizen says DOJ may be making greater use of a process called declination, which is essentially a form of super-leniency in which no charges are brought. Some of these deals are made public, but the best corporate defense lawyers can negotiate declinations that are kept secret.

The analysis done by Public Citizen focuses on criminal cases. I decided to check comparable civil cases brought by the Securities and Exchange Commission. According to data collected in Violation Tracker, the SEC collected $1.4 billion in penalties from companies in 2021. This was down from the totals in the final two years of the Trump Administration. In 2022 the SEC’s total jumped to $4.4 billion, thanks in large part to a single case involving a $1 billion settlement with the German insurance company Allianz.

This year the SEC total through mid-October is $1.5 billion. Unless the agency announces some very large cases in the next nine weeks, its 2023 total will also fall behind the final Trump years.

While case and penalty totals do not tell the whole story, what we see in both the criminal and civil areas is something less than a major assault on corporate misconduct. There have been some laudable steps taken by other agencies such as the Federal Trade Commission and the Consumer Financial Protection Bureau, but both of those regulators have faced legal challenges to their enforcement powers. At the same time, the whole system of business regulation is threatened by Republican defunding efforts.

Overall, the Biden Administration has yet to show that it can overcome these obstacles and make good on the promises of a crackdown on rogue corporations.