Violation Tracker

Trump’s Wage Theft Vulnerability

Donald Trump may have Bill Barr’s Justice Department in his pocket, but the president is on much shakier ground in his home state. And that’s not only because New York Attorney General Letitia James is seeking his tax returns and investigating his business deals.

Trump also has to contend with the fact that the New York AG’s office is one of the most aggressive prosecutors of wage and hour violations by employers in the state. One of those employers is the Trump Organization, whose Trump National Golf Club in Briarcliff Manor, New York is reported to be rife with wage theft.

The Washington Post has just published a detailed account of the ways in which employees at the golf club, especially undocumented immigrants, have been required to work off the clock at no pay. Workers are reported to have been explicitly told by managers to clock out but continue to perform tasks such as vacuuming carpets and polishing silverware.

The Post article states that nearly 30 former employees of Trump golf courses have met with state prosecutors and have provided them documentation such as W-2 forms and pay stubs. One of those workers, Jose Gabriel Juarez (photo), told the Post: “It was that way with all the managers: Many of them told us ‘Just clock out and then stay and do the side work.’”

This does not bode well for the Trump Organization. According to data contained in Violation Tracker, the New York AG’s office has brought more than 60 successful cases against companies for wage theft and has collected more than $38 million in penalties. The largest recovery was $4.8 million paid by the utility company National Grid in 2013.

Yet those are only the cases in which the defendants were corporations. The New York AG’s office is one of only a few law enforcement agencies that also bring cases against individual corporate executives and business owners for labor violations. In other words, it takes the phrase wage theft literally and has on numerous occasions filed criminal charges against those individuals. Here are some examples:

In May 2016 Lalo Drywall, Inc. and its owner Sergio Raymundo, were sentenced in Manhattan Supreme Court after a conviction related to wage theft for underpaying workers at a mixed-use, commercial, and low-income residential project in Harlem. Raymundo pled guilty to one count of Falsifying Business Records in the First Degree under New York State’s Penal Law, a class E felony, as well as to one count of Failure to Pay Wages under New York State’s Labor Law, an unclassified misdemeanor.

In September 2017 Arthur Anyah, owner of Mical Home Health Care Agency, Inc. in Peekskill, New York was sentenced to one year in jail for defrauding 67 employees out of over $135,000 in wages. Anyah had pled guilty to engaging in a scheme to induce health care workers to provide home health care services to the agency’s clients without pay, as well as falsifying business records, failing to pay wages, and defrauding the state unemployment insurance contribution system.

These and other wage theft cases, as well as many other kinds of prosecutions, can be found in the press release archive of the New York AG’s office. The Corporate Research Project is in the process of compiling these cases and similar ones from the other state AGs for an expansion of Violation Tracker that will be released later this year. By that time there may very well be a new entry for the Trump Organization to include.

Prosecuting Corporate Drug Dealers

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.

Shattering Myths About Business and Society

Those who believe that corporate executives are virtuous, government regulators are overreaching, and that we live in a meritocracy have been cringing every time they listened to a newscast in recent days. That’s because two major stories have been shattering myths about the way things work in the U.S. business world and the broader society.

The controversy over whether Boeing’s 737 Max aircraft should be grounded in the wake of a deadly crash in Ethiopia revealed the true nature of business regulation in the United States. Contrary to the image, depicted ad nauseum by corporate apologists, of bureaucrats crippling companies with unnecessary and arbitrary rules, we saw in the Federal Aviation Administration an agency that is essentially held captive by airlines and aircraft manufacturers.

It was only after the rest of the world ignored assurances from Boeing and took the common-sense step of grounding the planes that the FAA finally acted. The agency, its parent Department of Transportation and the Trump Administration had to be shamed into fulfilling their responsibility of protecting the public.

It remains to be seen whether the Trump Administration will temper its anti-regulatory rhetoric after this incident in which it was clear that the country needed more rather than less oversight. Unfortunately, the problem goes beyond rhetoric.

Since taking office, Trump has made it a crusade to dismantle much of the deregulatory system. Left to his own devices, Trump would continue on this path. His new budget proposes massive cuts in the budgets of regulatory agencies, including 31 percent at the EPA.

That budget was dead on arrival in the Democratic-controlled House, but the administration is undermining agencies by rolling back enforcement activity. Public Citizen has been documenting this ploy in a series of reports drawing on data from Violation Tracker. Its latest study shows a 37 percent drop in enforcement actions by the Consumer Financial Protection Bureau, the Federal Trade Commission and the Consumer Product Safety Commission during Trump’s first two years, compared to the final two years of the Obama era.

The other big myth-busting story is the admissions scandal at elite universities. The revelation that wealthy parents have been paying large sums to a fixer who bribed coaches and used other fraudulent means to get their kids into the Ivy League should cause all critics of affirmative action to hang their heads in shame.

It speaks volumes that one of the parents arrested in the case is William McGlashan, founder of The Rise Fund, an ethical investing vehicle managed by the private equity firm TPG Capital. Working with the likes of Bono and philanthropist Pierre Omidyar, the fund says it is “committed to achieving social and environmental impact alongside competitive financial returns.”

Defenders of the fund will attempt to separate its mission from McGlashan’s personal issues. Yet the scandal helps puncture the image of moral superiority projected by those who claim they can do good and get richer at the same time. It gives more ammunition to those who suspect that ethical investing may be little more than a way to ease the conscience of the wealthy with more than their share of misdeeds.

Undoubtedly, protectors of the conventional wisdom are seeking ways to restore support for the notions that regulation is bad and that the rich are good people who earned everything they have. Yet for now, let’s enjoy these moments of clarity.

Mistreating Customers and Workers

For a long time, the corporation that stood out as America’s worst employer was Walmart, given its reputation for shortchanging workers on pay, engaging in discriminatory practices and ruthlessly fighting union organizing drives. Today, Amazon.com seems to be trying to take over that title, at least for its blue-collar workforce.

Yet when we look at the corporations that have been paying the most penalties for workplace abuses, there is another contender for the top, or really the bottom, spot among U.S. employers: Bank of America. In Big Business Bias, a report just published by the Corporate Research Project of Good Jobs First, we found that BofA has paid more in damages, settlements and fines in workplace discrimination and harassment cases than any other large for-profit corporation.

In Grand Theft Paycheck, a report we published last year on wage theft, BofA ranked third (after Walmart and FedEx) in total penalties paid in private wage and hour lawsuits and cases brought by the U.S. Labor Department.

BofA’s position in these tallies is to a significant extent the result of cases brought against its subsidiary Merrill Lynch, which the federal government pressured it to acquire during the financial meltdown in 2008. Merrill accounts for 95 percent of the $210 million in penalties BofA has paid in discrimination cases and more than one-quarter of the $381 million paid in wage theft cases.

Merrill brought with it problems beyond questionable personnel practices. In 1998 it had to pay $400 million to settle charges that it helped push Orange County, California into bankruptcy with reckless investment advice. In 2002 it agreed to pay $100 million to settle charges that its analysts skewed their advice to promote the firm’s investment banking business (plus another $100 million the following year). In 2003 it paid $80 million to settle allegations relating to dealings with Enron.

This track record was similar to that of BofA before the merger. For example, in 1998 the bank paid $187 million to settle allegations that in its role as bond trustee for the California state government it misappropriated funds, overcharged for services and destroyed evidence of its misdeeds. BofA later paid to settle lawsuits concerning its dealings with Enron ($69 million) and another corporate criminal, WorldCom ($460 million).

In the wake of the financial crisis, BofA had to enter into several multi-billion-dollar settlements concerning the sale of toxic securities and various mortgage abuses. It is for all these reasons that BofA tops the Violation Tracker ranking of the most penalized parent companies, with payouts of more than $58 billion.

BofA is not unique in this respect. Another major bank is also one of the ten most penalized corporations overall as well as high on the lists of those with the most penalties related to workplace discrimination and wage theft. That bank is Wells Fargo, which ranks sixth on the Violation Tracker list with over $14 billion in penalties, ninth in the discrimination tally with $68 million and fourth in the wage theft tally with $205 million.

Wells Fargo, of course, is notorious for creating millions of bogus accounts to generate illicit fees and other deceptive practices. Last year, the Federal Reserve took the unprecedented step of barring the bank from growing any larger until it cleaned up its act. The agency also announced that the bank had been pressured to replace four members of its board of directors.

Bank of America and Wells Fargo demonstrate all too clearly that mistreatment of customers can go hand-in-hand with mistreatment of workers.

Big Business Bias

The immediate culprits in many workplace discrimination and harassment cases are individual managers or co-workers, but in many situations the worst villain is the employer that fails to stop the abuse or engages in its own unfair practices.

The Corporate Research Project of Good Jobs First has just published a report called Big Business Bias showing for the first time which large corporations have paid the most to plaintiffs in discrimination or harassment cases based on race, gender, religion, national origin, age or disability.

As in many other things, the big banks turn out to be leading offenders. Bank of America (including its subsidiary Merrill Lynch) has paid a total of $210 million since 2000, more than any other large company. Morgan Stanley ranks fourth at $150 million and Wells Fargo ranks ninth at $68 million. The financial services industry overall has paid a total of $530 million in penalties. The retail sector has paid the same amount, so the two industries have the dubious distinction of being tied for first place.

The report, based on data collected for an expansion of the Violation Tracker database, covers private lawsuits (both class action and individual) brought in federal or state court as well as cases brought with the involvement of the Equal Employment Opportunity Commission (EEOC) and the U.S. Labor Department’s Office of Federal Contract Compliance Programs (OFCCP). It focuses on cases brought against corporations (and their subsidiaries) included in the Fortune 1000, the Fortune Global 500 and Forbes’ list of America’s Largest Private Companies.

We found that virtually every large company has paid damages or reached an out-of-court settlement in at least one discrimination or harassment lawsuit, but in the vast majority of cases the terms of the settlements were kept confidential. Our report is based on the subset of those cases with disclosed settlements as well as those with public court verdicts and EEOC or OFCCP penalties.

The report finds that since the beginning of 2000, large corporations are known to have paid $2.7 billion in penalties, including $2 billion in 234 private lawsuits, $588 million in 329 EEOC actions and $81 million in 117 OFCCP cases.

Following Bank of America in the ranking of most-penalized large companies are Coca-Cola ($200 million) and Novartis ($183 million). The corporation with the largest number of cases with disclosed penalties is Walmart, at 27. Its penalty total of $52 million would have been much higher if the U.S. Supreme Court had not ruled 5-4 in 2011 to dismiss a nationwide gender discrimination class action against the company.

Following banks and retailers, the industries with the most disclosed penalties are food/beverage products ($252 million), pharmaceuticals ($209 million) and freight/logistics ($187 million).

Race and gender cases (mainly relating to hiring, promotion and pay) account for the largest shares of discrimination penalties, with each category totaling just over $1 billion. Age discrimination cases rank third with over $240 million in penalties, followed by disability cases at $155 million and sexual harassment cases at $123 million.

Employees at all levels of the occupational hierarchy have filed discrimination lawsuits against large corporations. The report documents lawsuits whose plaintiffs range from executives, managers and professionals to blue-collar and service workers. However, it finds that managers are more likely to bring age discrimination cases while racial bias and sexual harassment suits more often are filed by blue-collar and service workers.

In addition to supporting the call by the #MeToo movement to end non-disclosure agreements and mandatory arbitration, the report endorses reforms that would require publicly-traded companies and large federal contractors to disclose how much they pay out each year in aggregate damages and settlements in discrimination and harassment cases.

Note: details on all the cases analyzed in the report can be found in Violation Tracker.

Oligopolies and Regulatory Compliance

There is growing awareness of the dangers posed by Amazon’s ever-increasing market clout, but the concentration of economic power is not limited to that online retailer. More and more U.S. industries have become oligopolies, and in some sectors the top two companies now have a market share in excess of 50 percent.

This concentration is made clear to me each time I revise the parent-subsidiary data in Violation Tracker. In the just-completed quarterly update, which will be posted next week, I had to make adjustments to reflect about three dozen instances in which one of the companies in our universe of some 3,000 parent companies completed the acquisition of another.

Among these deals: the purchase of Aetna by CVS Health, the acquisition of Express Scripts by Cigna, and the purchase of industrial gas giant Praxair by its competitor Linde.

But the one that stood out to me was the acquisition of oil refiner Andeavor by Marathon Petroleum. Andeavor is the name adopted last year by Tesoro, one of the largest petroleum refiners in the country. Over the last two decades it has bought refineries from large corporations such as Shell and BP, and in 2016 it purchased all of Western Refining.

Marathon Petroleum, which was spun off from Marathon Oil in 2011, has grown through previous deals such as the takeover of the infamous BP refinery in Texas City, Texas, the site of a 2005 explosion in which 15 workers were killed.

The marriage of Marathon and Andeavor will create the largest oil refiner in the United States, but at the same time it will join together two companies with very checkered environmental, safety and labor records.

Marathon’s operations, including those previously owned by BP in Texas City, have amassed more than $920 million in penalties, according to Violation Tracker. This total includes a $334 million settlement with the EPA and the Justice Department covering air pollution at refineries in five states, along with two dozen OSHA penalties.

Andeavor has accumulated $467 million in penalties, most of which comes from a single giant settlement with the EPA in 2016. It also has had about two dozen significant OSHA fines.

The combined company’s page in the updated Violation Tracker, which will include other new data, will show a total of nearly $1.4 billion in penalties. This will put Marathon in the dubious club of only a few dozen mega-corporations that have racked up ten-figure totals in Violation Tracker. It will put the company higher on that list than the long-time environmental miscreant Exxon Mobil.

Aside from the economic consequences, growing concentration may also be weakening regulatory compliance. As industries become increasingly dominated by large corporations with a history of breaking the rules, it is likely that those violations will become even more common. That’s another reason to get tough on oligopolies.

Dealing Boldly with Big Pharma

Three days after Donald Trump took office in 2017, the Pharmaceutical Research and Manufacturers of America trade association launched a multimillion campaign to bolster its image in the face of criticism from across the political spectrum of exorbitant drug price hikes. Under the banner of Go Boldly, PhRMA sought to persuade lawmakers and the public that biopharmaceutical producers were doing great things to improve our quality of life and were not just price-gouging crooks.

Two years later, the campaign is still in operation, apparently because the public has not been won over. That’s not surprising, given that Big Pharma is still behaving badly. Relieved that the Trump Administration’s drug cost initiative turned out to be toothless, major drug makers are implementing new rounds of price increases.

Promoting the idea that the industry is preoccupied with innovation is also being made more difficult by the announcement that Bristol-Myers Squibb is seeking to spend $74 billion to acquire rival Celgene. The deal would unite two companies that each have been struggling with their cancer treatments.

Bristol’s Opdivo drug has been losing ground to Merck’s Keytruda while Celgene has been experiencing setbacks in clinical trials and is facing a patent expiration in 2022 for its major product Revlimid. A marriage of the two companies would serve mainly as an excuse to eliminate jobs and raise prices, while doing little that would benefit patients.

The merger would also bring together two companies that have checkered legal and regulatory track records. According to Violation Tracker, Bristol has racked up nearly $1 billion in fines and settlements for a wide range of offenses. These include a $515 million settlement with the Justice Department of allegations relating to drug marketing and pricing; a $150 million settlement with the SEC concerning accounting fraud; a $14 million settlement of Foreign Corrupt Practices Act allegations; and a $3.6 million settlement of Clean Air Act violations.

It has also faced criminal charges, including one case in which it paid $300 million and got a deferred prosecution agreement to resolve allegations of accounting manipulation and another in which it pled guilty to lying to the federal government during an investigation of a secret agreement to thwart a generic competitor to its blood thinner Plavix.

For its part, Celgene paid $280 million in 2017 to resolve allegations that it promoted two cancer drugs for uses not approved by the Food and Drug Administration.

The prospect of one ethically challenged and market weakened drug company paying $74 billion to acquire another is emblematic of what is wrong with the U.S. pharmaceutical industry. It provides additional justification for aggressive reforms such as the bill introduced by Bernie Sanders and Ro Khanna that would allow the federal government to authorize generic alternatives to overpriced drug or the proposal by Elizabeth Warren and Jan Schakowsky that the federal government itself produce generic alternatives under certain circumstances.

If we want to Go Boldly, let’s do it with alternatives that empower patients not drugmakers.

The 2018 Corporate Rap Sheet

The Trump Administration has been taking steps to weaken its enforcement activities against corporate criminals and regulatory violators, but diligent prosecutors and career agency administrators are still trying to do their job. Over the course of 2018 there has been a steady stream of announcements of substantial penalties imposed on major corporations for a wide range of offenses. The following is a selection of significant cases resolved during the year:

Sale of Toxic Securities: In cases left over from the financial crisis of the 2000s, three major banks agreed to pay ten-figure settlements to the Justice Department to resolve allegations of misleading investors in residential mortgage-backed securities: $2 billion by Barclays, $2.1 billion by Wells Fargo and $4.9 billion by The Royal Bank of Scotland.

Interest Rate Benchmark Manipulation: The French bank Societe Generale agreed to pay $475 million to settle allegations by the Commodity Futures Trading Commission that it manipulated or attempted to manipulate LIBOR and other interest rate benchmarks.

Foreign Exchange Market Manipulation: The French bank BNP Paribas pleaded guilty to participating in a price-fixing scheme in the foreign exchange market and paid the U.S. Justice Department a criminal fine of $90 million.

Anti-Money Laundering Deficiencies: U.S. Bancorp agreed to a $453 million civil forfeiture to resolve a case brought by the U.S. Attorney for the Southern District of New York alleging that it violated the Bank Secrecy Act by failing to file required suspicious activity reports.

Foreign Corrupt Practices Act: The Securities and Exchange Commission required Panasonic Corporation to pay $143 million to resolve allegations of making improper payments and committing accounting fraud in connection with its global avionics business. It paid an additional $137.4 million to settle related criminal charges brought by the Justice Department.

Consumer Financial Protection Violation: Wells Fargo agreed to pay a total of $1 billion to the Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency in connection with abuses relating to a mandatory insurance program tied to auto loans, mortgage interest-rate-lock extensions and other practices.

Product Safety Violation: Polaris Industries agreed to pay a $27.25 million civil penalty to settle Consumer Product Safety Commission allegations that it failed to immediately report to the agency that some of its recreational off-road vehicles contained defects that could create a substantial product hazard or that they created an unreasonable risk of serious injury or death.

Controlled Substances Act Violations: Rite Aid agreed to pay $4 million and CVS agreed to pay a total of $2.5 million in two cases, all to resolve allegations of improper distribution of controlled substances.

Sexual Harassment: Poultry processor Koch Foods agreed to pay $3.75 million to settle allegations made by the Equal Employment Opportunity Commission involving sexual harassment, national origin and race discrimination and retaliation at a plant in Mississippi.

Clean Air Act Violations: The Justice Department, the Environmental Protection Agency and the Louisiana Department of Environmental Quality announced that Shell Chemical would pay penalties of $350,000 and spend $10 million to install pollution control equipment to reduce harmful emissions at its plant in Norco, Louisiana.

False Claims Act Violations: Toyobo Co. of Japan and its American subsidiary agreed to pay $66 million to resolve claims under the False Claims Act that they sold defective Zylon fiber used in bulletproof vests that the United States purchased for federal, state, local, and tribal law enforcement agencies.

Bid-Rigging: South Korea-based companies SK Energy, GS Caltex, and Hanjin Transportation agreed to plead guilty to criminal charges and pay a total of approximately $82 million in criminal fines for their involvement in a decade-long bid-rigging conspiracy that targeted contracts to supply fuel to United States Army, Navy, Marine Corps, and Air Force bases in South Korea

Investor Protection Violations: AEGON USA Investment Management and three other Transamerica affiliates agreed to pay $97 million to the Securities and Exchange Commission to resolve allegations that they misled investors through the use of faulty financial models.

Hiring of Undocumented Workers: Waste Management Texas agreed to forfeit $5.5 million and entered into a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of Texas to resolve allegations that it hired numerous undocumented workers at its Houston operation.

Tax Evasion: The Swiss bank Zurcher Kantonalbank agreed to pay $98.5 million and entered into a deferred prosecution agreement to resolve charges that it conspired to help U.S. taxpayer-clients file false federal tax returns and hide hundreds of millions of dollars in offshore bank accounts.

Data Breach: Uber agreed to pay $148 million to settle allegations that emerged from a nationwide investigation of a 2016 incident in which a hacker gained access to personal information on 57 million riders and drivers.

Note: Additional details on most of these cases can be found in Violation Tracker, which now contains 327,000 entries with total penalties of $440 billion, or in the next update of the database, scheduled to appear in mid-January.

Abandoning Human Rights to Benefit Crooked Corporations

According to the grievance-based worldview of Donald Trump, the United States is constantly being cheated. He purports to be addressing this through his trade policies and his attitudes toward international organizations such as NATO. Yet he seems to be a lot less concerned about another kind of cheating: the ongoing fraud committed against the federal government by military contractors.

This is an old story yet it takes on new relevance amid the current controversies over the murder of U.S.-based journalist Jamal Khashoggi by the Saudi government and ongoing American support for the brutal Saudi military intervention in Yemen. Trump’s main justification for refusing to take stronger action against the kingdom is his claim that it would jeopardize potential U.S. arms sales to the Saudis, the value of which Trump wildly inflates.

Trump usually frames this in terms of jobs, but it is actually more a matter of revenue and profits for major weapons producers such as Lockheed Martin and Raytheon. It comes down to this: Trump is undermining the moral stature of the United States and giving a green light to despots who want to eradicate dissidents, all in the name of pumping up the cash flow of a handful of corporations.

Although he fancies himself a master dealmaker, it is unclear what Trump is receiving in return from these companies. In the past, Trump has made noise about the cost of some Lockheed and Boeing contracts but there was little follow-up. The big weapons producers are not now among the president’s favorite tweet targets.

There is every reason to believe that the big contractors are continuing their long-standing practices of charging excessive amounts for their weapons and then cheating on the terms of the contracts. Sometimes they get caught doing the latter and are made to pay penalties they can easily afford.

To take a recent example: in early November the Justice Department announced that Northrop Grumman had agreed to pay $27.45 million to resolve allegations that it overstated the number of hours its employees had worked on two battlefield communications contracts with the Air Force. This matter, like most of the cases brought against military contractors, was handled primarily under the False Claims Act, which allows for a civil settlement and monetary penalties but no criminal liability.

The Northrop case was unusual in that there was a parallel criminal investigation of one of the contracts, but the Justice Department reached an agreement with the company under which it forfeited an additional $4.2 million and no criminal charges were filed.

This was just the latest in a series of False Claims Act cases in which Northrop has paid out in excess of half a billion dollars in penalties for various contract frauds. It is far from unique in this regard. For example, as shown in Violation Tracker, Boeing has paid out $744 million in penalties in eight False Claims Act cases since 2000 and Lockheed has paid $125 million in 13 cases.

It is bad enough that President Trump is abandoning U.S. support for human rights; it is even worse that he is doing so to benefit a group of corporations that regularly cheat the government he heads.

Is There Still A Corporate Ulterior Motive Behind Criminal Justice Reform?

Is it just a coincidence that Donald Trump has decided to embrace criminal justice reform just at the time he is more likely to become a defendant himself? He’s not the only party that may have mixed motives in supporting the legislation that is being hyped as an outstanding expression of bipartisanship.

One of the prime movers behind the initiative has been Koch Industries, whose owners Charles and David Koch are the epitome of partisanship. Their role on this issue was initially puzzling, given that the Kochs were not known for supporting anything that was remotely progressive.

Three years ago, the full story began to emerge. The New York Times reported that one part of the reform being pushed by the Kochs and other business interests would require prosecutors to meet a more stringent standard in proving illicit intent, or “mens rea.” The Times stated that the Obama Justice Department was concerned that the change “would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white-collar criminals.” PR Watch provided more detail on what the Kochs were up to.

In other words, what was made to look like a high-minded civic effort was also, at least in part, a move by corporations to shield themselves from prosecution. In the case of Koch Industries, the issue is far from a theoretical one. In Violation Tracker we document 275 cases in which the company has paid a total of $736 million for environmental, safety, employment and other offenses. One of these was a criminal case: In 2001 one of its subsidiaries pled guilty and paid $20 million to resolve allegations that it covered up Clean Air Act violations at an oil refinery in Corpus Christi, Texas.

Mens rea “reform” is not part of the current criminal justice package, but the issue is far from dead. Arkansas Sen. Tom Cotton just published an op-ed in USA Today calling for it to be added to the bill. Since Cotton’s support may be essential to passage, he may get his wish – and presumably the Kochs would be happy with that outcome.

Cotton is not the only one who has been beating this drum. Utah Sen. Orrin Hatch and Iowa Sen. Chuck Grassley have introduced mens rea legislation that would apply not only to criminal actions but also to “regulatory offenses.”

During the confirmation hearings on Brett Kavanaugh, Sen. Hatch brought up the issue of mens rea. He and the nominee both spoke enthusiastically on the need for “reform.” Here, as in much of the conservative discussion of the matter, proponents like to give the impression their concern is primarily with the rights of bank robbers and the like.

Yet it seems clear that the real intended beneficiaries are corporations and their executives supposedly being victimized by unjust regulations.

The issues surrounding criminal justice reform are complicated, but one thing is clear: it should not be used as a means of undermining the prosecution of corporate crime and misconduct.