Watching the ESG Watchmen

Investment advisors that adopt the label ESG present themselves as arbiters of corporate behavior. They claim to identify which companies are serious about environmental, social and governance goals and thus deserve to be included in high-minded portfolios.

But who watches the watchmen? Who determines when the ESG gatekeepers have gone astray? The answer turns out not to be Ron DeSantis and Republican Attorneys General who have been attacking what they see as wokeness in the business world. Instead, it is the traditional cop on the financial beat—the Securities and Exchange Commission.

The SEC recently brought charges against a subsidiary of Deutsche Bank for misleading investors by exaggerating the extent to which it actually applied ESG principles in its stock recommendations. DWS Investment Management Americas Inc. (DWS), according to the SEC, “failed to adequately implement certain provisions of its global ESG integration policy” and “failed to adopt and implement policies and procedures reasonably designed to ensure that its public statements about the ESG integrated products were accurate.”

DWS, which agreed to settle the charges by paying $25 million in penalties, was also accused of failing to develop an adequate program to make sure its mutual funds were not being used for money laundering. The accusations against DWS essentially came down to deception and negligence.

It is, of course, ironic that a firm whose mission is to monitor the behavior of other companies was found to have serious deficiencies in its own conduct. Yet the real lesson of the DWS case is that the E in ESG does not stand for “ethical.”

This becomes abundantly clear when we look at the track record of many ESG investment advisors as well as the companies that score well in ESG ratings. DWS stands out in this regard. Its parent Deutsche Bank is the ninth most heavily penalized parent company in Violation Tracker with nearly $20 billion in fines and settlements in the United States since 2000.

The bank has, for example, paid out enormous sums in multiple cases involving offenses such as manipulation of interest rate benchmarks, facilitation of fraudulent tax shelters, deception of investors in the sale of what turned out to be toxic securities, and violation of anti-money-laundering laws. The latter included a $425 million settlement with the New York Department of Financial Services of allegations its Moscow, London and New York offices participated in a mirror trading scheme that laundered $10 billion out of Russia.

Despite this record, Deutsche Bank scores pretty high in some ESG rankings. The same combination of heavy regulatory penalties and high ratings can be seen with other investment firms such as Goldman Sachs and Morgan Stanley as well as companies in many other industries. Even fossil fuel culprits such as Chevron and Occidental Petroleum get relatively high ESG scores.

All this is further evidence that the real problem with much of the ESG movement is not that it goes too far, but rather that it is often used as a smokescreen to hide all manner of corporate misconduct by those claiming to promote virtue.

Corporations Are Not Saving the Planet After All

It used to be that you had to go to the websites of groups such as Greenpeace to learn how large corporations are failing to live up to their promises to help solve the climate crisis. Now that fact can be found on the front page of the Wall Street Journal.

The business-friendly newspaper just published an article detailing the ways in which the decarbonization efforts of the world’s largest companies are fizzling out. A big part of the problem is that most companies never developed meaningful climate transition plans and instead relied on dubious carbon offsets instead. The Journal quotes the environmental non-profit CDP as saying that of the nearly 19,000 companies using its disclosure platform, fewer than 100 have credible plans.

Some companies don’t bother to develop any plans—or they keep them to themselves. The Journal cites data showing the percentages of larger publicly traded companies that do not disclose specific plans to meet long-term climate targets. Among those in the coal, oilfield services, and midstream oil sectors the portion is 100 percent. Among integrated oil companies, 93 percent fail to do so.

Big Oil’s detrimental role in dealing with the climate was highlighted in another recent Journal article. It’s well known that Exxon Mobil worked for years to downplay the harmful effects of greenhouse gas emissions. In 2006 the company finally acknowledged those dangers, but the Journal found that within the company the policy did not really change. The newspaper was given access to internal company documents that had been collected by the New York Attorney General but never made public.

These documents, the Journal says, show that Rex Tillerson, who had just taken over as CEO at the time, continued to work behind the scenes to play down the severity of climate change. Exxon executives and scientists were apparently encouraged to go on questioning the mainstream consensus on climate harm.

In other words, it appeared that Exxon, rather than fully abandoning its overt climate denialism, replaced it with a more low-key version while simultaneously reaping the benefits of greenwashing.

Apart from its malignant impact on the climate problem, the fossil fuel industry also continues to be a major source of conventional pollution. We are reminded of this fact by a new report from the Center for American Progress which looks at the long-standing boondoggle surrounding the system by which the industry is allowed to drill on public lands and offshore.

Making extensive use of data from Violation Tracker, the report shows that the top 20 leasing companies are responsible for more than 2,000 environmental violations in their overall operations over the past two decades. Exxon Mobil leads the list with 442 such penalties, while BP has paid out the most—over $30 billion—largely due to its role in the 2010 Deepwater Horizon disaster in the Gulf of Mexico.

CAP’s report recommends that proposed new standards issued by the federal Bureau of Land Management for companies seeking leases be strengthened to include language specifying what defines a bad actor, adding: “Such bad actors should not be eligible for new leases or permits until they have resolved all outstanding issues and demonstrated that they are capable of changing their practices. Further, leases of companies found not to be a qualified or responsible lessee should be subject to cancellation.”

Tougher standards such as these will help to get the message through to the fossil fuel giants that they need to change their ways once and for all.

Corporations and National Security

Most of the cases handled by the Justice Department’s National Security Division involve individuals accused of providing support to foreign terrorist organizations, or more recently, domestic far-right extremists linked to groups such as the Proud Boys.

Yet the division has another mission: prosecuting corporations which violate international economic sanctions or which fail to prevent sensitive technology from being transferred to unfriendly foreign countries. It is beefing up this work, especially the latter part.

The division just appointed its first Chief Counsel for Corporate Enforcement and Deputy Counsel for Corporate Enforcement. In making the announcement, Assistant Attorney General Matthew Olsen suggested that a tougher stance is being taken: “We have watched with concern as investigations of corporate misconduct increasingly reveal violations of laws that protect the United States. Enforcing the laws that deny our adversaries the benefits of America’s innovation economy and protect technologies that will define the future is core to the National Security Division’s mission.” Olsen is in effect saying that some corporations are national security risks—or perhaps more accurately, national economic security risks.

These appointments are consistent with the announcement earlier this year that the National Security Division was joining with the Commerce Department’s Bureau of Industry and Security (BIS) and other agencies to form the Disruptive Technology Task Force. Its mission is “to target illicit actors, strengthen supply chains and protect critical technological assets from being acquired or used by nation-state adversaries.”

Until now, the division’s corporate prosecutions have been limited. In Violation Tracker we document 17 cases that have been brought against companies over the past decade. Most of these are foreign-based companies. For example, in in 2017 a penalty of $430 million was imposed on the Chinese telecommunications company ZTE for illegally shipping U.S.-origin technology items to Iran.

BIS, which brings civil rather than criminal actions, has a much bigger caseload. Violation Tracker documents over 600 export control cases brought by the agency since 2000.  It has also gone after foreign companies such as ZTE but its case list includes numerous domestic companies, including Boeing, General Electric and Northrop Grumman. Earlier this year, it penalized Seagate Technology LLC $300 million for illegal sales of computer disk drives to China’s Huawei Technologies. (Seagate’s parent is technically incorporated in Ireland for tax reasons, but its operational headquarters are in California and it is effectively an American company.)

A focus on domestic companies is also seen in the caseload of another federal export control agency: the State Department Directorate of Defense Trade Controls. Violation Tracker shows there have been around four dozen cases brought against companies by DDTC since 2000, nearly all of them U.S.-based. RTX Corporation (formerly Raytheon Technologies) and its subsidiaries account for the largest share of the penalties.

Given the willingness of U.S.-based transnationals to share technology with customers in countries such as China over the past few decades, the DOJ’s new focus on economic security may be too late to undo much of the damage. Yet if prosecutors are going to address the problem nonetheless, they should follow the lead of other agencies and go after domestic as well as foreign culprits.

The Other Wage Theft

When we hear references to wage theft, there is a tendency to think of low-paid workers being cheated by fly-by-night employers. That is only part of the story.

Wage and hour violations affecting better-paid white-collar workers are also common, and the employers involved are often household names. Their abuses typically consist of practices such as denying overtime pay to low-level supervisors by erroneously classifying them as managers.

The federal law governing workplace pay practices, the Fair Labor Standards Act, provides exemptions for bona fide executive, administrative and professional employees, who are typically paid a salary. Yet in order for the exemption to apply, the person must be paid above a certain level.

Unfortunately, that threshold has not been adequately updated and is today only $35,000 annually. As a result, many first-line supervisors and similar employees with quite modest salaries end up working many extra hours without additional compensation.

A new proposal from the U.S. Labor Department would alleviate the situation by raising the threshold to about $55,000 a year. Yet this would not completely solve the problem.

Some employers will flout the new standard the way they did with the old one. In fact, the higher threshold will probably tempt even more companies to cheat. Along with the new threshold, the Labor Department needs to put more emphasis on enforcement, especially at larger corporations.

In 2018 I wrote a report called Grand Theft Paycheck that analyzed the prevalence of wage theft in big business by looking both at DOL enforcement actions and private collective action lawsuits brought on behalf of groups of workers. The latter accounted for most of the penalties collected from large corporations.

During the past five years I have continued to document wage theft cases for Violation Tracker, and the trend continues. Here are some of the significant settlements since 2018 involving white-collar and professional workers:

Humana agreed to pay $11 million to settle allegations that it improperly treated nurses as exempt from overtime.

Wells Fargo agreed to pay over $10 million to settle allegations that it failed to pay home mortgage consultants proper commissions and incentive payments.

CVS Health agreed to pay over $10 million to resolve a lawsuit alleging it did not properly compensate pharmacists for time spent on company-mandated training.

Computer Sciences Corporation agreed to pay over $9 million for failing to pay overtime to system administrators.

Pharmaceutical company Baxalta agreed to pay over $4 million for failing to pay overtime to technicians.

Santander Bank agreed to pay over $4 million to settle litigation alleging it did not pay proper overtime compensation to branch operations managers.

Facebook agreed to pay $1.65 million to resolve a lawsuit claiming it improperly classified its client solutions managers as exempt from overtime pay.

All these cases were brought by plaintiffs’ lawyers, who provide an important service (while collecting a portion of the proceeds). It would be preferable, however, to see the Labor Department pursue more of these cases as well as the ones involving small businesses.

Wage theft comes in multiple forms. Regulators should be investigating them all.

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.

Targeting the Price Fixers

The Justice Department and the Federal Trade Commission have been promoting the adoption of new guidelines that would give them a greater ability to block anti-competitive mergers. Now DOJ may also be taking a tougher stance with regard to the other main branch of antitrust enforcement: prosecuting price-fixing conspiracies that harm consumers.

DOJ’s Antitrust Division has just announced the resolution of a case brought against generic drug giant Teva Pharmaceuticals and a smaller Indian producer called Glenmark Pharmaceuticals for conspiring to fix the price of pravastatin, a cholesterol medication. Teva was also charged with anti-competitive behavior with regard to two other drugs. Teva was compelled to pay a criminal penalty of $225 million and to donate drugs worth $50 million to humanitarian organizations. Glenmark was penalized $30 million.

Along with the fines, which in Teva’s case is well above the norm in DOJ Antitrust Division actions, the agency imposed a novel penalty: requiring the two companies to divest their pravastatin business line. And although the criminal charges were softened by allowing Teva and Glenmark to enter into deferred prosecution agreements, the DOJ included a blunt warning that “both companies will face prosecution if they violate the terms of the agreements, and if convicted, would likely face mandatory debarment from federal health care programs.”

Forcing a company to leave a business in which it has engaged in misconduct can be a more effective punishment than monetary penalties, which large corporations can usually absorb with little difficulty. This is an especially appropriate approach in prosecuting companies that have shown themselves to be repeat offenders.

Among the more than 240 companies shown in Violation Tracker to have faced criminal charges brought by the Antitrust Division since 2000, there are about half a dozen which have been penalized more than once. One of those is the Swiss bank UBS, which in 2011 paid $160 million to resolve allegations of engaging in anti-competitive practices in the municipal bond market but was offered a non-prosecution agreement. The following year, UBS was accused of manipulating the LIBOR interest rate benchmark and paid penalties totaling $500 million. While a subsidiary had to plead guilty, the parent company was offered another non-prosecution agreement.

Antitrust enforcers should leave the use of financial penalties to private litigation. As I showed in a report called Conspiring Against Competition published earlier this year, class action lawsuits brought by the victims of price fixing have yielded $55 billion since 2000, more than twice as much as the penalties collected by federal regulators.

Among the most frequently sued companies were Teva and its subsidiaries, which paid out a total of $1.4 billion in 19 different class actions. Most of these involved an indirect form of price fixing in which companies collude to delay the introduction of lower-cost generic alternatives to expensive brand-name drugs.

Government regulators should use their power not just to put a dent in an egregious price-fixer’s bottom line but to force the company out of a market in which it failed to follow the rules.  

The Donald Trumps of the Corporate World

There is a word, recidivists, for those who repeatedly commit crimes. But there is no term, as far as I know, for those who commit the greatest variety of offenses.

If we are talking about public figures, the term should probably be Trumpist—given that the former president has racked up an unprecedented assortment of legal entanglements that continue to grow. But what about corporations? Which companies have engaged in the widest range of misconduct?

To answer this question, I drilled down into the data collected in Violation Tracker. The database tags each of its more than 500,000 entries with one of eight broad offense groups: competition-related offenses; consumer-protection-related offenses; employment-related offenses; environment-related offenses; financial offenses; government-contracting-related offenses; healthcare-related offenses; and safety-related offenses. These, in turn, are divided into a total of nearly 100 more specific offense types.

I set out to discover whether any of the more than 3,000 parent companies for which we aggregate data are linked to cases in every one of the eight offense groups. It turns out that 13 parents meet that criterion, but if we look only at those with substantial penalties—over $1 million—in each category, the list narrows down to five corporations. These include one freight giant (United Parcel Service), two major pharmacy chains (CVS Health and Walgreens Boots Alliance) and two large drugmakers (Bristol-Myers Squibb and Merck).

Among the wide-ranging rap sheets of these five companies, the one that stands out is that linked to Merck. It has the largest cumulative penalty total dating back to 2000: more than $10 billion. That includes ten-figure totals in three offense groups: financial, healthcare-related and safety-related.

Merck has achieved its position as the Donald Trump of the business world as a result of 86 entries in Violation Tracker. Chief among its safety-related cases is the $4.9 billion it paid to settle multi-district litigation brought by thousands of plaintiffs claiming the company’s heavily promoted anti-inflammatory drug Vioxx caused injury or death. The Vioxx scandal was also at the center of the company’s biggest penalty in the healthcare-related category, a $950 million settlement of civil and criminal charges brought by the U.S. Justice Department, as well as several consumer protection cases.

As for financial offenses, Merck had to pay over $2 billion to settle tax issues brought by the Internal Revenue Service. Merck’s government-contracting-related cases include a $650 million False Claims Act case involving improper kickbacks to healthcare providers to get them to prescribe its medications.

Merck’s competition-related penalties include a $60 million settlement by its subsidiary Schering-Plough of allegations it improperly blocked the introduction of a lower-cost alternative to one of its products. In the environmental area, Merck has paid over $33 million in penalties in nearly three dozen federal and state enforcement actions.

Finally, Merck’s record of employment-related offenses includes eleven cases dealing with retirement plan administration, gender discrimination and violation of the Family and Medical Leave Act.

One thing that can be said in Merck’s defense is that few of its penalties are from the past few years, indicating that it may be trying to improve its compliance. It’s a different story with CVS and Walgreens. Since the beginning of 2020, Walgreens has paid penalties more than two dozen times, while CVS has done so in 69 cases. Both are involved in pending multistate lawsuits relating to their role in the opioid crisis, so their penalty totals are likely to go on growing.

Companies that have paid multiple penalties in multiple categories exemplify misconduct that is not compartmentalized but instead can be found throughout a firm’s operations. Regulators and prosecutors need to do more to get these corporations to clean up their act across the board.

Biting the Hand

Few large corporations are as dependent on public sector clients as the consulting giant Booz Allen Hamilton. During its last fiscal year, 97 percent of its $9 billion in revenue came from the federal government, thanks to thousands of contracts with the Pentagon, the intelligence agencies and a wide range of civilian departments.

Given this close relationship, Booz Allen should be on its best behavior in dealing with Uncle Sam. Instead, it has been biting the hand that feeds it.

The Justice Department recently announced that the company has agreed to pay $377 million to resolve allegations that it violated the False Claims Act (FCA) by improperly billing federal agencies for costs relating to its limited amount of non-governmental work. The case was initiated by a whistleblower lawsuit filed by a former employee.

The DOJ announcement is unusual in its lack of specificity. Although it calls the case “one of the largest procurement fraud settlements in history,” the press release does not mention individual federal contracts that were overcharged or even the number that were affected by the company’s illicit practices. This may be because Booz Allen works on many classified matters, but the vagueness also suggests that the misconduct has been widespread and not an isolated lapse.

This is problematic for a firm that touts its integrity and highlights its inclusion in the Ethisphere list of the World’s Most Ethical Companies. This is despite the fact that Booz Allen faced a previous FCA case in 2006, when it paid over $3 million to resolve allegations that it and other consulting firms improperly billed the federal government for travel expenses.

Booz Allen’s new case also raises questions about the FCA itself. The law, enacted in the 1860s to deal with unscrupulous federal contractors during the Civil War, is used by the Justice Department to deal with a wide range of fraudulent behavior linked to government programs.

In Violation Tracker there are more than 2,400 federal FCA cases dating back to 2000 with total penalties of $47 billion. Booz Allen is hardly the only company with more than one entry in this category. Boeing, Lockheed Martin and Northrop Grumman have each paid FCA penalties more than a dozen times. Numerous large healthcare companies, both for-profit and non-profit, are also repeat FCA offenders.

This high degree of recidivism suggests that the FCA is not serving a very effective deterrent role. This may relate to the fact that FCA cases are all civil rather than criminal cases, and the penalties are usually quite affordable for the companies involved. Even the name of the law may be an issue: the phrase “false claims” gives the impression these cases involve nothing more than accounting discrepancies. In fact, what is involved is a form of fraud.

Contractors might be more inclined to deal honestly with federal agencies if they faced the prospect of being charged under something called the Fraudulent Contractor Act. Beyond that, federal prosecutors should look for ways to bring more FCA cases that also include criminal charges under other statutes.

DOJ does this from time to time—there have been 19 hybrid settlements in the past five years. The problem is that in many of these cases the defendant is offered a deferred or non-prosecution agreement, which largely nullifies the impact of the criminal charge.

The time has come for prosecutors to deal more aggressively with corporations that cheat federal agencies and thus the public.

The Big and the Bad

Proposed new guidelines on merger enforcement just released by the Federal Trade Commission and the Justice Department are a welcome development. In many industries, takeovers have put U.S. consumers at the mercy of a small number of mega-corporations all too willing to use their market power aggressively.

DOJ and FTC have put forth 13 guidelines under which the agencies could block mergers that eliminate substantial competition, increase concentration, entrench or extend a dominant position and so forth. Mergers that substantially lessen competition for workers could also be targeted.

Along with the market benefits that would come from slowing consolidation (reduction in the number of firms in an industry) and concentration (increase in the share of business activity controlled by a small number of large firms), this new aggressive posture could also help to restrain the growth of corporate misconduct.

The reason is that as corporations grow larger and more dominant they seem to become more inclined to break the rules—not only the rules against price-fixing but also those concerning labor standards, environmental protection, transportation safety and much more. Evidence for this can be found in the data collected in Violation Tracker.

A prime example is the financial services sector. The country’s four largest banks—JPMorgan Chase, Bank of America, Citigroup and Wells Fargo—account for $180 billion in cumulative penalties since 2000. This is nearly half of the penalties paid by all of the 330 parent companies in this sector covered by Violation Tracker.

Penalty concentration is even greater in the petroleum industry, where the top five oil companies—Exxon Mobil, Shell, Chevron, BP and ConocoPhillips—are responsible for cumulative penalties of $42 billion. That is three-quarters of the $55 billion paid by all the companies in the sector.

Big Tech giants Meta Platforms, Alphabet and Microsoft have cumulative penalties of $9 billion, which is 60 percent of the total paid by entire the information technology sector. (This excludes Amazon.com, which is categorized in Violation Tracker as a retailer, and Apple Inc., which is put in the electronics category.)

Tyson Foods, JBS (the Brazilian parent of Swift and Pilgrim’s Pride), and WH Group (the Chinese parent of Smithfield Foods), which dominate meat and poultry processing, account for $1 billion in penalties, while leading packaged food companies PepsiCo, Mondelez International, Kraft Heinz and ConAgra account for another $435 million. Together they are responsible for about 40 percent of the $3.7 billion in penalties paid by the food products sector overall.

In other industries such as motor vehicles and airlines there are few significant companies, so penalties are also highly concentrated among them.

This is not to say that mega-corporations have a monopoly on misconduct. Many of the more than 500,000 cases documented in Violation Tracker involve small firms.

Yet their misdeeds usually have a limited impact, whereas the transgressions of the godzillas of the business world cause the most harm to workers, consumers and communities. Preventing large companies from becoming even larger and more dominant will help limit these harms.

Bank Robbery

For the past few years, it was easy to get the impression that Wells Fargo was an outlier when it came to the mistreatment of customers. That bank paid billions in penalties for the creation of bogus fee-generating accounts and the application of various other types of illegitimate charges.

Now it turns out that Bank of America belongs in the same category. The Consumer Financial Protection Bureau and the Office of the Comptroller of the Currency have just announced that BofA is being fined $150 million for similar unsavory behavior.

CFPB and OCC cite abuses of three main types. First, BofA is said to have engaged in the practice that made Wells Fargo notorious: the illegal enrollment of customers in accounts without their knowledge or consent. In order to do this, BofA improperly accessed consumer credit reports.

Second, BofA deployed what the regulators call a double-dipping scheme to harvest junk fees, which included charging a customer more than once for the same declined transaction. Finally, the bank is accused of luring credit card customers with special offers of cash and points, only to renege on those promises.

Regulators were not the first to bring these swindles to light. For years, BofA  was sued repeatedly in class action lawsuits brought on behalf of customers. Just last month, I reported that in a compilation of consumer-related lawsuits dating back to 2000 prepared for inclusion in Violation Tracker, BofA had paid out more in settlements and damages–$3.2 billion—than any other corporation. These payouts came in 29 different class actions, a number also higher than any other company.

It will be interesting to see if the BofA revelations generate as much controversy as did those involving Wells Fargo, which not only faced criminal as well as civil charges but also received the unusual punishment of being barred by the Federal Reserve from growing in size until it improved its compliance record. The Fed also forced out several members of the bank’s board of directors.

The consequences for BofA may be less dire. I fear that these banking abuses may be losing the ability to shock the conscience. There was, for example, little uproar last year when CFPB accused U.S. Bank of engaging in the bogus account scam and fined it $37.5 million.

BofA, for its part, may just brush off the $150 million penalty it is paying to CFPB and OCC. After all, that sum may seem insignificant to a corporation that has accumulated an astounding $87 billion in fines and settlements since 2000. That total is far and away the largest among all corporations. As shown in Violation Tracker, it is more than twice as much as has been paid by second-ranking JPMorgan Chase and it makes Wells Fargo’s $27 billion total seem puny in comparison.

Even if BofA treats this new case as no big deal, the rest of us should not become blasé about the bank’s abysmal record.