Archive for January, 2020

Getting Tough on Corporate Killing

Thursday, January 23rd, 2020

The lead story on the front page of a recent edition of the Wall Street Journal was about the former chief executive of a Brazilian mining company not widely known in the United States. The Journal’s editors probably realized their readers would be shaken by the news that Fabio Schvartsman has been charged with homicide in the deaths of 270 people in a mining dam collapse last year.

The decision by prosecutors in the state of Minas Gerais to bring such charges against Schvartsman as well as other former executives at Vale SA shows the depth of anger in Brazil at the giant iron ore company over the accident in which a torrent of waste swept away people, submerged houses and created a large toxic wasteland (photo).

Vale and a German consulting company, five of whose officials were also hit with homicide charges, are alleged to have long known about a critical safety flaw in the tailings dam but failed to act.

Although Brazil does not have a death penalty or life sentences for civilian offenses, the filing of homicide charges against corporate executives is an aggressive measure that has rarely been applied in that country or anywhere else.

There are more precedents when it comes to corporate manslaughter, which is the idea that a business entity can be prosecuted for causing the death of employees or other persons. For example, in 2007 the United Kingdom enacted the Corporate Manslaughter and Corporate Homicide Act, though that law has not been enforced as rigorously as many advocates had hoped.

In the United States there is no such federal statute, though the principle of corporate criminal liability is well-established, and numerous companies have faced criminal charges, though they frequently end with deferred prosecution or non-prosecution agreements.

The Violation Tracker database has more than 1,600 criminal cases (compared to 395,000 civil matters). Many of these are financial in nature or involve violations of environmental laws such as the Clean Water Act that are deemed negligent or deliberate but usually don’t involve loss of life.

A much smaller number involve corporate killing, including notorious cases such as BP’s role in the Deepwater Horizon disaster or the Upper Big Branch disaster at a coal mine owned by Massey Energy.

In these matters, however, the corporations, as in civil cases, mainly paid financial penalties and their executives faced no personal liability. One exception was former Massey CEO Don Blankenship, who was convicted of conspiring to violate federal mine safety standards and was sentenced to a year in prison. Otherwise, the Justice Department has shown little interest in prosecuting corporate executives for environmental or workplace fatalities.

There has been a bit more of such activity at the local level, especially on the part of the Manhattan District Attorney’s Office. It has brought criminal charges against both companies and individuals in connection with workplace and other accidents. For example, in November 2019 a building owner, a plumber and a contractor were convicted of manslaughter by causing a 2015 explosion resulting from unauthorized natural-gas connections installed in a rental building.

Three years earlier, the Manhattan DA won a conviction against a construction supervisor accused of ignoring warnings about unsafe conditions on a building site that resulted in a fatal accident.

The approach of the Manhattan DA and the prosecutors in Brazil points to a promising way forward in the handling of corporate misconduct that results in serious harm or death. If they know they may end up behind bars for a long time, corporate executives and managers may become more serious about their responsibility to abide by health and safety laws.

The Controversial Corporations Exploiting Citizens United

Thursday, January 16th, 2020

It has now been exactly ten years since the U.S. Supreme Court opened the floodgates for special-interest political advertising in its Citizens United ruling. To mark the occasion, the Center for Responsive Politics has published an excellent report detailing how political spending has changed over the last decade.

One significant finding is that, although Citizens United overturned the prohibition on independent political expenditures by corporations, most companies have not taken advantage of that new right directly. The biggest surges in spending have come from wealthy individuals and from Super PACs.

This is not to say that corporations have stayed on the sidelines. CRP notes that they are funneling much of their spending through trade associations and dark money groups that do not disclose their donors.

To emphasize its point about the limited role of corporations in independent expenditures, the CRP report notes that only 36 companies in the S&P 500 have contributed $25,000 or more to Super PACs since 2012. The report notes that the biggest of these spenders are oil and gas companies but otherwise does not identify them.

Karl Evers-Hillstrom, the author of the report, agreed to share the full list with me, so I could learn more about which corporations are bucking the trend and getting more directly involved with political spending.

Seven of the 36 are those oil and gas companies, including giant producers such as Chevron and ConocoPhillips as well as the big fracking player Devon Energy. The utility industry accounts for eight of the 36 and includes some of the largest contributors to air pollution and carbon emissions: American Electric Power, Duke Energy, Exelon and Southern Companies.

Only three other industries account for more than one of the corporations on the list: insurance (Anthem, Centene and MetLife), casinos (Wynn Resorts and MGM Resorts International) and telecommunications (AT&T and Charter Communications).

The remainder consists of 14 corporations from different industries such as pharmaceuticals (Merck), tobacco (Altria), retail (Walmart), banking (BB&T, now part of Truist Financial) and miscellaneous manufacturing (3M).

The list thus includes some of the most controversial companies from many of the most controversial industries. Among the 36 are some firms that were involved in contentious mergers (e.g. AT&T’s acquisition of Time Warner) and policy issues (Anthem and Centene are big players in healthcare). After fighting for years over federal regulation of tobacco, Altria has moved into the contested business of vaping. Walmart was embroiled in a foreign bribery investigation.

One thing that characterizes nearly all the companies on the list is the fact that they have been implicated in significant compliance breaches. I checked the whole list against the data in Violation Tracker and found that the 36 firms account for more than $29 billion in fines and settlements.

The biggest penalty totals belong to Occidental Petroleum ($5.4 billion), American Electric Power ($4.8 billion), Merck ($3.3 billion) and Walmart ($2 billion). There are six other companies with totals of $1 billion or more. The average penalty for the 36 companies is $844 million.

What all this suggests is that, while most companies are not making full use of Citizens United, corporations that are engaged in controversial activities and have serious compliance problems can take advantage of the ruling and employ their financial resources to try to manipulate public policy in their favor. The threat to democracy thus remains.

U.S. Prosecutors and Foreign Corporations

Thursday, January 9th, 2020

Federal prosecutors recently announced that telecommunications giant Ericsson will pay more than $1 billion to resolve allegations that it conspired to make illegal payments to win contracts in five countries. The settlement included a $520 million criminal penalty imposed by the Justice Department and a $540 million civil payment to the Securities and Exchange Commission.

This was the latest in a long series of cases brought under the Foreign Corrupt Practices Act, the 1977 law that emerged out of the Watergate-era revelations about improper overseas payments by U.S. corporations. But what the case against Sweden’s Ericsson highlights is the extent to which the law is being applied to foreign corporations as well as domestic ones.

In fact, companies based outside the United States increasingly appear to be the primary targets of prosecutors. In the period since the Trump Administration took office, foreign corporations have paid about $4 billion in FCPA penalties to DOJ and the SEC—more than seven times the sum paid by domestic firms. Apart from the Ericsson settlement, the largest combined penalties have been paid by a Russian company ($831 million by Mobile TeleSystems PJSC) and another Swedish one ($731 million by Telia).

By contrast, U.S.-based firms have gotten off with much lighter financial punishment. The only domestic company paying more than $100 million was Walmart, though its long-delayed $281 million penalty was well below what had been expected.

The tougher treatment of foreign companies can also be seen in the prosecution of price-fixing. Violation Tracker shows that during the Trump Administration foreign companies have paid more than $723 million to DOJ in criminal penalties, whereas domestic firms have been penalized only $44 million. There were seven fines of $50 million or more among the foreign companies; none among those based in the United States.

This tendency toward imposing heavier penalties on foreign companies is not unique to the Trump years. During the Obama Administration, seven of the ten largest FCPA settlements involved foreign corporations, as did nine of the ten largest price-fixing cases.

There is no evidence to suggest that foreign companies are more prone to law-breaking and thus account for more of the penalties. When it comes to offenses that are more purely domestic in nature – such as environmental, consumer protection and employment violations – U.S.-based companies more than hold their own.

The question is whether the federal government is using those portions of its enforcement powers that impact more heavily on international trade to put an added burden on the foreign competitors of U.S. companies. Perhaps this is an indirect form of protectionism.

Personally, I have no problem with the prosecution of foreign corporations that are engaged in misconduct, as long as domestic companies doing the same thing are not being let off the hook.

A Boom Decade for Corporate Misconduct

Thursday, January 2nd, 2020

Business journalists are looking back with amazement at the stock market’s track record over the past decade. Yet the 2010s were also a boom period for corporate crime and misconduct.

In Violation Tracker my colleagues and I have documented more than 240,000 cases for that period representing $442 billion in fines and settlements—more than twice the $161 billion total for the previous decade. (The numbers are not adjusted for inflation.)

The cases from the 2010s include 574 with a penalty of $100 million or more, 147 with a penalty of $500 million or more, and 67 with a penalty of $1 billion or more.

The top tier of these mega-cases is dominated by four corporations. BP is linked to the largest single case on the list—the $20.8 billion settlement with the federal government and five states to resolve civil claims stemming from the massive 2010 Deepwater Horizon oil spill in the Gulf of Mexico. BP paid out numerous other mega-penalties and smaller ones to put its total for the decade at nearly $28 billion.

The second biggest single penalty during the decade was Bank of America’s $16.65 billion settlement with the Justice Department in 2014 to resolve claims relating to fraud in the period leading up to the financial crisis, including such behavior on the part of Merrill Lynch and Countrywide Financial, which BofA acquired during that crisis. BofA also had plenty of other penalties during the decade—including two in excess of $10 billion—bringing its total for that period to an eye-popping $62 billion.

The third of the penalty leaders is Volkswagen, which in 2016 reached a $14.7 billion settlement with the federal government and the state of California to resolve allegations relating to systematic cheating on diesel pollution emission testing through the use of defeat devices. VW paid out several other multi-billion penalties related to the cheating and racked up a penalty total of more than $23 billion for the decade.

Rounding out the list of companies with individual penalties in excess of $10 billion is JPMorgan Chase, which in 2013 reached a $13 billion settlement to resolve federal and state claims relating to the sale of toxic mortgage-backed securities by the bank itself and by its acquisitions Bear Stearns and Washington Mutual. JPMorgan also had several other penalties of $1 billion or more, along with smaller ones, that pushed its penalty total for the decade to more than $29 billion.

Other big domestic banks had a substantial share of mega-penalties. These include Citigroup, with a $7 billion toxic securities settlement in 2014 (and a penalty total of $16 billion for the decade) and Wells Fargo, with a similar $5.3 billion settlement in 2012 (and a penalty total of $15 billion stemming from issues such as the creation of bogus accounts to generate illicit fees).

The decade also saw a slew of mega-cases involving foreign banks such as BNP Paribas, Deutsche Bank, Royal Bank of Scotland and Credit Suisse for offense such as violations of economic sanctions and their own toxic securities abuses.

Financial services companies of all kinds dominated the mega-penalty list, accounting for 41 of the 67 billion-dollar cases. Also worthy of mention are the pharmaceutical companies, including settlements by GlaxoSmithKline for $3 billion and Johnson & Johnson for $2.2 billion, both for marketing drugs for purposes not approved as safe by the Food and Drug Administration. That industry will end up paying much more when the pending multistate opioid litigation is resolved.

The list could continue. Suffice it to say that the decade’s major cases made it clear that corporate misconduct perseveres through good times and bad.