Scrutinizing Microsoft

Press accounts of Microsoft’s $70 billion offer for Activision Blizzard make frequent references to the legal problems it would inherit from the gaming company, which is embroiled in lawsuits and regulatory actions relating to sexual harassment and discrimination.

Those problems are real, but it is misleading to suggest that Microsoft is a boy scout of a company with no legal difficulties of its own. While none of the cases involve the same allegations surrounding Activision, Microsoft has, as shown in Violation Tracker, racked up more than $300 million in regulatory fines and class action lawsuit settlements over the past two decades.

The largest cases involve anti-competitive practices—the same issue that made Microsoft notorious in the 1990s. In 2009 the company paid $100 million to resolve a case brought by the Mississippi Attorney General, and in 2012 it paid $70 million to settle a similar suit brought by a group of cities and counties in California.

Microsoft has also faced accusations of foreign bribery. In 2019 one of its subsidiaries paid $8.7 million to resolve criminal charges linked to alleged violations of the Foreign Corrupt Practices Act in Hungary. The parent company paid $16 million in a related civil matter brought by the Securities and Exchange Commission.

LinkedIn, a Microsoft subsidiary, paid $13 million in 2016 to settle a class action lawsuit alleging that it sent unsolicited messages to users.

Microsoft has had its own problems with employment discrimination. In 2020 it agreed to provide $3 million in back pay and interest to employees to resolve federal allegations that hiring patterns at several of its locations showed a statistical bias against Asian applicants.

Finally, Microsoft shares with Activision a track record of wage and hour violations. In 2014 LinkedIn was compelled to pay over $5 million in back pay and liquidated damages to a group of 359 current and former employees who had not received proper overtime pay.

In 2000 Microsoft paid $97 million to settle a lawsuit alleging that it misclassified several thousand people as independent contractors to avoid paying them overtime pay and employee benefits. This was the same issue in a lawsuit brought against Activision in California on behalf of senior artists. In 2017 the gaming company paid $1.5 million to settle the suit.

Despite its transgressions over the past two decades, Microsoft has developed a more benign image than not only Activision but also the other giants of the tech industry, including Amazon, Google and Facebook.

An assessment in the Washington Post attributes this not to changes in Microsoft’s practices but to its public relations and lobbying, especially in relation to Washington lawmakers, many of whom, the Post states, treat the company “like a trusted ally in their efforts to rein in other large tech companies.”

The Activision deal, which raises some significant antitrust issues given Microsoft’s sizeable Xbox business, will be a test of the strength of its good will among policymakers. This will be a good opportunity for those calling for stronger enforcement to show they are serious.

The Corporate Crime Lobby

One big difference between street crime and corporate crime is that drug dealers, burglars and arsonists generally are not able to influence the way their misdeeds are investigated and prosecuted.

Corporate violators, on the other hand, can use lobbying and campaign spending to push for policies that may make it less likely their wrongdoing will be detected or will be treated more leniently if it is discovered.

Much of this business effort is exercised through trade associations, and probably the biggest influencer of them all is the U.S. Chamber of Commerce. As is highlighted in a new report from Public Citizen, the Chamber has been an outspoken opponent of the Biden Administration’s plan to adopt a more aggressive posture toward corporate misconduct.

It has been especially critical of a new approach being taken by the Federal Trade Commission, which voted in November to expand its criminal referral program. While the FTC itself can bring only civil actions, the agency can pass on evidence of corporate criminality to the Justice Department—and now it will be doing more of that. The Chamber accused the FTC of “waging a war against American businesses” and vowed to “use every tool at our disposal, including litigation, to stop its abuse of power.”

The Public Citizen report demonstrates why the Chamber is so agitated: many of its leading members have been involved in significant cases of malfeasance in the past and are likely to be similarly embroiled in the future.

Using extensive data from Violation Tracker, the report shows that the known members of the Chamber have been involved in thousands of civil and criminal matters and have paid more than $150 billion in fines and settlements.

Three major banks—JPMorgan Chase, Citigroup and Wells Fargo—alone account for $81 billion in penalties, and the pharmaceutical industry another $26 billion.

While these numbers represent all forms of misconduct, Public Citizen gives special attention to the 19 Chamber members that have been involved in criminal cases. Among them are Amgen (illegal drug promotion), Bayer (price-fixing) and Zimmer Biomet (Foreign Corrupt Practices Act).

The report notes that at several other Chamber members such as American Express are reported to be targets of current criminal investigations.

Public Citizen looks at overall corporate rap sheets, but given the Chamber’s hyperbolic statements about the FTC, it is worth zeroing in on cases brought by that agency.

As Violation Tracker shows, the FTC has fined companies over $14 billion since 2000. More than one-third of that total comes from a single case brought against a Chamber member. Facebook, whose parent company is now called Meta Platforms, was penalized $5 billion in 2019 for deceiving users about their ability to control the privacy of their personal information.

Other Chamber members involved in significant FTC cases include: Citigroup, which paid $215 million to resolve allegations that two of its subsidiaries engaged in deceptive subprime lending practices; Alphabet, whose Google subsidiary paid $136 million for violating rules regarding the online collection of personal data on children; and AT&T, whose AT&T Mobility subsidiary paid $80 million to the FTC to provide refunds to consumers the company unlawfully billed for unauthorized third-party charges.

These were all civil matters. The Chamber is apparently worried that such cases could now result in referrals to the Justice Department for criminal prosecution, especially since the DOJ is vowing to bring more such actions.

The next few years will be a test of whether more aggressive regulators and prosecutors can overcome the power of the corporate crime lobby.

Holding Corporations Accountable for Defective Products

A federal judge in Michigan just shot down a motion by Fiat Chrysler to derail litigation alleging it sold 800,00 vehicles with faulty gearshifts. The company could end up paying many millions in damages. At about the same time, a federal judge in New York gave final approval to a $5.2 million settlement of class action litigation claiming that DevaCurl products caused hair loss and scalp damage.

These are two recent examples of actions in an arena in which corporations are held accountable for causing harm to their customers: product liability lawsuits. These kinds of court cases are the latest category of class-action and multi-district litigation to be added to Violation Tracker.

The database now contains entries covering 120 of the most significant product lawsuits of the past two decades in which corporations paid substantial damages or a monetary settlement to large groups of plaintiffs.  The total paid out by the companies in these cases is more than $54 billion.

Fourteen of the cases involved payouts of $1 billion or more, the largest of which was the $9.6 billion Bayer agreed to pay to resolve tens of thousands of suits alleging that the weedkiller Roundup, produced by its subsidiary Monsanto, causes cancer. Bayer, which produces pharmaceuticals as well as chemicals, was involved in five other cases on the list, bringing its aggregate payout to more than $12 billion, the most for any corporation.

Next in line are Pfizer and Johnson & Johnson, each with payout totals of about $5.5 billion for cases involving harm caused by products ranging from hip implants and diabetes drugs to heartburn medication and talcum powder. These two companies and other pharmaceutical and medical equipment producers account for one-third of the cases on the list and half of the payout total. The giant settlements involving opioid producers and distributors are not included here, since they are treated as matters of illegal marketing rather than defective products—and because those cases are most often brought by state attorneys general rather than as private litigation.

The motor vehicle industry also features prominently, with 32 cases and total payouts of $9 billion. The largest portion of that is linked to Toyota, with $5.3 billion in payouts in cases involving issues such as unintended acceleration, defective airbags and premature corrosion. Volkswagen has actually paid out much more in class action settlements due to its emissions cheating scandal, but Violation Tracker categorizes those as environmental rather than product liability cases.

Among the remaining cases are a $1 billion settlement by the German company Knauf involving drywall that emitted noxious odors and a $500 million settlement by Sears Roebuck of allegations that it sold stoves that had a tendency to tip over.

Yet perhaps the most surprising of the cases were two involving the Brazilian company Taurus, which paid a total of $277 million to resolve allegations that it produced firearms with a defect that caused them to go off when dropped. The irony is that gunmakers are shielded from liability when their weapons are used in criminal activities.

Product liability class action and multi-district cases—like similar litigation involving issues such as toxic chemicals, wage theft and privacy violations—are reminders that the courts are an important complement to the regulatory system in addressing corporate misconduct.