DOJ’s Not-So-Hard Line on Corporate Crime

Last year, Deputy Attorney General Lisa Monaco gave a speech promising a crackdown on corporate criminals, especially repeat offenders. That gave rise to hopes that the Justice Department, after having gone soft on corporate prosecutions during the Trump years, would return to a more aggressive stance.

After months of consultation with various parties, Monaco has just given another speech to signal what is coming next. The new approach, explained in more detail in a memo to federal prosecutors, has some laudable features, but it does not go far enough in bringing down the hammer on rogue companies and their executives.

For example, Monaco’s 2021 statement included a vow to take into account a company’s past behavior when deciding on a prosecution strategy. As someone who spends his time documenting corporate non-compliance, I was eager to see DOJ take a harder line on companies that break the law over and over again.

That commitment remains in the new policy, but there are hedges. Monaco writes: “Not all instances of prior misconduct, however, are equally relevant or probative. To that end, prosecutors should consider the form of prior resolution and the associated sanctions or penalties, as well as the elapsed time between the instant misconduct, the prior resolution, and the conduct underlying the prior resolution.”

Monaco specifies that criminal offenses that occurred more than ten years ago or civil offenses more than five years old can be given less weight. But then she acknowledges that “depending on the facts of the particular case, even if it falls outside these time periods, repeated misconduct may be indicative of a corporation that operates without an appropriate compliance culture or institutional safeguards.”

This “on the one hand, on the other hand” language sends a mixed message. It would have been preferable to tell prosecutors to give serious consideration to previous bad acts and leave it at that.

Then there’s the issue of individual accountability. Now, as last year, Monaco encouraged prosecutors to bring cases against culpable corporate executives and to expedite the handling of those cases. That sounds fine, but the main way Monaco wants to accomplish this is by giving corporations incentives to cooperate more thoroughly with investigations.

Getting companies to turn in wrongdoers is a good idea, but Monaco’s approach could come at too high a cost. She states that, “absent the presence of aggravating factors, the Department will not seek a guilty plea where a corporation has voluntarily self-disclosed, fully cooperated, and timely and appropriately remediated the criminal conduct.” Her memo also states that the imposition of an independent compliance monitor need not occur when a cooperating company “demonstrates that it has implemented and tested an effective compliance program.”

Keep in mind that the kind of cases involved here are mainly ones in which an unscrupulous executive was taking actions that benefited the company and that should have been prevented by internal controls. Such corporations need to be held fully accountable and put under close supervision.

They also should not be allowed to go on receiving special deals such as non-prosecution and deferred prosecution agreements—sometimes more than once. Rather than calling for an end to these practices, Monaco weakly states that multiple deals are “generally disfavored” and goes on to dilute that position even more by suggesting that everything should be done to incentivize voluntary disclosure.

On the plus side, Monaco’s policy would pressure corporations to claw back compensation paid to executives who engage in misconduct. In too many cases, these corrupt individuals have been allowed to keep lavish pay and benefit packages—and often the company would pay their legal expenses.

Overall, Monaco puts too much emphasis on the carrot and not enough on the stick. Corrupt corporations have been treated leniently for too long. Now is the time for a tougher approach.

The Muddled Attack on ESG

Ever on the lookout for threats to the American way of life, the Right has begun pointing its finger at a surprising set of adversaries: BlackRock, Vanguard Group, State Street Corporation and other leading asset managers.

According to a chorus that includes former Vice President Mike Pence and Florida Governor Ron DeSantis, the three firms are part of a “woke Left” that is seeking to impose a radical environmental, social and governance agenda on big business. The allegations are part of an effort to make ESG into a bogeyman for investors similar to the way critical race theory, or CRT, has been used to scare parents of school-age children.

To some extent, the attack on ESG is simply another way to attack Democrats. One of its proponents, Vivek Ramaswamy, published an op-ed in the Wall Street Journal, the favorite soapbox of the movement, headlined “Biden’s ESG Tax on Your Retirement Fund.” The target of the piece was a proposal by the Labor Department to allow pension funds to consider climate-change-related financial risks in making investment decisions.

Ramaswamy has a vested interest in the anti-ESG effort. He wrote a book titled Woke Inc. that is regarded as the bible of the campaign, and he created an investment management firm called Strive to cash in on the backlash to ethical investing. Strive has a fund called DRLL that enthusiastically invests in fossil fuel companies and urges firms of all kinds to resist ESG pressures.

The problem for the rightwingers is that their issue is far from new. There has been a debate going on for decades over the proper role of large corporations when it comes to environmental and social issues. Ramaswamy and his ilk are parroting the arguments made half a century ago by economist Milton Friedman, one of the leading proponents of free market fundamentalism. His 1970 article entitled “The Social Responsibility of Business is to Increase its Profits” is the most famous expression of the idea that corporations should concern themselves with nothing other than making money for their shareholders.

That notion has remained popular in some circles, but most of big business has come to realize that it is simply not practical. Some companies such as Patagonia have made environmental and social engagement part of their brand. Some such as Exxon Mobil resisted change for many years but eventually began to make concessions. And some such as Koch Industries are engaged, but with a rightwing slant.

Modern-day ESG is largely a response by large companies to various external pressures, especially those coming from environmental groups and other corporate accountability activists. These days they also need to deal with the fact that many consumers are unwilling to do business with firms seen as contributing to the destruction of the planet.

Far from being radical, ESG often serves as a form of greenwashing, allowing companies to give the impression they are taking bold steps when their actions are actually quite limited. Much of the purported progress toward ESG goals is based on company self-reporting with limited verification.

The anti-ESG crowd is particularly upset at the role asset managers are playing in encouraging companies to set goals for net-zero greenhouse gas emissions. Yet many companies are planning to meet those goals through the purchase of dubious carbon offsets rather than major changes in their own operations.

When ESG initiatives lead to real changes in corporate practices, that is usually a reflection of changes in market dynamics. Companies such as General Motors are not putting more emphasis on electric vehicles as part of some secret leftist agenda, but rather because that is what its customers are demanding.

Oddly, the rightwing critics seem to pay little attention to the fact that several major ESG investment managers, including Goldman Sachs, are reported to be under investigation by the SEC, which is also seeking to adopt tighter rules on which firms can use the ESG label. Inquiries into whether ESG investment advisers engage in deceptive practices are also underway in Germany, where the offices of Deutsche Bank’s ESG arm were raided by investigators earlier this year.

Instead, the Right’s anti-ESG crusaders are promoting the moves by red-state attorneys general to do their own investigations, focusing on the influence of giants such as BlackRock. Those investigations, however, start out with exaggerated assumptions about the power of ESG, while the SEC seems to be concerned that those impacts are actually less significant than the advisors are leading investors to believe.

In an editorial celebrating the anti-ESG backlash, the Wall Street Journal warned that the changes being promoted by BlackRock could lead to new regulations. This betrays a fundamental misunderstanding of ESG. One of its primary aims is to use voluntary corporate initiatives to make the case that government mandates are unnecessary.

Although they go about it in very different ways, ESG proponents and rightwing critics are both seeking to limit the role of government in overseeing corporate behavior. That is where both groups fall short.

Whether large corporations are claiming to save the world or are simply maximizing profits, they cannot be left to their own devices. The same goes for the big investment managers.

Take the example of State Street Corporation, one of the big firms the Right is trying to make into a major ESG villain. Last year, State Street paid a $115 million criminal penalty to resolve federal charges that it engaged in a scheme to defraud a number of the bank’s clients by secretly overcharging for expenses related to the bank’s custody of client assets.

The problem with State Street and many other large companies is not that they are too focused on promoting virtue but rather that they may be lacking in virtue themselves.

Note: My colleagues and I are seeking a research analyst to work on Violation Tracker. Details are here.

Malignant Marketing

Large corporations are fond of saying that they are all about giving customers what they want. But what happens when the product, though legal, is harmful or addictive? Should companies be allowed to satisfy consumer demand, no matter what the consequences?

Some high-profile settlements announced in recent weeks show that, as far as state attorneys general are concerned, there should be much stricter controls on the marketing of dangerous products and that corporations should be heavily penalized for abuses.

The most recent case involves JUUL Labs, which just agreed to pay $438 million to resolve multistate litigation accusing it of improperly marketing vaping products to minors. The announcement of the settlement, reach with a bipartisan group of 34 states and territories, alleged that JUUL “relentlessly marketed to underage users with launch parties, advertisements using young and trendy-looking models, social media posts and free samples. It marketed a technology-focused, sleek design that could be easily concealed and sold its product in flavors known to be attractive to underage users. JUUL also manipulated the chemical composition of its product to make the vapor less harsh on the throats of the young and inexperienced users. To preserve its young customer base, JUUL relied on age verification techniques that it knew were ineffective.”

Earlier this summer, groups of state AGs announced several massive settlements with companies involved in the production and marketing of opioids. Teva Pharmaceuticals agreed to pay up to $4.25 billion to state and localities to settle allegations that it promoted two powerful fentanyl products designed for cancer patients to others while downplaying the risks of addiction. According to the AGs’ press release, Teva’s actions included “encouraging the myth that signs of addiction are actually ‘pseudoaddiction’ treated by prescribing more opioids.”

Several days later, Allergan agreed to pay up to $2.4 billion to settle a similar multistate case alleging the company had “deceptively marketed opioids by downplaying the risk of addiction, overstating their benefits, and encouraging doctors to treat patients showing signs of addiction by prescribing them more opioids.” Allergan was also accused of failing to maintain effective controls to prevent the diversion of opioids into improper channels.

And a couple of weeks after that, Endo International agreed to pay $450 million in yet another multistate lawsuit stemming from accusations of deceptive marketing. In Endo’s case, this involved allegations that it “falsely peddled its opioids as abuse-deterrent with deadly consequences.” Under the weight of this and other litigation, Endo has filed for bankruptcy.

The theme running through all these cases is the tendency of corporations, obsessed with the desire to increase sales, to engage in shockingly unethical behavior. Both the slick techniques of JUUL to lure young vapers and the seemingly scientific claims of the opioid producers to reassure pain patients demonstrate an apparent willingness to use deceit and manipulation to push dangerous products on vulnerable populations. The monetary penalties, however large, and promises to end the abuses hardly seem a sufficient penalty for the harm caused by this behavior.