July 2023 Archives

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.