February 2024 Archives

Biometric Battles

The Alabama IVF court ruling and the move for a national abortion ban highlight the rising threat to reproductive freedom. Another battle over bodily autonomy is taking place in the corporate world. It revolves around the question of whether companies have the right to gather biometric information about employees or customers without their full consent.

Collection of fingerprints and voiceprints is not as oppressive as restricting the right to terminate a pregnancy, but it raises a legitimate privacy concern nonetheless. This is especially true as more companies embrace facial recognition, iris scanning and the like.

Disputes over biometric data collection frequently end up in court, where plaintiff lawyers bring class action claims and often win substantial settlements. For example, the Presence Health Network in Illinois just agreed to pay $2.6 million to settle litigation alleging that the privacy rights of employees were violated by requiring them to scan their fingerprints for timekeeping without first obtaining consent.

Violation Tracker documents 30 similar fully resolved lawsuits with total settlements of $1 billion. These cases are typically brought under the Illinois Biometric Information Privacy Act, a 2008 law that is the strictest in the nation. BIPA cases can be brought in state court in Illinois, but in certain circumstances they can be filed in federal court.

Some of the biggest settlements have come in federal cases. The largest of all is the $650 million payment by Facebook in 2021 to resolve claims that its collection of facial data from users violated BIPA. The following year TikTok paid out $92 million in a similar case.

The largest state court settlement was the $100 million paid by Google in connection with facial data collected by its photo service. In another state case, Six Flags agreed to pay $36 million to resolve claims it improperly collected fingerprint data from pass-holders.

Large employers which have entered into biometric settlements include Walmart, which paid $10 million to resolve claims it improperly collected worker handprints, and the Little Caesar pizza chain, which agreed to pay nearly $7 million to settle litigation alleging it violated BIPA by using a fingerprint-based timekeeping system without getting informed consent from employees.

BIPA lawsuits rarely go to trial. The risks for companies of refusing to settle are illustrated by a case brought against BNSF by a class of 44,000 truck drivers who claimed the railway company improperly collected their fingerprints. In 2022 a federal jury found in favor of the plaintiffs and awarded up to $228 million in damages. That award was thrown out for technical reasons, but the company recently agreed to settle the matter for $75 million.

Cases arising out of BIPA have prompted other states to consider adopting their own biometric privacy legislation, yet none have begun to match the Illinois law. Efforts in Congress to pass a national law have also made little progress.

For now, BIPA class actions are the main thing standing in the way of the corporate effort to turn us all into human bar codes.

PFAS Payouts

BP and its drilling partners were hit with over $60 billion in fines and settlements in connection with the 2010 Deepwater Horizon disaster in the Gulf of Mexico. That remains the largest payout in any environmental case, but the legal costs associated with another issue are starting to catch up.

That issue is the widespread contamination of drinking water supplies with synthetic chemicals called per- and polyfluoroalkyl substances (PFAS). These substances, which are considered possible carcinogens, do not break down in the body or the environment and thus have been dubbed forever chemicals. Detectible level of PFAS can be found in just about everyone alive.

PFAS cases first gained attention in relation to the effort in West Virginia, dramatized in the film Dark Waters, to hold DuPont accountable for contaminating water with chemicals used as coatings for non-stick cookware. In 2017 DuPont and its spinoff Chemours each paid $335 million to settle litigation over the issue.

Now the settlement amounts have grown larger. Last year, 3M agreed to pay over $10 billion to public water suppliers around the country. The case is awaiting final court approval.

Final approval was recently given to a $1.85 billion settlement reached by DuPont, Chemours and DuPont’s other spinoff Corteva with a group of municipal water suppliers relating to contamination caused by PFAS in firefighting foam.

There have also been numerous settlements below $1 billion but still substantial. Last year the Belgian chemical company Solvay agreed to pay $393 million to the state of New Jersey for PFAS contamination at a plant in Gloucester County. The footwear company Wolverine World Wide paid a total of $96 million in two lawsuits connected to contamination in Michigan.

Saint-Gobain Performance Plastics, Honeywell International and 3M agreed to pay a total of $65 million in another firefighting foam case in upstate New York. DuPont is also a defendant in the case but has refused to settle.

It is encouraging to see these companies held responsible for their role in the proliferation of PFAS, but it is unclear whether the payouts will be sufficient to pay for the long-term cost of exposure to the chemicals. That is because we still don’t know the full extent of contamination, and there is growing evidence that the problem is massive. For example, NRDC has just come out with a report estimating that in California alone, water systems serving some 25 million residents—over 60 percent of the state’s population—are contaminated. The levels are likely higher in other parts of the country that have been less aggressive in limiting PFAS use.

Under pressure from lawsuits, regulators and activists, many companies have been phasing out their use of the chemicals. 3M has promised to cease its use of PFAS by the end of 2025. Yet many products containing the chemicals are still being imported from countries with less restrictive practices.

The Deepwater Horizon disaster caused widespread harm in the Gulf of Mexico and the communities along its shores, but the scope of PFAS contamination appears to be much wider and could end up standing with global warming as the two leading environmental crises of our era.

Blowing the Whistle on Procurement Fraud

A federal judge recently ordered Gen Digital Inc. to pay $53 million in damages for cheating the federal government. The case against the company—formerly known as NortonLifeLock, a spinoff of Symantec Corp.—originated in a lawsuit filed by whistleblower Lori Morsell, who stands to receive a share of the payout. While working at Symantec more than a decade ago, Morsell discovered that the company was failing to provide federal agencies the discounts it made available to other customers.

Gen Digital is the latest in a long line of federal contractors whose misconduct has been punished through what are known as qui tam lawsuits. (Qui tam is derived from a Latin phrase meaning “who sues on behalf of the king as well as for himself.”) These are cases enabled by the False Claims Act in which someone with information about fraud against a public entity can file a suit on behalf of the government. The practice in the U.S. dates back to the Civil War era.

In many situations, the Justice Department will choose to intervene in the matter, in effect taking over the prosecution, but the whistleblower is typically awarded a portion of the damages or settlement. A large portion of the more than 2,500 False Claims Act cases documented in Violation Tracker, which account for $60 billion in penalties, began as qui tam actions.

Federal prosecutors do not intervene in every whistleblower case. Given that the plaintiff may not have the resources to pursue the matter independently, most of these cases end up being dropped. Yet substantial settlements are sometimes achieved without government involvement, though the feds share in the proceeds. Here are some examples.

In 2022 State Farm Fire & Casualty Co. agreed to pay $100 million to settle allegations it violated the False Claims Act in connection with claims improperly submitted to the National Flood Insurance Program after Hurricane Katrina.

In 2011 Medline Industries agreed to pay $85 million to settle allegations that it violated the False Claims Act by paying illegal kickbacks to healthcare providers who purchased its medical supplies using federal funds.

In 2016 Novartis agreed to pay $35 million to settle allegations it violated the False Claims Act by marketing the eczema cream Elidel for use on infants, even though it was only approved for older patients.

Also in 2016, Ocwen Loan Servicing agreed to pay $30 million to settle allegations that two of its subsidiaries violated the False Claims Act by submitting incorrect information to the Treasury Department’s Home Affordable Modification Program.

Successful qui tam cases have become so common that it is easy to take them for granted and assume that this practice is widespread in other countries. That is not the case, even in the United Kingdom, where the practice originated centuries ago but later fell into disuse.

This could change. Recently, Nick Ephgrave, the director of the UK’s Serious Fraud Office gave a speech in which he endorsed the idea of compensating whistleblowers. Such a move would give a major boost to the prosecution of procurement fraud in the UK, which lags far behind the United States in dealing with this perennial problem.

Back here, the legal status of whistleblowers has been strengthened even as the power of regulatory agencies has been challenged. This applies both to False Claims Act cases and those brought under other laws with whistleblower provisions, such as the Sarbanes-Oxley Act. Recently, the U.S. Supreme Court ruled unanimously that whistleblowers seeking compensation after being fired for exposing misconduct do not need to prove an employer acted with retaliatory intent.

The U.S. has a long and impressive history of using qui tam whistleblower cases to fight corporate fraud against the public. The UK would do well to revive its own use of this effective tool.

Tax Credits and Fraud

The relentless corporate pursuit of special tax breaks is bad for the fiscal health of cities and states, but it is usually completely legal. An exception to this rule is taking place in New Jersey, where a well-connected company has been the target of a criminal investigation.

Holtec International, the company in question, is involved in various energy-related businesses, including the decommissioning of defunct nuclear power plants. In 2014 it was the recipient of a $260 million tax-related subsidy from the Grow New Jersey Assistance Program to create jobs at a facility in the struggling city of Camden. As the advocacy group New Jersey Policy Perspective pointed out, the deal had weak provisions relating to local hiring, training programs and even the number of jobs the company would actually have to create to get the tax benefits.

Despite benefitting from that largesse, Holtec got itself in trouble when it allegedly tried to cheat a different tax incentive program, the Angel Investor Tax Credit. The company qualified for a credit based on a $12 million investment it made in the battery company Eos Storage. That credit is capped at $500,000.

According to the New Jersey Attorney General Matthew Platkin, Holtec sought to circumvent that limit by trying to make it appear that it and a related company called Singh Real Estate Enterprises had each separately invested $6 million in Eos and thus could each claim the $500,000 credit. Holtec allegedly did so by submitting misleading documents to the state’s Economic Development Authority (EDA).

In announcing the resolution of the case against Holtec, the AG recently said: “We are sending a clear message: no matter how big and powerful you are, if you lie to the State for financial gain, we will hold you accountable — period.”

Yet Holtec is getting off easy. The AG allowed the company to enter into a deferred prosecution agreement instead of facing criminal charges. Under that agreement, Holtec must pay $5 million in penalties, forgo the angel investor credit and retain an independent monitor to oversee future dealings with the state.

Instead of showing appreciation for the leniency agreement, Holtec issued a sharply worded statement alleging that the entire investigation was retaliation after the state failed in a previous legal action against the company relating to that $260 million subsidy deal. The EDA had sought to rescind the award because the agency said it belatedly discovered that the company’s original application had not disclosed a disciplinary action brought against it by the Tennessee Valley Authority. That action, a temporary debarment, stemmed from a case in which Holtec was linked to improper payments made to a TVA manager to help secure a contract.

Holtec’s claim that its failure to mention the TVA debarment was inadvertent was accepted by the New Jersey courts and the tax credit was upheld.

This entire episode should serve as a reminder of the drawbacks of a system in which companies come to believe they have an absolute entitlement to tax breaks—and states don’t do enough to monitor the eligibility of applicants and the compliance of recipients. It also raises the question of whether there is more fraud in the economic development subsidy system than we have assumed.

Philips Exits a Scandal-Ridden Business

It has taken a long time, but Royal Philips finally did the right thing with regard to its troubled machines for sleep apnea and other respiratory problems: the company has stopped selling the devices in the United States.

The Dutch company took the step as part of a settlement it has been negotiating with the Justice Department and the Food and Drug Administration, which pressed the company to deal more aggressively with a longstanding defect in its continuous positive airway pressure (CPAP) machines. The problem stemmed from an industrial foam used in the devices to reduce noise but which could break apart and cause users to inhale potentially dangerous particles.

This issue has been known for years. In 2021 Philips voluntarily recalled several million devices, but it appears the company was aware of the foam problem long before taking that action. An investigation by ProPublica and the Pittsburgh Post-Gazette found that the company was receiving complaints as early as 2010, yet it failed to make the FDA aware of the magnitude of the problem as the volume of those complaints reached into the thousands: “Again and again, previously undisclosed records and interviews with company insiders show, Philips suppressed mounting evidence that its profitable breathing machines threatened the health of the people relying on them, in some cases to stay alive.”

Philips is likely to end up paying billions of dollars in legal settlements. It has already agreed to a $479 million settlement with plaintiffs claiming economic damages from having to replace defective machines affected by the recall. Tens of thousands of personal injury cases have been filed and will probably get aggregated. The monetary penalties in the settlement with the Justice Department are not yet known.

This scandal is a major blow to the reputation of a company once known for benign products such as electric shavers and video cassette recorders. Yet in recent years the company has had other problems as well. As documented in Violation Tracker, it has paid over $450 million in fines and settlements over the past two decades.

About half of this total comes from cases involving alleged price-fixing of electronic equipment, and $62 million comes from a Foreign Corrupt Practices Act case stemming from allegations of making improper payments to officials in China to promote sales of medical equipment.

Another $151 million in penalties stems from False Claim Act cases in which the company was accused of defrauding the federal government. Half a dozen of these cases involved the Respironics business Philips acquired in 2008 as its way into the CPAP field. Philips paid over $50 million to settle allegations that it gave illegal kickbacks to medical equipment suppliers to induce them to order its products.

Given this track record, the accusation that Philips tried to cover up the magnitude of the foam problem does not come as a surprise. What is surprising is that it has taken the Justice Department so long to resolve its case against Philips, while it remains unclear whether the company will face criminal charges. Many of its customers would like to see that happen.