Good Corp, Bad Corp

Like many others in Trump’s America, big business seems to be confused on where it stands. One minute it is receiving its dream list of tax cuts and regulatory rollbacks, the next minute it is being attacked by the president for real or imaginary transgressions.

Trump’s corporate villain du jour is Amazon.com, which he has criticized for supposed offenses such as cheating the U.S. Postal Service. As with Trump’s other Twitter tirades, any grain of truth in his position is overwhelmed by a torrent of incoherent and misdirected accusations and insults.

Amazon certainly has a lot to answer for. The online behemoth has gone a long way in supplanting Walmart as the country’s most controversial retailer. The labor practices in its distribution centers are horrendous. It is decimating small business. Most recently, it is conducting a competition among 20 localities for a second headquarters campus that will supposedly create 50,000 jobs, signaling that it expects a giant subsidy package from the winner. Some places are ponying up offers in the billions, setting the stage for a future fiscal disaster.

Trump has focused on none of these issues in his tweetstorms against Amazon. He did mention the issue of sales tax collection, though his critique was out of date. After years of refusing to collect taxes in most parts of the country, Amazon has made agreements with state governments yet is still not collecting the local component in many places and is not requiring the third-party vendors that use its website to add taxes on their sales.

It is unclear whether Trump’s complaint about Amazon’s arrangement with the Postal Service has any validity, given that the terms are confidential. What seems to be inaccurate is the claim that the USPS is losing money on the packages its delivers for Amazon, which is enabling the post office to make use of excess capacity.

The problem is that Trump’s sloppy criticism is prompting many people to jump to the defense of Amazon, which doesn’t deserve all the support. The Washington Post, separately owned by Amazon CEO Jeff Bezos and probably the real target of Trump’s wrath, should be defended for its critical reporting on a corrupt administration. Yet even if Trump is incapable of making the distinction, others should not feel that rising to protect the free press requires one to also take the side of a corporate cousin involved in very different activities.

The Amazon situation is a symptom of a larger problem. Trump’s potshots against various companies amount to fake corporate campaigns that may be making it more difficult for real campaigners to get their message across — in the same way that Trump’s ham-fisted tariffs are complicating things for legitimate fair trade activists. To the extent that his fake criticisms engender pro-corporate responses, Trump could end up strengthening the position of big business.

If Trump were smarter, one might think that was his intention all along.  More likely, it just another aspect of the chaos in which we must now live.

The Real Law and Order Solution

Large banks have paid out more than $87 billion in fines and settlements to resolve allegations about the sale of toxic securities in the period leading up to the financial meltdown a decade ago. Another $43 billion was paid out in connection with mortgage abuses.

It’s unclear whether these unprecedented penalties had any lasting deterrent effect. As has been made clear in the Wells Fargo scandal, bad bank behavior has hardly disappeared. And now the financial services industry is pushing to weaken the modest restrictions implemented under the Dodd-Frank Act.

Imagine how different things might be if the federal government had the tools and the inclination to hold top bank executives personally responsible for the reckless and fraudulent behavior of their institutions. What if, instead of making payouts that they regarded as a tolerable cost of doing business, financial CEOs found themselves behind bars?

This tantalizing prospect is made a bit more real in legislation recently introduced by Sen. Elizabeth Warren: The Ending Too Big to Jail Act.

One component of the bill would require top executives of banks with more than $10 billion in assets to certify annually that they have conducted due diligence and found no criminal conduct or civil fraud within their institution. This would make it easier to bring individual prosecutions when it turns out that such certifications were false.

Another portion of the bill would create a permanent investigative unit for financial crimes. Designed along the lines of the Special Inspector General for the Troubled Asset Relief Program, which brought successful cases against executives at smaller banks, it would be known as the Special Inspector General for Financial Institution Crime. Properly funded, this unit could take on expensive and complicated cases.

Finally, the bill would mandate judicial oversight of deferred prosecution agreements, or DPAs. Along with the failure to prosecute top executives, the Obama Justice Department also continued the dubious practice that started under Bush of making numerous deals with large corporations by which they escaped prosecution for their transgressions, on the condition that they paid a financial penalty and promised to end the offending behavior. Since 2003 about 140 DPAs have been created, along with a larger number of cases involving a variant, the non-prosecution agreement.

It is unclear how much effort the Justice Department put into enforcing the DPAs. Warren’s bill would give the courts the power to oversee compliance with these agreements. In fact, it would require courts to determine whether a proposed DPA is in the public interest.

Finally, the legislation would require the Justice Department to establish a searchable database of DPAs. Until that comes into existence, you can use Violation Tracker to find information on more than 300 DPAs and NPAs.

Warren’s bill would greatly advance the kind of law and order the country truly needs.

A Nirvana for Rogue Corporations

The SEC’s enforcement action against Theranos Inc. and its founder Elizabeth Holmes puts a new focus on the persistence of corporate crime in the healthcare sector after a period in which the business culprits getting the most attention were banks such as Wells Fargo and automotive companies such as Volkswagen and Takata.

Another reminder of the checkered history of health companies comes in a new report from Public Citizen on the trend in legal penalties imposed on pharmaceutical firms. The study, an update of three previous analyses on the subject done by the group, documents a disturbing trend: Although there is no reason to think that egregious drug company misbehavior has disappeared, aggregate criminal penalties against those firms have plunged.

Public Citizen finds that criminal penalties in 2016-2017 were just $317 million, down 88 percent from four years earlier. Combined federal criminal and civil penalties over the same period of time declined from $8.7 billion to $2.8 billion, a drop of more than two-thirds.

At the heart of this trend, the report finds, is a falloff in penalties from settlements of cases involving the unlawful promotion of prescription drugs. Those penalties are down by 94 percent from their peak in 2012-2013.

It is probably true that Big Pharma has toned down the brazen behavior that led to giant penalties such as the $3 billion imposed on GlaxoSmithKline, the $2.3 billion imposed on Pfizer, the $2.2 billion imposed on Johnson & Johnson, the $1.5 billion imposed on Abbott Laboratories, the $1.4 billion imposed on Eli Lilly, the $950 million imposed on Merck, etc.

One problem that has by no means disappeared is the improper distribution of opioids. Although Purdue Pharma was penalized $461 million in 2007  and various wholesalers and pharmacy chains have been hit with smaller fines since then, there is no indication that the misconduct is receding.

Part of the problem is that the president of the United States has directed little criticism against the drug industry while making inflammatory statements about illicit traffickers, including the suggestion of imposing the death penalty. He has also expressed his admiration for the extra-judicial executions of drug dealers in the Philippines.

The decline in drug industry fines is part of a larger tendency by the Trump Administration to scale back penalties against corporations in all industries. As I previously noted, the latest update to Violation Tracker through the end of Trump’s first 12 months shows a remarkable drop in penalties, especially for the very largest companies in the Fortune 100.

This can be seen as a form of stealth deregulation. Increasingly, Big Pharma and other industries benefit both from rolled-back rulemaking and from diminished financial consequences if they break the rules still on the books. It is truly a nirvana for rogue corporations.

The Other Problem Banks

Bipartisanship has returned to Washington, thanks to the overwhelming desire of Republicans and quite a few Democrats to roll back portions of the Dodd-Frank Act. Ten years after the onset of the financial meltdown and seven years after the law went into effect, the relentless efforts of the banking lobby seem to be paying off.

The legislation, S.2155, is being sold as much needed relief for smaller banks that were supposedly treated unfairly by Dodd-Frank. Some adjustment to the law might make sense for very small banks, but the bill has evolved into something that will benefit larger institutions that still merit close scrutiny.

Using relief for community banks as a stalking horse, proponents of the bill have added provisions that will reduce the degree of supervision that would be exercised on banks with assets up to $250 billion. Those with assets between $50 billion and $100 billion would benefit the most.

The two dozen banks (listed in a Congressional Research Service report) that would be affected by these provisions are hardly mom and pop financial institutions. And while the most harm to the economy was done by the likes of Bank of America, Citigroup, JPMorgan Chase and Wells Fargo, these mid-sized banks have records that are far from spotless.

Take the case of  Credit Suisse, the Swiss bank whose U.S. operation has assets of about $215 billion. During the final days of the Obama Administration it had to pay $5.3 billion to settle a case involving the sale of toxic securities a decade ago. In 2014 it paid $1.8 billion in connection with criminal charges of helping U.S. taxpayers file false returns. In 2009 it paid $268 million to settle criminal allegations relating to economic sanctions. In all, Credit Suisse has more than $9 billion documented in Violation Tracker, ranking it tenth among all corporations.

Or consider Barclays, the British bank whose U.S. operation has assets of about $180 billion. In 2015 it pled guilty to criminal charges of conspiring to manipulate foreign exchange markets and was fined $710 million while also paying $400 million to settle related civil allegations. That same year it had to pay $325 million to settle a case brought by the National Credit Union Administration concerning Barclay’s sale of toxic securities a decade earlier. Its Violation Tracker total is more than $3 billion, putting it in nineteenth place among all corporations.

Other controversial foreign banks whose U.S. subsidiaries would benefit from S.2155 relaxed regulation include Deutsche Bank ($12 billion in Violation Tracker), BNP Paribas ($9 billion) and UBS ($5 billion).

Foreign banks are not the only bad actors on the list.  Atlanta-based SunTrust, with about $200 billion in assets, has racked up more than $1.5 billion in penalties, including one case in which it had to provide $500 million in relief to underwater borrowers to resolve allegations that it engaged in deceptive and illegal mortgage servicing practices.  Among the other items in its rap sheet is a $21 million payment to resolve allegations that it charged higher loan rates to black and Latino borrowers.

The S.2155 beneficiary list includes half a dozen additional domestic banks with $100 million or more in penalties: Ally Financial, American Express, Discover Financial Services, Fifth Third Bancorp, M&T Bank Corporation, and Regions Financial Corporation.

A bank does not have to be gigantic to be problematic. These culprits should not lumped together with community banks in deciding whether to tinker with Dodd-Frank.

Big Polluters and Big Penalties

At a moment when there is all too much talk in Washington about deregulation, a helpful counterpoint has arrived from the Political Economy Research Institute in the form of the latest edition of the Toxic 100, a compilation of the companies responsible for the highest volumes of industrial pollution.

The project, which has been providing this information since 2004, now has rankings on three kinds of pollution: air, water and greenhouse gases. The lists include environmental justice indicators that highlight the disproportionate effect on low-income and minority communities.

The companies on these lists represent some of the biggest threats to the physical well-being of the people of the United States.

The top tier of the air pollution list, which is based on data from the EPA’s Toxics Release Inventory, contains the kind of industrial giants one might expect: DowDuPont, General Electric, Royal Dutch Shell  and Arconic (a spinoff of Alcoa). Yet number one is the less well known Zachry Group, an engineering company that operates dirty manufacturing facilities in North Carolina and Texas. Also in the top ten is Berkshire Hathaway by virtue of its ownership of companies such as Johns Manville, Pacificorp and MidAmerican Energy.

The top tier of the greenhouse gas list, based on other EPA data, is dominated by companies operating lots of fossil fuel power plants: Southern Company, Duke Energy, American Electric Power and NRG Energy. These are the companies Trump is aiding with his attack on the Obama Administration’s Clean Power Plan.

Berkshire Hathaway is the only parent company in the top ten on both the air and greenhouse gas lists; it ranks 21st in water pollution.

I could not resist the temptation to check where the companies that rank high on the Toxic 100 lists show up in Violation Tracker. This is partly because Rich Puchalsky, who serves as the data management specialist for the Toxic 100, has also played an essential role in the construction and expansion of Violation Tracker.

Rich kindly created for me a spreadsheet combining rankings from the two projects. Looking first at the Toxic Air 100, I see there are unsurprising overlaps with the 100 most penalized companies in Violation Tracker—BP, Exxon Mobil, Royal Dutch Shell, Phillips 66, etc. Yet there are some very large air polluters that have faced much smaller penalties, including the Zachry Group cited above and TMS International, a steel industry service company. The EPA should take note.

As for the Greenhouse 100, there are expected overlaps with the Violation Tracker top 100—such as Duke Energy, American Electric Power, FirstEnergy, etc. But there are some discrepancies. Large CO2 emitters such as Energy Future Holdings, Great Plains Energy, and OGE Energy have not received substantial penalties. The EPA might want to check these as well.

Beyond the specifics of individual companies, there is a broader issue here: what is the connection between fines and emissions? Although the releases reported in the Toxic 100 are technically not illegal, those companies are likely to be creating unsanctioned emissions as well. Fines could bring about reductions in both categories. Yet many big polluters treat the penalties as a tolerable cost of doing business and fail to do enough to clean up their facilities. That suggests the need for newer and more effective forms of enforcement. Deregulation is not one of them.

The Gun Industry’s Missing Penalties

Violation Tracker collects data on enforcement activity by more than 40 federal regulatory agencies and the Justice Department. Missing from the list is the Bureau of Alcohol, Tobacco, Firearms and Explosives.

The database provides penalty totals for about 50 major industry groups. High on the list are controversial industries frequently involved in misconduct: banks, oil companies, pharmaceutical producers and the like. Missing from the list is the gun industry.

The ATF and the gun manufacturers are not being deliberately excluded from the database. The problem is that, unlike other federal agencies claiming to be involved in industry oversight, ATF has surprisingly little to report on its efforts. I’ve searched the ATF web pages thoroughly and cannot find the kind of information typically found on other agency sites on proceedings against companies for regulatory infractions. I’ve also searched the archive of the Government Accountability Office for reports about the agency’s enforcement actions against gun makers and gun sellers, to no avail.

ATF’s website has a statistical report on the gun industry and a list of rulings that appear to deal with general policy issues, including licensing, rather than individual company behavior. There is also a page pointing to the relevant provisions of the Code of Federal Regulations but the word “enforcement” hardly appears on the website, except for references to the law enforcement community.

The light touch of the federal government is also reflected in the SEC filings of publicly traded gun manufacturers. For example, the recently published 10-K annual report of Sturm, Ruger & Company has one perfunctory reference to ATF and gives the impression the agency is not much of a concern.

Gun manufacturers are, of course, subject to broad federal regulation covering all industries. Companies such as American Outdoors Brands (parent of Smith & Wesson), Beretta and Colt’s Manufacturing as well as Sturm, Ruger appear in Violation Tracker in connection with the penalties that have been imposed on them by agencies such as the EPA and OSHA. Smith & Wesson has an entry relating to a $2 million penalty imposed by the SEC for violating the Foreign Corrupt Practices Act. American Outdoor Brands and Sturm, Ruger have been penalized by the Commerce Department’s Bureau of Industry and Security for export violations.

Yet, aside from licensing requirements, the gun business is lacking significant industry-specific oversight relating to issues such as safety like that exercised by agencies such as the Food and Drug Administration or the Federal Railroad Administration. Special legislation has provided extraordinary protection to an industry whose products are so lethal.

The reality has just come to light in connection with President Trump’s statement that he ordered Attorney General Sessions to get ATF to find a way to restrict the bump stock accessory that allows semi-automatic weapons to function like illegal machine guns. But it appears ATF may not have the authority to take such action.

In truth, the ATF is a licensing body but not really an enforcement agency. The gun industry is essentially unregulated, and the National Rifle Association continues doing everything in its power to keep it that way.

Trump Goes Easy on Major Corporate Offenders

It’s unclear to what extent the Obama Administration’s practice of extracting unprecedented monetary penalties on miscreant companies proved to be an effective deterrent, but at least the billion-dollar fines and settlements served to highlight the ongoing problem of corporate crime.

The Trump Administration seems to be a lot less interested in cracking down on the most egregious corporate offenders. Although the enforcement arms of agencies such as OSHA and EPA are still operating along normal lines, there has been a sharp decline in the number of mega-penalty cases announced by the Justice Department.

This conclusion emerges from an analysis of the data recently added to the Violation Tracker database covering cases through the end of the Trump Administration’s first year in office on January 19.

Since the largest penalties are normally imposed on the largest corporations, I did an analysis focusing on the Fortune 100 list of the very largest U.S. publicly traded companies. I found that overall federal penalties imposed on these firms during Trump’s first 12 months totaled $1.1 billion, compared to an annual average of more than $17 billion during the Obama years.

The Obama totals, of course, reflected extraordinary settlements with the largest banks to resolve allegations relating to their role in bringing about the financial meltdown of a decade ago. These included, for example, the $16 billion settlement with Bank of America in 2014 and the $13 billion settlement with JPMorgan Chase the year before.

Those financial services sector settlements peaked during the middle years of the Obama era. Yet Trump’s $1.1 billion first-year total is still far below the annual average of more than $9 billion for the Fortune 100 during Obama’s final two years in office. It also trails behind the $3 billion total during Obama’s first year.

Looking at all corporate offenders, there were 44 cases with penalties of $1 billion or more during the Obama era yet only two during Trump’s first year, and he doesn’t really deserve credit for those. One is the $5.5 billion settlement reached by the Federal Housing Finance Agency with the Royal Bank of Scotland relating to the sale of toxic securities to Fannie Mae and Freddie Mac. That case had been filed in 2008, and the settlement had been negotiated under Obama. The other is the a $1.4 billion penalty against Volkswagen for its emissions cheating that appears in EPA records with a date of May 17, 2017 but was actually part of a larger $4.3 billion settlement announced by the Justice Department during the last days of the Obama Administration.

There is also an interesting pattern among Trump Administration penalties in the next tier down—those of $100 million or more. The parent companies involved in about two-thirds of these cases are foreign, especially those with the largest penalty totals. They include the Chinese telecom company ZTE, which was penalized for export control violations, and the Swedish telecom Telia, which was punished under the Foreign Corrupt Practices Act.

It appears that the Trump Administration is more likely to get tough with a corporate violator if the company is not based in the United States, while domestic companies get treated more leniently. I guess the slogan is: Make Domestic Corporate Criminals Great Again.

Note: you can do analyses of your own on Violation Tracker using our new feature allowing search results to be filtered by presidential administration.

Stopping the Growth of Rogue Corporations

The federal response to corporate misconduct over the past two decades has alternated between tougher monetary penalties and the promotion of voluntary measures to lure companies into behaving better. Neither has worked very well.

Companies came to saw the increased fines as a tolerable cost of doing business (especially when they were tax deductible), while voluntarism was never a match for corporate greed.

It was thus intriguing when the Federal Reserve recently adopted a new approach in dealing with Wells Fargo. That bank, of course, has become notorious for its brazen scheme of creating millions of accounts not requested by customers, in order to generate illicit fees. It paid a fine of $100 million, with a lot more expected to follow. This came after a series of other scandals, including mortgage abuses that resulted in a $5.3 billion settlement in 2012.

The Fed, on Chair Janet Yellen’s final working day in office, issued an unusually blunt press release saying that the board was taking steps in response to “widespread consumer abuses and other compliance breakdowns” at Wells.

In an unprecedented step, the Fed imposed a restriction on the bank’s ability to grow “until it sufficiently improves its governance and controls.” In an industry for which getting larger is the guiding principle, Wells will feel intense pressure to satisfy the Fed’s demands. In fact, concurrently with the Fed’s action Wells announced that it would replace one-quarter of its 16-person board of directors by the end of the year.

Bank-friendly politicians have not had much to say about the Fed’s action, but it is clear that the restriction placed on Wells represents a forceful rebuttal to those pressing for a weakening of financial industry regulation. The ouster of Yellen by President Trump was a coup for the deregulation crowd, but we can take some solace in reports that her successor Jerome Powell oversaw the Fed’s negotiations with Wells.

The Fed’s action should be promoted as an example of how regulatory agencies and the Justice Department need to get more creative in dealing with egregious and repeat violators. Rogue corporations will only change their behavior if the penalties really sting.

The restriction on growth begins to meet this requirement because it makes Wells more vulnerable. An inability to become larger through acquisitions means that the bank will lose ground to its big competitors. Wells is probably too big to be a potential takeover target itself, but it could come under pressure from activist investors to restructure or even sell off portions of itself.

Moreover, the restrictions will probably depress the bank’s stock price, and that will be felt personally by the executives who encouraged or overlooked the misconduct.

At the same time, the house-cleaning among directors is an important message to send to board members at other misbehaving companies. That message would be even more effective if directors are not just removed but held personally liable for allowing the corrupt practices to happen.

The Fed has not always been the most aggressive of regulators. Let’s hope its action on Wells inspires other agencies to get tougher with corporate miscreants.

Tipping the Scales Against Workers

Donald Trump built his presidential campaign on the claim that he would be a champion for working people, yet his administration finds one way after another to tip the scales in favor of employers. The latest example involves tips themselves.

In December the Labor Department, bowing to the wishes of the National Restaurant Association, proposed to rescind an Obama Administration rule that prohibited employers from pooling tips. The rule had been adopted to prevent restaurant owners from claiming a share of the gratuities.

While the DOL has claimed that the change would benefit back-of-house workers who don’t directly receive tips, groups such as Restaurant Opportunities Centers (ROC) United say that employers often grab a portion of tips when it is not permitted and that legalizing the practice will only encourage owners to take more.

It turns out that ROC United’s position is shared but some at DOL, but those views are being suppressed. Bloomberg has just reported that political officials at the department rejected an internal analysis concluding that workers could lose billions of dollars from tip pooling. DOL sources told Bloomberg that the officials ordered staffers to change their methodology to reach a different conclusion.

Anyone who takes an honest look at the restaurant industry is bound to conclude that employers will do their utmost to exploit tip pooling. After all, these are companies that already steal from their workers through violations of wage and hour rules concerning off-the-clock work, overtime, misclassification and the like.

Consider the large full-service chains such as Darden Restaurants (Olive Garden, Capital Grille and other brands), Brinker International (Chili’s and Maggiano’s), Bloomin’ Brands (Outback Steakhouse and others) and DineEquity (Applebee’s and IHOP). As shown in Violation Tracker, each one of these has had to pay fines to the DOL’s Wage and Hour Division; six times in the case of DineEquity.

The chains have also been targeted in private collective action lawsuits brought by groups of workers. In 2007 Darden agreed to pay $11 million to settle a group of suits alleging that the company improperly classified certain types of workers as exempt from overtime pay eligibility.

In 2014 Brinker International agreed to pay $56.5 million to settle a long-running lawsuit alleging that the company had routinely violated California rules about meal and rest breaks. In 2016 Bloomin’ Brands agreed to pay $3 million to settle allegations that workers at its Outback outlets were required to show up early to perform unpaid pre-shift prep work. DineEquity has faced similar litigation.

Why would anyone think that companies involved in such transgressions would pass up another opportunity to enrich themselves if DOL gives a green light to tip pooling?

The Bonus Boondoggle

Home Depot is the latest company to join the bonus bandwagon, announcing that it will give hourly employees one-time payments of up to $1,000 as a “reward to our associates for continuing to deliver outstanding customer service.” CEO Craig Menear added: “This incremental investment in our associates was made possible by the new tax reform bill.”

No one should begrudge a few more bucks to underpaid retail workers, but the bonuses should be regarded with a skeptical eye. It’s clear, to begin with, that the companies making these announcements are doing so to curry favor with the Trump Administration and Congressional Republicans. And the amounts being offered to employees represent a small portion of the financial benefits the corporations will enjoy from the tax giveaway. At Bank of America that portion was reported to be about 5 percent.

There’s also a problem with the way the payments are being made. The fact that many of the workers are being given one-time bonuses rather than increases in their base pay means that the impact will be fleeting and do little to address the ongoing problem of wage stagnation.

But perhaps worst of all is that employers are taking these steps on their own rather than negotiating with their workers. That’s possible because they are in almost all cases non-union. Some such as Walmart have a notorious history of anti-union animus, while others like Starbucks have resisted organizing drives in more subtle ways.

There are a few exceptions. For example, AT&T, which is extensively unionized, discussed its bonuses with the Communications Workers of America before making the announcement. Nonetheless, the CWA, which had called on telecommunications companies to provide the $4,000 wage increase Republicans claimed would result from the tax bill, vowed to negotiate for more than the $1,000 payments AT&T said it would provide.

While AT&T maneuvered to downplay the role of the CWA, most of the bonus givers need not take such steps. They can present their payments purely as an act of corporate benevolence.

They are also an affirmation of the lop-sided balance of power in non-union companies. Management gets to decide whether and how to share the tax windfall in the same way it makes all other decisions that affect the lives of their workers. This is seen in the fact that companies such as Walmart and Comcast announced their bonuses around the same time they were carrying out substantial layoffs.

Large companies are adopting the Trumpian practice of pretending to act in the interest of workers without actually empowering them. If Corporate America really wanted to help their employees, they would drop their opposition to unions and let workers bargain for real gains rather than handouts.