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.

The Corporate Trumps

After the 2016 election there was much trepidation in the corporate world about what the election of a self-proclaimed populist would mean for business. Trump’s intervention in the controversy over layoffs at a Carrier plant in Indiana was taken as a signal that he would be tough on the Fortune 500. “Corporate America unnerved by Trump” was the headline of a front-page story in the Washington Post on December 7, 2016.

At the one-year mark of the Trump Administration, those fears have been long forgotten. Although some corporate executives have spoken out against the president on certain social and civil rights issues, they have generally made peace with him on economic policy. They are delighted with his deregulatory moves and are thrilled at the windfall they are enjoying from the tax bill. Meanwhile, they grow wealthier by the day as a result of the stock market’s new bout of irrational exuberance.

Some companies are taking things a step further by also adopting Trump’s style of making exaggerated and self-serving claims while pretending to be acting in the national interest. The ranks of the these corporate Trumps seem to be proliferating.

Even before Trump took office, the Japanese company SoftBank proclaimed that it was inspired to invest $50 billion in the United States and create 50,000 jobs. The Taiwanese company Foxconn promised $7 billion in investment and also the nice round number of 50,000 jobs.

In February Intel, praising Trump’s policies, said it would invest $7 billion in a U.S. chip plant and create 3,000 jobs. In May the Indian business services outsourcer Infosys claimed it would hire up to 10,000 people in the United States.

During the summer, Foxconn upped its ante with an announcement that it would spend $10 billion to build a flat-screen plant in Wisconsin that would ultimately employ some 13,000 workers.

The latest company to Trumpify itself is Apple, which says it is so happy with the tax law changes that it will invest $30 billion in the U.S. over the next five years and create over 20,000 new jobs. Although it has not linked its move directly to Trump’s policies, Amazon’s announcement in September that it planned to create a second headquarters with 50,000 new jobs fits into the same trend.

What these announcements have in common is that they seem to be designed more as public relations stunts than as serious economic commitments. Many of the numbers are far beyond the norm and appear to be chosen to attract attention.

At a time when the typical plant workforce is shrinking, especially in high-tech, Foxconn’s claim that it will employ 13,000 people in that Wisconsin facility seems far-fetched. Equally implausible is Amazon’s stated intention to more than double its headquarters staff. The idea that Apple, which was built on cheap Chinese labor, will suddenly become a high-road domestic employer is preposterous.

It is unclear whether some of these initiatives will ever see the light of day at any employment level. Foxconn, in particular, has a track record of failing to follow through on announced projects.

Some of the companies are probably currying favor with the Trump Administration in order to achieve regulatory relief or other administrative benefit. Some, especially Foxconn and Amazon, have used their announcements to encourage state and local officials to offer bountiful financial incentive packages. Apple is trying to burnish its image long tarnished by foreign labor scandals and accusations of tax evasion on a monumental scale.

What all the companies are counting on is that eventually their lavish promises will have been forgotten when they deliver a lot less in the way of investment and jobs – and especially job quality. Taking their cue from Trump, they are focusing on the short-term benefits of making unsubstantiated statements and giving little heed to the longer-run consequences of their actions.

Wage Reparations

Donald Trump got a lot of mileage during his presidential campaign from criticizing the poor record of wage growth during the Obama era. Since taking office he has done nothing to directly address the issue. In fact, his administration’s attacks on labor rights have made it more difficult for workers to push for higher pay through unions.

Instead, Trump and his Republican allies in Congress came up with the cynical ploy of promoting their massive corporate tax giveaway as an indirect way of boosting paychecks. The right has always tried to lure labor with the promise of higher net pay that would come from reduced withholding schedules. Yet this time the claim was that companies would respond to reductions in their tax liabilities by boosting gross pay.

From the perspective of labor market dynamics, this made no sense whatsoever. There is no direct tie between corporate tax rates and wage levels. Most of the U.S. public seemed to understand this and expressed little enthusiasm for the tax bill.

Now, however, selected corporations are in effect colluding with Trump by announcing selective wage increases that they claim are inspired by the corporate tax reductions. Walmart is the latest and largest of the employers to play this game with plans to increase starting wages for its “associates” to the princely sum of $11 an hour. Some employees will be awarded one-time bonuses ranging from $200 (for those on the job for less than two years) to $1,000 for those hardy souls who have stuck it out for 20 years.

This plan, like the ones announced by the likes of AT&T and Wells Fargo, is far from a market response to lower taxes. These companies are no doubt using the increases to curry favor with the White House in the hope of better outcomes in their federal regulatory problems.

Then there’s the fact that these are increases that Walmart in particular had to make in response to previous wage hikes at its competitors. Even so, Walmart’s increases will leave many of its employees short of a living wage.

Another reason to doubt these moves are tax-inspired acts of generosity is that the companies involved each have a history not only of keeping wages down but of taking steps to deny workers the full pay to which they were entitled. In other words, all three have a history of wage theft.

Walmart, of course, was long the most notorious employer in this regard. It found myriad ways to get employees to work off the clock, thus violating the minimum wage and overtime provisions of the Fair Labor Standards Act. In the late 2000s Walmart was fined $33 million by the Department of Labor’s Wage and Hour Division and paid out hundreds of millions of dollars more to settle a slew of private collective-action lawsuits.

AT&T and its subsidiaries have paid out more than $80 million to settle about a dozen similar wage and hour and misclassification cases.  Wells Fargo and its subsidiaries have paid more than $120 million in at least 17 cases.

These settlements provided some necessary relief, but the amounts probably don’t begin to approximate the full extent to which the companies shortchanged their workers.

Consequently, whatever voluntary pay increases the companies are offering now can be seen as additional reparations for their past sins of wage theft.

If the management of Walmart really wanted to solve its compensation shortcomings once and for all, it would at long last recognize the right of its workers to form a union and bargain collectively.

Note: the litigation figures cited here come from data being collected for a forthcoming expansion of Violation Tracker.

Money Laundering and Corporate America

Money laundering has jumped back to the top of the corporate crime charts, thanks to Steve Bannon’s statements about Trump’s associates as well as the revelation by the founders of Fusion GPS that they gave Congressional investigators leads about the president’s questionable business transactions.

Amid all this, the Office of the Comptroller of the Currency reminded us of the wider scope of corporate ties to money laundering by announcing that it was fining Citibank $70 million for failing to comply with a 2012 consent order the bank signed with the agency to resolve allegations of violating the Bank Secrecy Act. Western Union is paying a $60 million penalty in a similar case brought by New York regulators.

According to data compiled for Violation Tracker, the Justice Department and federal financial regulators have since 2000 brought more than 80 successful cases against corporations for deficiencies in their anti-money laundering practices. These companies have paid a total of $5.9 billion in fines and settlements.

The targets of these cases include several of the largest U.S. banks. JPMorgan Chase paid the largest penalty, $1.7 billion, to resolve a criminal case connected to its role as the banker for Ponzi schemer Bernard Madoff. Wachovia, now owned by Wells Fargo, was fined $110 million in 2010. Citigroup subsidiary Banamex agreed last year to forfeit $97 million to resolve a criminal case involving remittances to Mexico.

Foreign banks have also been involved. In 2012 HSBC had to pay $1.3 billion to resolve charges relating to anti-money laundering deficiencies as well as violations of economic sanctions. Last year Deutsche Bank – the same institution whose name keeps getting mentioned in connection with the Trump investigation – was penalized $41 million by the Federal Reserve and was fined $425 million by New York State regulators for anti-money laundering deficiencies said to be connected to the illicit transfer of more than $10 billion out of Russia.

Federal prosecutors and regulators have also brought cases against non-bank entities that handle lots of cash, including Western Union, American Express and casinos. In 2015 the Tinian Dynasty Hotel & Casino was fined $75 million, and in 2013 the Las Vegas Sands Corp. paid $47 million to resolve criminal charges.

Also in 2015 the Treasury Department imposed a $10 million penalty on the Trump Taj Mahal Casino Resort, which by that time was no longer controlled by Donald Trump.  Yet the justification for that penalty mentioned that the casino had been found in violation of the Bank Secrecy Act many times in earlier years, including 1998, when, with Trump running the show, it was fined $477,000 by Treasury.

All of which is to say that neither Donald Trump, his current and former business interests, nor many of the largest financial institutions are strangers to issues of anti-money laundering deficiencies. For the most part, these cases involve a failure to detect and report suspicious transactions on the part of clients and customers. The big question for the Trump empire is whether it will faces charges of having engaged in such transactions on its own.

The 2017 Corporate Rap Sheet

The year began with a burst of announcements by the Obama Administration of cases it rushed to resolve before leaving office. In the period between election day and the inauguration, the Justice Department and various agencies announced more than $30 billion in fines and settlements.

That flurry of activity disappeared once Donald Trump took office. Agency enforcement activity soon resumed,  thanks to the efforts of career officials, but it appears that the volume of cases has declined compared to previous years. The same goes for the Justice Department, where high-profile prosecutions of large companies have continued but have become less frequent. Here is a rundown of selected major cases resolved during 2017, divided between the two administrations:

Obama Cases

Sale of Toxic Securities: Two of the year’s biggest penalties came in cases stemming back to the period leading up to the financial meltdown in 2008. During its final days the Obama Justice Department got Deutsche Bank to agree to pay $7.2 billion to resolve allegations that it misled investors in the sale of mortgage-backed securities. A day later it announced that Credit Suisse would pay $5.3 billion in a similar case. Moody’s reached an $864 million settlement with the federal government and 21 states for providing flawed credit ratings on what turned out to be toxic securities.

Money Laundering. In January Western Union agreed to forfeit $586 million and entered into agreements with the Justice Department and the Federal Trade Commission to resolve criminal allegations that it failed to maintain an effective anti-money-laundering system and that it abetted wire fraud.

Environmental Fraud: In January the Justice Department announced that Volkswagen would plead guilty to three felony counts and pay a $2.8 billion penalty to resolve the criminal charges brought against the automaker in connection with its scheme to use a device to cheat on emissions tests.

Auto Safety Fraud: In January Takata Corporation agreed to pay a $1 billion criminal penalty in the case brought against the Japanese company for fraudulent conduct in the sale of defective airbag inflators.

Trump Cases

Sale of Toxic Securities: In July the Federal Housing Finance Agency announced that Royal Bank of Scotland would pay $5.5 billion to settle allegations relating to the sale of mortgage-backed securities to Fannie Mae and Freddie Mac.

Export Control Violations: In March the Commerce Department’s Bureau of Industry and Security announced that the Chinese company ZTE would pay $661 million to resolve allegations that it shipped telecommunications equipment to Iran and North Korea in violation of U.S. export restrictions.

Bribery: In September the Swedish telecommunications company Telia was fined $457 million by the Securities and Exchange Commission for violating the Foreign Corrupt Practices Act through illicit payments to government officials in Uzbekistan.

False Claims Act: In August the pharmaceutical company Mylan agreed to pay $465 million to settle allegations that it misclassified its EpiPen devices as generic drugs to avoid paying rebates to Medicaid.

Illegal Drug Promotion/Distribution: In July the U.S. Attorney’s Office in Los Angeles announced that Celgene would pay $280 million to settle allegations that it illegally promoted two cancer medications for uses not approved by the Food and Drug Administration. In September AmeriSourceBergen pled guilty and agreed to pay a total of $260 million to resolve criminal liability for its distribution of oncology supportive-care drugs from a facility that was not registered with the FDA.

Foreign Exchange Violations: In July the Federal Reserve Board fined the French bank BNP Paribas $246 million for failing to prevent its foreign exchange traders from engaging in market manipulation. In September the Fed fined HSBC $175 million for the firm’s unsafe and unsound practices in its foreign exchange trading business.

Consumer Protection: In August the Consumer Financial Protection Bureau fined American Express $96 million for discriminating against consumers in Puerto Rico, the U.S. Virgin Islands, and other U.S. territories by providing them with credit and charge card terms that were inferior to those available in the 50 states.

Price-Fixing: In May the Justice Department’s Antitrust Division announced that Bumble Bee Foods would pay a criminal fine of $25 million in connection with price-fixing of shelf-stable tuna.

Workplace Harassment: In August the Equal Employment Opportunity Commission announced that Ford Motor would pay up to $10.125 million to workers affected by sexual and racial harassment at two company facilities in the Chicago area.

Fair Labor Standards Act: In March the Labor Department’s Wage and Hour Division announced that the Walt Disney Company would pay $3.8 million in back wages to workers affected by violations of minimum wage and overtime rules.

Environmental Violation: In October Exxon Mobil agreed to pay a penalty of $2.5 million and spend $300 million on air pollution controls to resolve allegations that it violated the Clean Air Act by failing to properly operate and monitor industrial flares at its petrochemical facilities.

Note: Additional details on all these cases can be found in Violation Tracker. During 2017 my colleagues and I expanded the database to 300,000 entries with total penalties of $400 billion. Coverage now includes cases from more than 40 federal regulatory agencies and all divisions of the Justice Department dating back to the beginning of 2000.

Tracking U.S. Attorney Prosecutions

When Donald Trump fired dozens of U.S. Attorneys last March, there was speculation that the main objective was to remove some, especially Preet Bharara in Manhattan, who might be investigating the president’s business interests.

It remains to be seen what will happen with such probes, but the move highlighted the importance of the more than 90 federal prosecutors around the country who pursue a wide range of matters on behalf of the Justice Department.

The vast majority of those matters involve cases against individuals, especially those accused of drug offenses. Yet there is a significant subset of cases brought against for-profit corporations and non-profit entities. The U.S. Attorney’s Offices (USAOs) are a key front in the fight against corporate crime.

The latest expansion of Violation Tracker contains more than 1,000 USAO civil and criminal case records with corporate defendants dating back to 2000. Together they account for more than $18 billion in fines and settlements.

Assembling the list involved examining the press release archives of all the USAOs to identify those that announced the resolution of relevant cases. Among these are numerous high-profile prosecutions of major corporations, including three dozen with penalties of $100 million or more. This group is dominated by banks (such as JPMorgan Chase and Deutsche Bank) and pharmaceutical companies (such as Merck and opioid culprit Purdue Pharma).

Among the most common offenses on the full list are violations of the Controlled Substances Act (by drug wholesalers and pharmacies), the False Claims Act (by for-profit and non-profit hospitals), anti-money laundering laws (by banks and casinos), and environmental laws (by companies of many kinds).

The offenses with the biggest aggregate penalties are those involving the False Claim Act ($4.2 billion), fraud ($3.5 billion) and anti-money laundering laws ($2.7 billion).

While business cases were found at nearly all USAOs, they are far from evenly distributed. The offices with the largest number of corporate cases are: the Southern District of New York (Manhattan), the Eastern District of Pennsylvania (Philadelphia), the District of Massachusetts and the Eastern District of New York (Brooklyn).

In terms of penalty totals, the Southern District of New York is far and away the leader, with nearly $10 billion in fines and settlements. Massachusetts is second with $1.2 billion.

The USAO entries complement the cases already in Violation Tracker from the various divisions of Justice Department headquarters in Washington (Antitrust, Civil, Environment & Natural Resources, etc.). They also represent the last significant portion of federal enforcement activity to be added to Violation Tracker.

Our next objectives include the collection of data from state attorneys general and state regulatory agencies as well as private litigation, especially class actions (we’re already gathering information on major wage and hour collective action lawsuits).

We’ll also continue updating the data from the agencies already covered, and if any USAO (or other prosecutor) brings a successful case against the Trump Organization, we’ll be sure to add that to the Violation Tracker mix.

Who Pays the Penalties for Volkswagen’s Crimes?

It’s refreshing to see the book thrown at a corporate criminal, but it would have been even better if federal prosecutors had aimed higher.

Oliver Schmidt, who had once been a mid-level manager at VW’s engineering and environmental office in Michigan, was sentenced to seven years in prison for his role in the company’s long-running scheme to defraud the federal government in diesel emissions testing. The charges against him included conspiracy and violations of the Clean Air Act. He was also fined $400,000.

Schmidt, who was arrested when he foolishly came to the United States for a family vacation, must be pissed off at having to pay such a severe personal price while higher ranking VW officials back in Germany will probably remain unscathed. Appearing at his sentencing hearing in a prison jumpsuit with his wrists shackled, Schmidt admitted culpability and did not point the finger at any company superiors. However, he did not let VW completely off the hook.

In a letter to the judge overseeing his case, Schmidt said he felt “misused” by the company and that he was following VW talking points when he met with a California air pollution official in 2015 and concealed the existence of the software that made the cheating possible.

Schmidt could not have participated in a conspiracy all by himself. Yet the Justice Department does not appear to have tried very hard to land any bigger fish (though at least one person senior to Schmidt is being prosecuted in Germany).

Instead, the DOJ took the typical route of bringing a case against the company as a whole and letting it buy its way out of the entanglement. In 2015 the DOJ, along with the Federal Trade Commission and the State of California, agreed on a civil settlement under which VW had to spend up about $10 billion to compensate customers and $4.7 billion on pollution mitigation.

That was followed by a criminal case in which VW had to pay a $2.8 billion penalty. At least this involved a real criminal plea rather than one of those deferred-prosecution or non-prosecution shams, but it is unclear what consequences VW has faced beyond the payout.

The company is technically on probation and has a compliance monitor, but that will probably not mean much. Even before these cases, the company had already been under federal supervision because of a consent decree stemming from a 2005 case also involving emissions irregularities.

Given the severity of the VW cheating and the fact that it was in effect a repeat offense, the DOJ should have done more to prosecute top executives, and the case against the company itself should have had more than financial consequences.

Whereas strict limitations are placed on the activities of individual felons, VW has been able to go on operating as if the scandal had never happened. A case can be made that the company should have been shut out of the U.S. market, but instead it has been advertising heavily and seeking to regain market share. The main challenge is that it can no longer promote its vehicles under the banner of “clean diesel.” Presumably, VW is working on a new way to deceive the public.