Novartis and Cohen: Two of a Kind

“Yesterday was not a good day for Novartis.” That’s what the chief executive of the pharmaceutical giant told his staff in the wake of embarrassing reports that it was among a handful of large corporations that made questionable payments to President Trump’s personal fixer Michael Cohen. Novartis, which initially struggled to come up with a plausible explanation for its $1.2 million contract with Cohen, ultimately admitted it was a “mistake.”

If so, it was not quite a honest mistake. Novartis, like the rest of Big Pharma, was unnerved by the seeming populism of Trump on the issue of drug prices. Yet it also apparently realized this was an administration that was susceptible to outside influences, especially if they came via someone like Cohen, who in 2017 seemed to be a much more significant player than he turned out to be.

It should come as no surprise that Novartis would resort to dubious measures to promote its interests, which include getting federal blessing for its leukemia drug Kymriah, which costs nearly $400,000 for a course of treatment.

The Swiss company has a long history of improper behavior. For example, in 2010 it had to pay $422 million to resolve criminal and civil liability arising from charges that it engaged in illegal marketing of its epilepsy drug Trileptal, including the payment of kickbacks to doctors to get them to prescribe the medication for off-label purposes. In 2015 Novartis agreed to pay $390 million to settle a case brought by the U.S. Attorney in Manhattan accusing it of making illegal kickbacks to get specialty pharmacies to recommend two of its drugs, Exjade and Myfortic.

Novartis does not limit its illicit marketing to the United States. In 2016 the Securities and Exchange Commission announced that the company would pay $25 million to settle charges that it violated the Foreign Corrupt Practices Act when its China-based subsidiaries engaged in pay-to-prescribe schemes to increase sales.

While Novartis seems willing to make questionable payments to sell its products or gain regulatory favor, it has been less interested in paying some of its employees what they should have received in compensation. The company will be featured in a report on wage theft my colleagues and I will publish next month.

That’s because of a collective action lawsuit brought on behalf of the company’s sales representatives, who alleged that they were improperly classified as exempt from overtime pay. In 2012 Novartis paid $99 million to settle the suit.

In 2005 a group of women who had worked as sales reps for Novartis in the United States filed a lawsuit saying they were discriminated against in pay and promotions, especially after becoming pregnant. In 2010 a federal jury ruled in favor of the women, awarding them $3.3 million in compensatory damages and $250 million in punitive damages. Novartis appealed and then settled the case for $152 million.

All of this is to say that Novartis had long engaged in less than pristine business practices and got the impression it could go on doing so with the Trump Administration.

Getting the Feds to Pay Statistical Attention to Corporate Crime

For more than 80 years, the Federal Bureau of Investigation has collected and published wide-ranging data on criminal activity in the United States. The bureau’s annual compilations provide exhaustive statistics on murder, rape, robbery, arson, motor vehicle theft and other forms of violent and property crimes reported by state and local law enforcement agencies across the country.

Implicit in the FBI’s methodology is the idea that crimes are only committed by individuals, whether alone or in gangs or Mafia families. The compilations give no indication that there is such a thing as corporate crime.

Ralph Nader has long been on a mission to get the federal government to pay statistical attention to crime in the suites. In a recent open letter to Attorney General Jeff Sessions, he renewed his call for an official database “including but not limited to antitrust and price-fixing, environmental crimes, financial crimes, overseas bribery, health care fraud, trade violations, labor and employment-related violations (discrimination and occupational injuries and deaths), consumer fraud and damage to consumer health and safety, and corporate tax fraud onshore and offshore.”

The letter argues that such a database would help deter corporate crime by giving prosecutors, regulators and judges information to assess appropriate sanctions, especially for recidivist companies. It also notes that the data would help federal procurement officials identify companies that fail to meet the “responsible contractor” standard in the Federal Acquisition Regulation.

I’m proud to say that I am not only one of the co-signers of the letter but that the document cites Violation Tracker as an example, along with the University of Virginia Law School’s Corporate Prosecution Registry, of non-governmental efforts to fill the federal void.

Violation Tracker attempts to meet a number of the criteria set forth in the open letter, including the collection of data on a wide range of corporate misconduct categories, the ability to search by company name, links to ultimate parents, and compilations of the cases associated with each parent and each agency.

We also include links to the official source documents from which we derive the data. This is worth noting: federal agencies and the Justice Department already publish information on individual cases, whether in the form of press releases or periodic reports. The PACER database provides online access to dockets and documents in federal lawsuits of all kinds.

What Violation Tracker does – and what the open letter says the federal government should do – is to compile that disparate information and make it easy to learn the track record of individual corporations. The open letter also calls for an official database that also does something that Violation Tracker currently provides in a limited way: “analysis of trends in corporate crime and an explanation of the relative effectiveness of various conventional sanctions, and the potential of new sanctions.”

Although a DOJ spokesperson told Corporate Crime Reporter that it is reviewing the open letter, it is unlikely that the federal database will appear anytime soon. But it is worth remembering that there is a precedent for turning a non-profit database into a federal resource. The FedSpending database of federal contracts and grants created by OMB Watch served as the basis for the official USAspending resource.

I would be happy to see Violation Tracker used in the same way, but for now I will go on collecting data so there is at least an unofficial way to research corporate crime and misconduct.

Workplace Hazards in the Tech Economy

The titans of the tech economy want us to believe that among their achievements is the transformation of the workplace into a more humane and nurturing environment. This accounts for the frequent stories about headquarters campuses with endless amenities and flexible work arrangements.

It’s often another story when you look beyond those glittering complexes to the more mundane sites where the routine work is done. The manufacturing, distribution and customer service facilities that prop up the tech companies have a lot in common, in a bad way, with their old economy counterparts.

The latest indication of that reality comes in the 2018 edition of the National Council for Occupational Safety and Health’s Dirty Dozen list of employers that put workers and communities most at risk. The council is a federation of local COSH groups that for nearly 50 years have been promoting safer workplace practices.

This year’s Dirty Dozen includes two new-economy corporations that work hard to portray themselves as enlightened: Amazon.com and Tesla Motors.

Amazon makes the list because of a series of fatal workplace accidents at its warehouses over the past five years. The report points out that the facilities create hazards by demanding that workers maintain a dangerously intense pace of work in order to service the company’s rapid delivery system. One Amazon center in Pennsylvania became infamous for having paramedics stationed outside full-time to deal with the frequent cases of dehydration and heat stress.

Violation Tracker’s summary page for Amazon lists 17 OSHA fines totaling $208,675 – but most of those come from its Whole Foods subsidiary. Amazon’s distribution and fulfillment centers don’t have more entries because many of their workers are technically employees of temp agencies and leasing firms.

Tesla makes the Dirty Dozen list because National COSH found that its injury rate was 31 percent higher than the rest of the automotive industry and its rate of serious injuries was 83 percent higher. The report cites a series of articles about the safety problems at Tesla, including a Los Angeles Times story stating that Tesla had an accident rate greater than notoriously unsafe industries such as sawmills and slaughterhouses, despite being much more automated.

Tesla’s reported accident rate may actually be understated. The Center for Investigative Reporting’s Reveal project found that Tesla failed to include some of its serious injuries on legally mandated reports.

Among the reasons Amazon and Tesla have been able to get away with their unsafe practices is the absence of unions in their U.S. facilities. Both companies have succeeded, so far, in beating back labor organizing campaigns by employing the argument that workers at a supposedly enlightened company do not need a third party to represent them.

The truth, of course, is that unions are not really third parties but instead an expression of the desire of workers to present a united front in dealing with management. When it comes to employers such as Amazon and Tesla, that collective action may be the only way to ensure that workers can get through the day in one piece.

Profits Before Safety

The passengers who survived Southwest Flight 1380’s engine explosion are feeling lucky to be alive and grateful for the skilled landing executed by pilot Tammie Jo Shults. Another group feeling relief are the top executives of Allegiant Air. If the accident had happened to one of their planes, the carrier’s survival might be in question.

That’s because of the revelations contained in a remarkable 60 Minutes investigative report on Allegiant that aired on April 15th. Correspondent Steve Kroft described the culture of the budget carrier as one that puts profits before safety and that discourages pilots from reporting mechanical problems with their aircraft. The piece documented an alarming pattern of aborted takeoffs, cabin pressure loss, emergency descents and unscheduled landings during Allegiant flights.

In one incident Allegiant, whose executives refused to be interviewed by 60 Minutes, fired a pilot who made an emergency landing when smoke appeared in the cabin and then ordered passengers to exit rapidly through escape chutes once the plane was on the ground.

To its credit, 60 Minutes did not focus only on Allegiant. It also investigated why a carrier with such a checkered track record was still allowed to fly. The answer turned out to be that the Federal Aviation Administration has during the past few years adopted a less confrontational enforcement approach.

Kroft grilled John Duncan, the FAA’s head of flight standards, who went through extraordinary verbal contortions to avoid saying anything negative about Allegiant’s record. Duncan insisted that each incident was addressed separately and refused to acknowledge there was any pattern of misconduct. Duncan is a living embodiment of that new FAA approach, which involves quietly cooperating with carriers to fix problems rather than pressuring them with large fines and other public sanctions.

The FAA has not abandoned monetary penalties entirely. In Violation Tracker, Allegiant has eight entries from the agency, the largest being a $175,000 fine from 2015 for drug testing deficiencies. Penalties like that are fine for routine infractions, but something a lot more punitive is needed when a company has the kind of dismal record attributed to Allegiant.

Higher fines are just part of what is needed at the FAA. The agency should return to an adversarial posture and compel rogue carriers such as Allegiant to take safety issues seriously.

It won’t be easy for the FAA to change its course, since the Trump Administration and Congressional Republicans are on a crusade against just about every kind of regulation. The latest maneuver is the use of the Congressional Review Act, an obscure law employed last year to undo rules adopted by the Obama Administration during the prior 12 months, to eliminate a longer-standing one: the 2013 Consumer Financial Protection Bureau regulation barring auto lenders from charging minority customers higher interest rates.

This obsession with dismantling the so-called administrative state has gone beyond all justification and is putting the population more and more at the mercy of unscrupulous companies.

Don’t Read Their Lips

There have been times during the past 14 months when some people might have been tempted to regard big business as part of the anti-Trump resistance, based on the public stances that some chief executives have taken in response to the president’s more outrageous statements. A new report from Oxfam America shows that large corporations are not putting most of their money where their mouths are.

The Oxfam analysis compares the public rhetoric of 70 large U.S. corporations on topics such as immigration, diversity and climate change to the issues listed in their federal lobbying spending disclosures. It finds that most companies spent little or no money lobbying to reinforce their high-minded pronouncements.

Instead, they dispatched their armies of lobbyists to press for government action that would promote their own corporate self-interest, primarily through rollbacks in regulation and business taxes. For example, of the 70 companies only 13 (most tech firms) lobbied on diversity and inclusion, spending a total of $11 million. By contrast, 61 of the 70 lobbied on tax issues, spending a total of $44 million.

As Irit Tamir, Oxfam’s Director for the Private Sector, puts it: “Today’s CEOs have more appetite to align their company’s public image with specific sides in some of the country’s most contested and polarized debates. On issues ranging from gay marriage to refugee rights, executives across  industries have been pushed – or willingly walked – into the eye of the political storm. But when we look at what they are lobbying on behind closed doors, they really, really, really want to pay less in taxes while other issues take a back seat. Words matter, but actions – and lobbying dollars – still speak louder.”

Oxfam, which has done considerable work on corporate tax avoidance, finds it particularly troubling that so much of big business influence spending promotes policies that undermine public finance and contribute to the growth of inequality.

That’s certainly a valid point, but the report’s findings also highlight the reality that much of what is presented as corporate social responsibility is actually a smokescreen for more selfish practices. There is a parallel between this deception and that of the president.

Trump pretends to be a populist while actually promoting much of the conventional big business agenda. Corporate social responsibility proponents pretend to be social reformers while quietly lobbying for that same agenda. Moreover, the social responsibility initiatives themselves are often little more than image-burnishing measures and in some cases are designed to convey the dangerous message that voluntary corporate practices make stricter government regulation unnecessary.

The lesson from all this is that we should not pay too much attention to what either Trump or the big business reformers say and instead focus on what they are doing, which is to steadily dismantle the systems of regulation and taxation that are meant to keep predatory capitalism in check.

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.