Wells Fargo Pays More for Its Sins

When the Consumer Financial Protection Bureau announced in 2016 that it was fining Wells Fargo $100 million for creating fee-generating customer accounts without permission, bank executives may have thought they could simply pay the penalty and move on.

Instead, Wells has had to contend with a series of regulatory and legal consequences. The latest is a $1 billion settlement the bank has just agreed to pay to resolve a class action lawsuit brought by shareholders accusing it of misrepresenting the progress it had made in improving its internal controls and compliance practices. The deal ranks among the largest securities settlements of all time.

In between the initial CFPB action and the new lawsuit resolution, Wells confronted the following:

  • In 2018 the Federal Reserve forced out several board members and took the unusual step of barring Wells from growing in size until it improved its compliance. It is telling that the asset cap is still in place.
  • That same year, Wells paid $575 million to settle litigation over the bogus accounts brought by state attorneys general.
  • In 2020 the U.S. Justice Department announced that Wells would pay $3 billion to resolve potential criminal and civil liability, but the bank was allowed to enter into a deferred prosecution agreement rather than having to plead guilty. The Trump DOJ also declined to bring charges against any individual executives.

While the monetary penalties paid by Wells are not trivial, they are far from punishing for an institution with nearly $2 trillion in assets and $13 billion in annual profits. They also do not seem to have had much of a deterrent effect.

In 2022 the CFPB took new action against the bank, compelling it to pay a $1.7 billion penalty and provide $2 billion in redress to customers to resolve allegations that it engaged in a variety of new misconduct. Wells was found to have repeatedly misapplied loan payments, wrongfully foreclosed on homes, improperly repossessed vehicles, and incorrectly assessed interest and fees, including surprise overdraft charges. Some 16 million customer accounts were said to have been cheated one way or another.

That 2020 deferred prosecution agreement means that Wells has in effect been on probation. Why, in light of the CFPB case, has the bank not been found to be in violation of that agreement? Is it simply because Wells is now focusing its alleged misconduct on real accounts rather than the fake ones it had been creating? That would be like letting a mugger off the hook for using a knife rather than gun.

Not only should Wells have its probation revoked, but it should undergo something analogous to what the FDIC does when a bank is in financial disarray. Federal regulators should find Wells to be in ethical disarray and take it over while fundamental changes are made to bring it back to some semblance of compliance.

The alternative is letting a rogue institution continue to prey on its customers in any way it can.

Goldman Gives In

The verdict in the Trump case was not the only court victory against sexism this week. Lawyers for women who worked in securities and investment banking positions at Goldman Sachs announced that the Wall Street giant has agreed to pay $215 million to settle a long-running gender discrimination case.

Some 2,800 current and former employees at Goldman will share in the settlement, which resolves a case first filed back in 2010. Along with the payout, the company will take steps to improve gender equity in pay and promotions.

For years, Goldman strenuously denied allegations that its personnel evaluation system systematically placed women at lower rankings than men, and it aggressively sought to reverse the certification of the class in 2018. Those efforts were unsuccessful, eventually resulting in the scheduling of a trial in June of this year. Trials are rare in discrimination class actions, since juries are thought to be more sympathetic to plaintiffs.

Goldman finally decided to give in, becoming the latest large company to settle a class action gender discrimination lawsuit. Other cases during the past two decades documented in Violation Tracker include the following:

  • In 2022 Sterling Jewelers paid $175 million to settle litigation alleging that for years it had discriminated against tens of thousands of women in its pay and promotion practices.
  • In 2010 drug giant Novartis paid $175 million to settle charges of gender discrimination, including pregnancy discrimination.
  • In 2022 Google agreed to pay $118 million to settle class action litigation alleging it discriminated against women in its salary practices.
  • In 2007 Morgan Stanley paid $46 million to a class of about 3,000 women to settle gender discrimination allegations.
  • In 2018 the retail chain Family Dollar paid $45 million to more than 37,000 former and current managers who alleged they were paid less than their male counterparts. That case took nearly 15 years to get resolved.
  • In 2004 Boeing paid more than $40 million to a class of female workers who alleged they were denied desirable job assignments, promotional opportunities, and management positions.
  • In 2013 Merrill Lynch paid more than $38 million to a group of women employed as financial advisors who said they were discriminated against in pay and promotion.
  • In 2014 United Airlines paid $36.5 million to settle a lawsuit alleging that the company engaged in gender discrimination by requiring female flight attendants to weigh less than comparable male ones.  
  • In 2008 Smith Barney paid $33 million to women formerly employed as financial advisors who claimed they were paid less than their male counterparts.
  • In 2011 Wells Fargo paid $32 million to settle a lawsuit alleging that its Wachovia Securities subsidiary gave female financial advisers fewer opportunities than their male co-workers with respect to promotions, assignments, signing bonuses and compensation.

What this list show is that gender discrimination has been an issue in a wide range of companies and occupations, but sexism has been especially problematic in the traditionally macho world of Wall Street. Now that perhaps the most elite firm in the industry has capitulated, the worst abuses may finally come to an end.

Rogue Rescuer

Once again federal regulators have turned to JPMorgan Chase to rescue a failing smaller bank. For the moment, the customers of First Republic Bank may be pleased that their accounts are being taken over by a larger and more stable institution.

Yet they may not be quite so happy to learn that their savior has a much worse record when it comes to compliance with laws and regulations. As shown in Violation Tracker, First Republic was named in only a handful of enforcement actions and paid penalties of less than $4 million. JPMorgan, on the other hand, has 236 Violation Tracker entries and has paid over $36 billion in fines and settlements.

The contrast with First Republic is partly a matter of size. JPM’s vast operations give it many more opportunities to get into trouble. Those operations have included the marketing of residential mortgage-backed securities which turned out to be toxic and which resulted in legal actions that cost the company billions. Some of these entanglements were inherited by JPM when it took over Bear Stearns and Washington Mutual in 2008.

Yet JPM has also had problems when it comes to the treatment of its own customers in the course of routine banking functions. This has become clear to me in the course of assembling data for the latest category of class action litigation to be added to Violation Tracker: consumer protection lawsuits.

The collection is not yet done, but I have already identified more than a dozen settlements in which JPM has paid out hundreds of millions of dollars. Among these are the following:

* In 2012 JPM agreed to pay $100 million to settle litigation alleging it improperly raised interest rates on loan balances transferred to credit cards.

* In 2020 JPM agreed to pay more than $60 million to settle litigation alleging it overcharged customers serving in the military, in violation of the Servicemembers Civil Relief Act.

* In 2014 JPM agreed to pay $300 million to settle litigation alleging it pushed mortgage borrowers into force-placed insurance coverage whose cost was inflated due to kickbacks.

* In 2012 JPM agreed to pay $110 million to settle litigation concerning improper overdraft fees resulting from the way that debit-card transactions were processed.

* In 2011 JPM agreed to pay up to $7.8 million to settle litigation alleging it charged credit card customers hidden fees after deceptively marketing special deals on balance transfers and short-term check loans.

* In 2014 JPM and several subsidiaries agreed to pay more than $18 million to settle litigation alleging the use of misleading loan documents to steer borrowers to adjustable-rate mortgages.

* In 2018 JPM agreed to pay over $11 million to settle litigation alleging it improperly charged interest on Federal Housing Administration-insured mortgages that were already paid off.

These were all cases brought by private plaintiffs. JPM also paid hundreds of millions more in consumer protection fines and settlements to federal and state agencies. Among these was a 2013 case brought by the Consumer Financial Protection Bureau in which JPM paid a $20 million penalty to the agency and over $300 million in refunds to two million customers for what were said to be illegal credit card practices.

There is widespread concern that rescue deals are allowing a too-big-to-fail bank like JPM to grow even larger. Yet we should also worry that more and more of the population is being forced to do business with megabanks that seem to regard themselves as too big to have to comply with laws that protect consumers.

Corporate Miscreants Foreign and Domestic

The Biden Administration appears to be really serious about economic sanctions–and not only those against Russia. The Justice Department and Treasury just imposed more than $600 million in penalties on British American Tobacco for violating prohibitions on doing business with North Korea. 

Aside from the unusually harsh approach toward a product, tobacco, which does not have any obvious national security implications, the case is significant because it continues the administration’s seeming preoccupation with going after large corporations based outside the United States. 

If we look at the largest fines and settlements –say, those above $200 million– announced since Biden took office and documented in Violation Tracker, most of them involve foreign companies. Aside from BAT, these include Germany’s Allianz, Denmark’s Danske Bank, Switzerland’s Glencore and ABB, Holland’s Stellantis, Sweden’s Ericsson, India’s Sun Pharmaceuticals and the United Kingdom’s Barclays. 

These cases certainly have their merits, but it is surprising that there have been so few comparable actions announced against domestic corporations. Corporate crime and misconduct are not exclusively or even primarily an issue with companies based abroad. 

After Biden was elected there was an assumption that the lax enforcement practices seen during the Trump years would disappear. A major crackdown has yet to materialize. Instead, the Justice Department has focused on finding ways to incentivize companies to cooperate with investigations.  

There is no explicit policy to this effect, but it appears that prosecutors are going easier on domestic corporate targets while acting tougher with foreign ones. One gets the impression that business oversight is being used in a way to give domestic companies a competitive advantage. 

This would be in keeping with the Biden Administration’s efforts to promote domestic manufacturing through legislation such as the CHIPS Act and Buy American policies. Yet there is a difference between industrial policy and regulatory policy. 

Although those on the Right complain when they think government is picking winners and losers, that actually goes on all the time when tax policy is written or major procurement contracts are awarded. The legal system is another matter. 

Every company, wherever it is headquartered, deserves equal treatment under the law. At the same time, the public deserves to be protected against misdeeds committed by domestic and foreign business entities.  

Given that U.S.-based companies are likely to do more of their business in this country, any policy of regulating them more lightly would be especially problematic. Some of the offenses charged against foreign corporations– such as bribery committed abroad– mean a lot less to U.S. residents than serious environmental, financial or workplace transgressions that may be committed by domestic firms. 

None of this should be taken as a call for retreating from enforcement actions against foreign companies. Nonetheless, it would be satisfying to see the Biden Administration bring more major cases against homegrown corporate miscreants.  

Conspiring Against Competition

A federal judge in Minnesota recently granted final approval to a $75 million settlement between Smithfield Foods and plaintiffs alleging that the company was part of a conspiracy to fix the prices of pork products. This came a week after the Washington State Attorney General announced $35 million in settlements with a group of poultry processors.

A couple of weeks ago, a federal judge in New York approved a $56 million settlement of a class action lawsuit in which two drug companies were accused of conspiring to delay the introduction of a lower-cost generic version of an expensive drug for treating Alzheimer’s Disease.

All these court actions are part of an ongoing wave of illegal price-fixing conspiracies by large companies throughout most of the U.S. business world. The scope of the antitrust violations is revealed in a report I just published with my colleagues at the Corporate Research Project of Good Jobs First. The report, entitled Conspiring Against Competition, draws on data collected from government agency announcements and court records for inclusion in the Violation Tracker database.

We looked at over 2,000 cases resolved over the past two decades, including 600 brought by federal and state prosecutors as well as 1,400 class action and multidistrict private lawsuits. The corporations named in these cases paid a total of $96 billion in fines and settlements.

Over one-third of that total was paid by banks and investment firms, mainly to resolve claims that they schemed to rig interest-rate benchmarks such as LIBOR. The second most penalized industry, at $11 billion, is pharmaceuticals, due largely to owners of brand-name drugs accused of illegally conspiring to block the introduction of lower-cost generic alternatives.

Price-fixing happens most frequently in business-to-business transactions, though the higher costs are often passed on to consumers. Apart from finance and pharmaceuticals, the industries high on the penalty list include: electronic components ($8.6 billion in penalties), automotive parts ($5.3 billion), power generation ($5 billion), chemicals ($3.9 billion), healthcare services ($3.5 billion) and freight services ($3.4 billion).

Nineteen companies (or their subsidiaries) paid $1 billion or more each in price-fixing penalties. At the top of this list are: Visa Inc. ($6.2 billion), Deutsche Bank ($3.8 billion), Barclays ($3.2 billion), MasterCard ($3.2 billion) and Citigroup ($2.7 billion).

The most heavily penalized non-financial company is Teva Pharmaceutical Industries, which with its subsidiaries has shelled out $2.6 billion in multiple generic-delay cases.

Many of the defendants in price-fixing cases are subsidiaries of foreign-based corporations. They account for 57% of the cases we documented and 49% of the penalty dollars. The country with the largest share of those penalties is the United Kingdom, largely because of big banks such as Barclays (in the interest-rate benchmark cases) and pharmaceutical companies such as GlaxoSmithKline (in generic-delay cases).

Along with alleged conspiracies to raise the prices of goods and services, the report reviews litigation involving schemes to depress wages or salaries. These include cases in which employers such as poultry processors were accused of colluding to fix wage rates as well as ones in which companies entered into agreements not to hire people who were working for each other. These no-poach agreements inhibit worker mobility and tend to depress pay levels—similar to the effect of non-compete agreements employers often compel workers to sign.

Despite the billions of dollars corporations have paid in fines and settlements, price-fixing scandals continue to emerge on a regular basis, and numerous large corporations have been named in repeated cases.

Higher penalties could help reduce recidivism, but putting a real dent in price-fixing will probably require aggressive steps to deal with the underlying structural reality that makes it more likely to occur: excessive market concentration.

Pay for Delay

Forty years ago, federal policymakers thought they had found a solution to the problem of escalating prescription drug prices. The Hatch-Waxman Act of 1984 made it easier for generic manufacturers to bring to market lower-cost alternatives to brand-name medicines whose patent protection was expiring.

Fast forward to 2023. Recently, a federal judge in New York approved a $54 million class action settlement between plaintiffs led by a police union health plan and two drug companies accused of participating in an improper agreement to delay the introduction of a generic version of the Alzheimer’s drug Namenda. In 2020 another group of plaintiffs in a related case received a settlement of $750 million.

Once hailed as heroes that would restore consumer-friendly competition to the pharmaceutical industry, many generic producers instead became conspirators in what are known as “pay for delay” schemes to extend the market domination of costly brand-name products.

The extent of this degeneration is documented in data I have been collecting for an expansion of Violation Tracker and that will be analyzed in a report to be published next week. That expansion covers class action lawsuits designed to combat illegal price-fixing by large companies in a wide range of industries. This private litigation often follows actions brought by federal and state prosecutors.

Cases involving pay for delay, which amounts to an indirect form of price-fixing, make up a substantial portion of the litigation challenging anti-competitive practices. I was able to identify more than 100 settlements over the past two decades in which generic and brand-name producers paid out nearly $8 billion. Cases brought by federal agencies or state attorneys general resulted in another $2 billion in fines and settlements.

The company that has paid out the most is generics giant Teva Pharmaceuticals, whose 19 settlements (including those involving subsidiaries) total $2.5 billion. AbbVie’s total is $1.5 billion in 21 cases. Five other companies—GlaxoSmithKline, Sun Pharmaceuticals, Pfizer, Novartis and Bristol-Myers Squibb each have totals between $500 million and $800 million.

The largest single penalty came in 2015 in an action brought by the Federal Trade Commission accusing Cephalon Inc. of illegally blocking generic competition to its blockbuster sleep-disorder drug Provigil. The settlement required Teva Pharmaceuticals, which had acquired Cephalon in 2012, to make a total of $1.2 billion available to compensate purchasers, including drug wholesalers, pharmacies, and insurers, which overpaid because of Cephalon’s illegal conduct.

High drug costs are one of the factors contributing to inflation in the United States. Unlike energy prices, which are highly susceptible to swings in international markets, drug prices are largely under the control of manufacturers, due to patents and the unwillingness (until recently) of the federal government to allow Medicare to negotiate with the industry.

Big Pharma, not satisfied with those benefits, has frequently crossed the line into illegality through these pay-for-delay schemes. The $10 billion in penalties paid by the industry is in all likelihood far less than the economic gains it has reaped by artificially prolonging the market life of overpriced medications. It’s something to keep in mind during the next expensive visit to the pharmacy.

The report, Conspiring Against Competition, will be published on April 18.

The Two Faces of Howard Schultz

One person from Starbucks responded to a subpoena from Senate labor committee chair Bernie Sanders, but there seemed to be two versions of Howard Schultz at the witness table.

Schultz number one was the typical anti-union corporate executive. Despite the vast number of unfair labor practice charges that have been filed by Starbucks workers, many of which have been sustained by NLRB administrative law judges, he insisted the company has done nothing wrong. Accused of failing to bargain in good faith at the locations where employees have voted for representation, he blamed the union.

While giving gave lip service to the idea that workers have a right to seek union representation, Schultz added that “the company has a right to express a preference.” Not only does such a right not exist, but Starbucks has, as fired activist Jaysin Saxton testified at the hearing, gone far beyond stating its opinion. It stands accused of using many classic union-busting tactics as well as new ones such as refusing to allow credit card tipping at pro-union locations.

The other Howard Schultz tried to portray himself as a model employer, insisting that Starbucks offers much better pay and benefits than its competitors in the retail sector. Even if there is some truth in this, it is not saying much that you treat your workforce a bit better than Walmart and McDonald’s.

This Schultz argued that unionization might be appropriate at companies that treat their workers unfairly, but not at a supposedly enlightened one like Starbucks. What he could not seem to comprehend is that as much as the company claims to value and respect its green-aproned “partners,” they may want to relate to management on a more equal footing.

If Starbucks really believed in employee empowerment, it would have adopted a neutral stance toward unionization, as Microsoft did in response to the union push at Activision Blizzard. Instead, it has resorted to retrograde anti-union practices that strengthen the case for collective bargaining.

This approach throws into question the idea that Starbucks is a high-road company. Despite its carefully cultivated reputation, there have long been signs of questionable policies at the coffee chain. Some of these can be seen in the Starbucks entries in Violation Tracker, which documents more than $50 million in penalties over the past two decades. Almost all of these are employment-related.

For example: in 2013 the company agreed to pay $3 million to settle litigation alleging it denied baristas their right under California law to take uninterrupted meal breaks. Starbucks has paid millions of dollars to settle lawsuits accusing it of improperly classifying employees such as assistant store managers as exempt from overtime pay. In 2019 the company paid $176,000 to state and local agencies in New York to settle allegations it improperly penalized employees who could not find a substitute when they needed to take a sick day.

Long-standing problems such as these, along with its more recent repressive practices, suggest that Starbucks may not be such a paragon of corporate virtue after all. In fact, it may very well be one of those unfair employers that even Howard Schultz admits should be unionized.

A Marriage of Two Tainted Banks

The acquisition of struggling Credit Suisse by its rival UBS may calm the international banking waters, but it will do nothing to improve the compliance profile of the Swiss financial services sector. That’s because both Credit Suisse and UBS have seriously tainted records. Combining them will simply put all those problems under one roof.

Let’s start with Credit Suisse. Its problems extend back at least to the late 1980s, when it was named as one of the banks that allegedly laundered money for a Turkish-Lebanese drug ring. Credit Suisse also played a role in the Reagan Administration’s Iran/Contra scandal.

In the 1990s Credit Suisse was one of the Swiss banks sued in the United States by relatives of Holocaust victims who had been unable to access assets held by the banks for decades. There were also charges that the banks profited by receiving deposits of funds that had been looted by the Nazis. In 1998 the banks agreed to pay a total of $1.25 billion in restitution. The judge in the case later accused the banks of stonewalling in paying out the settlement.

After it acquired a controlling interest in First Boston in the late 1980s and formed CS First Boston, Credit Suisse ended up with more U.S. legal entanglements. CSFB was a target of U.S. divestment activists in the early 1990s because of Credit Suisse’s operations in apartheid-era South Africa. Later that decade, it was one of the investment banks sued for their role in the 1994 bankruptcy of California’s Orange County. In 1998 CSFB agreed to pay $870,000 to settle SEC charges of having misled investors in Orange County bonds and then settled a suit brought against it by the county for $52.5 million.

In 2003, CSFB was one of ten major investment firms that agreed to pay a total of $1.4 billion to settle federal and state charges involving conflicts of interest between their research and investment banking activities. CSFB’s share was $200 million.

In 2009 Credit Suisse agreed to forfeit $268 million to the United States and $268 million to the New York County District Attorney’s Office to resolve criminal charges that it violated economic sanctions in its dealings with customers from countries such as Iran and Sudan.

In 2014 the U.S. Justice Department fined Credit Suisse $1.1 billion and ordered it to pay $666 million in restitution to the IRS after the bank pleaded guilty to charges of conspiring to help U.S. customers evade taxes through the use of offshore accounts.

In 2017 the Justice Department announced a $5.3 billion settlement with Credit Suisse concerning its marketing of toxic mortgage-backed securities a decade earlier. The settlement included a $2.5 billion civil penalty and $2.8 billion in relief to distressed homeowners and affected communities.

Credit Suisse has paid hundreds of millions more in penalties in other cases involving foreign bribery, foreign exchange market manipulation, defrauding investors and much more. Its penalty total in Violation Tracker is more than $11 billion.

And the scandals continue. For example, Credit Suisse is currently embroiled in a corruption case involving the tuna fishing industry in Mozambique.

UBS has a record that is no better. Union Bank of Switzerland and Swiss Bank Corporation, which merged in 1998 to form UBS, were both involved in that same money laundering scandal with Credit Suisse. They were both also embroiled in controversies over investments in South Africa and their polices regarding the accounts of Holocaust victims.

UBS also entered the U.S. market (through the purchase of PaineWebber) and was implicated in the conflict-of-interest scandals. It, too, was prosecuted by the Justice Department for conspiring to aid tax evasion, paying $780 million in penalties.

In 2008 UBS agreed to buy back $11 billion in securities and pay $150 million in penalties as part of the resolution of multi-state litigation alleging it misled customers in the marketing and sale of auction rate securities.

It has paid hundreds of millions more in fines and settlements in cases dealing with financial market manipulation and other offenses. Including that $11 billion securities buyback, its Violation Tracker penalty total is over $17 billion.

In short, the marriage of UBS and Credit Suisse will bring together two banks with highly problematic records. The combined company should work not only to help stabilize financial markets but also to address its legacy of misconduct.

Woke Capitalism or Sleepy Oversight?

Some of the same people who are trying to convince us that January 6 was a peaceful sightseeing outing and that the situation in Ukraine is a minor territorial dispute have come up with a remarkable explanation for the collapse of Silicon Valley Bank. They claim it is the result of what they call “woke capitalism.”

Politicians such as Florida Gov. Ron DeSantis and House Oversight Chair James Comer are echoing claims by propagandist Tucker Carlson that SVB’s collapse was the result of its involvement with ESG—environmental, social and governance policies meant to promote objectives such as sustainability and diversity.

There are two problems with this claim. The first is that SVB was hardly a leader in the ESG world. The bank’s preoccupation was apparently to ingratiate itself with venture capitalists, private equity investors and start-up entrepreneurs, whether or not they were pursuing social goals. It was also chummy with California wineries. SVB wanted to be a power in Silicon Valley, not a crusader. Like most banks, it made some ESG-type investments, but they were a small part of its portfolio.

The other problem is that there is no connection between ESG practices and the forces that led to SVB’s demise. Based on what has come to light so far, it appears what happened at the bank was largely a result of poor risk management. SVB failed to pay adequate attention to the consequences of having loaded up on long-term government debt securities that were rapidly losing value at a time of escalating interest rates.

Along with that poor internal risk management, there was apparently a failure of regulatory oversight. To some extent, this was the fault of the Trump Administration and Congress, which in 2018 watered down the Dodd-Frank Act and exempted banks of SVB’s size from intensive scrutiny.

As pointed out by the New York Times, Moody’s was more alert to the perils at SVB than the regulators or the bank’s own executives. Last week the credit rating agency contacted the bank’s CEO Greg Becker to warn him that SVB’s bonds were in danger of being downgraded to junk status.

This set off a scramble by SVB to raise more capital. Once depositors got wind of this, they began emptying their accounts, many of which had balances above the $250,000 limit normally insured by the FDIC. Soon there was a full-blown run on the bank, prompting regulators to take over SVB and shut it down. The Biden Administration then bailed out the depositors in whole, using assessments from other banks. ESG has nothing to do with any of this.

As this is being written, the business news is focusing on problems at Credit Suisse. It will be interesting to see if the U.S. Right tries to apply the woke label to that situation as well. Although it gives lip service to ESG, Credit Suisse has a track record of less than enlightened practices. Two decades ago, it was being sued over its investments in apartheid-era South Africa. It has a history of lending to oil and gas projects and has been slow to respond to demands to reduce that exposure.

As shown in Violation Tracker, Credit Suisse’s record in the U.S. includes numerous cases in which it paid penalties to resolve allegations relating to the facilitation of tax evasion, foreign bribery and other misconduct. Its U.S. penalty total is over $11 billion.

Come to think of it, the Right will probably decide that a bank with a history of making money from racism, fossil fuels, tax evasion and bribery is worthy of support.

The woke capitalism critique cannot be taken seriously as an explanation of what happened at SVB. Yet there is the danger that it will serve to divert attention for some away from the real problems: reckless bank management and sleepy financial regulation.

Ill-Gotten Gains

The Justice Department has just announced a pilot program in which corporate executives involved in wrong-doing would be personally penalized. This is meant to alter the usual practice of having the company – and theoretically the shareholders – assume all of those costs.

As described in recent speeches by Deputy Attorney General Lisa Monaco and Assistant AG Kenneth Polite, DOJ would not go after the executives directly. Instead, companies that adopt executive-pay clawback policies would receive reductions in the penalties they have to pay.

Clawbacks are not a new idea, but their use has been limited. DOJ is now adding them to a package of efforts to create incentives for better corporate conduct. In this case, the company gets the carrot while misbehaving executives get the (financial) stick.

There are limitations with this approach. For one, it assumes that misconduct happens when executives go rogue. In reality, the offenses often occur as part of company policy. It is unclear whether in those cases the board of directors could compel everyone in the C-suite to surrender chunks of their compensation. Nonetheless, the DOJ program could help end the assumption of many unscrupulous corporate executives that they are shielded from personal liability.

As it turns out, this DOJ initiative comes just as we are starting to learn more about the true magnitude of executive compensation. To comply with new SEC rules, publicly traded companies are issuing proxy statements with additional calculations reflecting the value of stock awards based on changes in share prices over the course of the year.

These new calculations, dubbed compensation actually paid, show that some executives are effectively receiving even more lavish pay packages than we thought. The Wall Street Journal notes the example of Eli Lilly, which recently reported that the compensation of CEO David Ricks last year under the new approach amounted to $64.1 million, well above the $21.4 million reported using the traditional measure.

I found another example in the proxy of AbbVie, also a pharmaceutical producer. The compensation actually paid to CEO Richard Gonzalez was over $67 million (compared to $26 million under the old calculation).

The compensation-actually-paid figure is not always far in excess of the traditional total compensation amount. Among the limited number of proxies that have been issued so far, the new amount is sometimes lower than the old one.

Bloated compensation, whether measured by the new method or the old one, is most problematic when it occurs at companies with tainted track records. AbbVie is a case in point. Last year its subsidiary Allergan agreed to pay over $2 billion to state attorneys general to settle litigation concerning the improper marketing of opioid medications. In Violation Tracker, AbbVie has cumulative penalties of nearly $6 billion.

There are many other examples of companies with long rap sheets that go on paying their top executives far too much. One is tempted to think that those individuals are in effect being rewarded for breaking the rules when that fattens the bottom line.

It is unclear that the new DOJ clawback program will do much to change this dynamic, but it may serve as a stepping stone to more aggressive measures to rein in corporate misconduct.