CORPORATE CRIME REPORTER
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Twenty Things You Should Know About Corporate Crime
21 Corporate Crime Reporter
25, June 12, 2007
Twenty years ago, Corporate Crime Reporter, a weekly print newsletter,
was launched.
From the beginning, the most popular feature of Corporate Crime Reporter has been a question/answer format interview.
Over the years, we’ve interviewed hundreds of prosecutors, defense attorneys, law school professors, reporters, and activists.
Our first interview, which appeared in Volume One, Number One on April 13, 1987 was with the premier corporate crime prosecutor of his day.
That was Rudolph Giuliani, then U.S. Attorney in the Southern District of New York.
At the time, he was prosecuting the likes of Michael Milken, Ivan Boesky and Marc Rich.
President Clinton later pardoned Marc Rich.
Apparently Marc Rich’s wife was dumping big cash into the Clinton library.
Rudy is now solidly in the hands of the corporate crime lobby. He prosecuted corporate crime as a way to achieve higher office. Then he learned one of the key lessons of corporate crime prosecution.
You can achieve higher office by prosecuting corporate crime. But as you move up the ladder, you have to make nice with the corporate powers that be. And so you turn your attention and rhetoric to various forms of street crime.
Now, Rudy is ready to be President.
So, corporate crime lesson number one – prosecute corporate crime to achieve higher office, then prosecute street crime to protect your political position.
Or to simplify it, corporate crime is all about power politics.
And the corporate crime game is a bi-partisan affair – it is played the same by Democrats and Republicans alike.
Eliot Spitzer, the former Attorney General of New York, prosecuted corporate crime to achieve higher office.
And now as Governor of New York, Spitzer is making nice with Wall Street.
To celebrate the 20th anniversary of Corporate Crime Reporter, I present to you the Top 20 Things You Should Know About Corporate Crime.
With a tip of the hat to David Letterman, let us proceed.
Number 20
Corporate crime inflicts far more damage on society than all street crime combined.
Whether in bodies or injuries or dollars lost, corporate crime and violence wins by a landslide.
The FBI estimates, for example, that burglary and robbery – street crimes – costs the nation $3.8 billion a year.
The losses from a handful of major corporate frauds – Tyco, Adelphia, Worldcom, Enron – swamp the losses from all street robberies and burglaries combined.
Health care fraud alone costs Americans $100 billion to $400 billion a year.
The savings and loan fraud – which former Attorney General Dick Thornburgh called "the biggest white collar swindle in history" – cost us anywhere from $300 billion to $500 billion.
And then you have your lesser frauds: auto repair fraud, $40 billion a year, securities fraud, $15 billion a year – and on down the list.
Number 19
Corporate crime is often violent crime.
Recite this list of corporate frauds and people will immediately say to you: but you can't compare street crime and corporate crime – corporate crime is not violent crime.
Not true.
Corporate crime is often violent crime.
The FBI estimates that, 16,000 Americans are murdered every year.
Compare this to the 56,000 Americans who die every year on the job or from occupational diseases such as black lung and asbestosis and the tens of thousands of other Americans who fall victim to the silent violence of pollution, contaminated foods, hazardous consumer products, and hospital malpractice.
These deaths are often the result of criminal recklessness. Yet, they are rarely prosecuted as homicides or as criminal violations of federal laws.
Number 18
Corporate criminals are the only criminal class in the United States that have the power to define the laws under which they live.
The mafia, no.
The gangstas, no.
The street thugs, no.
But the corporate criminal lobby, yes. They have marinated Washington – from the White House to the Congress to K Street – with their largesse. And out the other end come the laws they can live with. They still violate their own rules with impunity. But they make sure the laws are kept within reasonable bounds.
Exhibit A – the automobile industry.
Over the past 30
years, the industry has worked its will on Congress to block legislation that
would impose criminal sanctions on knowing and willful violations of the federal
auto safety laws. Today, with very narrow exceptions, if an auto company is
caught violating the law, only a civil fine is imposed.
Number 17
Corporate crime is underprosecuted by a factor of say – 100. And the flip side of that – corporate crime prosecutors are underfunded by a factor of say – 100.
Big companies that are criminally prosecuted represent only the tip of a very large iceberg of corporate wrongdoing.
For every company convicted of health care fraud, there are hundreds of others who get away with ripping off Medicare and Medicaid, or face only mild slap-on-the-wrist fines and civil penalties when caught.
For every company convicted of polluting the nation's waterways, there are many others who are not prosecuted because their corporate defense lawyers are able to offer up a low-level employee to go to jail in exchange for a promise from prosecutors not to touch the company or high-level executives.
For every corporation convicted of bribery or of giving money directly to a public official in violation of federal law, there are thousands who give money legally through political action committees to candidates and political parties. They profit from a system that effectively has legalized bribery.
For every corporation convicted of selling illegal pesticides, there are hundreds more who are not prosecuted because their lobbyists have worked their way in Washington to ensure that dangerous pesticides remain legal.
For every corporation convicted of reckless homicide in the death of a worker, there are hundreds of others that don't even get investigated for reckless homicide when a worker is killed on the job. Only a few district attorneys across the country have historically investigated workplace deaths as homicides.
Corporate crime prosecutors are underfunded by a factor of say – 100.
White collar crime defense attorneys regularly
admit that if more prosecutors had more resources, the number of corporate crime
prosecutions would increase dramatically. A large number of serious corporate
and white collar crime cases are now left on the table for lack of resources.
Number 16
Beware of consumer groups or other public interest groups who make nice with corporations.
There are now probably more fake public interest groups than actual ones in America today. And many formerly legitimate public interest groups have been taken over or compromised by big corporations. Our favorite example is the National Consumer League. It’s the oldest consumer group in the country. It was created to eradicate child labor.
But in the last ten years or so, it has been
taken over by large corporations. It now gets the majority of its budget from
big corporations such as Pfizer, Bank of America, Pharmacia & Upjohn, Kaiser
Permanente, Wyeth-Ayerst, and Verizon.
Number 15
It used to be when a corporation committed a crime, they pled guilty to a crime.
So, for example, so many large corporations were pleading guilty to crimes in the 1990s, that in 2000, we put out a report titled The Top 100 Corporate Criminals of the 1990s. We went back through all of the Corporate Crime Reporters for that decade, pulled out all of the big corporations that had been convicted, ranked the corporate criminals by the amount of their criminal fines, and cut it off at 100.
So, you have your Fortune 500, your Forbes
400, and your Corporate Crime Reporter 100.
Number 14
Now, corporate criminals don’t have to worry about pleading guilty to crimes.
Three new loopholes have developed over the
past five years – the deferred prosecution agreement, the non prosecution
agreement, and pleading guilty a closet entity or a defunct entity that has
nothing to lose.
Number 13
Corporations love deferred prosecution agreements.
In the 1990s, if prosecutors had evidence of a crime, they would bring a criminal charge against the corporation and sometimes against the individual executives. And the company would end up pleading guilty.
Then, about three years ago, the Justice Department said – hey, there is this thing called a deferred prosecution agreement.
We can bring a criminal charge against the company. And we will tell the company – if you are a good company and do not violate the law for the next two years, we will drop the charges. No harm, no foul. This is called a deferred prosecution agreement.
And most major corporate crime prosecutions
are brought this way now. The company pays a fine. The company is charged with a
crime. But there is no conviction. And after two or three years, depending on
the term of the agreement, the charges are dropped.
Number 12
Corporations love non prosecution agreements even more.
One Friday evening last July, I was sitting my office in the National Press Building. And into my e-mail box came a press release from the Justice Department.
The press release announced that Boeing will pay a $50 million criminal penalty and $615 million in civil penalties to resolve federal claims relating to the company's hiring of the former Air Force acquisitions chief Darleen A. Druyun, by its then CFO, Michael Sears – and stealing sensitive procurement information.
So, the company pays a criminal penalty. And I figure, okay if they paid a criminal penalty, they must have pled guilty.
No, they did not plead guilty.
Okay, they must have been charged with a crime and had the prosecution deferred.
No, they were not charged with a crime and did not have the prosecution deferred.
About a week later, after pounding the Justice Department for an answer as to what happened to Boeing, they sent over something called a non prosecution agreement.
That is where the Justice Department says – we’re going to fine you criminally, but hey, we don’t want to cost you any government business, so sign this agreement. It says we won’t prosecute you if you pay the fine and change your ways.
Corporate criminals love non prosecution
agreements. No criminal charge. No criminal record. No guilty plea. Just pay the
fine and leave.
Number 11
In health fraud cases, find an empty closet or defunct entity to plead guilty.
The government has a mandatory exclusion rule for health care corporations that are convicted of ripping off Medicare.
Such an exclusion is the equivalent of the death penalty. If a major drug company can’t do business with Medicare, it loses a big chunk of its business. There have been many criminal prosecutions of major health care corporations for ripping off Medicare. And many of these companies have pled guilty. But not one major health care company has been excluded from Medicare.
Why not?
Because when you read in the newspaper that a major health care company pled guilty, it’s not the parent company that pleads guilty. The prosecutor will allow a unit of the corporation that has no assets – or even a defunct entity – to plead guilty. And therefore that unit will be excluded from Medicare – which doesn’t bother the parent corporation, because the unit had no business with Medicare to begin with.
Earlier, Dr. Sidney Wolfe was here and talked about the criminal prosecution of Purdue Pharma, the Stamford, Connecticut-based maker of OxyContin.
Dr. Wolfe said that the company pled guilty to pushing OxyContin by making claims that it is less addictive and less subject to abuse than other pain medications and that it continued to do so despite warnings to the contrary from doctors, the media, and members of its own sales force.
Well, Purdue Pharma – the company that makes
and markets the drug – didn’t plead guilty. A different company – Purdue
Frederick pled guilty. Purdue Pharma actually got a non-prosecution agreement.
Purdue Frederick had nothing to lose, so it pled guilty.
Number 10
Corporate criminals don’t like to be put on probation.
Very rarely, a corporation convicted of a crime will be placed on probation. Many years ago, Consolidated Edison in New York was convicted of an environmental crime. A probation official was assigned. Employees would call him with wrongdoing. He would write reports for the judge. The company changed its ways. There was actual change within the corporation.
Corporations hate this. They hate being under the supervision of some public official, like a judge.
We need more corporate probation.
Number 9
Corporate criminals don’t like to be charged with homicide.
Street murders occur every day in America. And they are prosecuted every day in America. Corporate homicides occur every day in America. But they are rarely prosecuted.
The last homicide prosecution brought against a major American corporation was in 1980, when a Republican Indiana prosecutor charged Ford Motor Co. with homicide for the deaths of three teenaged girls who died when their Ford Pinto caught on fire after being rear-ended in northern Indiana.
The prosecutor alleged that Ford knew that it was marketing a defective product, with a gas tank that crushed when rear ended, spilling fuel.
In the Indiana case, the girls were incinerated to death.
But Ford brought in a hot shot criminal defense lawyer who in turn hired the best friend of the judge as local counsel, and who, as a result, secured a not guilty verdict after persuading the judge to keep key evidence out of the jury room.
It’s time to crank up the corporate homicide
prosecutions.
Number 8
There are very few career prosecutors of corporate crime.
Patrick Fitzgerald is one that comes to mind.
He’s the U.S. Attorney in Chicago. He put away Scooter Libby. And he’s now
prosecuting the Canadian media baron Conrad Black.
Number 7
Most corporate crime prosecutors see their jobs as a stepping stone to greater things.
Spitzer and Giuliani prosecuted corporate
crime as a way to move up the political ladder. But most young prosecutors
prosecute corporate crime to move into the lucrative corporate crime defense
bar.
Number 6
Most corporate criminals turn themselves into the authorities.
The vast majority of corporate criminal prosecutions are now driven by the corporations themselves. If they find something wrong, they know they can trust the prosecutor to do the right thing. They will be forced to pay a fine, maybe agree to make some internal changes.
But in this day and age, in all likelihood, they will not be forced to plead guilty.
So, better to be up front with the prosecutor
and put the matter behind them. To save the hide of the corporation, they will
cooperate with federal prosecutors against individual executives within the
company. Individuals will be charged, the corporation will not.
Number 5
The market doesn’t take most modern corporate criminal prosecutions seriously.
Almost universally, when a corporate crime case is settled, the stock of the company involved goes up.
Why? Because a cloud has been cleared and
there is no serious consequence to the company. No structural changes in how the
company does business. No monitor. No probation. Preserving corporate reputation
is the name of the game.
Number 4
The Justice Department needs to start publishing an annual Corporate Crime in the United States report.
Every year, the Justice Department puts out an annual report titled "Crime in the United States."
But by "Crime in the United States," the Justice Department means "street crime in the United States."
In the "Crime in the United States" annual report, you can read about burglary, robbery and theft.
There is little or nothing about price-fixing, corporate fraud, pollution, or public corruption.
A yearly Justice Department report on
Corporate Crime in the United States is long overdue.
Number 3
We must start asking – which side are you on – with the corporate criminals or against?
Most professionals in Washington work for, are paid by, or are under the control of the corporate crime lobby. Young lawyers come to town, fresh out of law school, 25 years old, and their starting salary is $160,000 a year. And they’re working for the corporate criminals.
Young lawyers graduating from the top law schools have all kinds of excuses for working for the corporate criminals – huge debt, just going to stay a couple of years for the experience.
But the reality is, they are working for the corporate criminals.
What kind of respect should we give them? Especially since they have many options other than working for the corporate criminals.
Time to dust off that age-old question – which
side are you on? (For young lawyers out there considering other options, check
out Alan Morrison’s new book – Beyond the Big Firm: Profiles of Lawyers Who Want
Something More.)
Number 2
We need a 911 number for the American people to dial to report corporate crime and violence.
If you want to report street crime and violence, call 911.
But what number do you call if you want to report corporate crime and violence?
We propose 611.
Call 611 to report corporate crime and violence.
We need a national number where people can pick up the phone and report the corporate criminals in our midst.
What triggered this thought?
We attended the press conference at the Justice Department the other day announcing the indictment of Congressman William Jefferson (D-Louisiana).
Jefferson was the first U.S. official charged with violating the Foreign Corrupt Practices Act.
Federal officials alleged that Jefferson was both on the giving and receiving
ends of bribe payments.
On the receiving end, he took $100,000 in cash – $90,000 of it was stuffed into his freezer in Washington, D.C.
The $90,000 was separated in $10,000 increments, wrapped in aluminum foil, and concealed inside various frozen food containers.
At the press conference announcing the indictment, after various federal officials made their case before the cameras, up to the mike came Joe Persichini, assistant director of the Washington field office of the FBI.
“To the American people, I ask you, take time,” Persichini said. “Read this charging document line by line, scheme by scheme, count by count. This case is about greed, power and arrogance.”
“Everyone is entitled to honest and ethical public service,” Persichini continued. “We as leaders standing here today cannot do it alone. We need the public's help. The amount of corruption is dependent on what the public with allow.
Again, the amount of corruption is dependent on what the public will allow.”
“If you have knowledge of, if you've been confronted with or you are participating, I ask that you contact your local FBI office or you call the Washington Field Office of the FBI at 202.278.2000. Thank you very much.”
Shorten the number – make it 611.
Number one.
And the number one thing you should know about corporate crime?
Everyone is deserving of justice. So, question, debate, strategize, yes.
But if God-forbid you too are victimized by a corporate criminal, you too will demand justice.
We need a more beefed up, more effective justice system to deal with the corporate criminals in our midst.
Thank you.
(This is the text of a speech delivered by Russell Mokhiber, editor of Corporate Crime Reporter to the Taming the Giant Corporation conference in Washington, D.C., June 9, 2007.)
Corporate Crime
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