There's plenty of proof that the one-percent are scoundrels

For those convinced of the depravity of large corporations and the super-wealthy, recent days have provided an abundance of vindication. Thanks to the whistleblower at Facebook and an anonymous leaker of a vast collection of confidential financial documents dubbed the Pandora Papers, we have amazing new evidence of corruption and anti-social behavior.

Frances Haugen's release of internal research paints a picture of Facebook as prioritizing profits ahead of taking steps to address evidence that its algorithms promote social animosity and that its products such as Instagram exacerbate mental health problems among teenage users.

The financial documents revealed in the Pandora Papers depict numerous billionaires and government leaders around the world as brazen tax cheats who are accumulating immense amounts of illegal assets in the form of high-end real estate, yachts and secret bank accounts.

Of course, none of this comes as a surprise.

Of course, none of this comes as a surprise. In fact, this is not the first large-scale leak of private financial records showing misappropriation, money laundering and tax evasion among the global elite. We already knew that Facebook is basically unconcerned about the damage caused by its services.

As is always the case after major revelations like these, the main question is whether policymakers will do anything to address the problems. The odds that the Pandora Papers will prompt Congress to act are reduced somewhat by the fact that the disclosures do not include much about members of the U.S. elite. Major controversies have erupted in countries such as Jordan, Kenya and the Czech Republic, whose leaders are among those implicated in the documents. U.S. individuals consist mainly of lesser-known billionaires and art dealers.

Perhaps the most salient U.S. angle in the Pandora Papers is the increasingly important role played by states such as South Dakota as tax havens for elites seeking to shield illicit assets. To some extent this is an issue for state legislatures, though a bill has been introduced in Congress that would require trust companies and others to screen foreign clients seeking to move assets through the U.S. financial system.

There may be more policy momentum when it comes to Facebook. It and the other tech giants have been receiving criticism, for varying reasons, from members of Congress across the political spectrum. Along with the issues raised by the whistleblower, there are increasing concerns about the concentration of ownership within the tech sector. Among other things, Facebook is the subject of a new antitrust complaint by the Federal Trade Commission.

An article in the Washington Post quotes lawmakers suggesting that this may be tech's "Big Tobacco moment," a reference to the time in the late 1990s when the major cigarette manufacturers lost their stranglehold over public policy and ended up having to accept stronger federal regulation and paying out tens of billions of dollars in class action settlements.

It is good to hear that legislators are thinking in those terms, but they will have to turn up the heat much higher on Facebook, which so far is not admitting any culpability and whose CEO is too young to remember much about the 1990s.

A new roll call of the worst corporate polluters

When it comes to dealing with egregious corporate polluters, we tend to think first about what Environment and Justice officials are doing to address the problem. Yet there is another way in which environmental miscreants can be called to account: private litigation.

For the past half-century, a series of major lawsuits have served as the means by which large corporations have been compelled to change many of their worst environmental practices and compensate victims of those abuses.

Some of these cases have become legendary and have inspired Hollywood movies:

  • The 2000 film Erin Brockovich told the story of a legal clerk who was central to a successful lawsuit against the utility Pacific Gas & Electric for contaminating the water supply of a California town with the cancer-causing hexavalent chromium
  • The 2019 movie Dark Waters dramatized the efforts of attorney Robert Bilott to get DuPont to take responsibility for exposing residents of a West Virginia community to highly toxic chemicals called PFOAs

The latest expansion of Violation Tracker includes entries on the PG&E and DuPont cases as well as 100 other lawsuits resolved over the past two decades.

As a result of these actions, dozens of major corporations have paid out more than $15 billion in settlements countrywide.

These are all group actions in which multiple plaintiffs sued the companies for widespread harm. Initially, major environmental lawsuits were brought as class actions. In the 1990s the U.S. Supreme Court put significant restrictions on such lawsuits, but trial lawyers have been able to achieve substantial settlements through the system of multi-district litigation (MDL) in which cases from various jurisdictions are transferred to a single federal court with the aim of reaching a global settlement. MDLs are even more common in product liability cases, which Violation Tracker will tackle next.

Among the 104 environmental cases just added to the database, there are class actions and MDLs as well as suits brought by environmental organizations on behalf of communities.

Deepwater Horizon

Topping the list of settlement amounts are the cases brought in connection with the 2010 Deepwater Horizon catastrophe in the Gulf of Mexico. BP agreed to a $7 billion in 2012 settlement, which was separate from the more than $20 billion it later paid out to federal and state governments. Halliburton, also implicated in the disaster, paid a $1 billion private settlement.

The other giant case was the $1.6 billion settlement Volkswagen reached with its dealerships affected by the automaker's emissions cheating scandal. Like BP, VW also paid billions more in government settlements.

The company with the next highest total is Exxon Mobil, which has paid out more than $590 million in six different private environmental actions. Most of this amount came from a long-running lawsuit stemming from the 1989 Exxon Valdez oil spill off the coast of Alaska. The company was originally hit with $5 billion in punitive damages, but it appealed all the way to the Supreme Court, which in 2008 slashed the amount to $507 million.

Four of Exxon's other cases involved the gasoline additive MTBE. Communities and governments in various parts of the country have sued numerous oil companies to hold them responsible for MTBE contamination of water supplies from leaking underground oil tanks.

Contaminating Water Supplies

Another issue involving multiple companies is that of the PFOAs mentioned above in connection with DuPont. A variety of corporations have been sued for contaminating water supplies with these hazardous substances, also known as PFAs or forever chemicals because they do not break down in the body or the environment. DuuPont and its spinoffs Chemours and Corteva have paid out hundreds of millions of dollars in these cases, while firms such as 3M and Georgia-Pacific have paid smaller amounts. Other suits are pending.

The dozens of other environmental cases have involved a wide range of toxic substances such as PCBs, dioxin, arsenic, TCE and vinyl chloride. The average of the 104 settlements is $150 million. Sixteen corporations have settlement totals above $100 million.

Missing from the list are major cases involving the role of corporations in exacerbating the climate crisis. Various suits have been brought, often by state and local governments and framed as shareholder actions, but so far none have resulted in significant monetary settlements. That is likely to change as the crisis grows worse and corporations are held culpable. When that happens, Violation Tracker will document the results.

Note: I would like to thank Suzanne Katzenstein and a group of her students at the Duke University Sanford School of Public Policy, who helped identify some of the environmental lawsuits discussed above. You can also view this article at Dirt Diggers Digest.

  • Phil Mattera is the Research Director of Good Jobs First and head of their Corporate Research Project. He has been doing strategic corporate research for labor, environmental, public-interest and other activist groups for three decades. He has written for RawStory, AlterNet and; and is the publisher of Dirt Diggers Digest, a blog chronicling corporate misbehavior. View all posts

The biggest polluters you've never heard of

Hilcorp Energy, a privately held oil and gas producer based in Texas, shows up in Violation Tracker with only $2 million in regulatory penalties compared with more than $1.5 billion for petroleum giant Exxon Mobil.

Yet according to a detailed new report published by Ceres and the Clean Air Task Force, Hilcorp dwarfs Exxon when it comes to climate-ruining emissions of methane gas.

Hilcorp is one of a group of lesser-known energy producers which turn out to be responsible for a remarkable portion of greenhouse-gas emissions. The findings of the Ceres report, which outed the companies using data from the EPA's Greenhouse Gas Reporting Project, were surprising enough to merit a front-page article in The New York Times.

One of the reasons these companies fly under the radar is that they are not publicly traded. Some are controlled by private equity firms, making their business even more opaque.

Among the other low-profile/high-emissions companies featured in the report are Terra Energy Partners, Flywheel Energy, Blackbeard Operating and Scout Energy. These firms have few or no listings in Violation Tracker.

One of the reasons these companies escape notice is that they are not publicly traded. Some are controlled by private equity firms, making their business even more opaque.

Buying from the Big Boys

As the Times said, some of these producers have purchased operations from larger, publicly traded corporations subject to more scrutiny. For example, Hilcorp acquired gas wells in the San Juan Basin in northwestern New Mexico from ConocoPhillips, reducing that company's carbon footprint while doing nothing to reduce the burden on the climate.

It is significant that the Ceres report is appearing in the wake of the showdown at Exxon Mobil, where institutional investors concerned about the risks associated with climate change have just succeeded in winning three seats on the corporation's board of directors.

Small Firms, Outsized Impact

That is a vitally important development in the effort to bring about change at the company which is still the largest overall emitter of greenhouse gases.

The Ceres findings point out the necessity for the climate movement to target not only the corporate giants but also the smaller players which are having an outsized impact.

One difficulty in changing the practices of both larger and smaller corporations is the fact that the U.S. environmental regulatory system does little to punish firms for greenhouse-gas emissions. A producer such as Hilcorp can get away with its massive methane emissions because it does not need to worry about activist institutional investors or the possibility of substantial penalties from environmental agencies.

The Environmental Protection Agency has gone after automobile producers such as Hyundai for greenhouse-gas emissions, but the agency has faced strong legal obstacles in the effort to regulate emissions by power plants and energy producers.

Those obstacles need to be overcome, and corporations of all kinds need to face substantial monetary penalties for their contributions to the climate crisis.

Note: Apart from the Ceres report, good use of the EPA's greenhouse-gas data has been made by the Political Economy Research Institute's Greenhouse 100 Polluters Index, which ranks parent companies by the total emissions of their subsidiaries.

In that index, power-plant owners such as Vistra Energy and Duke Energy are at the top. Exxon is number 11 and Hilcorp number 36.

Meet a 200-year-old corporate criminal

Boston-based State Street Corp. traces its history back to 1792 and now manages more than $3 trillion in assets, yet it has always maintained a lower profile than the goliaths of Wall Street. Recently, the company was in the spotlight, though not in a good way.

The U.S. Attorney's Office for Massachusetts announced that State Street would pay a $115 million criminal penalty to resolve charges that it engaged in a scheme to defraud a number of its clients by secretly overcharging for expenses related to the bank's custody of client assets.

"State Street defrauded its own clients of hundreds of millions of dollars over decades in a most pedestrian way," said Acting U.S. Attorney Nathaniel Mendell. "They tacked on hidden markups to routine charges for out-of-pocket expenses."

In effect, it became part of State Street's standard operating procedure.

What's remarkable is this simple fraud went on, according to prosecutors, for 17 years. This suggests that a large number of company executives were in on the scheme. In effect, it became part of State Street's standard operating procedure.

It is disappointing that, aside from the monetary penalty—which can be easily absorbed by a company of its size–State Street was let off with what amounted to a slap on the wrist. Like numerous large corporate violators before it, State Street was allowed to enter into a deferred prosecution agreement rather than being compelled to enter a guilty plea.

The deferred prosecution agreement (DPA) is all the more controversial because State Street did not have a pristine record prior to this case. As shown in Violation Tracker, it has paid more than $1 billion in penalties in previous cases dating over a decade. These included a 2010 case in which it had to pay $313 million to resolve allegations by the Securities and Exchange Commission and the Massachusetts Attorney General that it misled investors about their exposure to subprime investments while selectively disclosing more complete information to specific investors.

Later, in 2016, State Street paid $382 million to resolve an SEC case alleging that it misled mutual funds and other custody clients by applying hidden markups to foreign currency exchange trades. Hidden markups seem to be a recurring theme for State Street.

Since 2010 the company has paid out another $400 million in cases brought by the SEC and state regulators as well as class action lawsuits involving its management of pensions and benefit plans.

Yet perhaps the most disturbing entry on the Violation Tracker list is a 2017 case in which State Street paid a $32 million penalty to the Justice Department to resolve charges that it engaged in a scheme to defraud a number of the bank's clients by secretly applying commissions to billions of dollars of securities trades.

As in this year's criminal case, State Street was allowed to wriggle out of those charges by signing a deferred prosecution agreement. That puts the company in the dubious group of corporations that, as a 2019 Public Citizen report showed, have been offered multiple DPAs or non-prosecution agreements.

The ability of a corporation to obtain multiple leniency agreements makes a mockery of DPAs and NPAs. These arrangements are justified as a way to encourage a wayward company to change it practices, yet the ability to obtain multiple get-out-of-jail-free agreements does nothing more than incentivize more misconduct.

The Supreme Court just gave a boost to crooked corporations

The U.S. Supreme Court has given a boost to crooked corporations in a ruling that restricts the powers of one of the federal government's oldest regulatory agencies, the Federal Trade Commission.

The FTC has been operating since 1914.

Justices ruled unanimously that the FTC does not have the authority to go to court and win redress for unfair and deceptive business conduct. It must first go through a cumbersome administrative process.

Since the 1970s, the FTC has been obtaining court injunctions against rogue companies and compelling them to provide monetary relief to consumers. In Violation Tracker, we document nearly 500 cases brought by the agency since 2000 with total fines and payouts of more than $14 billion. More than a dozen of those cost companies more than $100 million.

Corporations embroiled in disputes with the FTC, such as Facebook, are claiming that the agency lacks the authority to proceed.

Just the other day, the FTC announced it was sending more than $59 million collected on behalf of consumers who were victims of an allegedly deceptive scheme by Reckitt Benckiser Group and Indivior Inc. to thwart lower-priced generic competition with the branded drug Suboxone. Many of these enforcement actions may no longer be possible.

The high court ruling may prompt Congress to revise the law to allow the FTC to go back to using court injunctions. Yet for now, the regulatory landscape is in flux.

Corporations embroiled in disputes with the FTC, such as Facebook, are claiming that the agency lacks the authority to proceed. Facebook is still smarting from a previous FTC case from 2019 in which it paid a $5 billion penalty for privacy violations.

FDA May Be Next

Given the similarities between the FTC Act and the law governing the Food and Drug Administration, there may be challenges to the FDA's use of injunctions. The ruling is even being cited in disputes not involving federal agencies. A group of generic drug manufacturers being sued by state attorneys general for price-fixing is claiming that the ruling should also bar actions seeking injunctive relief under Section 16 of the Clayton Act.

On the other hand, there are indications that the FTC may choose to partner with state AGs on consumer protection actions in areas other than antitrust, relying on their power to seek relief from corporations over issues such as unlawful debt collection and privacy violations.

Legal observers also believe that the Consumer Financial Protection Bureau may help fill the gap created by SCOTUS, as least in financial sector cases, given that its authorizing legislation, the Dodd-Frank Act, explicitly allows it to sue for restitution and other relief without first going through lengthy administrative proceedings. It can also do so against a broader range of misconduct.

Nonetheless, it is disappointing to see the FTC and possibly other agencies lose the ability to bring prompt action against corporate miscreants. Business misconduct shows no signs of abating, so regulators need as many tools as possible to end the abuses and force corporations to compensate those who have been adversely affected.

There are hidden parts of Biden's infrastructure plan that will affect everyone

Republicans are having limited success turning the public against the Biden administration's $2 trillion infrastructure plan by claiming the proposal is too wide-ranging.

A new NPR poll shows solid support not only for the provisions relating to roads and bridges but also for spending on modernizing the electric grid, achieving universal broadband coverage and even expanding long-term health care.

Given the sweeping scope of the proposal, it is not possible for pollsters to ask about every component. I suspect there also would be high support for a portion of the plan that has received little attention.

That is the provision to strengthen the capacity of federal departments responsible for enforcing workplace protections.

The federal government [needs] the tools to ensure employers are providing workers with good jobs – including jobs with fair and equal pay, safe and healthy workplaces…

Biden is proposing that $10 billion be spent to beef up agencies such as the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission and the Wage and Hour Division. The plan states:

"President Biden is calling on Congress to provide the federal government with the tools it needs to ensure employers are providing workers with good jobs – including jobs with fair and equal pay, safe and healthy workplaces, and workplaces free from racial, gender, and other forms of discrimination and harassment."

Before the Pandemic

It makes sense to push for improvements in job quality at the same time the country is striving to bring the number of jobs back to the levels seen before the arrival of Covid. Workplace abuses predated the pandemic. In some ways abuses worsened during the past year. Job safety waned in industries such as meatpacking especially. Such damage will be with us long after the health crisis abates.

Congress perennially fails to fund these agencies adequately, leaving them with insufficient numbers of inspectors and investigators.

For example, the most recent edition of the AFL-CIO's Death on the Job report notes that the number of workplace safety inspectors declined steadily during the Trump years both at federal and state levels. These staffing shortages create a form of de facto deregulation as many workplace abuses go undetected and unprosecuted.

Biden's plan briefly addresses another problem with workplace enforcement: artificially low penalty structures, especially at OSHA. The administration calls for increasing these penalties, but it does not provide specifics.

Not So Stiff Penalties

The penalty situation at OSHA is not as bad as it used to be. Changes made during the Obama administration, including 2015 legislation that extended inflation adjustments to workplace safety fines, helped raise penalty rates. The maximum for a serious violation is $13,653 and the maximum for a willful or repeated violation is $136,532.

These maximum amounts do not tell the full story. As the Death on the Job report points out, the average penalty for a serious violation in fiscal year 2019 was only $3,717. The average for willful violations was $59,373 and for repeat violations, it was $14,109. Even in cases involving fatalities, the median penalty was just $9,282.

The cumulative effect of low OSHA penalties can be seen in the data in Violation Tracker, which only includes fines of $5,000 or more. OSHA accounts for 37 percent of the cases in the database but less than 1 percent of the total penalty dollars. Numbers such as these cause too many employers to conclude that their bottom line is best served by skimping on workplace safety and paying the meager fines that may or may not be imposed by OSHA.

The Biden infrastructure plan could begin to change that.

Why it's time to make large corporations pay living wages

There was a time when landing a job with a large corporation was, even for blue-collar workers, a ticket to a comfortable life—good wages, generous benefits and a secure retirement. Women and workers of color did not share fully in this bounty, but they generally did better at big firms than small ones.

All this began to unravel in the 1980s, when big business used the excuse of global competition to chip away at the living standards of the domestic workforce. This took the form of an assault on unions, which had played a key role in bringing about the improvements in the terms of employment. In meatpacking, for instance, what had been a high-wage, high-union-density industry turned into a bastion of precarious labor.

The real solution to the problem is not voluntary corporate action but rather collective bargaining. Amazon and Walmart could assist their workers by dropping their opposition to unionization.

When large corporations off-loaded a substantial portion of their employment costs, they created a higher burden for the public sector. As their pay and benefits shrank, workers turned to the social safety net to fill the gap. Programs such as Medicaid and Supplemental Nutrition Assistance Program (food stamps) that were originally designed for employees of small firms and for the unemployed became a lifeline for the workforce at some Fortune 500 companies.

Subsidizing Labor Costs

From a social point of view, this was a good thing—but it also created a situation in which taxpayers were in effect subsidizing the labor costs of mega-corporations. This became an issue in the early 2000s with regard to Walmart, and there were unsuccessful efforts in states such as Maryland to require large firms to spend more on employee healthcare.

Although the issue receded from public attention, figures such as Sen. Bernie Sanders (I-Vt.) have sought to keep it alive, putting the main focus on the employment practices of Amazon.com. In 2018 Sanders helped pressure the giant e-commerce firm to raise its wage rates by introducing legislation that would have taxed large companies to recoup the cost of government benefits given to their employees.

Now the chair of the Senate Budget Committee, Sen. Sanders is continuing his effort from a position of even greater influence. He just held a hearing on whether taxpayers are subsidizing poverty wages at large corporations. As in 2018, just highlighting the issue had a concrete impact. At the hearing on Thursday (Feb. 25), the chief executive of Costco announced that his company would raise its minimum pay rate to $16 an hour. This came a week after Walmart hiked its rate to $15 but only for a portion of its workforce.

Some Wage Boosts

After years of wage stagnation, it is heartening to see that large companies are beginning to feel some pressure to boost their wage rates. Yet rises of only a few dollars an hour will not do the trick. Pay needs to be substantially higher than $15 an hour. That's why the real solution to the problem is not voluntary corporate action but rather collective bargaining. Amazon and Walmart could assist their workers much more by dropping their opposition to unionization.

Having a voice at work would solve not only the pay problem but also the crisis in healthcare coverage and other benefits. The scope of that crisis was made plain by another speaker at the Senate Budget Committee hearing. Cindy Brown Barnes of the Government Accountability Office summarized research showing that an estimated 12 million adults enrolled in Medicaid and 9 million adults living in households receiving food stamp benefits earned wages at some point in 2018.

The GAO had more difficulty determining the portion of these populations employed at large corporations. That is because only a limited number of the state agencies administering Medicaid and food stamps collect and update employer information on recipients.

Corporations On the Dole

The partial data is still revealing. Among the six states providing employer information for Medicaid recipients, Walmart was in the top 10 in all, while McDonald's and Amazon were in five. Among the nine states providing employer information for food stamp recipients, Walmart was in the top 10 in all, while McDonald's was in eight and Amazon was in four.

These findings provide valuable information for the Sanders campaign against poverty wages. Companies such as Amazon—which recently reported that its annual revenues in 2020 were up 38% and its profits nearly doubled to $21 billion—can well afford to pay employees a living wage and provide the benefits necessary for a decent standard of living.

Public safety net programs are essential to society, but those who are employed by mega-corporations should not have to make use of them.

It's not just Republicans in Congress who share the blame for the failed Trump insurrection

Republican members of Congress who abetted the plot to overturn the election will go down in infamy along with the disgraced 45th President himself. That applies both to the dead-enders who still repeat the lies and those senators and representatives who abandoned the shameful crusade only after a mob whipped up by Trump invaded the Capitol.

There is another group of enablers who should be called to account: Corporate America. Sure, big business is now frantically trying to distance itself from Trump, with the National Association of Manufacturers going so far as to urge that Vice President Pence and the Cabinet invoke the 25th Amendment. Amid the chaos on Wednesday, the Business Roundtable called on Trump to put an end to the violence. In late November, a group of more than 160 chief executives urged the Trump Administration to accept Biden's victory and cooperate in the transition process.

While Trump moved steadily along the path to authoritarianism, large companies allowed themselves to be bought off with tax giveaways and regulatory rollbacks.

Yet, as with Congressional Republicans, these gestures came after four years of enabling Trump's anti-democratic practices. While Trump moved steadily along the path to authoritarianism, large companies allowed themselves to be bought off with tax giveaways and regulatory rollbacks. There were occasional confrontations with corporations such as Carrier and General Motors over layoffs and offshoring, but these were bogus, reality-TV-type confrontations that amounted to nothing.

Regulations Rollbacks

More significant were the policies adopted by a purportedly populist President that weakened labor unions, rolled back OSHA enforcement, curtailed fair labor standards and installed employer-friendly Secretaries of Labor.

Corporate America has also benefited from Trump's retrograde environmental policies, especially the efforts to roll back limits on greenhouse gas emissions. On their way out the door, officials such as Andrew Wheeler of the EPA are trying to limit the options the Biden Administration will have to restore pollution controls.

Specific corporations have also been the beneficiaries of Trump's policies. Military contractors such as Lockheed Martin have profited from the Administration's use of arms sales to countries such as Saudi Arabia as a key element of its foreign policy. Telecommunications equipment companies such as Cisco benefitted from Trump's campaign against its Chinese competitor Huawei.

News and Social Media Giants

Even companies chosen by Trump for his faux confrontations have profited from him or have assisted his accumulation of power. News corporations such as CNN gave Trump's early rallies undue coverage and helped propel his political rise. Social media corporations for the most part have allowed Trump to disseminate hate speech and dangerous falsehoods.

Some prominent corporate figures have directly supported Trump, both with endorsements and substantial campaign contributions. These include Stephen Schwarzman of The Blackstone Group, Kelcy Warren of the pipeline company Energy Transfer Partners, and casino magnate Sheldon Adelson.

Other corporations and trade associations have sucked up to Trump and his family over the past four years. Last February, NAM, the organization now promoting the 25th Amendment, gave its Alexander Hamilton Award to Ivanka Trump.

On the whole, big business has offered little more than mild rebukes to Trump's dangerous tendencies while reaping substantial benefits. Like Congressional Republicans, Corporate America needs to be held to account.

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