The Remarkable Persistence of Corporate Crime and Kickbacks

Big time middlemen merchants have a hard time avoiding conflicts of interests where they say they represent your interests as buyers while they are receiving kickbacks or, more politely, "retrospective commissions" from the sellers. Such situations undermine making deals on your behalf that are on the merits of the product or service instead of on the money secretly passing from the sellers to the agent, broker or any other Mr. In Between.

Tens of billions of dollars are at stake here every year. It has been going on for decades before an investigative reporter or law enforcement agency stumbles on the practice whether through a whistleblower or simply random discovery. Such are the features of the growing epidemic of corporate crime, fraud and abuse -- it goes on and on, known to thousands of people in the industry, but years go by before it is publically detected.

But now a veritable Niagara has been unleashed. As Steven Pearlstein writes in the Washington Post: "In truth, the drug industry now is built on a foundation of kickbacks masquerading as marketing expenses." He and others noted that last month Medco -- the large pharmacy benefits manager, (PBM) that allegedly negotiates lower prices for health plans and their patients, settled charges that it received over $400 million from just one drug company (Merck) in just one year 2001 to favor drugs by that company even if they were more expensive or another drug was prescribed. For this bonanza, Medco settled for a mere $29 million with 20 states Attorneys General. Criminogenic behavior pays indeed. And what about all the other years?

The kickback tsunami comes in waves. First were the disclosed conflicts involving security analysts who touted stocks for you to buy whiletheir colleagues or even themselves were dumping them. Of course, they just needed cash for their son's wedding or they thought it prudent to diversify their firm's portfolio. Ah, yes.

Then, as Professor John C. Coffee Jr. of Columbia Law School, pointed out, there were the mutual funds favoring wealthy clients with "timing" purchases after hours and in other ways over the regular Joes and Janes they had as trusting clients. Then, he adds, there were the securities brokers marketing products from the mutual funds.

Most recently, it turns out those giant commercial insurance brokers like Marsh Inc., Willis Group Holdings, Aon and others were taking payments from the insurance companies to promote their business before the brokers' trusting corporate clients that believed brokers were arms length searchers for the best insurance policies. Big money is involved here -- a total of $656 million in insurance company payments in 2003 just to the top eight brokers.

Who can you trust in the marketplace of deceit, coverup and breach of fiduciary duties? Well let's see. Can we trust the boards of directors of these companies, the outside accounting firms, the outside law firms, the state and federal regulators, the state and federal legislative committees? To ask the question of these supposed sentinels is to answer it. They, year after year, look the other way. They are paid to look the other way or they are receiving campaign contributions to look the other way. Still they cannot be excused. There is something rotten in the state of Wall Street, in the state of brokerdom or agentdom. Yet the carrier of the rot never seems to go to jail to have time to think things over. The thefts never seem to be paid back fully plus interest and penalties.

I listened to a recent House hearing on C-Span radio a few weeks ago watching a minuet between the Subcommittee Chairman, who used to be in the real estate industry, lather witnesses from his former occupation whowere denouncing one of the very few pro-consumer moves by the Bush Administration. This proposed rule would require mortgage brokers to disclose how much they are paid (wholesale markups are the euphemism) so that consumers can compare costs and upfront fees. The corporate witnesses were trying to explain that the Department of Housing and Urban Affairs proposal would cost consumers more and produce no benefit. That's what they think about the consumer's right to know and deconstruct the gobbledygook called "yield spread premium."

The remarkable resistance of corporate crime and fraud to being uprooted through the years suggests that they are above and beyond the law, when they do not produce the enabling laws in the first place that gives them de facto immunity and cover. Examples are their lobbying to repeal the usury laws in the Seventies in most states, or making sure that the laws do not have criminal penalties for criminal practices.

Caveat emptor (let the buyer beware) is our governments' consumer protection policies these days. Some day, consumers will band together and do the uprooting themselves.

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