In May of 2014, financial firm Credit Suisse AG pled guilty to serious criminal charges. The giant bank aided and assisted approximately 22,000 wealthy U.S. taxpayers (whose names Credit Suisse AG escaped having to send to the Justice Department for law enforcement) for over a decade in filing false income tax returns and other documents with the Internal Revenue Service (IRS).
The full extent of these crimes, according to a Department of Justice news release, are as follows: “assisting clients in using sham entities to hide undeclared accounts;” “soliciting IRS forms that falsely stated, under penalties of perjury, that the sham entities were the beneficial owners of the assets in the accounts;” “failing to maintain in the United States records related to the accounts;” “destroying account records sent to the United States for client review;” “using Credit Suisse managers and employees as unregistered investment advisors on undeclared accounts;” “facilitating withdrawals of funds from the undeclared accounts by either providing hand-delivered cash in the United States or using Credit Suisse’s correspondent bank accounts in the United States;” “structuring transfers of funds to evade currency transaction reporting requirements;” and “providing offshore credit and debit cards to repatriate funds in the undeclared accounts.”
These elaborate illegal acts over many years are quite revealing. They show a deliberate willingness by Credit Suisse AG officials to knowingly engage in profitable activities that defrauded the United States Treasury and burdened honest taxpayers. Credit Suisse paid a $2.6 billion fine—small compared to the size of the crimes and the company’s large revenues. These crimes were yet another sordid chapter in the ever-burgeoning tax-evading business that makes its waves with wealthy Americans and massive corporate entities. But the Credit Suisse story does not end there.
The Employee Retirement Income Security Act of 1974, or ERISA, was enacted to protect the retirement savings of retirement plan participants. The law, in theory, automatically disqualifies institutions like Credit Suisse AG who have committed serious crimes or pled guilty to serious crimes from serving as a “qualified professional asset manager” (QPAM) of ERISA assets or pension plans.
Unfortunately, the Department of Labor has not adequately enforced this law or its regulations in this area. Since waivers started being granted in 1997, 23 culpable firms have been granted exemptions from this disqualification rule and been allowed to continue their business of advising pension and other investment funds. Six of these waivers were granted to QPAMs that, like Credit Suisse AG, violated serious laws either in the United States or abroad. Remarkably, no waivers formally demanded by their corporate law firms have been rejected.
The Department of Labor (DOL) already has granted Credit Suisse a temporary waiver to continue conducting their pension management business. On January 15th, the DOL held a public hearing—where I testified— to discuss whether Credit Suisse and its affiliates can continue this troubling trend of avoiding the consequences of their actions indefinitely. Credit Suisse AG is hoping to completely sidestep the mechanisms of justice for their admittedly serious crimes and carry on business as usual—a result that in itself is, unfortunately, business as usual. Is it not astounding to think a company, which knowingly engaged in such illegal activities, would not be deterred from engaging in activities that could be harmful to retirees as well?
Public Citizen’s Bartlett Naylor wrote in a public comment to the Department of Labor:
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“Firms that engage in criminal activity should face real consequences. Where those consequences are excused, the firm is invited to become a repeat offender; and the deterrence effect for other firms is nullified. Pension fund beneficiaries are especially vulnerable to Wall Street abuse because their savings may be managed by firms they do not even choose, let alone control. As overseer of the nation’s ERISA-governed funds, the Department of Labor bears the heavy responsibility of policing the integrity of the pension fund management industry. The DOL must apply all its tools to achieve this lofty goal. They should be used, not routinely discarded.”
This routine ability to evade proper punishment is the root of the issue of so much corporate and Wall Street crime—a slap on the wrist leads to a perpetual cycle of wrongdoing with no end in sight. Their corporate lawyers turn laws into “no-law” laws. Corporate crime pays.
James Henry, former chief economist at McKinsey & Co. and current chair of the Global Alliance for Tax Justice, estimates that the United States loses between $170 billion to $200 billion a year in tax revenue through offshore tax havens. He told the Corporate Crime Reporter in 2013:
“The idea that you would actually permit big ticket tax dodgers to walk off of the stage with a slap on the wrist — like the proposed [Credit] Swiss settlement — or that you would let companies like Apple and Microsoft, General Electric and Google — shift their most valuable corporate assets to places where they have almost no activity and evade corporate income taxes at a time when we are slashing aid to kids in schools, money for seniors — this is outrageous.”
The Department of Labor, which exists to defend workers, now has a unique opportunity to stand proudly at its post and to send a clear message—a firm signal—to other Qualified Professional Asset Managers that if they commit unthinkable criminal violations, they lose the ability to handle pension funds. On the other hand, allowing these institutions to continue to receive permanent waivers would be a clear signal that the DOL will tolerate cutting corners and criminal wrongdoing by powerful financial institutions at the expense of workers, complying taxpayers, democracy, and the rule of law.
Now is the time for advocates and citizens alike to speak out strongly against this manner of blatantly averting justice and fostering a culture of continual corporate criminality. Contact the Office of Exemption Determinations at the Department of Labor and let them know.