The Short Arm of the Law 336
mindbrane writes "CNN takes a look at when companies are too big for the legal system to handle. Quoting: 'Prosecutors said that excluding Pfizer would most likely lead to Pfizer's collapse, with collateral consequences: disrupting the flow of Pfizer products to Medicare and Medicaid recipients, causing the loss of jobs including those of Pfizer employees who were not involved in the fraud, and causing significant losses for Pfizer shareholders. ... So Pfizer and the feds cut a deal. Instead of charging Pfizer with a crime, prosecutors would charge a Pfizer subsidiary, Pharmacia & Upjohn Co. Inc. ... As a result, Pharmacia & Upjohn Co. Inc., the subsidiary, was excluded from Medicare without ever having sold so much as a single pill. And Pfizer was free to sell its products to federally funded health programs.' IBM may have cast the mold for this sort of thing in its 1970s antitrust case, but the recurrence of similar cases speaks to ongoing concerns for legal systems."
Thomas Jefferson said it best: (Score:5, Insightful)
Too bad no one listened to him.
Re:Money is power (Score:4, Insightful)
Prosecuting corporations for crimes is asinine. (Score:5, Insightful)
And is a cop-out by prosecutors. Crimes are committed by individual people and that is who should be prosecuted for them. And no, there is no shield, exemption, or veil protecting employees of a corporation against prosecution for crimes they commit on the job.
patents (Score:5, Insightful)
Rule of Law (Score:5, Insightful)
Personal Incorporation? (Score:4, Insightful)
Can I incorporate myself? I was born a human and in our society we're second class citizens, let's look at some facts:
- We have to pay tax
- We have to follow the local laws
- We have to deal with issues like morality and ethnics
- We are second class citizens in terms of political power (even as a group)
Also, if I put on enough weight can I become "too big to fail?"
Too big to sue (Score:5, Insightful)
Not seeing the problem here (Score:1, Insightful)
So, DoJ decided that, in the interests of justice, what amounts to a corporate death pnealty was disproportionate punishment given the nature if the offense. Instead, they, in the interests of justice, worked out a deal that still had Pfizer pay a massive fine as a penalty for their offense. And that's bad...how?
Shouldn't we be encouraged when prosecutors, rather than acting like mindless robots, take into account the larger picture, and the consequences of what they do, and thereby exercise their prosecutorial discretion? Isn't that what they *should* do? If you were accused of a crime, wouldn't *you* want to be prosecuted by someone who's going to take the entirety of your circumstances under consideration, rather than behaving like an automaton?
More: Their to big to fail (Score:1, Insightful)
Sound more like they are to big to fail and we are to little to matter.
Short Term (Score:3, Insightful)
Re:Prosecuting corporations for crimes is asinine. (Score:3, Insightful)
Re:Thomas Jefferson said it best: (Score:3, Insightful)
Sorry, no. We do accomplish the hope listed in that quote. Any company which directly challenges the government will be slapped down. The problem is that the people running the companies have figured this out and simply move behind the scenes to take control of key elements of government important to their industry. It's subversion not war.
The other side of the coin to Regulatory Capture (Score:4, Insightful)
...which is a sign of a failed state. Regulatory Capture is when government agencies become run primarily for the special interests they are supposed to regulate.
This CNN article shows how corporations can become too big to punish (which is similar to the oft cited "too big to fail"). The same conditions which put monopolistic corps and cartels beyond market accountability (lack of competition for those at the top of an industry) probably add to the effect of being "too big to nail" at the same time.
Corporatism has emerged in our society and become monopolistic and wildly out of control. The best remedy we may have is stringent application of antitrust law (break 'em up), although other measures (such as limiting their spending and ties with the media) will probably be necessary as well.
Jobs? What Jobs? (Score:4, Insightful)
Re:Prosecuting corporations for crimes is asinine. (Score:4, Insightful)
No. That's not what he's saying. He's saying, and I agree with him completely, is that it's people making these decisions, and it's those people who need to be held responsible. Find them and execute them--figuratively speaking of course--on a regular basis and this problem of corrupt decision making inside corporations, and government regulatory agencies, will disappear in a hurry.
Hold these jackasses accountable.
Re:Prosecuting corporations for crimes is asinine. (Score:5, Insightful)
"I was just following orders" does not work. Ever. Even when disobedience might mean death, let alone just getting fired.
Now, if you want to pass a law requiring triple damages for employees who are discharged based on refusal to follow an illegal or unethical request, and establish a system whereby they can get that redress without a drug out court battle, I'll be behind you 100%. But if you perform the unethical act, you are responsible for doing so, regardless of whether it was your idea or not. The people who "gave the order" are also responsible, but to avoid complicity yourself, you must disobey it and blow the whistle.
The only case where this would not be possible is if, for example, ten people are each instructed to do one thing, each of which in itself seems innocuous but when put together add up to something sinister. Since it would not be reasonable in this case for the individuals to know what they're doing is unethical, they could not be expected to disobey and/or blow the whistle. In a scenario like that, only those who developed, approved, and/or orchestrated the scheme are responsible. But most of the time, that's not the case:
"Oh, come on, John, you know how flighty investors can get, and there's really no need to worry them. If we just count things a little differently, I'm sure we can ease their concerns..."
"Well, sure, there is a safety flaw in the product, but at this point it appears that it would be cheaper to pay off the lawsuits than to fix it."
"Well, we want to cut the workforce by half, but not deal with unemployment. Go find even the most minor flaws in whatever someone's doing, and say they were terminated for cause."
Anyone who goes along with these practices is responsible for them. People need to grow a backbone. Maybe if we start throwing some people in jail, people will worry less about having to job hunt and more about doing it right. The people you're helping cheat (or in some cases even kill, see the exploding Pinto case) may have families to feed, too. There's absolutely no excuse for not blowing the whistle when you become aware of something like this.
That's the real story here... (Score:5, Insightful)
While one may not agree with the particulars, this seems like a pretty standard case of prosecutorial discretion. The reality of the law is that the maximum penalty prescribed by law - and sometimes even the minimum penalty prescribed by law - is not appropriate for the crime committed. And prosecutors plead out criminals for sentences less than those allowed by law all the time.
And in this case, some sales agents in the army of sales agents misrepresented one product out of an arsenal of products. Ok? Of course not. Deserving of a big fine, and probably one larger than the company got? Sure.
But cutting off access to Medicare/Medicaid for the entire company, even if it is an available legal penalty, is not the appropriate legal penalty in this case.
The real problems here are that:
1) The law is not appropriate. A better penalty would be loss of patent protection on a lucrative drug, or 10x profits made on the drug that was mis-marketed.
2) Those selling drugs in a manner that can harm patients are not personally liable for their actions. If your doctor prescribes you a drug that they should know might harm or kill you, they are liable. And if a pharma rep orchestrates or participates in a sales campaign designed to hide the hazards of a drug, they should also be personally liable. If all the pharma reps knew that off-label marketing got 30 days in jail the practice would be curbed considerably.
3) Corporations are designed to separate business assets and actions from personal assets and actions. There is value to this. But using shell corporations to protect parent corporations seems to have gotten a bit crazy.
One and two could be fixed by competent legislation. Three is probably a ship that has sailed.
Corporate Incarceration - by stock ownership (Score:3, Insightful)
Simply create new stock in the company that is owned by the government. The new stock would be a significant fraction of existing stock even to a multiple of the current existing public stock.
1) This potential loss/shock to stock holders would have the incentive to make stock holders pay attention and keep the company from violating laws
2) Government would be a stock holder and able to provide direction and observation
3) Government would eventually be able to sell the stock "release from jail" and realize a profit
Minor offenses less than 100% of stock is newly created as government stock
Major offenses 101% of current stock is newly created at government stock, instantly making the government the majority share holder and causing 50% loss to current stock holders.
Even higher multiples 200% etc for more grievous actions.
This does not hurt employees, customers or any other corporate relations. It directly damages share holders and executives who are responsible for company behavior . It encourages proper oversight and control. The government eventually gets some money back for enforcement.
Corporations are people, like it or not. (Score:5, Insightful)
If we treat Corporations as persons in any context, they must be treated as persons in every context.
Re:Thomas Jefferson said it best: (Score:5, Insightful)
Easy solution, hold the CEOs accoutable for fellonies carried out by corporations. And carry also on some death penalty if needed, you'll see things change in a snap.
Re:Thomas Jefferson said it best: (Score:4, Insightful)
Anyone else here think that we are not in a corporatocracy yet? Events like this are just plain fucking insulting.
You don't even need to destroy the company. Just take every asshat involved in the fraud and lock them away for life. Or better yet, take a chunk of their patent portfolio and invalidate it, then forbid the company from downsizing anyone below a certain level/pay grade.
Why doesn't anyone have the balls to put some HURT on these assholes? This is like punishing a two year old for sneaking a cookie by letting him keep the cookie.
~X~
The step by step solution: (Score:4, Insightful)
Re:Thomas Jefferson said it best: (Score:4, Insightful)
Maybe you missed it, but he's not officially inspirational anymore [nytimes.com]. (Last paragraph.)
That paragraph was amusing, in a way. It reads:
Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among conservatives on the board because he coined the term “separation between church and state.”)
I laughed at that. Don't these "conservatives" realize that the separation of church and state is better for the state AND the church? The best way to destroy the religion they so cling to would be to intermingle it with petty politics.
Re:Thomas Jefferson said it best: (Score:1, Insightful)
From http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=808&chapter=88352&layout=html&Itemid=27 [libertyfund.org]
Re:The other side of the coin to Regulatory Captur (Score:5, Insightful)
The best remedy we may have is stringent application of antitrust law (break 'em up)
The problem in this case stems directly from pro-trust law. Without patents, there wouldn't be a problem with kicking Pfizer out of Medicare (nor would they wield monopoly-level revenue that underlies issues here ranging from buying doctors to making the legal system its bitch).
There are much better, and vastly more efficient, ways to pay for research than these monopoly rights whose side effects are damaging to the free market, the political system and the legal system all at the same time.
Re:Jobs? What Jobs? (Score:3, Insightful)
Slow down there, skipper. You're under the misapprehension that Pfizer exists to make pharmaceuticals. Pfizer exists to make profit with advertising, and they happen to sell pharmaceuticals.
Re:Prosecuting corporations for crimes is asinine. (Score:3, Insightful)
Why shouldn't you lose your money if you've invested in a company with insufficient internal controls and ethics to prevent such behaviour? Stocks are not bonds, they confer control and responsibility; perhaps not much, but you have the option to sell them if you disagree with the board and executive over the running of the company.
Such might perhaps encourage more active boards and engagement even from the most lazy institutional owners. Losing significant parts of your customers holdings because you were at best asleep at the wheel or more commonly buddies with the exec or complicit in the violation wouldn't look so good.
Re:The other side of the coin to Regulatory Captur (Score:5, Insightful)
>Without patents, there wouldn't be a problem with kicking Pfizer out of Medicare
In that case, it sounds like a better way of achieving justice would be to seize their patent assets (some or all) and then nullify them.
Re:Thomas Jefferson said it best: (Score:3, Insightful)
Why not? It works for domestic spying, it works with limiting civil rights... ok, to a lesser degree, but how about doing the same with holding CEOs accountable, also to a lesser degree? Like, giving them a fair trial before popping their lid?
It could be a tad bit difficult to find an "unbiased" jury, I give you that, but else...
penalizing stockholders (Score:4, Insightful)
Why shareholders aren't punished for the actions of a corporation is completely beyond me.
The problem with that is that you're penalizing all stockholders, even those who try to clean up the corporation. Or are you one of those who believes in guilt by association? One of the most effective ways to change corporations today is via stockholder activism [wikipedia.org]. Sure investors can use socially [wikipedia.org] responsible [greenatworkmag.com] investing [socialinvest.org] but that's what shareholder activism is. Of course my way, corporate charter revocation [sonic.net] also hurts activist investors.
Falcon
Re:Prosecuting corporations for crimes is asinine. (Score:5, Insightful)
Yes, being able to profit from illegal acts while being shielded from the consequences is a big motivator. But I don't see why we should allow this to happen. The "corporate veil" encourages illegal acts and should be abolished.
Re:Thomas Jefferson said it best: (Score:3, Insightful)
Umm, we'll let them not have abortions if they don't want; contary to what your hysterical ranting suggests, nobody is being forced to have one. However I don't see what gives them the right to push their preferences on everybody else.
You missed his point. There are people who consider abortion to be murder, and their tax money is being used to fund abortions, or murders in their opinion. Thus by paying tax, they are funding murder in their opinion. Now, I do not agree with their stance, but that's their point.
I feel the same way (though to a far lesser degree) when listening to commercial radio or watching commercial TV. I estimate that about 50% of the adverts on commercial radio in the UK are government information. I get really annoyed at this, since I'm paying for it twice - I'm paying through my taxes for the government to pay for those adverts, and I'm having to listen to the crap adverts that the government produces. If any of the political parties came out and said they'd completely squash government marketing, I'd vote for them in an instant. Adverts like this [youtube.com], shown over and over again on television, must have cost millions and millions, which taxpayers pay for, then have to watch. Incidently, I couldn't find that advert initially, all I could find was this one [youtube.com].
Re:The other side of the coin to Regulatory Captur (Score:5, Insightful)
I have a better solution, one that provides better self regulation...
Corporate Death Penalty.
Corporations are a creation of the state, and exist only under permission of the state. The solution for dealing with such abuse of laws is to have the state dissolve the corporation and auction all the assets, and release all "intellectual property" back to the public as public domain.
If we actually enforced corporate death penalty, the company's owners (stock holders) would be much more careful about how the company they own is operated.
No company is too big to fail, and failure is the only alternative we have. The whole idea that failure is not an option is itself a really bad idea.
Re:Thomas Jefferson said it best: (Score:4, Insightful)
I'm sorry you feel that 30 million fellow citizens and counting without health insurance suddenly being able to get insurance is such a burden for you when you probably already have health insurance and so the only way it will affect you is by lowering your premiums, oh the corruption!
While you have a point that power corrupts you chose a very poor example. How about warrant-less wiretaps? There's a good example, suspending habius corpus for prisoners? I have no idea how it became acceptable to torture based on how a person is classified.
It's better to focus on abuses of power as those abuses have the ability to affect us all! If they can justify torture for one instance they start down the road of SOP for more cases. The citizenry should not be afraid of the police but that is where we have found ourselves.
The lack of accountability is where the real problem is. Pfizer getting off is bullshit, there are re-mediation routes that don't have to end in people not getting their medication and that still hold corporate leadership accountable. If corporations are people then they can be thrown in prison just like people or they can have wages garnished until the punishment is met.
Re:Thomas Jefferson said it best: (Score:3, Insightful)
It's odd, yes, because I hardly hear the same complaints about tax dollars going towards capital punishment.
Yes, and they're from the same people. Did you think pro-life just meant babies?
Re:Thomas Jefferson said it best: (Score:3, Insightful)
Yeah...clean [wikipedia.org] hands [wikipedia.org], and all that...
Re:Thomas Jefferson said it best: (Score:3, Insightful)
This is one of the most ass-hat illogical arguments I have ever heard.
There is no logical contradiction to someone being anti-abortion and being pro-capital punishment.
The anti-abortion folks think that abortion is murder- initiation of violence against an innocent person. The anti-abortion position is NOT that "it's always 100% wrong ever to take a human life". Anti-abortion folks are instead saying that it is never right to take a human life in this circumstance.
The pro-capital punishment folks think that accountability for one's actions might include forfeiture of one's life if one is proven, beyond a reasonable doubt, to have committed certain egregious crimes that involve the initiation of violence against innocent persons.
I am not advocating for or against either position. Certainly reasonable people can disagree with either position or both, and both have many contentious side issues. But they are not logically incompatible.
Only intellectually lazy ideologues would imply that these positions are inconsistent.