Posts tagged ‘fraud’

Chip Card Transition, And Life as A Small Business Owner

Well, per the new rules, we replaced all of our old credit card readers (dozens) with new ones that can take chip cards (EMV).  Here is the bone pile of all the old technology, many of which were bought less than 2 years ago:


This illustrates both the best and worst of running one's own company.

The bad:  As CEO, I am actually futzing with distributing credit card terminals to the field and collecting the used ones to be recycled.

The good:  I have total control.  I was just in Washington DC, and in one meeting the National Park Service was there talking about some multi-year, multi-million dollar study to figure out their electronic payments "strategy" at their parks.  My payments strategy discussion went literally something like this:

Merchant guy:  Do you want to pay an extra $100 for the terminals to accept NFC payments (e.g. Apply pay, Android pay).

Me: Um, sure seems like the future.  Does it cost more to clear a transaction that way?

Merchant guy: no

Me:  They yes, I'll take it.

Now, we can take smart phone payments at dozens of public parks my company operates, all decided and implemented in about 30 days.

By the way, I am amazed at how many large companies like CVS appear to have the chip card readers but the store clerk tells me that they are not turned on yet whenever I try to stick my card in that slot (for those of you who don't know, the chip side goes head into a slot like an ATM slot on the front).  October 1 was the date that there was a liability shift, where merchants bear more liability for fraud if they don't take the chipcards.  Not sure how I was able to get this done in my little company but they can't manage it.

I was told by one person at CVS, a store manager but they may be off base, that they don't take the chip cards yet because they take longer than swiping.  This seems dumb.  First, many retailers for swipe cards waste time asking for the last four digits of your card, which is not necessary with the chip cards.  Further, CVS wastes a TON of time at the register with their stupid loyalty program.  Yes, I know it is a pet peeve of mine I rant on from time to time, but I have spent a lot of time waiting for people in front of me to try different phone numbers to see which one their account is under, or to waste time signing up for a loyalty card with 6 people in line behind them.  Makes me crazy.  If they can waste 30 seconds each transaction on stupid loyalty cards they can wait three extra seconds for a more secure credit card transaction.

Postscript:  It really should have been chip and pin rather than chip and signature

PS2:  Never, ever lease a credit card machine.  You pay about 4x its retail price, even present value.  I got roped into doing this for a few machines on the logic that this equipment transition was coming, and they would switch out my equipment.  But then they sold their leasing portfolio and the new owner wouldn't honor this promise, so I ended up overpaying for the old terminal (and having to pay $1000 each just to get out of the lease) and then buying the new terminals.  Live and learn.

You Want to Know Why the Legal System is Broken?

I got a notice in my email that I was potentially a member of a class action against LinkedIn.  What is the case?

The Action challenges LinkedIn's use of a service called Add Connections to grow its member base. Add Connections allows LinkedIn members to import contacts from their external email accounts and email connection invitations to one or more of those contacts inviting them to connect on LinkedIn. If a connection invitation is not accepted within a certain period of time, up to two "reminder emails" are sent reminding the recipient that the connection invitation is pending. The Court found that members consented to importing their contacts and sending the connection invitation, but did not find that members consented to LinkedIn sending the two reminder emails [plaintiffs seem to have other grievances but this is the only one they say the court validated].

You have got to be kidding me.  How much time and money has been spent on this stupidity?

So I wanted to tell them to go screw themselves, and that this was not done in my name and I want nothing to do with it.  Of course there are simple web forms for joining the class and asking for payment, but to be excluded one has to follow a series of detailed instructions and send a snail mail.  Apparently if I do nothing I am part of this fraud whether I want to be or not.  I particularly like the last line of the opt-out instructions (FAQ #9)

This request must include the case number of the Action (Case No. 5:13-CV-04303-LHK), your name, address, email address, phone number and signature, and a statement that you wish to be excluded from the Settlement Class.  If the exclusion request does not include all of this information, or if it is sent to an address other than the above, or if it is not postmarked within the time specified, it will be invalid, and you will remain a member of the Settlement Class and be bound as a Class Member by the Settlement Agreement, if approved.  “Mass” or “class” opt-outs purporting to be made on behalf of multiple persons or classes of persons shall not be allowed.

So mass torts purporting to be made on behalf of a class of persons without even consulting them are A-OK, but mass opt-outs from the class are not allowed.

Postscript:  At first I thought the opt-out headache was the plaintiff's attorney trying to protect their fees, but their fees seem set.  In retrospect, my guess is the difficult opt-out comes from the defense, because opting out leaves one eligible to sue again and having settled this one, I am sure LinkedIn does not want a second class trying to take a second bite of the apple.

Followup #2:  Engadget's reaction to the case:  Oh look, free money!

And the sum is likely to be small, though LinkedIn promised to increase the total amount by $750,000 if individual payouts are less than $10. Still, money is money, so if you're willing to swear that the company spammed folks on your behalf, you can apply for compensation here.

I do not know this author's politics, but I can say from personal experience that the majority of the most breathtakingly amoral statements about money I have heard in real life (ie excluding cartoon lines written by Hollywood for business people) have come from Progressives.

My New Worst Business Ever: YP

YP is the modern name for what used to be the Yellow Pages.  Obviously, yellow pages are a dying business.  Ten years ago the Phoenix Yellow Pages had to be broken up into two books, each a couple inches think.  I happened to see one the other day, and it was the size of a short novel.  They tried to move to the web, but who goes to (vs. google or Yelp) to find a business?

Even in the glory days of yellow pages, it was always hard to cancel their service.  If you did not tell them by like August, they would start billing you for the next year and sic a collection agency on you if you disputed it.

However, it appears that now that YP is a dying business, and knows that each lost customer will likely never be replaced, it has turned into the Hotel California.

In 2013, I left a location in Ventura County.   We had advertised in the Yellow Pages for years (back when it made sense) and had never been able to cancel it in time -- by the time we remembered it each year it had already auto renewed.   Soon after we left, I notified them that we needed to cancel.  At the time, I tried to negotiate a reduction in the 2014 charges but figured I probably would have to pay them, which I did.

Then, in 2015 I started getting bills.  I called each month patiently explaining and sending letters that we had already cancelled.  They would say that they had no record of my ever calling, but they swore they would mark the account as closed and that it would be fixed.  Then the next month it would all repeat -- a bad customer service Groundhog Day.

Finally this week I started getting legal threats and collection agency notices that I owe $499 for 2015 and that my life would be left in ruins with the ground salted if I did not pay immediately.  So I called today and AGAIN they had no record of my cancelling -- in fact, it was on a path to renew again for 2016.

Look, I am the first to tell folks to never chalk up to conspiracy what can as easily be explained by mass incompetence.  But at some point one has to suspect there is fraud going on here to retain customers as long as possible for a dying service.

So here is what I am left with -- I found someone in their organization who may be willing to settle my non-debt for non-services for a couple of hundred.  I told them this was absurd, since I did not owe it, but that I would pay a couple hundred dollars if they would give me a letter that said the account is closed and fully settled.  From the outside, this may seem a bad trade.  But I have enough lawyers in my life and hiring lawyers would be the only way to solve this any other way.  And besides, $200 is cheap compared to the thousands of dollars of my personal time I have spent farting with this.

Update 9/27/15:  God, this is Groundhog Day!  YP said that I should send a certified letter to such and such address to make absolutely sure that my account was cancelled.  I sent it to that exact address, braving a 30-minute line at the post office to do so.   So of course, the letter just came back undeliverable.  I have held off saying this, but these guys are total scam artists.  They seem to have no intention of ever letting me leave.

Must Make for Interesting Family Dinners: If Anything, Ellen Pao's Husband is In The Middle of An Even Bigger Mess

Ellen Pao has had some career problems of late, but as I wrote yesterday, if she takes some responsibility for her own mis-steps and stops blaming it all on misogyny, she might learn something useful and build positive things on the experience.

A very loyal reader gives me a heads up that her husband, who is never mentioned in recent stories, actually faces a LOT more serious trouble (it is probably journalistically appropriate to leave her husband out of the recent stories, but one wonders if the New York Times would show the same scruples on a story about the CEO of Exxon if, say, his wife were independently in the midst of some sort of scandal).

Ellen Pao's husband is Buddy Fletcher, former Wall Street Wunderkind and now subject of a LOT of regulator scrutiny and pension fund lawsuits.  Here is one:

The firefighters’ system eventually said yes, and along with two other pension funds — the Municipal Employees’ Retirement System and the New Orleans Firefighters’ Pension and Relief Fund — invested a combined $100 million in one of Mr. Fletcher’s funds, FIA Leveraged. As they understood it, the fund would invest in liquid securities that could be sold in a matter of weeks.

The details sounded, as one board member put it, “too good to be true.”

In fact, they were.

Mr. Fletcher’s hedge fund has since been described by a court-appointed bankruptcy trustee as having elements of a Ponzi scheme, and four retirement systems are fighting to recover their money. A federal judge is scheduled to rule in March on a plan to liquidate the fund’s assets, which the trustee deemed “virtually worthless” in a report last November.

And another:

New York investment manager Alphonse “Buddy” Fletcher Jr. is being sued by the MBTA Retirement Fund and some of his own hedge funds on accusations that he defrauded them of more than $50 million.

The lawsuit, filed Monday in New York, accuses Fletcher and his firm, Fletcher Asset Management , and other parties of conducting a “long-running fraud” in which they misused money for their own benefit, inappropriately took inflated management fees, and overstated the value of assets.

As previously reported, the MBTA pension fund invested $25 million with Fletcher in 2007 on the advice of the fund’s former executive director, Karl White.

White pitched the investment to the pension fund just nine months after he had resigned to work for Fletcher.

The pension fund’s holding is now worthless, and the bankruptcy trustee investigating the case has alleged that Fletcher never invested the money as promised.

And here is an older, in-depth look at Fletcher.

It is starting to look like most of the money went to his family (e.g. $8 to his brother to fund a film), to buffing his image (e.g. $4+ million donation to Harvard), and to an incredibly opulent lifestyle (e.g. 4!! apartments in the Dakota).

Despite the fact that he seems to have grossly overstated income and assets of his funds, no one -- regulators, clients, auditors -- figured it out.  The most interesting part to me was the first group to detect the potential fraud was, of all groups, the governing board of the Dakota.  This group, full of successful Wall Streeters, looked at his financial statements and turned down his application to buy yet another apartment, coming to the conclusion he not only did not have the funds to buy this apartment but they were unsure how he was paying the vig on the $20 million loan securitized by his existing apartments.

One thing Fletcher apparently has in common with his wife is that he seems to respond to every negative business decision with a discrimination lawsuit.  This one backfired, however, and only served to point public attention to the fact that a group of savvy financiers thought Fletcher's wealth was potentially imaginary.  Government investigations and lawsuits have followed.

He still has a chance to escape, though.  Despite Jon Corzine's outright theft of funds from MF Global commodity investor accounts, he got off scott-free due to his close ties to the Democratic Party.  Time for Fletcher to start giving any free assets he still holds (if there are any) to Hillary's campaign.

Excellent Slate Article on GMO Safety

It is a long article, covering a lot of ground, and is full of links to literature on both sides of the debate.  But its conclusions are pretty definite

I’ve spent much of the past year digging into the evidence. Here’s what I’ve learned. First, it’s true that the issue is complicated. But the deeper you dig, the more fraud you find in the case against GMOs. It’s full of errors, fallacies, misconceptions, misrepresentations, and lies. The people who tell you that Monsanto is hiding the truth are themselves hiding evidence that their own allegations about GMOs are false. They’re counting on you to feel overwhelmed by the science and to accept, as a gut presumption, their message of distrust.

Second, the central argument of the anti-GMO movement—that prudence and caution are reasons to avoid genetically engineered, or GE, food—is a sham. Activists who tell you to play it safe around GMOs take no such care in evaluating the alternatives. They denounce proteins in GE crops as toxic, even as they defend drugs, pesticides, and non-GMO crops that are loaded with the same proteins. They portray genetic engineering as chaotic and unpredictable, even when studies indicate that other crop improvement methods, including those favored by the same activists, are more disruptive to plant genomes.

Third, there are valid concerns about some aspects of GE agriculture, such as herbicides, monocultures, and patents. But none of these concerns is fundamentally about genetic engineering. Genetic engineering isn’t a thing. It’s a process that can be used in different ways to create different things. To think clearly about GMOs, you have to distinguish among the applications and focus on the substance of each case. If you’re concerned about pesticides and transparency, you need to know about the toxins to which your food has been exposed. A GMO label won’t tell you that. And it can lull you into buying a non-GMO product even when the GE alternative is safer.

This is just the management summary, the article goes into great depth on all of these.


Q: What's The Difference Between GE and Enron? A: GE Got Bailed Out

I am going to oversimplify, but the essence of bank risk is that they borrow short-term and invest/lend long-term.   This is a money-making strategy in that one can often borrow short-term much cheaper than one can borrow long term.  This spread between long and short term rates is due to people valuing liquidity.  You probably have experienced it yourself when buying a certificate of deposit (CD).  The rates for 5 or 10 year CD's are higher, but do you really want to tie your money up for so long?  What if rates improve and you find yourself locked into a CD with lower rates?  What if you need the money for an emergency?  Your concern for having your money locked up is what a preference for liquidity means.

So banks live off this spread.   But there are risks, just like you understood there are risks to locking your money in a long-term CD.  Imagine the bank is lending for mortgages and AAA corporate customers at 6%.  To fund that, they have some shareholder money, which is a long-term investment.  But they make the rest up with things like deposits and commercial paper (essentially 90-day or shorter notes).  We will leave the Fed out for this.  There are two main risks

  1. Short term interest rates rise, such that the spread between their short term borrowing and long-term investments narrows, or even reverses to negative
  2. Worse, the short term money can just disappear.  In panics, as we saw in the last financial crisis, the commercial paper market essentially dries up and depositors withdraw their money at the first sign of trouble (this is mitigated for small depositors by deposit insurance but not for large depositors who are not 100% covered).

These risks are made worse when banks or bank-like institutions try to improve the spread they are earning by making riskier investments, thus increasing the spread between their borrowing and investing, but also increasing risk.  This is particularly so because these risky investments tend to go south at the same time that short-term credit markets dry up.  In fact, the two are closely related.

This is exactly what happened to GE.  Via MarketWatch:

GE’s news release announcing its latest and greatest reduction of GE Capital summed up the move beautifully, saying “the business model for large wholesale-funded financial companies has changed, making it increasingly difficult to generate acceptable returns going forward.”

“Wholesale-funded” refers to GE Capital’s traditional reliance on the commercial paper market for liquidity. The problem with this short-term funding model for a balance sheet with long-term assets is that during a financial crisis, overnight liquidity tends to dry up as it did for GE late in 2008. When the company had difficulty finding buyers for its paper, the Federal Deposit Insurance Corp. stepped in and through its Temporary Liquidity Guarantee Program (TLGP) was covering $21.8 billion of GE commercial paper. GE Capital registered for up to $126 billion in commercial-paper guarantees under the TLGP.

If you have a AAA credit rating, you can always, always make money in the good times borrowing short and investing long.  You can make even more money borrowing short and investing long and risky.  GE made their money in the good times, and then when the model absolutely inevitably fell on its face in the bad times, we taxpayers bailed them out.

Which leads me to think back to Enron.  Enron is associated in most people's minds with fraud, and Enron played a lot of funky accounting games to disguise its true financial position from its owners.  But at the end of the day, that fraud was not why it failed.  Enron failed because it was essentially a bank that was borrowing short and investing long.  When the liquidity crisis arrived and they couldn't borrow short any more, they went bankrupt.   Jeff Skilling didn't actually go to jail for accounting fraud, he went to jail for making potentially inaccurate positive statements to shareholders to try to head off the crisis of confidence (and the resulting liquidity crisis).  Something every CEO in history has done in a liquidity crisis (back in 2008 I wrote an article comparing Bear Stearns crash and the actions of its CEO to Enron's; two days later the Economist went into great depth on the same topic).

So the difference between GE and Enron?  The government bailed out GE by guaranteeing its commercial paper (thus solving its problem of access to short term funding) and did nothing for Enron.  Obviously the time and place and government officials involved differed, but I would also offer up two differences:

  • Few really understood what mad genius Jeff Skilling was doing at Enron (I can call him that because I actually worked with him briefly at McKinsey, which you can also take as a disclosure).  With Enron so opaque to outsiders, for which a lot of the blame has to be put on Enron managers for making it that way, it was far easier to ascribe its problems to fraud rather than the liquidity crisis that was well-understood at Bear or Lehman or GE.
  • Enron failed to convince the world it posed systematic risk, which in hindsight it did not.  GE and other big banks survived 2008 and got bailed out because they convinced the government they would take everyone down with them.  They followed the strategy of the Joker in The Dark Knight, who revealed to a hostile room a coat full of grenades with this finger ready to pull the pins if they didn't let him out alive.




Artist's rendering of 2008 business strategy of GE Capital, Citicorp, Bank of America, Goldman Sachs, GMAC, etc.









Postscript:  For those not clicking through, I though this bit from the 2008 Economist article was pretty thought-provoking:

For many people, the mere fact of Enron's collapse is evidence that Mr Skilling and his old mentor and boss, Ken Lay, who died between hisconviction and sentencing, presided over a fraudulent house of cards. Yet Mr Skilling has always argued that Enron's collapse largely resulted from a loss of trust in the firm by its financial-market counterparties, who engaged in the equivalent of a bank run. Certainly, the amounts of money involved in the specific frauds identified at Enron were small compared to the amount of shareholder value that was ultimately destroyed when it plunged into bankruptcy.

Yet recent events in the financial markets add some weight to Mr Skilling's story"”though nobody is (yet) alleging the sort of fraudulentbehaviour on Wall Street that apparently took place at Enron. The hastily arranged purchase of Bear Stearns by JP Morgan Chase is the result of exactly such a bank run on the bank, as Bear's counterparties lost faith in it. This has seen the destruction of most of its roughly $20-billion market capitalisation since January 2007. By comparison, $65 billion was wiped out at Enron, and $190 billion at Citigroup since May 2007, as the credit crunch turned into a crisis in capitalism.

Mr Skilling's defence team unearthed another apparent inconsistency in Mr Fastow's testimony that resonates with today's events. As Enronentered its death spiral, Mr Lay held a meeting to reassure employees that the firm was still in good shape, and that its "liquidity was strong". The composite suggested that Mr Fastow "felt [Mr Lay's comment] was an overstatement" stemming from Mr Lay's need to "increase public confidence" in the firm.

The original FBI notes say that Mr Fastow thought the comment "fair". The jury found Mr Lay guilty of fraud at least partly because it believed the government's allegations that Mr Lay knew such bullish statements were false when he made them.

As recently as March 12th, Alan Schwartz, the chief executive of Bear Stearns, issued a statement responding to rumours that it was introuble, saying that "we don't see any pressure on our liquidity, let alone a liquidity crisis." Two days later, only an emergency credit line arranged by the Federal Reserve was keeping the investment bank alive. (Meanwhile, as its share price tumbled on rumours of trouble onMarch 17th, Lehman Brothers issued a statement confirming that its "liquidity is very strong.")

Although it can do nothing for Mr Lay, the fate of Bear Stearns illustrates how fast quickly a firm's prospects can go from promising to non-existent when counterparties lose confidence in it. The rapid loss of market value so soon after a bullish comment from a chief executive may, judging by one reading of Enron's experience, get prosecutorial juices going, should the financial crisis get so bad that the public demands locking up some prominent Wall Streeters.

Our securities laws are written to protect shareholders and rightly take a dim view of CEO's make false statements about the condition of a company.  But if you owned stock in a company facing such a crisis, what would you want your CEO saying?  "Everything is fine, nothing to see here" or "We're toast, call Blackstone to pick up the carcass"?

Wow. IRS Caught in a Huge Lie

I had no problem assuming the "lost" IRS emails were incompetence rather than criminal evidence tampering.  After all, how hard is it to believe the government is incompetent?

But it may be in this case it really was fraud.  Suddenly the emails have been found, and they were apparently always there  -- despite all protestations to the contrary, no one in the IRS had even asked for them.  From the WaPo:

The Treasury Inspector General for Tax Administration testified at a House Oversight and Government Reform Committee hearing on Thursday that it tracked down nearly 33,000 emails from ex-IRS official Lois Lerner.

The records date back to 2001, which is 10 years beyond what the IRS has said it could access for investigators.

The inspector general’s office said it is working to identify any messages that the IRS has not already sent to congressional investigators, who are examining the Lerner’s involvement in the IRS targeting scandal.

The watchdog agency found the backed-up emails by consulting with IRS information-technology specialists, according to TIGTA Deputy Inspector General for Investigations Tim Camus.

They were right where you would expect them to be,” he said at the rare late-night hearing, which lasted until about 10 p.m.

IRS Commissioner John Koskinen testified before Congress last year that the backups were no help in recovering Lerner’s lost emails, in part because the IRS overwrites them every six months.

Camus said the IRS’s technology specialists told investigators that no one from the agency asked for the tapes, raising doubts about whether the agency did its due diligence in trying to locate Lerner’s emails, or possibly greater troubles.


My Emotional Support Alpaca

This is a great article about the fraudulent practices people pursue to try to take advantage of rules about service animals that help people with true disabilities to bring their pets with them everywhere.  This kind of crap strikes me as being in the same category as folks who used to hire disabled kids to go to Disneyworld with them so they could skip the lines (a practice, by the way, that led to Disney giving fewer special privileges to handicapped kids because of the abuse).

I will say from personal experience that the pressure on service businesses to succumb to this sort of service animal fraud is immense, especially in places like California where the financial penalties for even tiny well-meaning infractions of bewildering ADA rules are substantial.  My employees once felt they had to allow a woman to bring her horse (!) into the park because she had letters like the ones in this article saying she required the horse for emotional support.

This week I was at a conference where a featured speaker was an executive of the Forest Service named Joe Meade who happens to be blind.  I say "happens to" because Joe is one of the best, and best-loved, executives in that organization and what makes him great has little or nothing to do with his disability.  But I watched him work his way through a hotel with his service dog -- a casino hotel I got lost in about 4 times and I could read the signs -- and the skills that dog had are simply amazing.  Service dogs like that get deference from service businesses for a reason.  It infuriates me that people are trying to counterfeit that kind of credential so they don't have to pay an extra airplane fare for their cat.  And the only way they get away with it is because of our screwed up tort system that leaves service businesses at the mercy of even the most outrageous claims.  Because we businesses have given up on, particularly in places like California, ever getting real justice.

hattip:  Overlawyered.

Things I Did Not Know About Compelled Testimony

Ken White at Popehat offers some useful insight to non-lawyers among us about compelled testimony (in the context of the Louis Lerner/IRS saga)

Some people have argued that Lois Lerner should be compelled to testify, either by court order or by grant of immunity. Lerner and her lawyers would love that, as it would make prosecuting her for any suspected wrongdoing incredibly difficult.

Compelled testimony is radioactive. If a witness is compelled to testify, in any subsequent proceeding against them the government has a heavy burden to prove that no part of the prosecution is derived from the compelled testimony, which is treated as immunized. This is called theKastigar doctrine:

"Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." 378 U.S. at 378 U. S. 79 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

If I read this right, if the House were to compel her to testify, they might as well grant her immunity and be done with it.

Further on in the post, Ken points out an issue that I have been wondering about myself -- Those who want Lerner to testify are concerned with government arbitrary abuse of power for political purposes.  Given that, how can these same folks have any doubt as to why Lerner might plead the Fifth in front of a hostile and partisan House committee

I've been seeing a lot of comments to the effect of "why should Lois Lerner take the Fifth if she has nothing to hide?" Ironically these comments often come from people who profess to oppose expansive government power, and from people who accept the proposition that Lerner was part of wrongdoing in the first place — in other words, that there was a government conspiracy to target people with the machinery of the IRS for holding unpopular political views. Such people do not seem to grasp how their predicate assumptions answer their own question.

You take the Fifth because the government can't be trusted. You take the Fifth because what the truth is, and what the government thinks the truth is, are two very different things. You take the Fifth because even if you didn't do anything wrong your statements can be used as building blocks indishonest, or malicious, or politically motivated prosecutions against you. You take the Fifth because if you answer questions truthfully the government may still decide you are lying and prosecute you for lying.

Pardon me: if you accept the proposition that the government targets organizations for IRS scrutiny because of their political views, and you still say things like "why take the Fifth if you have nothing to hide", then you're either an idiot or a dishonest partisan hack.

If you want to get bent out of shape about something, you are welcome to wonder why Lerner is being investigated, apparently, by the hyper-partisan civil rights division of Justice rather than the public integrity section.  That, combined with President Obama's pre-judging of the DOJ's conclusions, is more of a red flag than Lerner's taking the Fifth.

Remember, Martha Stewart did not go to jail for securities fraud of any sort.  She went to jail for statements she made during the government investigation.

Arizona Corporation Commission Web Site is Criminally Insecure

Today I had to do my annual renewal of my corporate registration in Arizona.  As in most states, this involves a bit of information foreplay followed by the purpose of the exercise -- sending in a check to the corporation commission.

But here is the extraordinarily scary part -- I started the annual reporting process by just typing in the name of my company and getting started.  There was no password protection, no identity check.  They had no way of knowing I had anything to do with this corporation and yet I was answering questions like "have you been convicted for fraud."  The potential for mischief is enormous.  One would have to get the timing right (an annual report must be due before one can get in) but one could easily open the site on January 1 and start entering false information in the registrations for such corporations as Exxon and Wal-Mart.

See for yourself.  Here is their web site.  Below is a screen shot of the site letting me in to edit one of Wal-Mart's corporate registrations in Arizona:

click to enlarge


Again, note what I am saying.  This is not the result of hacking.  This is not lax security I figured out how to evade.  This is the result of no security whatsoever.  I simply went to the link above, clicked on the Wal-Mart Associates link, and then clicked on the annual report link.  I know from doing my own registration that there is a signature page at the end, but all you do is type in the name of an officer and a title -- data that is right there on the site.  It's like asking you for a password after the site just listed all the valid passwords.

If I disliked Wal-Mart, I could put all kinds of crazy garbage in here.  I did not go further, because I would have had to answer these questions to proceed and I had no desire to mess with another company's critical data, but if I had gone further I could have changed their mailing address, the names of their officers, etc. -- all I had to do was just pay the $60-ish registration fee for them and they would have a big mess on their hands to sort out.   If I had access to a fake or stolen credit card and a public computer, I could have done it all without any hope of being traced.

By the way, from my experience, this is not unique to Arizona.  This criminally lax behavior seems to be the norm in most states.

I have submitted this all as a complaint to the state, so far with no response.  If anyone in AZ knows how I can get someone's attention with this, let me know.

Chevron Ecuador Judgement Obtained Through Fraud and Bribery

Update:  If you want to understand how deep the fraud runs, make sure to watch the 60 second video below with the US environmentalists caught on tape plotting their fraud.

Via Bloomberg:

U.S. District Judge Lewis Kaplan in Manhattan said today that the second-largest U.S. oil company provided enough evidence that a 2011 judgment on behalf of rain forest dwellers in the country’s Lago Agrio area was secured by bribing a judge and ghostwriting court documents. Kaplan oversaw a seven-week nonjury trial over Chevron’s allegations.

“The decision in the Lago Agrio case was obtained by corrupt means,” Kaplan said in an opinion that gave Chevron a sweeping victory. “The defendants here may not be allowed to benefit from that in any way.”

Chevron, based in San Ramon, California, was ordered to pay $19 billion to a group of farmers and fishermen by the Ecuadorean court. The award was reduced to $9.5 billion on Nov. 12 by the Ecuadorean National Court of Justice, the nation’s highest tribunal. That's almost half of its 2013 profit.

The Ecuadorean villagers, and activists working on their behalf, argued the oil producer should be held financially responsible for pollution of the Amazon rainforest by Texaco Inc. from the 1960s through the early 1990s. Chevron, which bought Texaco in 2001, claims the company already paid $40 million to clean up its share of the drilling contamination....

In its racketeering case before Kaplan, Chevron alleged that a U.S. lawyer leading the Ecuadoreans, Steven Donziger, and members of his team engaged in “repeated acts of fraud, bribery, money laundering” and obstruction of justice in pursuit of a multibillion-dollar payout.

I don't think there is any doubt that Chevron owed the Ecuadorans some clean up, since even they have agreed to doing work there.  And it is not unreasonable to be skeptical that Chevron's actions were perhaps incomplete.  But the $19 billion judgement always has smelled, particularly when the judge in the Ecuadoran case publicly admitted he had been bribed.

There was deep corruption in this case from the start, corruption that never will be adequately covered in the media because it "was for a good cause."  Similar levels of corruption by Chevron would have led the front page of the New York Times for weeks.

As a reminder, let me quote from an earlier story.  Please watch the short video, it is amazing:

The clip below is an outtake from the environmentalist movie "Crude", which purported to document the environmentalist's case against Chevron in Ecuador.  Apparently, between takes of earnest and un-selfinterested environmentalists saving the world from greedy corporations, these self-same environmentalists discussed lying about the science and duping the courts in order to score a big payday for themselves.

The video is doubly interesting because, as Anthony Watts explains, the woman in the video taking money to make up untrue findings was recently confirmed to the NAS, where there is a good bet that we will see her as the source for "evidence" that fracking is contaminating groundwater.  These three folks are all the subject of a civil suit from Chevron but all three should be subject to criminal charges for fraud and conspiracy.

Several of the environmentalists involved, including Dr. Ann Maest, have since recanted their corruption, sort of.  They claim they were "misled" in this New York Times story, but the clip above certainly belies that.  Donziger did not mislead her, he is seen convincing her that in Ecuador they can get away with lying.  All for a good cause, of course.

Dispatches from the echo chamber:  Mother Jones was on this story full force for years.  Then suddenly stopped reporting at all when it became clear that allegations of fraud were credible.  Check out the articles.

Update:  More here

Your Tax Dollars at Work

An anonymous quote from an employee at the Federal Mediation and Conciliation Service

"Let me give you the honest truth: A lot of FMCS employees don't do a hell of a lot, including myself. Personally, the reason that I've stayed is that I just don't feel like working that hard, plus the location on K Street is great, plus we all have these oversized offices with windows, plus management doesn't seem to care if we stay out at lunch a long time. Can you blame me?"

This is actually the least of the problems in the agency -- fraud appears to be rampant.  The Washington Examiner has a five part series.

This Was My Take As Well: Cut Farm Subsidies, Not Food Stamps

First, as many of you may have guessed, the "massive cuts" in food stamps over the next 10 years proposed by House Republicans are basically just a modest reduction in their rate of growth.  All attempts to slow the spending growth in any government program will always be treated by the media as Armageddon, which is why government spending seldom slows (see: Sequester).

But I have been amazed through this whole deal that Republicans want to extract a pound (actually probably just an ounce or so) of flesh out of the Food Stamp program but explicitly left the rest of the farm bill with all of its bloated subsidies alone.  Henry Olson asks the same question at NRO.

I will add one other observation about food stamps that is sure to have just about everyone disagreeing with me.  Of late, Republicans have released a number of reports on food stamp fraud, showing people converting food stamps to cash, presumably so they can buy things with the money that food stamps are allowed to be used for.

Once upon a time, maybe 30 years ago in my more Conservative days, I would get all worked up by the same things.  Look at those guys, we give them money for food and they buy booze with it!  It must be stopped.  Since that time, I suppose I never really revisited this point of view until I was watching the recent stories on food stamp fraud.

But what I began thinking about was this:  As a libertarian, I always say that the government needs to respect and keep its hands off the decision-making of individuals.  If people make bad choices, paraphrasing from the HBO show Deadwood, then let them go to hell however they choose.  And, more often than not, it turns out that when you really look, people are not necessarily making what from the outside looks like a bad choice -- they have information, incentives, pressures, and preferences we folks sitting in our tidy Washington offices, chauffeured to work every day, may not understand.

So if we are going to give people charity - money to survive on when poor and out of work - shouldn't we respect them and their choices?  Why attach a myriad of conditions and surveillance to the use of the funds?  Of course, this is an opinion that puts me way out of the mainstream.  Liberals will treat these folks as potential victims that must be guided paternally, and Conservatives will treat them as potential fraudsters who must be watched carefully.  I think either of these attitudes are insidious, and it is better to treat these folks as adults who need help.

The Inevitable Result of Government Policy on the Labor Market

Assume the following conditions:

  1. I am increasingly liable for any dumbass thing my employees say or do.  It does not matter if it is absolutely against my values and company rules, if someone, say, uses a racial epithet with a customer or another employee, I will likely at least get sued.  Given my deductibles on insurance, I am out $20,000 a case even if I win.
  2. Minimum wages have increased faster than the production value of unskilled, inexperienced laborers.
  3. Obamacare is raising the minimum cost of a full-time employee by at least $2,000-$3,000 a year, not including the as-yet-to-be-define but likely expensive record-keeping and administrative requirements 
  4. In states like California, the law increasingly gives employees the ability to make new claims on my income (e.g. fake workers comp and disability claims) or to even make themselves un-firable (by asking for a family medical leave, or claiming a disability, or claiming to be a whistle-blower).

Against this backdrop, what am I going to do?  I am going to hire more skilled and experienced workers who justify my minimum employment costs.   I am going to hire mature people less likely to get me in trouble via their immature actions.  I am going to hire people with a long work history so I can see there is not a history of scams and fraud.

In other words, I am going to hire older people.  And thus:

click to enlarge


Of all the issues I raised above, the first one gets the least attention but in our customer contact business is perhaps the most important.  The cost of hiring a knucklehead is immense.  And the folks that do stupid stuff in 1 are often the very same people who try to take us in 4.

Scam Alert -- US Telecom

We get literally (as they would say on the TV show Archer, literally literally and not figuratively literally) hundreds of paper bills to pay each month in our business.   We can barely keep up just with paying them all, much less vetting every one.  Which is what scam artist marketers count on when they craft fake bills they spam to businesses in hopes that some percentage, in their hustle and bustle, will pay the bills without knowing they are fraudulent.

These letters really, really tick me off.  They are sent by people who apparently cannot sell a product or service on its own merits and so must trick harried business people into accidentally sending them money.  I get these most frequently from companies that send me letters that look just like a government agency requiring yet another fee (the corporate minutes fraud).

So here is the most recent bill my accounts payable person questioned and put on my desk.   It is from a company called US Telecom, and despite the remission address on the letter it is apparently based in California.  You can click to enlarge the letter -- it is in very high resolution, which we will need to find the small print that they use to try to cover their butts.

Click to Enlarge US Telecom Scam Letter


Does this look like a regular bill to you for some service we have contracted for?  It did to me.  Note the "Due upon Receipt" at the top, the calculation below with previous balance and new balance and "pay this amount."  No reasonable person in this country would say it looks like anything but an invoice for service received.

But this is not a bill.  It is a solicitation for services.  If you send the money, then you are committed.  And by the way, per the terms below, once the agreement is in place, it cannot be terminated or amended (or likely refunded) without a signature from both parties, which means only if they approve it.  If they don't, congrats, you are stuck in this contract.  I have no idea if you actually paid, whether you would receive any services or not.  Since they priced this service without even knowing what assets I have that would be serviced (note no equipment or equipment location is listed in the bill, the first "tell" to me this was a fraud) I am not sure how they would ever provide any service.  (we were really saved by Quickbooks on this one, because my payables person flags any bill from a vendor not set up in our system).

They attempt to cover themselves, in the same way the corporate minutes scamsters do, with the small print in the last two lines at the bottom.   Can't read it?  LOL, I could not read it myself, even full size, without my glasses.  You can click through if you wish to see it on the high rez version.  But it says that it is not a bill, it is a solicitation, and that I am under no obligation to pay unless I accept the offer, which I do by paying.  But by the language, once paid, I have accepted the offer and cannot get out of it without a signature from an authorized officer of their company.  I bet that would be easy to get.

That last fine print may keep them out of jail or even let them sleep at night, but no legitimate business with a valuable product sells its services this way.

Update:  Apparently there is a legitimate US Telecom and they are understandably pissed.  They have set up a page on this billing fraud, and apparently the Attorneys General in a number of states are investigating.

Update #2:  Talk about waddling in late on a story!  These guys' registered corporate name is UST Development, run by a guy named David Bell.  Ken White of Popehat has been on these guys for years.  LOL, I even linked Ken's post a while back.  You sleazy folks out there can f*ck with me all you want but you do not want to mess with Ken White.

Update #3:  Good God, Ken did 14 posts on these guys.  Enjoy.

Previewing the President's College Rankings

Today, President Obama sort-of kind-of acknowledged a problem with Federal college student lending:  Federal loans are doing nothing to improve the affordability of colleges, as colleges are just raising tuition in lockstep with increased lending, thus leaving students massively in debt for the same old degree.

His proposed solution is to somehow tie the availability of Federal funds to some type of government scoring system for colleges.  The probability that this will do anything to reign in student debt is exactly zero.  But it will potentially give the Feds another vehicle for control (similar to what Title IX has given them) of even the most mundane university policies.  Why not, for example, give high scores to universities with the restrictive and politically correct speech codes this Administration favors, thus effectively denying money to students of universities that don't have Eric Holder-sanctioned speech policies?

If you think I am exaggerating, look at the recent Washington Monthly college rankings as a prototype for the Obama scoring system.  In their system, colleges are ranked higher if they have a higher percentage of Peace Corps*** graduates, if more of their Federal work-study grant money is used for jobs at non-profits rather than for-profits**, and if their school reports more community service hours.  This latter points to another issue -- a number of schools rank really low on community service hours, effectively all tied with zero.  This is obviously a reporting issue.  The Obama plan just about guarantees that universities will start to game all these metrics -- does no one pay attention to the fraud that has been found in the law school rankings?

They also have a ranking of the schools providing the best value.  The good news, I suppose, is the school my son attends is #1.  The bad news is that my alma mater Princeton is not even on the list.  I found this odd, because while the authors explicitly laud Amherst's generous program that helps fund students through grants rather than loans, Princeton actually was one of a few schools that did this first (update:  Princeton was the first school to eliminate loans from financial aid packages of low income students, and since has eliminated loans altogether from all financial aid packages.  If you can get in, you can graduate debt-free).

It says this of Amherst:

 It chose to tap its sizable $1.6 billion endowment to provide tuition discounts so generous that the annual net cost to students with family incomes below $75,000 is only $843, less than a third of the sticker price of a year at the average community college. Another elite liberal arts college, Williams, also makes our list. But instructively, none of the other prestigious, well-endowed private colleges and universities in America—not Harvard or Yale, Swarthmore or Smith, none of them—can make that claim.

Actually, we don't know if that last sentence is true because the authors left Harvard and Yale off the list entirely.   My impression is that Princeton makes is very inexpensive for families making less than $75,000 as well, so I could not understand the claim -- perhaps even without debt the tuition charges to low-income families are still unreasonably high.  But we will never know, because apparently Princeton is not even on the list -- not because it does not direct a lot of its endowment to need-based scholarships, but because it has only 10% students on Pell grants, and the authors decided that you could not be on the list unless that number was at least 20% "to make sure they aren’t just catering to the affluent."  This just points to how quickly such a system gets politicized.  What does "catering to the affluent" have anything to do with bang for the buck?  If they really trust their methodology, they would have included these schools and if they are really just over-priced rich kids' playgrounds, that should have come through in the ranking.  Instead, the author's have explicitly invented an unrelated criteria to weed Ivy League schools out, a criteria more related to admissions requirements than to financial aid requirements and affordability and value (the ostensible bases for the rankings).

By the way, if you want to get a really good laugh, this is supposed to be a value or "bang for the buck" ranking, but they only rank the costs.  There is absolutely no ranking of "bang".  Bizarre.  It is as if any degree of any type from any institution is equally valuable.  Which, by the way, is part of the problem in the student loan bubble -- just this assumption.


** This is EXACTLY the kind of incentive that will help pay off those future college loans -- lets make sure to encourage every student to work in non-profits rather than for-profits jobs.

*** Why the Peace Corps?  Why not a myriad of other useful and productive occupations?  If you want to have a service metric, why is Peace Corps there and, say, Teach for America not?

Zombie Earthlink Accounts

I am left to wonder today how much of Earthlink's remaining income is from zombie accounts.  I generally hate the hassle of dealing with a changed credit card number, but one advantage is that I discover some zombie accounts that I have forgotten about and keep charging my card every month.

Today I had an amazing one -- from my old Earthlink dial-up account.  I had thought I cancelled Earthlink something like 8 years ago (I certainly have not used it since about 2003).  That is several credit cards ago and so I have absolutely no idea how they were able to continue to bill me, but they were, right up to this month when my corporate card number changed due to a fraud alert.  It is kind of depressing that I spent well north of a thousand dollars over the years on a service that I would never even consider using again, but that is the danger that comes as a company gets larger and one can't personally inspect every bill that gets paid.

Of course, despite evidence that I never used the account, they would not waive the final month's billing and threatened collections, etc.  They wanted my credit card for one last charge, and then they would cancel.  Which made me suspicious that this is how they got my credit card for the last five years - by asking for it for one last charge and then continuing to bill for 5 years.  So I told them I did not trust them with my new credit card number and to send me a paper bill that I would pay by check.  As a final insult, they said they had to charge me an extra dollar for the paper bill.

If I had time, I would challenge them and give them grief, but sometimes one has to put one's ego away and just move on with the loss.

During the call, it was very, very clear that trying to collect money on zombie accounts that people had forgotten about was very, very typical for their customer service folks.  Leading me to wonder just how much of Earthlink's revenue comes from such zombie accounts.  As a funny side note, they were perfectly fine taking money from me without any identification, but would not cancel the account without an extensive account verification, a verification that is rather hard if one has not used the account in about 8 years.

Matt Yglesias is Reinventing History

Matt Yglesias and I certainly do read history differently.  He writes recently in a Salon article:

The basic economic foundations of industrial capitalism as we've known them for the past 150 years or so have an activist state at their core. Building political institutions capable of doing these things properly is really difficult, and one of the main things that separates more prosperous places from less prosperous ones is that the more prosperous places have done a better job of building said institutions. There's also the minor matter of creating effective and non-corrupt law enforcement and judicial agencies that can protect people's property rights and enforce contracts.

The point is, it takes an awful lot of politics to get an advanced capitalist economy up and running and generating wealth. A lot of active political decisions need to be made to grow that pie. So why would you want to do all that? Presumably because pie is delicious. But if you build a bunch of political institutions with the intention of creating large quantities of pie, it's obviously important that people actually get their hands on some pie. In other words, you go through the trouble of creating advanced industrial capitalism because that's a good way to create a lot of goods and services. But the creation of goods and services would be pointless unless it served the larger cause of human welfare. Collecting taxes and giving stuff to people is every bit as much a part of advancing that cause as creating the set of institutions that allows for the wealth-creation in the first place.

This is counter-historical crap.  Unfortunately, my real job is taking all my time today so I can only give a few quick responses rather than the thorough beating this deserves

  1. Capitalism is not a "system."  It is an un-system.   It is an order that emerges from individuals exchanging goods and services to their mutual self-interest.  While it requires a rule of law, those rules can be exceedingly simple -- at their core they are "don't deal with other people via force or fraud."  Sure, case law can be complex - what happens to a land deed that has one boundary on a river when the river moves.  But I don't think this is what Matt is thinking of.  
  2. Yglesias is following the typical socialist-progressive line that our modern wealth creating capitalist economy was somehow created by the government.  I am sure this line works with the low information voter, but that does not make it any more true.  Industrial capitalism arose long before the government even acknowledged its existence.  The US economy was generating wealth - for everyone, rich and poor - long before politicians stuck an oar into the economic waters.  Go back even 85 years and you will not see anything in the "political economy" that would be recognizable to a modern progressive.  In other words, the wealth creation came first, and then the politics came second.
  3. Again we see this bizarre progressive notion that wealth creation is this thing apart, like a water well in the desert.  Income distribution in this model is a matter of keeping the piggy rich people from hogging all the water.  But in a free society, the economy and its gains are not separate from people, they are integral to the people.  Gains are not somehow independent variables, but are the results of individual gains by each person in the system.  People operate by mutual self-interest.  When I work for you, I get a paycheck, you get your products made -- we both gain.  Steve Jobs grew wealthy selling iPads, but simultaneously my iPad made me vastly better off.
  4. It is wrong to say that all distributions of wealth are arbitrary.  In a free society, there emerges a natural distribution of wealth based on people's exchange with each other.  And contrary to the progressive mythology, that system was floating all boats, not just the rich ones, long before the government gained the power to redistribute wealth.  Yglesias is right in saying that income distribution in a progressive political economy is arbitrary.  In fact, income in any government-managed economy is distributed arbitrarily to whoever can gain power.  I am always amazed at progressives who somehow have this vision that there will be some group of people with absolute power who wukk make sure there will be a flat and equitable income distribution.  When has that ever happened?  Name even a single socialist country where that has happened.
  5. What political decision has ever been made the grows the pie, except perhaps to keep the government's hands off pie creation?  When "political" decisions are made to grow the pie, what you actually get is bailouts of Goldman Sachs, wealth funneled to connected billionaires like Elon Musk, and Solyndra.  Politics don't create wealth, they are a boat anchor lashed to the wealth creators.  The only thing politicians can do productively is make the boat anchor lighter.

Obamacare Hypocrisy

Proponents of Obamacare and other aggressive government health care interventions often argue that government health insurance will be less expensive than private health insurance.  Ignoring the whole history of government provided services (which you have to do to accept this argument), it is entertaining to press them on what costs will go away.

First, they will argue "profits."  Health insurers "obviously" make a lot of profit, so doing away with that will amount to a lot of savings.  Several years ago, when Obama was actively demagoguing** the health insurance business, the profit margins of health insurers were all around 3-4% or less.  Which means in exchange for eliminating all private profit incentives towards efficiency and productivity, we get a 3% one time cost reduction.  Not very promising.

After profits, Obamacare supporters will point to administrative costs.  Their philosophy that private insurance administrative costs drive health inflation is built into Obamacare, which places a cap on non-care related costs as a percentage of premiums.  I would argue a lot of this cost is claims management and fraud detection that government programs like Medicare don't have, to their detriment, but let's leave that aside.  I think most Obamacare opponents are convinced that there are billions in marketing costs that could be eliminated.  This has always been their bete noir in pharmaceuticals, that drug companies spend too much marketing.

I have said for years that to a large extent, what outsiders call "marketing" in health insurance is actually customer service and information, in particular agents who go out to companies and help people understand and make their insurance choices.

Well, it turns out that when the shoe is on the other foot, Obamacare supporters suddenly are A-OK with massive health insurance marketing costs, even when what is being marketed is essentially a monopoly:

[California] will also spend $250 million on a two-year marketing campaign [for its health insurance exchange]. By comparison California Senator Barbara Boxer spent $28 million on her 2010 statewide reelection campaign while her challenger spent another $22 million.

The most recent installment of the $910 million in federal money was a $674 million grant. The exchange's executive director noted that was less than the $706 million he had asked for. "The feds reduced the 2014 potential payment for outreach and enrollment by about $30 million," he said. "But we think we have enough resources on hand to do the biggest outreach that I have ever seen." ...

The California Exchange officials also say they need 20,000 part time enrollers to get everybody signed up––paying them $58 for each application. Having that many people out in the market creates quality control issues particularly when these people will be handling personal information like address, birth date, and social security number. California Blue Shield, by comparison has 5,000 employees serving 3.5 million members.

New York is off to a similar start. New York has received two grants totaling $340 million again just to set up an enrollment and eligibility process.

** Don't be fooled by the demagoguery.  This is standard Obama practice.  In exchange for eating sh*t from Obama in public, private companies get all kinds of crony favors in private.  Remember, health insurers got the US government to mandate that everyone in the country buy their products, and got the Feds to establish trillions in subsidies to help people do so.  This may be the greatest crony giveaway of all time, and to cover for it, like a magician distracting your eye from the sleight of hand, Obama made it appear in public as if he were health insurers' greatest enemy, rather than their sugar daddy.

An Insane Theory of Product Liability

Via the WSJ today:

Can a drug company be held liable for damages caused by generic drugs it didn't produce? That's the expansive new theory of "innovator liability" on parade in Alabama, where a recent ruling by the state Supreme Court could do damage throughout the U.S. economy.

In Wyeth Inc. et al., v. Danny Weeks et al., Mr. Weeks says he suffered from side effects from taking the generic version of an acid-reflux drug called Reglan. He sued Wyeth for fraud and misrepresentation, though the company didn't make the drug he took and had exited the Reglan market in 2002, five years before he took it. The court ruled 8-1 that Wyeth could be held liable for injuries because the generic manufacturer couldn't change the warnings on the product it copied.

First, this is nuts -- being held liable for problems with a product you did not make, simply because you invented it years before.   Are we going to start suing the estate of Thomas Edison every time someone buys a bad lightbulb?

But second, note how helpless Wyeth is now.  Drug makers are used to insane law suits that drain all the profit from helping millions of people to pay off a few folks who had adverse side effects (this same process literally destroyed the vaccination business until the government gave them special liability protection).

But let's accept the court victory - perhaps the drug really has a problem that has been discovered.  If the maker was being sued, he could just pull the drug from the market (as has happened any number of times after adverse suits) either forever or until the FDA will approve new warning language.

But in this case, Wyeth can't do this.  The generic drug makers will keep on selling the product - after all, they are not getting sued, and Wyeth will keep paying.  Wyeth does not even have standing to try to get the FDA to change the warnings on the drug.  If Wyeth tries to buy out the generic maker and shut it down, and new seller will simply takes its place.    If this case stands, Wyeth can be steadily bled to death and there is nothing they can do to stop it.

Finally, I don't want to get away without a mention of just how broken the FDA drug regulation regime is.  The original Supreme Court decision that led to the generic maker being immune to suits really turned on the impossibility of getting the FDA to change even one word on a drug's warning label.

Let Them Eat Trinkets

Steven Rattner, investment banker and former member of the Obama Administration,  is terrified that under a proposed law companies will be able to raise money without investment bankers.

Most troublesome is the legalization of “crowd funding,” the ability of start-up companies to raise capital from small investors on the Internet. While such lightly regulated capital raising has existed for years, until now, “investors” could receive only trinkets and other items of small value, similar to the way public television raises funds. As soon as regulations required to implement the new rules are completed, people who invest money in start-ups through sites similar to Kickstarter will be able to receive a financial interest in the soliciting company, much like buying shares on the stock exchange. But the enterprises soliciting these funds will hardly be big corporations like Wal-Mart or Exxon; they will be small start-ups with no track records.

This is absolutely, classically representative of the technocratic arrogance of the Obama Administration and the investment bankers that inhabit it.  I have three quick thoughts:

  1. Rattner's concern for individual investors comes rather late.  After all, he was the primary architect of the extra-legal screwing of GM and Chrysler secured creditors in favor of the UAW and other Obama supporters.
  2. God forbid investors get actual, you know, ownership in a company for their capital rather than just trinkets.  This is so bizarrely patronizing that I had to read it twice just to make sure I wasn't missing something.  But no, he is explicitly preferring that you and I get trinkets rather than ownership  (ownership, apparently, to be reserved for millionaire insiders like himself).
  3. We have truly entered the corporate state when leftish opinion makers argue that large corporations like Exxon and Wal-Mart get preferential access to capital and that smaller startups that might compete with them be shut out of the market.

I predict that over that Internet entrepreneurs running such crowd-sourcing sites would develop reputation management and review tools for investors (similar to those at Amazon and eBay).  Over time, it may be that these become far more trustworthy than current credit agency reports or investment bank recommendations.  After all, which do you trust more -- a 5-star Amazon review with 35 responses or a Goldman Sachs "buy" recommendation on an IPO like Facebook or Groupon?  Besides, it would take a very long time, like eternity, for fraud losses in a crowd-sourcing site to equal 1/100 of the investor losses to heavily regulated Bernie Madoff.

Tony Soprano Environmentalism

The Ecuadoran $18 billion court decision is turning out to be a monumental case of environmental fraud.  I am willing to believe that early critics of Texaco (now Chevron) had legitimate beefs about the company's stewardship in its drilling operations in the 1970's in the Amazon.  However, all semblance of principle has gone right out the window in a gigantic money grab.

A while back, it was reported that environmentalists (featured in the movie "Crude" were captured in the outtakes of the movie discussing how they lied about the science to the courts in order to score a big payday (bonus points for Obama appointing one of the fraudsters to the National Academy of Sciences).  See the link for the video evidence.

Past fraud revelations have cast doubt on the key scientific report submitted to the court as part of the proceedings, a report that is now known to have been ghost-written by the plaintiffs.  However, supporters of the judgement against Chevron have argued that the judge has always claimed that this study did not sway his decision in the case.  Now we know what did sway his decision:

Today new allegations of deceit and wrongdoing were leveled against the plaintiffs' lawyers bringing the already deeply troubled environmental suit against Chevron in Lago Agrio, Ecuador, which stems from Texaco's oil drilling in the Ecuadorian Amazon between 1964 and 1992. (Texaco was acquired by Chevron in 2001.)

In Manhattan federal district court this morning, Chevron filed the declaration of a former Ecuadorian judge, Alberto Guerra, who describes how he and a second former judge, Nicolás Zambrano, allegedly allowed the plaintiffs lawyers to ghostwrite their entire 188-page, $18.2 billion judgment against Chevron in exchange for a promise of $500,000 from the anticipated recovery.

Attention Lawyers, We need a Hand, Not a Brain: A Licensing Parable

Several sites have reposted this Craigslist ad, gasping in shock at it as evidence of massive foreclosure fraud

We are a collection agency/debt buyer. What we are looking for is a part time attorney to work for us as our corporate counsel, on our payroll, about 5 to 6 hours a week. This is a short term employment arrangement, no longer than 90 to 120 days.

Your job will be to sign pleadings, praecipe for entry of appearances, praecipe for writ of execution, and garnishment orders. Our paralegal will prepare all paperwork for your signature. This is very standard stuff for us.

If you are an attorney looking for challenging legal work, this is not for you. WE DO NOT NEED F LEE BAILEY- we are fee shopping. If you passed your boards with a D+, and you can sign your name, you possess all the credentials required for this job. If this opportunity interests you, please feel free to reply to this email with a brief description of who you are, when you got your law license, and what you will be needing from us in the way of compensation.

I would instead offer it as a lesson in the stupidity of state-enforced professional licensing arrangements.  Let me rewrite it:

We have all the legal knowlege we need.  We know exactly what the forms look like and mean.  We have written all the documents and tested them over time during our long presence in this business and we know them to meet our legal needs.   We have no need, in other words, for legal help.

However, attorneys have gotten together and created an attorneys guild, and, what's more, have convinced the government to pass laws that require membership in the guild to perform certain gate-keeping functions.  In our case, we need a member of the guild to sign some forms to make them legal, both because the guild has strong influence and because certain folks have convinced everyone that all mortgage pain in this country came from having a machine perform this signature function rather than a flesh and blood hand.  So we need a flesh and blood hand rather than a machine to sign foreclosure documents.  Unfortunately, that hand has to be attached to a brain that has passed the bar exam, and because the guild is pretty good at limiting its membership, we expect to have to pay an absurd amount of money for this trivial function that could be duplicated by a six-year-old (and used to be performed by a simple $100 machine).

Don't get us wrong -- if we were on trial for our lives or facing a nasty, complicated lawsuit or wanted to draft a custom contract to protect our interests, we would be very happy to consider the opinion of third party licensing groups as to the merit of a particular attorney.  Ironically, though, even then current licensing would be absurd, for in this case it would not greatly exceed our quality requirements (as it does for signing our foreclosure paperwork) but it would vastly undershoot our need due diligence needs.   Perhaps there is some legal function for which attending an ABA-accredited school and passing the bar exam is the perfect level of quality assurance, but we have not found it yet.

Bid Rigging for Municipal Asset Management

Rolling Stone Magazine has an good story on the conviction of a number of banks and brokers on charges of bid-rigging, specifically on contracts for short-to-medium term management of municipal bond cash accounts.  Apparently brokers were paid by certain banks to be given a look at all the other bids before they made their final bid.  The article focuses mainly on the ability of winning bidders not to bid any higher than necessary, though I would suppose there were also times when, given this peek, the winning bidder actually raised its bid higher than it might have to ace out other bidders.

This is classic government contracting fraud and it's great to see this being rooted out.  I am not wildly confident it is going to go away, but any prosecutorial attention is welcome.

But I am left with a few questions:

  • It seems that government contracting is more susceptible to this kind of manipulation.  Similar stories have existed for years in state highway contracting, and the municipal bond world has had accusations of kick-backs for years.  Is this a correct perception, or is the rate of fraud between public and private contracting the same but we just notice more with the government because the numbers are larger, the press coverage is greater, and the prosecutorial resources are more robust?
  • If government contracting of this sort is more susceptible to fraud, why, and how do we fix it?

The latter is not an academic question for me.  I run a company that privately operates public recreation areas.  I bid on and manage government contracts.  Frequently, a major argument used against the expansion of such privatization initiatives is that past government outsourcing and contracting efforts have been characterized by fraud and mismanagement.  The argument boils down to "the government has so many management problems that it can't be trusted with contracting for certain services so it needs to operate those services itself."

The only way to reconcile this view is to assume that private actors are more likely to act fraudulently and be dishonest than public employees.  If this were true, then the public would be safer if a public management process of questionable ability were applied towards public employees rather than outside private contractors, because those who were being managed would be less likely to take advantage.  And certainly there are plenty of folks with deep skepticism of private enterprise that believe this.

However, I would offer that only by adopting an asymmetric view of what constitutes fraud would we get to this conclusion.  Clearly, banks colluding to shave a few basis points off municipal asset returns is fraud.     As the author of the Rolling Stone piece puts it several times, the crime here is that the public did not get the best market rate.  So why is, say, elected officials colluding with public employees unions to artificially raise wages, benefits, and staffing levels above market rates not fraud as well?  In both cases insiders are manipulating the government's procurement and political processes to pay more than the market rates for certain services.

This is Bastiat's "seen and unseen" of the privatization debate.   Yes, the world is unfortunately littered with examples of government procurement fraud.  This is often cited as a reason for maintaining the status quo of continued government management of a diverse range of services.  But what we miss, what is unseen, is that these government services are often run with staffing levels, work rules, productivity expectations, and pay rates that would constitute a scandal if uncovered in a division of a corporation, particularly if the workers were spending a lot of money to make sure the manager handing them this largess was able to keep his job.

Yes, the public lost several basis points on its investments when it did not get the market rate of return from cheating bankers.  But it loses as much as 50% of every tax dollar sent to many state agencies because it does not get market rates (and practices) for state labor.

Why Is No One From MF Global in Jail?

Whether crimes were involved in the failures of Enron, Lehman, & Bear Stearns is still being debated.  All three essentially died in the same way (borrowing short and investing long, with a liquidity crisis emerging when questions about the quality of their long-term investments caused them not to be able to roll over their short term debt).  Just making bad business decisions isn't illegal (or shouldn't be), but there are questions at all three whether management lied to (essentially defrauded) investors by hiding emerging problems and risks.

All that being said, MF Global strikes me as an order of magnitude worse.  They had roughly the same problem - they were unable to make what can be thought of as margin calls on leveraged investments that were going bad.  However, before they went bankrupt, it is pretty clear that they stole over a billion dollars of their customers' money.  Now, in criticizing Wall Street, people are pretty sloppy in over-using the word "stole."  But in this case it applies.  Everyone agrees that customer brokerage accounts are sacrosanct.  No matter what other fraud was or was not committed in these other cases, nothing remotely similar occurred in these other bankruptcies.

A few folks are talking civil actions against MF Global, but why isn't anyone up for criminal charges?  Someone, probably Corzine, committed a crime far worse than anything Jeff Skilling or Ken Lay were even accused of, much less convicted.   This happens time and again in the financial system.  People whine that we don't have enough regulations, but the most fundamental laws we have in place already are not enforced.