And not just massive. It needs to be an order of magnitude more than they made from those deals. Too many times companies get slapped on the wrist for an amount considerably less than they made from their illicit activities.
Which I never understood. Normal people that get caught doing things like selling stolen goods have to pay a fine on top of all money they may have made from selling it. Why aren't companies treated the same?
It's more of a hostage negotiation. You want to hurt the company and it's owners, but if you sue too hard, you're likely to just hurt it's workers and it's customers.
It's why preventing companies from reaching _anything near_ monopoly size is so important for corporate jurisprudence. "Too big to fail" is just the tip of this insane iceberg we've allowed to grow into our economy.
The owners of big companies include lots of pension plans, index funds, etc. Hurting those owners, who didn't have any say in the bad decisions, is probably not what we want.
Jail for executives who approve or have knowledge of illegal activities sounds good to me.
Institutional shareholders actually play a strong role in governance over companies, both in choosing where to invest, and in directing companies (and their boards) as to how they should operate.
Pension and hedge funds finding that their assets are at risk due to changes in perceptions around privacy are actually among the most effective market mechanisms for changing corporate behaviour. Far more so, it seems than the consumer/retail side of the market, where leverage is effectively nil.
Investors can effect leverage because they're not stuck with a monopolistic / oligopolistic market with a small number of vendor choices for a particular good. Investors have the entire market of stock corporations as potential investments, and can enter into or exit from those which pose attractive opportunities or undue risks with very few additional concerns.
Except institutional investors ARE restricted based on what kind of investment they need to fill out the specific portfolio they're administering.
Oftentimes these restrictions limit them to a subset of companies in a certain market to fill a specific niche in the name of diversification. Are they artificial limitations? Sure, but only in the sense that there is no regulation saying they cannot find a different company to invest in.
All that to say that things are not nearly as cut-and-dry as it may seem.
With regards to the ultimate thrust of my comment, to a greater or lesser degree than ordinary "consumers" (I hate that term) within monopoly-dominated product or service fields?
Is there any investment category in which an institutional really has only, say, 1--3 options? Because that is the relevant comparison.
I'm going to posit that investment markets are overall more competitive than consumption markets.
(They may have other issues, including some that, of all people, Matt Ridley's pointed out. I believe it's somewhere in this discussion with Johan Norberg and David Runciman, which I've listened to previously but not just now in referencing it: "The New Optimism" on Intelligence Squared, <https://www.intelligencesquared.com/events/the-new-optimism-...>. It's worth listening to on its own. I'll admit to being partial to Team Runciman myself, but Ridley's comment on asset markets has been bouncing around my noggin for a while.)
If they are willing to accept the profits than they must also accept the risks. Otherwise you're just vouchsafing the hostage negotiation because of one level of indirection.
Ideally, the people responsible for managing the money on behalf of these institutions end up bearing most of the responsibility.
> Jail for executives who approve or have knowledge of illegal activities sounds good to me.
I suspect one possible outcome is many people wouldn't want to take the risk to become an executive, and the percentage of executives who wouldn't mind taking risks of going to jail will increase, which is not a desirable outcome.
Then don't commit crimes? I'm usually pretty sympathetic to executives being used as sacrificial lambs by constantly being put in the position of having to bet their jobs on a coin flip they're calling in the air. But this really isn't defensible.
Jailing people with only knowledge isn't the right move compared to having a fully anonymous whistleblower program, with fine sharing. It sucks that there has to be zero transparency but you don't want some unfortunate schmuck doing the right thing and then getting blackballed for the rest of their career for it. But jailing the people with authority and accountability is completely doable-- if you didn't know that's on you because it's literally your job to know and that lands you 3rd degree $crime. If they can prove you knew that's 2nd degree, and if they can prove you ordered it or signed off on it then that's 1st degree.
Suppose there are two insurance companies. One is following the law, the other one is bribing a mid-level employee of a car company to give them driver info and then using it to set rates and solicit policies. The CEO of the car company doesn't even know it's happening and the CEO of the insurance company does, but isn't telling anyone about it and it just looks like they have above-average margins on their policies.
As long as they don't get caught, the ones breaking the law are not only making money for themselves, they're the ones investors will choose to invest in when all they can see is the bottom line. The honest CEO of the other insurance company gets deposed because investors want someone who can get the same returns as the cheating one, so they cycle through executives until they get one that posts better numbers because they're cheating too.
Some of them will never get caught and come out ahead. The others expect that to happen, which is why they're willing to do it, and if they do get caught then they get replaced by someone else who thinks they won't get caught.
The underlying problem is the structure of the system. The owners want higher profits but are also a diffuse group without the capacity to pay detailed attention to how it happens, so you create evolutionary pressure to cheat. What you actually want is for companies to be operated by their owners because then the owners know what's happening inside the company and can distinguish between a company which is making more money because it's well-managed and one which is making more money because it's cheating and putting their investment at risk. But then we need to stop having megacorps with diffuse passive investors and instead have small and medium businesses which are operated by the owners.
I think this line of argumentation follows and is logically consistent but if this is really how it worked then you're saying in the long run with probability 1 every executive will be a criminal. Nothing about what you're saying about the incentives is unique to white-collar financial crimes. For crimes that have a low chance of being caught the SOP is make the punishment disproportionately severe and weaponize the people likely to observe or carry out the crime. If all goes well you can't cycle through executives because none of them are willing to risk years of prison, fines, and being barred from leadership roles for life.
I don't see how your example resolves as anything other than the mid-level employee is guilty of bribery, and CEO of the insurance company is guilty of 2nd degree $yet-to-be-derermined-crime-name. I don't expect a CEO to somehow know of literally any crime that occurs by any of their employees, just crime by policy.
> I think this line of argumentation follows and is logically consistent but if this is really how it worked then you're saying in the long run with probability 1 every executive will be a criminal.
Certainly not. For example, if a company is run by an above-average executive who can produce good results without cheating, they won't be replaced by someone who cheats. But that's no general solution because it's not possible for every executive to be above-average.
> For crimes that have a low chance of being caught the SOP is make the punishment disproportionately severe and weaponize the people likely to observe or carry out the crime.
Yeah, that's the War on Drugs strategy. It's aggressively broken and encourages the dangerous and socially destructive behaviors associated with organized crime.
> I don't see how your example resolves as anything other than the mid-level employee is guilty of bribery, and CEO of the insurance company is guilty of 2nd degree $yet-to-be-derermined-crime-name. I don't expect a CEO to somehow know of literally any crime that occurs by any of their employees, just crime by policy.
A CEO in a company that isn't the size of a country is going to be directly involved in the company's operations. That companies have grown so large that their owners and executives no longer have a handle on what's happening inside them is the problem.
Which is why we need the law to make crimes not profitable, or at least to attach enough personal risk to dissuade decision makers. It's how we got US corporations to stop dispensing bribes in foreign countries, to which exactly the same logic applies.
So here's the problem. There are some crimes that have a relatively low probability of detection. It doesn't even have to be that low; say it's 40%.
Then there are people with nothing to lose. Some mid-level manager who isn't very good at it, isn't making his numbers. If he plays by the rules, he's about to get canned and lose his house and his wife. If he cheats and gets caught, there's a 40% chance he goes to jail, but a 60% chance he not only makes a lot of money but gets promoted to the head of the company because his numbers are so good. There are going to be too many people willing to take the risk in that case. It's going to happen a lot of the time.
To fix this you need to attach a penalty to someone who both has something to lose and is in a position to detect the crime. But the someone with something to lose are the owners and when they're diffuse passive investors they're not in a position to detect the crime.
> Then there are people with nothing to lose. Some mid-level manager who isn't very good at it, isn't making his numbers. If he plays by the rules, he's about to get canned and lose his house and his wife. If he cheats and gets caught, there's a 40% chance he goes to jail, but a 60% chance he not only makes a lot of money but gets promoted to the head of the company because his numbers are so good. There are going to be too many people willing to take the risk in that case. It's going to happen a lot of the time.
But exactly the same argument applies to paying bribes to foreign officials, and yet the FCPA at least cut that down. I'm not naïve enough to believe that it eliminated it, but surely it's made a difference.
> To fix this you need to attach a penalty to someone who both has something to lose and is in a position to detect the crime. But the someone with something to lose are the owners and when they're diffuse passive investors they're not in a position to detect the crime.
You clarified later you meant the stock owners, but there are also executives of the company. Somewhere up the chain of command will be someone who's reluctant to have their name attached publicly to the behavior, and the possibility of legal hazard will encourage them to regulate their reports appropriately. This is definitely a place not to let the perfect be the enemy of the good.
> To fix this you need to attach a penalty to someone who both has something to lose and is in a position to detect the crime. But the someone with something to lose are the owners and when they're diffuse passive investors they're not in a position to detect the crime.
If they had any accountability they would find ways to put themselves in such a position.
No, they wouldn't. They are you. If you have a 401(k), you probably have shares of some of these companies -- likely hundreds if not thousands of different companies. You don't have time to investigate each of their inner workings and if one of them was convicted of mass murder and fully imploded causing their share price to go to zero, you would typically lose a fraction of a percent of your portfolio and might not even notice.
A far more direct consequence of the current situation is that these executives just do whatever the hell they want to maximize their profits at everybody else's expense. Without punishment enough to make it unprofitable, dishonesty only has incentives, on both business and personal level.
I just don't see that twice-removed latent effect having worse consequences for society than the base problem. Not by a long shot.
As a kid, I grew up playing in a marsh that turned out to be the illegal, unmarked, non-access-controlled chemical waste dump for a large specialty chemical plant nearby that had operated there since the late 19th century. Those executives knew what they were doing was wrong— it was the 90s, not the 60s— but spent decades telling bald-faced lies to everyone involved, and when the writing was on the wall for regulatory action, they just dumped the company onto a shell company so the large international parent corporation wouldn't be in the news, and retired happily in huge mansions while the parent company dumped probably 2 years profits into the superfund project to remove the most dangerous stuff and cap/fence of the entire area. I could certainly never know for sure how much that exposure affected my cancer, but the chance of it being zero is pretty slim. Nobody even told me or anyone else around there— I only knew about it because I dug up some old EPA document scans. You're goddamned right they deserve to be in jail and not taking 4 month yacht trips. On a moral level, I think they deserve worse. It was not a sparsely populated area.
This is the kind of thing I expect and want investigative journalists to write about and quiz politicians about non-stop, all the time. Instead they interview them about vacuous things like "ice cream", non-committal questions about policies, "initiatives" like DEI and corporate governance, and stuff so far removed from any concrete instance (like yours) that they can answer in vague non-answers that sound like answers but answer nothing. And of course, never a follow-up, unless it's a politician they don't like, in which case the journalist gets visibly annoyed and angry (wtf?) and tries to call them out on "misinformation". The entire thing is a farce, whilst real-world people on the ground suffer.
Well Jimminy Crispix! Think about the consequences of what you're suggesting.
A) Reporting on serious topics takes a lot more effort than recycling news wire coverage and rehashing political argument trends on Twitter. That means having to collect more analytics data to sell, and charging more than a few dollars per month for subscriptions. Sheesh.
B) People find serious topics depressing: reporting on important things that might be uncomfortable or gross can only lead to lost clicks, subscriptions, and viewers.
C) Upper-management couldn't even try to replace such reporters with web-scraping LLMs. Think about the dozens of starving would-be prompt engineers who won't get hired to replace thousands of journalists. They have families to feed too, you know.
D) There's a good chance that someone in the C suite or someone they know will be put in a very uncomfortable situation because of this! Unacceptable.
What sort of dystopian business hellscape are you trying to lead us into?
> I suspect one possible outcome is many people wouldn't want to take the risk to become an executive
We will run our it if executives? Oh no, what will we ever do? It’s not like people compete for that job and salary
> The owners of big companies include lots of pension plans, index funds, etc. Hurting those owners, who didn't have any say in the bad decisions, is probably not what we want.
I mean... Shareholders are ultimately responsible for the company, they elect the board etc. If shareholders were impacted by this, maybe it would make more folks think twice about "passive investing"?
I don't see this doing much unless everyone stops at about the same time. The largest shareholders have a disproportionate amount of power to influence the direction of most companies.
For much of SP500, the largest shareholders are the passive investors. It's common that an activist hedge fund can influence decisions with a mere 3% or so stake because the likes of BlackRock and Vanguard support them or abstain.
If you properly punish the shareholders, then it doesn't matter if they stop or don't. If they stop, the bad behaviour stops; if they continue, the onerous penalties continue. Anybody who wants to sponsor bad behaviour with their AUM can pay the appropriate fee.
I love when people bring this up. I passively invest by which I mean I take a couple of bucks every couple of paychecks and throw them into an index fund or buy one or two shares of stock of a company. Not to mention my 401k. How about we hold the people making the decisions accountable all the way up and down the chain instead of letting the go with the whole "following orders" defence.
How about we don't let companies control their dividends. Excess profit that's not reasonably ear-marked for growth, should be mandated to be distributed as dividends. And that's probably just one item we can start doing to make the stock-market less of a gamble and hedge against inflation, and more of just "people owning portions of profit-making entities".
> The owners of big companies include lots of pension plans, index funds, etc. Hurting those owners, who didn't have any say in the bad decisions, is probably not what we want.
It is exactly what we want. Otherwise the only deciding factor for what to invest in is maximum profit and that just incentivizes companies to skirt the law as much as possible.
> Hurting those owners, who didn't have any say in the bad decisions, is probably not what we want.
It's definitely not what we want in the short term, but thinking longer term, it's index funds and such that need to remove these actors from their portfolios if we really want to start reshaping the economy.
> Jail for executives who approve or have knowledge of illegal activities sounds good to me.
Life hack: make your activities so complex and distributed that it's impossible to tell who, exactly, is responsible for what. And then also just delete communications when you can.
Simple solution: You're held liable regardless of if you knew or not. It should be your responsibility to do everything possible within your power to make sure the company you're heading isn't committing illegal acts. If it is and you can't prove you tried everything you possibly can to have control over the situation, tough luck buddy.
Maybe then the inflated CEO salaries will make some form of sense for once, instead of the current system where there's 0 actual risk for them other than a golden parachute waiting for them at the end of the road after having fucked millions of people's lives irrevocably.
> Hurting those owners, who didn't have any say in the bad decisions
Why do you think this? Executives have a fiduciary responsibility to their shareholders, so if these actions are more profitable, they are legally required to perform them. Moreover, the primary beneficiaries are the owners.
Indeed, if you harm the shareholders by reducing the price of shares, you are harming them in the most fair way possible: In proportion with their share of the responsibility.
>Executives have a fiduciary responsibility to their shareholders, so if these actions are more profitable, they are legally required to perform them.
Zero percent of this is correct, and even if they had a legal responsibility to make "as much money as possible", which they don't, that would definitely not force them to commit crimes
The "fiduciary responsibility" is NOT "to make every dollar possible", it is a "don't purposely hurt the company" rule.
Surely it must be at least fifty percent correct, since you grant the first clause :)
Of course the duty does not extend to committing crimes. I was being a bit cynical. You are right that profit maximisation and fiduciary duty are distinct concepts. In practice, though, the owners are profit maximisers. Companies that do not profit maximise are less attractive to investors, attract less investment, and are outcompeted.
To advocates of the market system, this is a feature and not a bug. But its effect is that companies operate "optimally" within the bounds of the law - said differently, the line between legal and illegal conduct is generally skirted as closely as possible. And when, as other commenters have noted, punishments for breaking the law are on average less than the profits incurred by illegal activity, selection bias means you are left with lawbreakers in the long run.
You are right that this is not a (direct) consequence of the fiduciary duty of an executive. I stand by my main point, though, that this behaviour is a consequence of the owners' selection criteria, and they deserve to be punished for it.
Pension plans are nearly gone and the whole point of index funds is to weather volatility. We have unemployment to assist workers (or we would if workers had modern rights to begin with). meanwhile whole draw of market investment to everyone but the shareholders goes tits-up if failure is weathered by the market as a whole rather than the incompetent or malicious actors.
I mean, people will put up with a lot, but eventually they'll realize that the market isn't magic and its continued failure to address our the economic and social conditions can be blamed on a specific enumerable class of person.
Ok, as I said they're nearly gone. Unless you think we should tank our society to benefit 14% of the country, or backing pensions with something more reasonable than market forces, there's not much to gain from prioritizing pensions over every other symptom of economic health.
No. What you'd really want if you really wanted to fix things is to hurt the top and mid-managers who decided to commit those offenses. Unfortunately it almost never happens.
No they choose to because of the benefits it gives them. Realistically middle management are the ones who need to start going to jail to cleanup this kind of behavior.
The only way to fix things is to drag the occupants of the c-suite into civil court and start dropping massive fines on their heads. Do that, and this type of behavior would vanish within days.
I know it's a number that gets calculated on cybersecurity assessment sheets, but I've never seen it being in any way connected to reality. Best I can tell, the actual reputational damage is almost universally $0. Security breaches are non-actionable oopsies - unless your product is literally preventing such breaches[0], it's going to be seen as a random event that has no bearing on customers making their purchasing decisions. After all, it could've happened to anyone, and might just as well happen to any of the competitors, and it doesn't even impact any of the subjects directly.
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[0] - And not even then - see e.g. CrowdStrike, who're busy turning the greatest security fuckup to date into a net positive event for them.
They don’t exactly have a captive audience. Besides the corvette, their competitors pretty much universally have a drop in replacement.
Changing cars is a heck of a lot easier than a corporation ripping out software that they likely have a 3-year contract on, and would require millions in services on top of just eating the cost of the contract itself.
Only if you believe the competition isn't doing the same thing.
My bank isn't a monopoly. They provide with terrible service. (Truely terrible). Trouble is all their competitors are just as bad.
GM gets no blow-back from this. Firstly because "nobody" cares. Second because "I bet you they're all doing it" and thirdly because in 20 minutes I'll be outraged about something else. By the time I buy my next car I can't remember who had this issue, plus all the other complaints about all the other manufacturers.
If I stopped buying from every company that has, or is, behaving badly, every company that had a security breach, or contributed to the wrong politician, or hired a racist, or whatever, I'd never spend a dime.
Firstly, with respect, one purchase is not damage.
Hacking the cellular is not damage to them (you bought the car.)
But mostly, given that you have principles (which I applaud), tell me which brands you would consider. (I'm pretty sure I can Google a bad-news-day for them too.)
> Firstly, with respect, one purchase is not damage.
In so far as the sense that anecdotes are not data. To the extent that Tempest1981 is a representative sample, it is an observation of damage to the brand's reputation.
If we take that as true, then we can ignore that aspect when we make our choice.
While both parties are funded by corporate interests, they still are far enough apart on policy and personality for the choice to have an impact.
Corporates are mostly caring about tax policy and industry regulation. They (mostly) have neutral stances on things like Healthcare, equality, racism, immigration, abortion and so on.
Which I never understood. Normal people that get caught doing things like selling stolen goods have to pay a fine on top of all money they may have made from selling it. Why aren't companies treated the same?