General Motors' $900 million plea deal with the U.S. government after the automaker concealed a deadly ignition-switch defect linked to the deaths of 124 people has rekindled a debate over how tough federal prosecutors should be when fighting corporate wrongdoing.
Here's the core of the debate: Do so-called deferred-prosecution deals that grant companies a pass on criminal prosecution in exchange for big fines and future compliance merely re-enforce bad corporate behavior? Or do the deals permit prosecutors to press for systemic reforms that a costly criminal prosecution could never achieve?
In the government press release announcing the settlement this week, GM was commended for taking "exemplary actions to demonstrate acceptance and acknowledgment of responsibility for its conduct", including the dismissal of 15 people. The same press release stated that GM engineers first suspected the ignition switch was defective as far back as 2002. Yet for more than a decade, even as the body count mounted, the auto giant -- rescued during the financial crisis in 2009 with the help of a $50 billion lifeline from taxpayers -- denied it had a problem and lied to regulators.
In 2014, GM recalled 2.6 million cars. A $600 million victims compensation fund has been established. GM still faces numerous wrongful-death suits and, according to Automotive News, has a potential $10 billion liability from consumers who could sue for the loss in value of their vehicles.
Mary Barra, GM's CEO, did not sugar coat the significance of the scandal on the automaker brand. "People were hurt and died in our cars," Barra told employees this week. "We've made substantial changes, and people know we are sincere.
At a press conference Thursday in New York City announcing the deal, U.S. Attorney Preet Bharara left the door open to the potential criminal prosecution of individuals involved with the case. As part of the settlement, an independent monitor will be assigned to ensure GM complies with its commitments to the government. As part of the internal reform, an anonymous tip line will be opened to encourage employees to come forward with concerns about safety and quality control.
The GM settlement follows a $1.2 billion dollar deferred-prosecution deal reached between the Toyota Motor Corporation and Bharara back in March. The Japanese automaker was alleged to have covered up vehicle-acceleration problems that also resulted in deaths.
Critics of these kinds of these deals point out that it is often former prosecutors who can make millions filling the role of the independent monitors assigned to track corporate compliance.
"More than half the time the independent monitors in these deals were a former prosecutor," Brandon Garrett, a professor at the University of Virginia Law School, told CBS MoneyWatch. "The public should be concerned by the statement of facts in the agreement which describes how people within GM knew for years that this was a deadly problem."
Garrett, author of "Too Big To Jail: How Prosecutors Compromise with Corporations," says GM's admission came 10 years too late for a Texas woman who was convicted in 2004 for negligent homicide she was alleged to have committed when she lost control of her Saturn. The GM car hit a tree and the airbags failed to deploy, killing her fiancé, who sat in the passenger seat.
Candice Anderson, who was just 21 at the time, was convicted, fined $2,500, sentenced to 260 hours of community service and five years probation. Anderson broke her ribs and injured her liver and suffered lacerations in the crash. She lost her job after her conviction. In 2014, following GM's disclosure about the defective ignition switch that caused the crash, a Texas judge cleared Anderson.
The renewed debate over how best to hold corporations responsible for their bad conduct comes several years after Wall Street's collapse brought the global economy to the brink. The federal government has so far negotiated more than $37 billion in settlements from plea deals with the nation's largest banks to resolve allegations of fraud, deceptive marketing and the mass forging of mortgage-related documents.
There has been push-back from the federal bench on corporate settlements that yield the U.S. Treasury billions of dollars yet avoid criminal prosecutions or even the admission of wrongdoing by the corporations involved.
In November 2011, Judge Jed Rakoff rejected a $285 million Securities Exchange Commission settlement with Citigroup to resolve allegations of securities fraud in which the banking giant did not admit to any wrongdoing. Rakoff wrote in his opinion that the deal "was neither fair, nor reasonable, nor adequate, nor in the public interest." Rakoff's rejection of the settlement was overturned on appeal.
Advocates of the deferred-prosecution strategy point to the criminal prosecution of the accounting firm Arthur Andersen for its alleged role in the Enron scandal. In 2002, Andersen surrendered its accounting licenses after the firm was convicted for its role in helping Enron conceal from investors and regulators billions of dollars in losses at the energy firm. Ultimately, the conviction was over turned by the U.S. Supreme Court, but long before its final day in court, Anderson, which at one time employed 85,000 people, had ceased to exist.
Back in 2008, the Andersen case was cited by former Manhattan District Attorney Robert Morgenthau in explaining at a press conference why he granted a deferred-prosecution agreement with Bovis Lend Lease Company for its role in the 2007 Deutsche Bank building fire at the World Trade Center site. The fire killed two New York City firefighters and injured more than 100 of their co-workers. "I think the federal government made a huge mistake when they indicted Arthur Andersen," Morgenthau told reporters, referring to the tens of thousands of Anderson employees who lost their jobs as a consequence.
Morgenthau also expressed concern that a criminal indictment would have wrecked havoc on New York City's construction industry, where Bovis was a critical player with major public and private projects already underway,
In 2012, it was then-U.S. Attorney Loretta Lynch's turn to grant Bovis Lend Lease another deferred-prosecution deal for the multinational's role in fraudulently overcharging its public and private clients tens of millions of dollars. The company paid $56 million dollars in restitution and fines. Lynch, who is now the Attorney General, justified the deal by noting the company's cooperation and promise of reforms going forward as well as the importance of maintaining the jobs of the many construction workers who were not implicated in the case.
Lynch's office did successfully prosecute two Bovis Lend Lease former officials for their role in the overbilling scheme, which prosecutors said at the time was part of an industry-wide practice that had been going on for decades.
Earlier this month, the Justice Department offered something of a reset in response to criticism about the lack of prosecutions following the Wall Street meltdown: Lynch instructed prosecutors not to credit companies with cooperating with criminal probes -- a pre-condition for a deferred prosecution -- unless those companies help prosecutors make their cases against company employees implicated in the case.
"In the right circumstance, a deferred prosecution can act as a catalyst for change that will ultimately be more meaningful than what results from a corporate criminal prosecution," said Robert Mintz, a former federal prosecutor and now a partner at law firm McCarter English.
UVA's Garrett said he sees the latest initiative from Lynch as a sign the pendulum is swinging back more towards corporate responsibility. "We can't have companies use their resources to insulate their employees from taking responsibility of their actions," Garrett said.