Comment by kqr2 | Hacker News Reader

Comment by kqr2 | Hacker News Reader

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Matt Taibbi wrote about this in his book The Divide: American Injustice in the Age of the Wealth Gap [1].

Enron was probably the last big corporate take-down by the government.

From an interview http://www.democracynow.org/2014/4/15/who_goes_to_jail_matt_...

  But at the bottom of it, there was this thing that he [Eric Holder]
  laid out called the "collateral consequences doctrine." 
  And what "collateral consequences" meant was that if 
  you’re a prosecutor and you’re targeting one of these big 
  corporate offenders and you’re worried that you may 
  affect innocent victims, that shareholders or innocent 
  executives may lose their jobs, you may consider other 
  alternatives, other remedies besides criminal 
  prosecutions—in other words, fines, nonprosecution 
  agreements, deferred prosecution agreements.
  And again, at the time, it was a completely sensible 
  thing to lay out. Of course it makes sense to not always 
  destroy a company if you can avoid it. But what they’ve 
  done is they’ve conflated that sometimes-sensible policy 
  with a policy of not going after any individuals for any 
  crimes. And that’s just totally unacceptable.

1. http://smile.amazon.com/Divide-American-Injustice-Age-Wealth...

Or concisely:

  Too big to fail; too big to jail

William K. Black is well worth reading on the issue too http://america.aljazeera.com/opinions/2014/9/eric-holder-res... , as one of the team that successfully prosecuted people back in the S&L days http://www.amazon.com/Best-Way-Rob-Bank-Own/dp/0292721390 (apparently it wasn't politially easy then either).

"Of course it makes sense to not always destroy a company if you can avoid it." So that's the basic implied threat - destruction?

Nice. And this then becomes a brinksmanship game. The act of flauting the law is now coin of the realm.

Enron was taken down by ... the running dogs of CALPERS. "My fund can beat up your fund" so to speak. This is why we can't have affordable housing - the spall from Enron painted the whole state of Texas.

I understand the principle here, but the specific examples given here are a bit odd.

>>> shareholders or innocent executives may lose their jobs

Shareholders are unlikely to be affected to a large extent because their holdings in Enron would probably make up a small portion of their net worth.

Executives are paid large salaries and so can deal with the effects anyway.

I'd be much more concerned with the rank and file.

Many Enron "shareholders" were retirees whose retirement plans were heavy on Enron and they were basically wiped out.

Shareholders don't deserve protection like that. I understand that giant corporations are not particularly run by shareholders, but if someone dumps their money into something and doesn't pay attention to it, it's fine to make them feel the consequences of not paying attention.

I'm confused by this. Shareholders are some of the primary victims being defrauded in these cases.

Enron's accounting gymnastics were precisely to defraud their shareholders. How is that negligence on the part of the shareholder? It's not - it's criminal on the part of the executives.

I didn't say it was negligence on the part of the shareholder. They are putting their money under the control of someone else, they should be thinking about risk when they do so. Is it so clear that a series of closer looks at Enron's books would have missed the fraud?

It's also the case that I was thinking more about the companies that are fined and keep operating with all the same officers in place than I was thinking about companies that implode. For example, shareholders of JP Morgan apparently aren't real sad with Jamie Dimon.

The reason why the government has to take action on this is because as a matter of policy, the government coerces people to invest in corporate America. If people were freer to not participate in the stock market casino, then there would be no need to regulate it.

> It's not - it's criminal on the part of the executives.

So if this kind of behavior is prosecuted and severely punished (e.g. lifetime prison sentences) - shareholders would be less likely to be defrauded.

The protect-the-shareholders attitude is entirely oxymoronic here, since it just means that those exploiting the share-holders and the corporation know they are unlikely to face significant consequences and this encourages others to do likewise.

> Enron's accounting gymnastics were precisely to defraud their shareholders. How is that negligence on the part of the shareholder? It's not - it's criminal on the part of the executives.

Of course it is. Because in that case the perpetrators are the corporate officers and the victims are the shareholders. The shareholders were partially responsible for not choosing better officers, but for that they can only blame themselves.

But there are times when officers choose to harm third parties in furtherance of the interest of the shareholders. They do something illegal because it's profitable. And in that case losing their money is exactly what shareholders deserve for choosing officers with no scruples.

But... inherently, Enron itself was defrauded by certain actors within Enron. It was a fraud based in very willingly ignorant denial, but still.

Unless theyre a German bank that bet on the housing bubble.

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