Category Archives: D.O.J.

A Matter of Trust

supply_demand

I fell in love with economics, in part, because it made so much sense. Just about everything could be boiled down into a supply and demand chart that even I, with my limited artistic skills, could draw, freehand. In a free market (the basis of all things good in this world) and in our economics 101 diagrams, the goal was to get everything, neatly, to equilibrium. It was glorious! In every situation, supply and demand, in a free market, would come to a price where both parties were happy and all goods and services to be sold were bought. In equilibrium, there were no shortages, there were no overages and the price was right. For instance, say guy made Twix bars and was selling them for five cents. He would likely find that a lot of people, including those who might ordinarily prefer Snickers, would be clamoring to stock up on Twix bars. Chances are that this guy would sell out of Twix bars in no time. People seeking these cheap, and now sold out, Twix bars might start placing ads on Craigslist, perhaps even offering ten cents for a Twix bar. Others might go to the Twix maker and offer him ten cents a bar to be put on a pre-sale list. Some people might see how well the Twix bar maker is doing and decide to start making Twix bars too. In the world of the perfect graphs, this cycle would go on, with the Twix makers raising their prices a little more and making more Twix bars, in response to the great demand for the chocolate bars. However, as the price goes up and gets closer to the price of a Snickers bar, some of the people who are not so crazy about the Twix will find that the higher price is not enough of a bargain for them, so they will no longer want to buy the Twix bar at this high price. The Twix makers might get too excited about the demand for the chocolate bars and decide to raise the price to two dollars. Even though a few Twix or nothing people might be willing to sacrifice all for a Twix, most people would tell the Twix makers that they are crazy and go looking for an alternative. The Twix makers would then find that the Twix bars are going old and stale in their storage facilities and they are not selling enough chocolate to even cover their costs. To resolve this, they will lower their prices and reduce production, until they get to the point where the price is such that sellers have enough unexpired Twix bars to sell to everyone who comes in looking for them, no extras, no shortages. That, according to the graphs, is how a free market works.

When a monopoly exists, it messes with the free market. In the case of a monopoly, there are no other options and people have no choice but to buy a product or service from one source. This would like living in a place where you can only buy electricity from one provider. For most people in that society, they will be forced to pay whatever the electricity provider charges for electricity. Try as they might, they will not have an alternative to electricity in order to charge their mobile phones and laptops. Twix bars won’t cut it. What economists have found is that, left to their own devices, monopolies will charge more for their products and services than people would be willing to pay in a free market where they could choose their supplier. Monopolies have pros and cons. Some pros of monopolies are:

  • Stable Prices that come about because there is no one coming in and out of the market to create bidding wars, where suppliers fight, with prices, to get customers. With only one supplier, there tends to be just one price that tends to remain the same for a while.
  • Economies of Scale. This basically means that, because the monopolist is making all the product for the entire market, he is making a lot of product at one time. As a result, the large scale will lead to lower costs per unit. If the monopolist chooses to pass the savings on to the customer the customers will be able to get goods and services at a lower price than they might have in an open market with many supplies making goods on a smaller scale.
  • Research and Development may benefit from monopolies. Since the monopolies are making all the money in the market, from sales, they can take these larger profits and have more money to put towards innovations and improvements of their goods and services.

On the flip side, the cons of monopolies are:

  • Higher Prices may be a result of monopolies. Because people have no other options, the monopolies can get away with charging whatever they feel like charging.
  • Price Discrimination can happen with monopolies as well. Because they can charge whatever they want, they can decide to charge some people one price and others another price and, because customers have no options, they are forced to accept the price quoted to them.
  • Inferior Goods and Services are a possibility with monopolies. Monopolies may look at the market and decide to cut corners and produce inferior quality goods and services because they know that customers can’t go anywhere else.

Generally, monopolies are not considered to be in the spirit of the free market. Competition, that would correct inefficiencies and unfairness in the markets, does not exist with monopolies and so there is a risk that consumers can be taken advantage of. As a result, regulators tend to take steps to review mergers of large companies in order to reduce the risk of monopolies (or something close to a monopoly). The action by the regulators is related to their enforcement of antitrust laws.

Currently, several health insurance companies are fighting with the US Department of Justice. Humana and Aetna are seeking to merge into one company as are Athena and Cigna. Currently there are five national health insurance providers; the merger will leave us with three providers. The health insurance companies are touting the pros of monopolies, claiming that the mergers will lead to lower prices to consumers and increased research and development. The justice department, on the other hand, argues that, with fewer national insurance companies, there will be less innovation and there will be the risk that customers will be charged higher rates.

As we enter the complications of humans, trust, regulations and court battles, we can keep in mind the memory of the neat graphs of the perfect markets. It may help us better understand the news articles, full-page ads and other coverage of this and other antitrust actions related to other mergers and acquisition deals in the news. If not, we can take comfort in our still affordable Twix bars.

Advertisements
Tagged , , , , , , , , , , ,

It’s In The Mail

ImageIn one of my previous lives, I worked for a company that, among its various business ventures, owned a mailboxes service. I would pop in occasionally to see how this and other nearby businesses were doing and, on one such visit, I found myself in the middle of an adventure. In the morning, shortly after the store opened, a man walked in and flashed his very impressive-looking badge. He explained that a woman was going to come in later in the day to pick up a package and that he needed to be present when this happened. Unsure what was going on, yet thoroughly impressed by the badge, the store’s staff agreed to let the man set himself up behind the counter, in wait for the woman. In no time, the man had settled himself in a chair, opened up a newspaper and blended into the scenery. A short while later, the store’s phone rang and one of the store’s employees answered a call for the woman they were waiting for. She asked if her package had arrived. Upon hearing that it had, she requested that someone bring it out to her car, as she was waiting outside the store. The employee explained that it was the store’s policy that all customers come in to pick up and sign for their own packages. After a short back and forth, he hung up the phone and a few minutes later a small woman in massive sunglasses walked in. The agent paid her no notice and appeared, instead, to be engrossed in a phone conversation with a friend. The woman signed for her package and turned to leave with it. As she did so, the agent whispered urgently into his phone and, suddenly, the mailboxes store turned into a scene straight out of the movies. Men in dark glasses, holding guns, burst in through the door, our agent behind the counter surged forward and, in no time, the woman was under arrest and her box was in their custody. Before he left, the agent explained that this woman was one of a group of people shipping some drug along the lines of PCP. Suffice to say, we were all pretty speechless and the most amazing thing of all? These guys worked for the US Postal Service. Yes, those folks who will let “Neither snow nor rain nor heat…” keep them from delivering your mail will not let crime hang out in their system either.

The United States Postal Inspection Service, founded by Benjamin Franklin, is the primary law enforcement arm of the US Postal Service and one of the oldest federal law enforcement agencies in the United States. Their goal is to protect against those who  “attack our nation’s postal system and misuse it to defraud, endanger, or otherwise threaten the American public.” You would be amazed how many criminals use the postal service as a conduit for perpetuating their crimes (using services such as UPS and FedEx for crimes that cross state lines is also covered by these laws). When Charles Ponzi was arrested for taking people’s money in a giant fraud that came to be known by his last name, the Ponzi Scheme, he was arrested by the US Postal Inspection Service because he had used the mail system to write to his investors, encouraging them to reinvest their funds.  He was charged with and went to jail for mail fraud.

If a person sends you mail in order to ensnare you in some kind of scam, to make an illegal delivery or to otherwise commit a crime, that is mail fraud. Conversely, if someone has scammed you and you end up sending that person money or some other item of value, that too is also considered mail fraud and that person can be prosecuted for it. Since a lot of mail fraud involves financial schemes, the work of financial forensics experts is quite important in the crime fighting work of the US Postal Inspection Service. If, for example, a person were running a pyramid scheme that involves people mailing in funds to invest in the scheme, a forensic accountant would be needed to track and follow the money trail and build a case against the criminal carrying out the scheme. Also, say you received a solicitation to send money to a fake charity and you sent payment in the mail. A forensic CPA’s skills would go a long way in exposing and putting a stop to the bad deeds of the fake charity.

The US Postal Service provides a very important service. It is well known that stealing mail is a federal crime but few realize just how far the US Postal Service and its law enforcement agents go to maintain the integrity of the postal service. Much trust is placed in those blue boxes and this is because of the work of these agents.

Tagged , , , , , , , , , , , , ,

All Over This One

Image

In the United States, bribery of a public official is illegal. Public officials, on a state, local or national level, tend to hold a lot of power. It would not be right to allow those among us with deep pockets to use the contents of said pockets to get unfair benefits, such as no-bid contracts, tax breaks and “get out of jail free” passes. In 1977, the Foreign Corrupt Practices Act (FCPA) made it illegal for U.S. persons, companies and their subsidiaries to bribe foreign government officials. The FCPA was further amended in 1998 to apply to foreign people and companies whose payments pass through the United States. The FCPA also applies if a foreign party authorizes a bribe via an email that is stored on a server in the United States. It is a far-reaching law with two main provisions – an anti-bribery provision that is generally enforced by the U.S. Department of Justice (DOJ) and accounting and record-keeping provision that is generally enforced by the Securities and Exchange Commission (SEC).

A huge incentive to not violate the FCPA is the severity of the punishment. The criminal and civil fines for violating the FCPA apply to companies and individuals alike. Companies can be fined up to a maximum of twice the benefits sought by the bribe. For individuals, fines can be up to $5 million and 20 years in jail. Fines and jail time can apply for either the corrupt payment or violation of the books and records provision. In addition to the fines, companies may also receive sanctions such as the loss of export licenses and disqualification from U.S. government contracting. For example, in 2008, Siemens was fined more than $1.3 billion by the DOJ, the SEC and German regulators and, more recently, Walmart is under investigation for bribery of officials in Mexico, China and elsewhere.

To avoid the fines and jail time, individuals and firms must comply with both provisions of the FCPA. The first, bribery, seems straightforward but I shall go over it so we are clear.

  1. Do not make payments to public officials in order to get special favors. An officer at state-owned entity is also considered a public official. It is safest, and ethical, to not pay bribes to anyone. However, be mindful of the fact that bribes of public officials will get you into the most trouble.
  2. If you invite public officials on a trip to show off your business or to a conference, do not throw in extras, such as a trip to Disneyland for their family. Keep it all above-board and about business.
  3. “Gifts” such as watches that costs thousands of dollars or a suitcase of cash are taboo.
  4. Payments related to the political campaigns of foreign governments are also not allowed.

The accounting provisions are where the forensic accountant is very active, working for both the companies and for the DOJ and SEC. Corporations covered by the FCPA are required to make and maintain books and records that accurately and fairly reflect their transactions and to devise and keep a sufficient system of internal controls. This is so that government agencies inspecting the books and records of the corporation will be able to easily see that the corporation is in compliance with the anti-bribery laws. The controls are so that the employees of the corporation do have the opportunity to commit fraud or bribery. When companies and individuals are paying bribes to public officials, it is highly likely that they will try to hide these transactions in their ledgers so they are not immediately identifiable as illegal transactions.

Companies with international operations will often have a department that review the books and internal control systems to ensure that they are complying with FCPA provisions. From time to time, the company may call in a forensic accountant to perform an internal investigation. This may happen either because the company suspects that untoward behavior has occurred or as a periodic review of their books and systems.

The DOJ and SEC will also employ the services of forensic accountants when they investigate companies and individuals that they suspect of violating the FCPA. When cases like this happen, there will be forensic accountants working for both the government agencies and the entity being investigated. In addition to discovering whether or not bribery has occurred, the company and the government agencies seek to determine the extent of the violations and determine the value of the gains realized and, therefore, the fines and other penalties to be levied by the government and avoided by the corporation. These investigations can be very extensive and span several continents, depending on the size and reach of the corporation. Financial forensic experts are instrumental and very involved in these investigations, tracing payments and working diligently to find what the corporation has tried to hide both on and off its books.

Often, an element of a FCPA settlement is the appointment of a multi-year monitor. This happens after the investigation and is an area where forensic accountants can use their expertise to examine the company’s control environment and record-keeping and assess the progress the company has made toward compliance with the law.

In recent years, the DOJ and the SEC have become very aggressive about enforcing the FCPA. In addition to this, other nations have enacted their own anti-bribery laws; the U.K. Bribery Act of 2010 has been in force since July 2011 and criminalizes bribe payments to private individuals as well as government officials. Also, there is more and more international cooperation in the investigation and enforcement of this law. Through it all, the work and expertise of financial forensic experts are extensive and vital. A lot of big firm lawyers think of the FCPA when they think of forensic accountants. It is indeed one of the many places you will find the financial forensic expert.

Tagged , , , , , , , , ,