Studying The Phoenix (Aus)

Quantifying Phoenix Activity: Incidence, Cost, Enforcement” was published this month by Melbourne Law School.  Phoenixing and similar behaviour is a serious problem for corporate crime investigators and prosecutors, especially when dealing with small companies.

The GFC Perps That Got Away (USA)

Bernie Sanders said this week, “One of the biggest mistakes our government made after the financial crisis was not prosecuting the people responsible.”  I assume he meant flesh-and-blood individuals.  It’s a hot topic at the moment, what with the recently published Yates Memo.  Update: see also, former chairman of the Federal Reserve, Ben Bernanke’s comments in November 2015 that he would have liked to have seen individuals prosecuted while his bailout packages were implemented.

And Another Thing – Did ExxonMobil Commit Serious Fraud? (USA)

In other Bernie Sanders news, he sent this letter to Attorney General Loretta Lynch, seeking an investigation into whether Exxon and other oil companies committed corporate fraud by deliberately misleading the US public about dangers it knew were posed by its burning of fossil fuels. Update:The New York attorney general is investigating whether ExxonMobil misled the public and investors about the dangers and potential business risks of climate change…”

ASIC’s Annual Report (Aus – criminal)

ASIC’s Annual Report for 2014/15 reveals it achieved criminal penalties of $10,000 (not including 355 summary, strict liability prosecutions) and civil penalties of $19 million.  What does that say about the responsive regulation pyramid? Does the civil pecuniary penalty regime represent a bigger or more meaningful threat to corporations than criminal prosecution?

NABbing Debts The Wrong Way (Aus – regulatory)

ASIC identified that National Australia Bank was sending debt collection letters that may have been unconscionable.  NAB has voluntarily changed its procedures and ASIC is not taking enforcement action.

Sentencing Options For OHS Offences (Aus – criminal)

Queensland WorkCover made comments this week about the value of non-fine penalties in sentencing OHS offenders.

Queensland OHS Investigators To Have Broader Powers of Entry (Aus – criminal)

Queensland OHS legislation was recently amended; changes include allowing “WHS entry permit holders to enter a workplace immediately if they suspect a contravention has occurred … removing the requirement to provide at least 24 hours’ notice of entry”.

Banks Wouldn’t Take Your Money Without Permission, Would They? (Aus – regulatory)

Following an “ASIC Surveillance”, Westpac “will write to more than 10,600 insurance customers and will offer to refund any premiums paid for insurance cover they did not need. Westpac charged customers for loan protection insurance while the customer did not have a loan on foot and where the customer did not intend to be covered for that period.”

The Commonwealth Bank of Australia, meanwhile, reported its own over-charging of customers to ASIC, as it is required to do when it becomes aware of such a breach.  It is now refunding over $7M to affected consumers.

How Did The Light Handed Regulation Of Monopolies Become No Regulation? (Aus – regulation)

ACCC Chairman Rod Sims gave a speech with the above title to the Gilbert + Tobin Regulated Infrastructure Policy Workshop this month.  “I would like to suggest that the current interpretation of light-handed regulation of monopoly infrastructure, which in essence has come to mean price monitoring, is not only ill-conceived in economic theory, it has failed in practice.”  He made other comments about competition regulation at the 13th Annual Competition Law and Economics Workshop in Adelaide.

Unconscionable Conduct Case Commenced Against Unique International College (Aus – civil)

The ACCC, NSW Fair Trading and the Commonwealth have filed proceedings in the Federal Court against tertiary education provider Unique International College Pty Ltd, alleging misleading, deceptive and/or unconscionable conduct, and seeking a broad range of orders, including pecuniary penalties.

The Trouble With Environmental Crime (International – criminal)

INTERPOL publised “Environmental Crime and its Convergence with Other Serious Crime” this week.  It notes: “In 2015, INTERPOL conducted an internal review of all operational activities undertaken in response to pollution, wildlife, forestry and fisheries crime.  In conducting the review, it became apparent that a significant challenge facing the ability of law enforcement and environment authorities to stop environmental crime is the complexity associated with other crimes types that are also involved.  This includes challenges arising from the fact that, in many cases, enforcement agencies are not always dealing with a  breach of national or international laws specifically in relation to environmental crime.  Auhorities often find themselves dealing with criminals who have committed other offences such as those relating to murder, money laundering, tax evasion, corruption, piracy, forgery, corporate fraud, and the trafficking of drugs or firearms – but with the primary driver being the exploitation of the environment.  The picture is further complicated when these cross-over offences occur transnationally, sometimes covering multiple jurisdictions and under different legal frameworks.”

Syringes on Hawaiian Beaches (USA – criminal)

Waste Management of Hawaii Inc was sentenced to pay a $400,000 fine for its failure to install stormwater diversions required by its permit.  The failure led to the discharge of “pollutants” – items from landfill, including medical waste – into the waters around Hawaii, some of which washed to shore.  Mmm, just what you want on your summer holiday, a swim in refuse.

And Now For Something Completely Different (Aus)

Elizabeth Farrelly used her latest column to implore workers to maintain their morals in the workplace: “The new “professionalism” allows Federal Energy Minister Josh Frydenberg to pretend that approving Adani’s massive Galilee Basin coalmine on Aboriginal land was a moral act, notwithstanding the devastation Adani has already wreaked in India…It also allows people like Diane Smith-Gander, chairman of Transfield Services … to say of her visit [to Transfield Services’ Nauru and Manus Island detention centres]; “the strongest emotion I had was a real sense of pride in the work that the company and the individual Transfield employees are doing”.”

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