What happens when corporate executives do bad things? This blog has covered law enforcement actions that usually involve low-level employees, workers, or technicians that have committed identity theft and fraud. Do senior-level (also known as C-Suite) corporate executives or owners of businesses experience the same consequences when caught?
One answer to this question is in the courts. I didn't have to look far with Google.com to find court cases.
In U.S. v. Abdelshafi, the owner of a medical transportation company was convicted of submitting fraudulent health care billing claims and aggravated identity theft after using patients' medical information to submit fraudulent bills for trip services that never happened. The CCH Healthcare publication reported about a January 2009 court decision about then length of the owner's court sentence:
"The transportation company contracted with a HMO to provide medical transportation services to Medicaid patients... It was discovered that the owner of the transportation company submitted claims with substantially inflated mileage amounts and also claims for trips that did not occur, enabling the owner to collect at least $303,329 in fraudulent payments... The Court of Appeals for the Fourth Circuit noted, however, that while the owner did have the lawful authority
to use the identifying information for proper billing purposes, he did not have the lawful authority to use Medicaid patients' identifying information to submit fraudulent billing claims... U.S. Sentencing Guidelines provides that an individual's offense level should be increased by two levels if the individual abused a position of trust that significantly contributed to the commission of the offense... The owner abused the authority of his position by misusing the Medicaid patients' identification information to file fraudulent claims for payment. Therefore the sentence enhancement was proper."
Then, there's this case from BenefitsLink.com about an employee who stole another employee's identity and then used that identity information to steal money from the victim's 401-K retirement account. While the criminal was not a senior level executive, the case includes identity theft and 401-K retirement account fraud:
"A former employee of a Kansas City, Mo., gaming casino was sentenced to one year in federal prison and three years of supervised probation after completion of her prison term. Dana Wachter also was ordered to make approximately $38,000 in restitution stolen from a co-worker... Wachter was sentenced June 29, 2009 in U. S. District Court for the Western District of Missouri. She was
indicted in June 2008 on one count each of aggregated identity theft, mail fraud and theft... The indictment contends that, in March 2007, Wachter used her co-worker's social security and personal identification numbers to authorize an $18,000 distribution from her co-worker’s 401(k) account. Wachter is further alleged to have used the mail to steal a distribution check and forged the participant’s signature on the check."
To find more white-collar crime, one doesn't have to search far. I decided to broaden my searches for cases that didn't necessarily include identity theft. The U.S. Attorney Office in Nebraska published this news release involving a C-Suite executive:
"On March 3, 2009, the Honorable Judge Laurie Smith Camp sentenced Marilyn Adams, 66, of Omaha, Nebraska, to a term of 12 months in prison followed by 3 years of supervised release... Adams was indicted in April of 2008 in a two count indictment alleging that a nursing staffing business she formed, AMS Healthcare Services, withheld monies from the paycheck of its employees for purposes of making contribution to a company sponsored 401K program through Hartford Life Insurance Company. Adams, along with her son, Jeffrey Adams, withheld $111,136 dollars with the promise of forwarding those funds to the Hartford Life Insurance Company. Marilyn Adams, as the company president and plan administrator was required to file forms with the Department of Labor documenting funds withheld and transmitted to the 401K plan. Judge Smith Camp ordered Marilyn Adams to pay restitution in the $111,136 dollar amount to the 39 former employees from whom she stole."
I'll bet that those 39 employees felt they had been mugged when they didn't see the contributions to their 401-K accounts while the company deducted money from their paychecks.
Then, I visited the the U.S. Department of Labor (DOL) site to see what else I could find. The DOL site publishes summarizes of the court cases -- both civil and criminal -- it prosecuted during the past year, and the money collected. The agency's March 2010 Fact Sheet reported:
"... in Chao v. Gene Shawn Group, et. al., the U.S. Department of Labor obtained a Consent Judgment and Order. The Consent Judgment requires defendants Young Jin Lee and Juliette Lee, owners of the Gene Shawn Group, LLC dba A-Q Dental Laboratory (Company), to repay $32,587, including interest, to the A-Q Dental Laboratory 401(k) Profit Sharing Plan. The Consent Judgment holds the Lees responsible for restoring any losses remaining after the conclusion of the Company’s bankruptcy proceedings. Additionally, the Lees were permanently enjoined and restrained from future service as a fiduciary of, or service provider to, any ERISA-covered plan. The Department alleged that the defendants
violated ERISA by failing to remit employee contributions, employer matching contributions and loan repayments to the plan."
Here's one of several criminal cases summarized in the Fact Sheet:
"... Mark Harrington was sentenced to 2 years imprisonment, 24 months probation, and ordered to pay restitution of $349,870. On April 14, 2009, Mark Harrington pled guilty in the U.S. District Court for the District of Massachusetts to embezzlement from an employee pension fund. Mr. Harrington had been the Vice President and Controller at Anchor Capital Advisors, LLC and in this position he also acted as the Plan Administrator for the Anchor Employees' 401(k) Plan (Plan)... As the Plan Administrator, he directed the custodians of the Plan's assets to make distributions totaling $386,711.70 to various fictitious entities. At the same time, he employed the services of a relative to establish bank accounts at different banks in the name of these fictitious entities and to deposit the distributions into those bank accounts. Harrington used the stolen funds to buy a home, a Cadillac Escalade, breast implants, jewelry and other items."
Another summary:
"... in Chao v. Craig Wagner, the U.S. Department of Labor obtained a default judgment ordering Concrete Construction Co. of Acworth, Georgia, and its president, Craig Wagner, to restore $11,672 in employee contributions, employer contributions, and interest to the company’s 401(k) plan. The Department alleged that the defendants violated the Employee Retirement Income Security Act (ERISA) when they withheld employee contributions to the plan and illegally commingled the contributions with the general assets of the company..."
The fact sheet also published statistics about the agency's performance. In 2009, the DOL closed 1,042 civil cases of which 87% (910) included violations, and closed 64 criminal cases of which 52% included criminal indictments -- both totaled about $17.9 million.
The fact sheet also includes historical agency performance. In 2007, the agency prosecuted cases with judgments totaling more than $51 million. In 2004, the agency closed almost 1,600 civil cases. In 2003, the agency the judgments totaled more than $135 million. That's a lot of money. That's a lot of crime.
This fact sheet was a good read. C-Suite executives seem to receive similar consequences as lower-level employees.
The historical statistics indicate to me that there is (and has been) a significant amount of crime by people usually in a position responsible for employee 401-K retirement plans -- often C-Suite executives. I could have listed more court case summaries, as I found more cases involving medical identity theft.
After reading these court summaries, I can only imagine that the C-suite executives in these cases were arrogant and felt entitled to use other peoples' money as if it was theirs to use as they please. I'd like to congratulate the DOL Employee Benefits Security Administration for those achievements. I look forward to reading the agency's fact sheet in 2011 about its accomplishments during 2010.
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