The KPMG tax shelter saga has been a common topic on this blog over the past year or so, and this recent post observed that — even if KPMG fades a criminal indictment — it is by no means clear that the firm will be able to survive the after-effects of entering into a deferred prosecution agreement to settle the criminal probe.
Along those lines, Peter Henning passes along this extraordinary open memorandum that nine anonymous (and frustrated) current and former KPMG partners recently sent to several media outlets, the Justice Department and the KPMG board. The memo describes in detail the demoralizing effects of KPMG management’s moves to avoid a criminal indictment at all costs and the devastating impact that the Justice Department’s criminalization of agency costs has had on KPMG. Indeed, the memo outlines a number of the adverse effects of criminalizing agency costs that have been noted here, such as the following:
Bludgeoning employees into plea bargains;
Criminalization of conduct that is not even clearly improper in a civil context — much less criminal — through “indictment via media” (also here);
Serving up sacrificial lambs and firing key partners who were simply doing their jobs;
The cost to owners of rolling over in the face of the investigation as opposed to standing up and fighting it; and
The high price of “cooperation” and the illusory attorney-client privilege.
Interestingly, the authors of the memo believe that KPMG can absorb the financial impact of a hefty fine and damage awards resulting from civil litigation over the tax shelters, but are less sanguine about the prospects for KPMG’s survival because of the damage to partner morale resulting from management’s handling of the tax shelter probe.
Extraordinary indeed. It’s as if I’m reading a document collected by someone studying a totalitarian regime of old, and its methods. But, I must quickly remind myself, this is America. The similarity is just a by chance. Right?
I cannot fathom why no one of the news media to which “The Memo” was addressed have failed to investigate and report on it: I thought it rather “huge” in what it describes and exposes. Why can’t some reporter take this whole story (which we know has been played out elsewhere!) and run with it? Why is there no outrage?
To Anonymous KPMG partners- I hope you are right that many will stand to testify on behalf of those individual partners indicted and if the firm is indicted, many will testify for the defense. The rest of the “not”brave and “not-so”new world of DOJ bludgeoning and criminalization of business tells us that that will not happen. I’m sorry to say it but the pattern tells us that all will hide and those who are the unlucky ones who drawn out and chosen by the DOJ will likely plea bargain which includes testifying for the government against anyone the DOJ chooses. If you can’t help them convict someone, then you don’t get a deal- Get It? As you have figured out- at this level and with this level of complexity which require expensive expert testimony, it has become a business decision of whether you can afford the millions to properly defend yourself- (and for most that means financially devastating your families or getting a cut rate defense)and in addition to that, to risk the rest of your life in prison- in order to live up to your religious and personal ideals. Very sadly, the answer for most is -No, I can’t risk that.
I hope your efforts to reach some sane,knowledgeable and influential audience is successful although I doubt your letter to the DOJ hierarchy was worth the postage stamp. I hope I am wrong. I hope your efforts bring about some change from the current path for your associates and for your firm. By the way, more people need to be aware that the firm saves themselves by handing over their people. If there is not a strong enough case for DOJ prosecution, the firm, and other public corporations (think AIG, Dynegy and other “highly cooperative” companies), benefits from helping build one- it is easier to create then you may think it is. When combined with the awesome power of the DOJ and prosecutors who are willfully blind to strong cases of innocence, this is basically a very dangerous time to work for any public company but especially one whose upper tier management is so devoid of the integrity that your group is trying to demonstrate. Best Wishes-
KPMG
Tom Kirkendall continues his coverage of KPMG’s negotiations with the government and the problems of criminalizing ahency costs. Good read.
The criminalization of agency and other fine phrases
Vic discusses a post by Tom K, linked by Steve Bainbridge, concerning the KMPG tax shelter investigation. Vic objects to their use of a phrase I seem to have invented, criminalization of agency costs. He points out that ìtax fraud
The Price of Cooperation
As president, talking to the board is likely part of your job description. But “cooperation” with an investigation? That may be another matter.
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