Last week, federal prosecutors in New York decided not to criminally
prosecute WorldCom/MCI for an $11 billion fraud. This represents a travesty
The government's response to the largest corporate fraud in U.S. history
has been grossly inadequate and fundamentally misdirected.
WorldCom/MCI engaged in a concerted program of manipulation over three years
by which it fraudulently manufactured $9 billion in income, making victims of
investors, pension funds and every honest company struggling to survive the
As a result of the WorldCom/MCI fraud, investors lost roughly $175
billion -- more than three times the losses in Enron.
WorldCom/MCI 's brazen scheme dramatically deepened the crisis of confidence
in corporate America, imposing incalculable costs across the country.
While the Securities and Exchange Commission (SEC) and the Justice Department
have focused on pursuing individuals who perpetrated this crime, the government
seems poised to allow WorldCom/MCI as a company to escape with the fruits of
its unlawful conduct.
The core mission of our justice system is to ensure that "crime does not
pay," and the core mission of our securities laws is to ensure that securities
fraud does not pay.
When individuals commit crimes, they are not only punished but also compelled
to surrender the benefits gained from wrongdoing.
Likewise, when a business engages in crime that produces illicit advantages,
it is axiomatic that -- whatever individual punishment is meted out -- the company
itself cannot be left in a position to profit from those ill-gotten gains.
In WorldCom/MCI's case, the fraud was so massive that a significant part of
its business -- its assets, customers and market position -- are the fruit of
Imagine two competing trucking firms.
One is an honest business, leasing trucks and making payments on time.
The other is a criminal enterprise, which acquires its trucks through theft
and uses this illicit advantage to steal business from the honest firm.
There are two classes of victims -- those whose property is directly stolen,
and those whose businesses are injured by the criminal enterprises illicit advantages.
What must the government do to right this wrong?
Obviously, the individuals who stole the trucks should be punished, but just
as obviously this alone does not remedy the offense.
If new management is simply allowed to take over the corrupt company, keeping
and using stolen trucks, the law-abiding competitor will still be a victim.
It will lose customers and profits, not because it was beaten in the marketplace,
but because it must compete against an enterprise built on criminal activity.
So too with WorldCom/MCI.
It is no overstatement to say that WorldCom/MCI would be a valueless enterprise
but for its fraud.
None of the arguments that have been made on WorldCom/MCI's behalf warrant
Some have asserted that WorldCom should be spared enforcement because it is
a major supplier of important services to the government, including services
important to law enforcement and national security, that it is "too big
Others have lamented that liquidation would put WorldCom/MCI employees out
This is a red herring.
The issue is not whether the business continues to exist, or whether the government
will still be able to obtain critical services.
It is whether the ongoing business has the cost structure of an honest enterprise
or a criminal enterprise, and whether the government obtains services from vendors
who fairly compete, or instead seeks to cash in on the crime by effectively
serving as a "fence" for stolen goods.
WorldCom/MCI apologists also claim that the company deserves leniency for cooperating
with the government's investigation.
But cooperation cannot trump the numerous other factors that dictate action
against the corporation in this case, including the crime's unprecedented scale,
its brazen nature, its catastrophic impacts, the involvement of senior officials,
and the unscrupulous corporate culture that bred these offenses.
WorldCom's cooperation results from necessity, not from probity.
The crime here was so egregious that the company had no choice but to cooperate.
If this kind of "desperate cooperation" were rewarded with a pass,
the most brazen criminals would go scot-free, while those with the temerity
to raise a legitimate defense would suffer the harshest punishment.
This result cannot be squared with any rational concept of justice.
In any event, law enforcement gives greatest weight for cooperation when it
helps to snare a bigger fish.
Here there is no bigger fish than WorldCom/MCI.
Wait a second.
Except for the first paragraph, that wasn't us writing.
That was William Barr, executive vice president and general counsel, Verizon
Inc. (and former Attorney General of the United States) in a March 19, 2003
letter to the Securities and Exchange Commission calling for the death penalty
for WorldCom, then a competitor to Verizon.
Next month, Verizon shareholders will vote on a proposed merger with MCI, the
new name for WorldCom.
We assume Barr has now changed his mind and agrees with the U.S.
Attorney in New York that MCI should not be criminally prosecuted.
But he did not return our call seeking comment.