Democracy Is Not the Only Thing That Dies in Darkness. Consider Lawsuits with Undisclosed Settlements.
The (perhaps) fatally wounded Washington Post still has, as a motto under its title, Democracy Dies in Darkness. Those words have never been more true than they are today, as the billionaire class pulls more, and more, of the levers that control nearly everything we see, hear, and read.
My complaint is more specific though, and has to do with the aspect of truths quite legally withheld from the American public.
A harm is done, sometimes a great harm.
The usual recompense for we less wealthy members of society, having caused such harm, is imprisonment, monetary penalty, cessation of the cause, probation, or a combination of any of these.
Unless.
And the ‘unless’ is usually the offer of money, gobs of money, enough money to bribe the accuser sufficiently to settle the claim, or suffer the usually years-long costs of endless appeals. We have a sitting president whose threat of endless appeal was a central business plan (and still is).
Okay, I understand that. It comes under the ‘monetary penalty’ solution offered above. So far, so good. However, when that offer is so generous as to silence the accuser, and deny the public knowledge of its terms, I must assert that the law itself is in someone’s pocket.
Not your or my pocket, but those from deeper pairs of pants.
Looked upon from a moral perspective, and depending upon the circumstances, undisclosed settlements are a finger in the eye of jurisprudence.
I admit having had to fish around for the exact eye that finger was in. And ‘jurisprudence’ is not all that familiar a term, and wouldn’t have occurred to me in common conversation. But it fits quite perfectly: “The branch of philosophy concerned with the law and the principles that lead courts to make the decisions they do.”
An example I find appropriate is the terms of a divorce, certainly not the powers of government. Marriage itself is wildly complicated for me, and the specific terms of its dissolution is nobody’s damn business.
But (and you knew I was hiding a ‘but’ here somewhere).
Since Bayer’s acquisition of Monsanto in 2018 (largely to shift liability elsewhere), it’s been involved in quite spectacular litigation related to Monsanto products. In 2020, Bayer paid over $10 billion to settle lawsuits involving the glyphosate-based herbicide Roundup™.
An explicit no admission of liability or wrongdoing clause by Bayer was part of that agreement. Coughing up ten-thousand-million-dollars seems, in itself, an admission of liability (else why spend it?) and ‘no wrongdoing’ is laughable on its face. Yet, those were the terms agreed upon by a judge.
This, from a company that has celebrated the production of such chemical terrors as Agent Orange (if we can’t find the enemy in Vietnam, why not simply defoliate and partially depopulate the entire nation?). Monsanto has been involved in several high-profile lawsuits, as both plaintiff and defendant. It was defendant in a vast number of lawsuits over health and environmental issues related to its products.
Nothing half-vast about Monsanto.
The company that Bayer bought, hoping to leave Monsanto’s criminal past in the rear-view mirror, also made frequent use of the courts to defend its patents, particularly in the area of agricultural biotechnology. Since Bayer’s acquisition of Monsanto in 2018, Bayer has been involved in litigation related to such ex-Monsanto products as glyphosate, PCBs and dicamba.
Agricultural biotechnology, by the way, is a confusingly safe-sounding catchword.
It lies in wait behind why we have disappearing bee populations, as well as those soil inhabitants such as earthworms and field mice that are currently so absent from the food chain. Flying insects are gone as well. All you need is a clean windshield after an evening drive, to make that case. I well remember the days when I stopped in a gas station, not to buy gas, but to de-bug a splattered windshield.
The result of all this confabulation is that, even though both the law and common sense indicate the worldwide damage of these products is real, and a threat to the environment, they remain on the shelf for consumers.
How much have Monsanto and Bayer paid thus far in ‘settlements’?
During gathering storms and decades of litigation:
· Roundup-related settlements & judgments (to date) equal $10 to $11 billion.
· PCB environmental settlements, $.65 billion, plus unknown state deals.
· Regulatory/advertising penalties, a mere $9–$10 million, amounting to total known major payments (rounded) of $11-$12 billion. That’s eleven to twelve thousand million dollars, folks. So, one can but wonder if the Bayer Board of Directors actually knew beforehand the costs of its merger with Monsanto.
But there are important caveats: the above numbers don’t include every possible fine or judgements, such as smaller product safety or regulatory penalties over many years. It’s interesting though, that Bayer has reserved liability funds for ongoing or future litigation of an additional $12 billion so.
If I owned a well-trained hunting dog, I’d be out there sniffing the weeds.
So, if we assume (just for the hell of it) that Monsanto (now Bayer) is a major criminally liable company, why are they allowed to kill, maim, and cause birth defects in Vietnamese children, born three generations after the war has ended?
Law, it seems, is no protection against regulatory misdeeds.
The short answer is, because U.S. regulatory law is structurally tilted to protect corporations from accountability rather than the public from harm. Monsanto learned how to exploit that system better than almost anyone.
While you and I were concerned with the ordinary daily events of our lives, our government was out there conniving. Acting in secret against our best interests, whipping up a structural tilt. Dying in darkness, while we slept.
Who’d a thunk it?
The federal agencies meant to police companies, are often staffed, funded, and culturally aligned with them. Say what? My police department is staffed, funded, and culturally aligned with my town, but it’s supposed to ticket speeders, and jail ‘em if they kill someone.
The Environmental Protection Agency (EPA) relies heavily on industry-supplied studies to approve chemicals. Really? According to their Website, EPA works to ensure that: 1) Americans have clean air, land and water; 2) National efforts to reduce environmental risks are based on the best available scientific information; 3) Federal laws protecting human health and the environment are administered and enforced fairly, effectively and as Congress intended; 4) Environmental stewardship is integral to U.S. policies concerning natural resources, human health, economic growth, energy, transportation, agriculture, industry, and international trade, and these factors are similarly considered in establishing environmental policy; 5) All parts of society--communities, individuals, businesses, and state, local and Tribal governments--have access to accurate information sufficient to effectively participate in managing human health and environmental risks; 6) Contaminated lands and toxic sites are cleaned up by potentially responsible parties and revitalized; and (finally) 7) Chemicals in the marketplace are reviewed for safety.
Did I miss something there?
The EPA claims you and I have access, even though they hide the details; that they stick to scientific methods, even though Monsanto (and Bayer) executives and lawyers routinely move into regulatory posts (and back again), a classic ‘revolving door.’
And here’s the key to undoing all the claims:
EPA regulators (those same dudes whipping in and out of the revolving doors) are legally required to consider ‘economic impact,’ which shifts the burden away from public safety and toward corporate viability, on little cat feet. Result? Approval becomes a negotiated outcome, not a safety determination.
And, if Jeff Bezos decides that it’s okay for Democracy to Die in Darkness, all he need do is shut off the lights at the Washington Post. Which he has done, and continues to do, as Ben Bradlee’s once iconic newspaper dies…victim of its owner bending a self-serving knee to Donald Trump.
Watergate (and Richard Nixon) were victims of relentless Washington Post reportage.
The demise of this great American newspaper has fallen victim to its owner’s relentless slash and burn destruction of that reportage, in the service of personal advantage.
To paraphrase what Winston Churchill once said about Neville Chamberlain; “’You were given the choice between saving a newspaper and dishonor. You chose dishonor, and you will lose an iconic paper.”
Jeff doesn’t care.
I care, and I very much hope you care…