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Gagging For It -> NDAs & the Engineering of Consent

The Smell of Non-Disclosure in the Morning

You may have noticed the rise of Corporate NDA culture, mainly comprising of gagging orders, confidentiality agreements, non-compete clauses, injunctions and even superinjunctions.

This matters. Especially in a so-called free society.

Trade Secrets

If you see something at work that your company relies on to make its money, this could be defined as a trade secret.

That is what Non Disclosure Agreements (NDAs) are supposed to be for.

If you sign one, you can’t talk about what you know.

E.g. the formula for Coca Cola or a design for a building or a new piece of technology.

There are supposed to be exceptions – if something criminal is going on, then technically you can break the NDA.

But in reality, few people do.

For fear of reprisals.

Having to pay back the money.

Being made homeless or losing one’s family.

Corporate Criminality is very hard to prove and few whistleblowers tend to know their rights, so large scale corporate criminality often goes unchecked.

Top Spin

In the following case a tumble dryer manufacturer is gagging its own customers to prevent them from telling the world the manufacturer sold them tumble dryers that catch fire.

In America victims of fracking have complained that flammable gas comes through their taps due to changes in the water table.

Many were gagged.

But these aren’t trade secrets. This is inconvenient truth.

For large corporates, it’s reputational risk.

The risk that fewer people will do business with you because you’ve taken short cuts on health and safety.

They’re effectively defrauding investors, consumers, the general public, the press, regulators, the government, and other people and entities with whom they do business.

News is what a chap who doesn’t care much about anything wants to read. And it’s only news until he’s read it. After that it’s dead.

Evelyn Waugh

News is something somebody doesn’t want printed; all else is advertising.”

Randolph Hearst

I Never Argue with a Man Who Buys Ink by the Barrel

Anon.

In the banking industry, victims of bank fraud are frequently gagged by the bank after having been defrauded.

They typically accept such conditions to be allowed to access a sum equal to just a small fraction of the amount of money that the bank will have stolen.

(I’m not using any names here so I think I am on safe ground!)

Here is the Mail piece on Tumble Dryer NDAs.

Note the use of “Stay silent or” in the box on the right.

Engineering of Consent

Hollywood producer Harvey Weinstein famously gagged many of his victims and his own secretary (using London-based law firms) to protect his reputation.

Was the delivery of sexual assault, in pure business terms, an essential part of the business model?

How else could you justify covering up rape as a trade secret?

If a film producer’s reputation is treated as non-tangible “Good Will”, “Intellectual Property” or even a “tradeable asset” then it follows that an organisation will want to leverage its assets and trade on its perceived value.

I am not saying that NDAs for sexual violence are morally acceptable, but under the guilt-free, shame-free, profit-maximising psychopathic conventions that govern corporations, such behaviour makes perfect sense.

By protecting the “Brand” you protect the shareholders, which you are legally obliged to..

So in the case of Weinstein hiring ex-Israeli Military intelligence investigators Black Cube to go after rape victims, this would have just been his company checking up on a few routine compliance matters.

It’s where the free market logic takes us.

Using the idea of information as a tangible, legal, biological unit that can be deployed to one’s favour or detriment, the metaphor takes on a new potency.

Kelly Bachman called out Harvey Weinstein https://www.theguardian.com/culture/2019/oct/30/kelly-bachman-comic-harvey-weinstein-rape-jokes

Here is the original Edward Bernays article entitled Engineering of Consent:

Engineering_of_consent

Now that elections have been announced in the UK, we can expect a lot more skewed reporting with a sprinkling of strategic silence.

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News

Mick Mulvaney & Emotive Conjugation

Lance Armstrong just settled a “$100m fraud suit” in the US, according to reports . He could have been forced to pay out $100m for having defrauded his team’s sponsor, the US Postal Service, but instead settled for $5m.

His former team-mate Floyd Landis also doped but testified against him and will receive $1.1 million and have his $1.65 million legal fees paid by Armstrong.

Washington Post Washington Post

This case highlights the contradictions in the US system, whereby a perpetrator of criminality can receive a payoff instead of a jail term.

The Swiss and US Authorities seem to be the busiest, but in opposite directions. This case is from 2012:

And in this case, under the Trump administration, the US authorities took the whistleblowers to court in order to try and get out of paying them.

 

The UK just announced a funding increase for its Serious Fraud Office (SFO):

Today is its leader, David Green’s last day. No replacement has been announced. The political uncertainty over the identity of agency’s next boss reminds me of the permanent shambles that is Child Sexual Abuse Inquiry and, more recently, of what is happening in America at the Consumer Financial Protection Board (CFPB).

The CFPB was set up by the Wall Street friendly Obama administration to help consumers after the financial crisis:

It’s now being led by Trump stooge Mick Mulvaney who is also in charge of the Office of Management and Budget where he is overseeing the dismantling of the US budget and regulations. Mulvaney is only acting head of the CFPB but it looks like his he is already taking all the steps he can to destroy it.

 

 

 

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Flagrant Contempt of Parliament by Crony Capitalist Sir Howard Davies of RBS

Do we live in a truly decadent age?

Can anyone get away with anything?

These are questions I feel compelled to ask after watching just a few minutes of Howard Davies and Ross McEwan, of the taxpayer-owned Royal Bank of Scotland (RBS), giving evidence before last Tuesday’s Parliamentary Treasury Select Committee.

To not, as a society, vehemently question the goings on at these proceedings implies a collective post traumatic stress disorder following the 2008 crash that has robbed us of the dignity and empathy that we need to recover.

But recover we must. Current tolerance levels for corruption and injustice remain incredibly high and we all too often simply carry on.

Dialectic-as-a-service

 

Rushdie used to quote Kundera by saying that man’s struggle against the system was like the persistence of memory when trying to forget.

What happens when we can’t forget?

Madness is rare in individuals – but in groups, parties, nations, and ages it is the rule. Friedrich Nietzsche

What happens when powerful individuals are given platforms to defend corporate criminality while the rightful anger and people’s sense of injustice is segmented and siloed off to the point of non-existence, like the risk on a series of high risk collateralised debt obligations (CDOs) repackaged as Triple A reliable investments during good times only to re-emerge as toxic during the bad.

The risk and the anger never go away. They just get stored up for a later date. “They that sow the wind, shall reap the whirlwind”.  Some will wonder why no-one heeded the warnings. How the journalists are to blame just as much as the government and the bankers.

Maybe the warning signs are hidden in the business pages. As Harvey Cox says in The Market as God, the concepts in the business pages are theological. Redemption and Retribution. People getting away with stuff and others getting punished. Why does God permit it?  Nowadays we have PR people, Regulators, Central Banks, Blacklisted Whistleblowers and a growing number of unhappy customers.

If you kick off about this stuff, people ridicule you for making a big deal out of nothing, for being an anti-business Social Justice Warrior that knows nothing about the way of the world.

If the facts of life really are conservative then why make a fuss about anything?

Anyway, here’s that master class in how to carry out state-sanctioned cannibalistic, rampant Crony Capitalism in broad daylight — and get away with it.

Lots of innocent Small Business Owners have been asset stripped of their families, marriages, businesses and homes by the RBS Global Restructuring Group (GRG), and all many of them will get is this:

It is hard to see which features of Crony Capitalism don’t apply here:

Crony capitalism is an economy in which businesses thrive not as a result of risk taken for them, but rather as a return on money amassed through a nexus between a business class and the political class. This is done using state power to crush genuine competition in handing out permits, government grants, special tax breaks, or other forms of state intervention[1][2]over resources where the state exercises monopolist control over public goods, for example, mining concessions for primary commodities or contracts for public works. Money is then made not merely by making a profit in the market, but by profiteering by “rent seeking” using this monopoly or oligopoly. Entrepreneurship and innovative practices, which seek to reward risk are stifled, since the value-add is little by crony businesses as hardly anything of significant value is created by them, with transactions taking the form of “trading”. Crony capitalism spills over into the government, the politics and the media,[3] when this nexus distorts the economy and affects society to an extent it corrupts public-serving economic, political and social ideals.

The term “crony capitalism” made a significant impact in the public as an explanation of the Asian financial crisis.[4] It is also used to describe governmental decisions favoring “cronies” of governmental officials. In this context, the term is often used comparatively with corporate welfare, a technical term often used to assess government bailouts and favoritistic monetary policy, as opposed to the economic theory, described by “crony capitalism”. The extent of difference between these terms is whether a government action can be said to benefit the individuals rather than the industry.

Off with their heads. No questions asked.

But for some reason, the British sense of fair play perhaps, they remain.

But how long can this carry on?

Here are the rules on lying to Select Committees from a Parliament Document: 

So none of what is said in a select committee hearing can be relied upon in civil or criminal proceedings against anyone but attempting to mislead is Contempt of Parliament.

I’m still waiting for the full transcript of Davies and McEwan’s hearing to go up. I feel the people at Parliament are dragging their feet.

I’m realising that Howard Davies’s chiaroscuro can be found near pretty much every financial crime scene going. With previous like you wouldn’t believe.

McKinsey, Treasury, Seconded Special Adviser to Nigel Lawson when he was Thatcher’s Chancellor of the Exchequer, Bank of England, Head of the Audit Commission which is now defunct but was instrumental in overseeing Thatcher’s Privatisation and Denationalisation agenda including Fraud Investigation, the London School of Economics from where he had to resign because of his closeness to Colonel Gaddafi, and now he’s the Chair of the Fraud Machine that is the 71% taxpayer owned Royal Bank of Scotland.

Here he is on PFI. 

For more on how banks treat their customers, their staff, and the whistleblowers that speak out, follow Real Media, financial adviser Stephen Middleton, Bank Confidential,Kam Sandhu, Joel Benjamin, Ian Fraser, and Whistleblowers Mark Wright & Nicholas Wilson: