Then suddenly in one long sentence, Microchip slides down its abstraction ladder and exposes itself. “Our synergistic product portfolio empowers disruptive growth trends, including 5G, artificial intelligence and machine learning, Internet of Things (IoT), advanced driver assist systems (ADAS) and autonomous driving, and electric vehicles, in key end markets such as automotive, aerospace and defense, communications, consumer, data centers and computing, and industrial.”
Whoa! Many questions arise as I read on for elaborations of these “disruptive growth trends.” There is a list of products such as medical devices and smart meters containing Microchip’s chips and some mention of product lines, its outsourcing of much of its wafer fabrications and then it is on to SEC disclosure requirements about all boilerplate risks to their operations, whether real or hypothetical for some 19 additional pages. More pages about risks, micro-financial statements regarding subsidiaries, exhibits, consolidated balance sheets, income statements, and then detailed notes to these Financial Aggregations. The Report’s final pages end with ever more micro-data of interest to accounting specialists and the cautious SEC.
Company annual reports are obviously self-congratulatory. They, of course, claim they care for the environment, are in compliance with laws, and sensitive to their “human resources” otherwise known as their workers. But one would never know of any serious problems affecting their products that “empower disruptive growth,” the downsides of how these products are used in such new forays as little questioned 5G, unreliable autonomous cars and unlawfully launched weapons of mass destruction, plus the onrushing automation of all human life.
Nothing along these downstream lines concerns Microchip’s leaders who seem OK with ‘we’re just following chip orders.’ The SEC goes along by not requiring different qualities of disclosures and greater shareholder rights. After all, Microchip is only a chip and wafer dispensary, just like the earlier manufacturers of screws, nails, and adhesives. It is as if it is all only a difference in degree instead of major differences in kind for the human race and its exploited natural world.
Microchip knows far more than it is telling. Just like other companies in its industry. “Mums” the word. There are no reflections; it is only about dollars. The Annual Report is telling shareholders to just stick to their monetized appetites and watch the stock split, which makes them feel better along with their 1% dividend.
Not all companies leave their shareholders so deprived of their companies’ information and special forebodings. Publicly held firms such as Interface, Ben & Jerry’s, the early Body Shop, and former Midas Muffler, spoke to the wider ranges of corporate obligations beyond the bottom line.
However, most corporations, especially giants like Apple and ExxonMobil, want it both ways. They want to be viewed legally as “persons” to receive all the constitutional rights as do real human beings, in addition to their added immunities and privileges as enormous powerful artificial entities. Yet they then constantly behave as if they are just amoral (some would say immoral) entities sworn to only maximize profits for shareholders. Why then have the bosses stripped their companies’ owners of almost every power except to say yes to management?
Steven Donziger has been under house arrest for over 580 days, awaiting trial on a misdemeanor charge. It’s all, he says, because he beat a multinational energy corporation in court.
After spending more than 700 days under house arrest, a human rights and environmental lawyer was found guilty last month of criminal contempt in a legal saga that has demonstrated the deep-rooted conflicts of interest layered throughout the judicial system when it comes to climate justice. In Steven Donziger’s conviction, the initial judge who referred him to trial, the second judge who was asked to lead the trial, and the private prosecutors who tried him all had deep ties to Chevron, the company Donziger had won a landmark multibillion-dollar ruling against.
The story began in 2011 when Donziger brought litigation against Texaco (now Chevron) in Ecuador for the harm it caused the Indigenous people in the Ecuadorian Amazon, where the fossil fuel company decided to deliberately discharge 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. A refusal from Chevron to adhere to environmental regulations—which earned the company an extra $5 billion over 20 years—led to more than 30,000 Ecuadorians being directly harmed by the oil giant’s actions, the judges in that case found. The case Donziger led made it all the way to the Ecuador Supreme Court, and successfully secured $9.5 billion in environmental damages for the Amazonian communities in a historic climate justice decision.ADVERTISEMENT
In a letter sent to the Administrative Office of the U.S. Courts at the end of last month, Sens. Ed Markey and Sheldon Whitehouse brought into question specifically the use of private prosecutors in the contempt case against Donziger. The three prosecutors that Kaplan appointed, Brian Maloney, Sareen Armani, and Rita Glavin (who is also Andrew Cuomo’s personal lawyer), were all at the time with the law firm Seward & Kissel. That firm had represented Chevron as recently as 2018. “These prosecutions,” the senators wrote, “are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system.”
Indeed, the apparent conflict of interest the private prosecution had is directly at odds with Supreme Court precedent. In the 1987 decision of Young v. United States ex rel. Vuitton et Fils, the Supreme Court ruled that, when it comes to private prosecutors pursuing criminal contempt cases, they “certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”ADVERTISEMENT
“Public confidence in the disinterested conduct” of the private prosecutor, the court warned, is essential to maintaining the integrity of the judicial system. That means that even the appearance of interest on the part of the private prosecutor can be considered a violation of Vuitton.
“Appearances are really functionally important for the rule of law, and for our judiciary,” said Guha Krishnamurthi, an associate professor of law at the University of Oklahoma. Krishnamurthi argues that one of the “biggest protections” of the criminal justice system is a disinterested prosecutor who can determine whether or not pursuing a case is to the benefit of the criminal justice system. The fact that a public prosecutor is accountable to the government and to the public, he says, reinforces this protection in a way that private prosecutors do not.
“I think it’s such a clear abuse that it violates the defendant’s constitutional right to due process. You can’t have someone who’s got a conflict of interest, who has personal reasons for wanting to see a person they’re prosecuting convicted,” said Louis Raveson, a professor of law at Rutgers Law School and the founder of the university’s Environmental Law Clinic. “That’s not an appropriate procedure, and, in my view, it’s not a constitutional procedure.”
“This is a perversion of justice, the whole idea that you can have a lawyer who previously worked for Chevron then prosecuting Donziger in the criminal case,” said Martin Garbus, Donziger’s attorney and a prominent veteran of human rights litigation. “It’s clear that it violates the law. … If you look at the body of law that deals with disinterest, people are disqualified for something far, far less than the involvement here.”
Raveson acknowledged that in certain instances, like police brutality cases or other times when the government is being asked to prosecute itself, private prosecutors can be truly beneficial. A private prosecutor there would likely be necessary in order to ensure disinterest and justice, as the public prosecutor works for the government. Often, though, they’re used in cases like Donziger’s, after a disinterested public prosecutor declines to pursue the charge and the judge decides to move forward anyway. “That’s all the more reason that judges need to err on the side of no possibility of a conflict,” Raveson said. Speaking of the Donziger case, he added, “It appears that a conflict is almost inevitable … and clearly that’s not by accident.”ADVERTISEMENT
When it comes to the decisions that could prevent one of the largest climate justice judgments of the past decade from taking effect, such appearances of conflict of interest are incredibly significant—and could be detrimental to future climate justice litigation.
“It’s scary going after a large corporation [and] it’s scary going after governments because they have so much power and so much influence that they can do a lot of damage to someone’s life,” Raveson said. “If the lawyers who bring [environmental justice cases like Donziger’s] are subject to biased determinations as to whether or not they should be punished … it’s going to have a deterrent effect on lawyers to bring these kinds of cases.”
Such a deterrence could have massive consequences for the climate, especially at a time when, as this week’s new report from the Intergovernmental Panel on Climate Change showed, the world is barreling further toward climate catastrophe, a crisis that is driven in no small part by fossil fuel companies like Chevron. “It’s up to the judiciary to really ensure that that kind of chilling and deterrence … doesn’t happen,” Krishnamurthi added. “And the way you do that is by having more than just the formality of the rules, [but] having a true fidelity to conflicts of interest and disqualifying where necessary.”
Chris Hedges, writer and commentator, was a member of the Pulitzer-winning team reporting on global terrorism for The New York Times. Hedges received an individual award from the Amnesty International Global Award for Human Rights Journalism. An online columnist and the host of an Emmy-nominated television show, Hedges has been a war correspondent for The New York Times, National Public Radio, The Dallas Morning News and The Christian Science Monitor, reporting from Latin America, the Middle East, Africa and the Balkans. He has written 12 books including the bestsellers “American Fascists: The Christian Right and the War on America” and “Empire of Illusion: The End of Literacy and the Triumph of Spectacle” and “Days of Destruction, Days of Revolt,” His book “War Is a Force That Gives Us Meaning” was a National Book Critics Circle finalist and his most recent book is “America: The Farewell Tour.”
Hedges talks about the rise of corporate power and the danger of fascism around the globe, based on personal experience as well as academic scholarship. He has been a teacher inside the American prison system for the past ten years; a reporter on the front line at violent coups and successful revolutions in foreign countries for the preceding two decades; and an ordained Presbyterian minister and competitive boxer in earlier years. Hedges is a graduate of Harvard University and has taught at Columbia University, New York University, Princeton University and the University of Toronto.
Diane Fener, Co-Chair, Senior Lawyer Committee
Senior Lawyers, Diane Fener and Gertrude Pfaffenbach, Co-Chairs
Task Force on the Rule of Law, Stephen L. Kass, Chair
Business and Human Rights Working Group, Irit Tamir and Viren Mascarenhas, Co-Chairs
International Human Rights, Lauren Melkus, Chair
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