Long story short, the indicted executives had fly-by-night LLCs that they used to accept payments from Polar Freight clients for preferential service. (Or for access to Polar Freight's shipping services in the first place.) They called this "consulting." Like:
> "Here's your invoice from Polar Freight at $2/kg for that recent air freight shipment. Oh, and you also owe Nightrunner LLC $0.5/kg for Consulting services.
Here's a separate invoice for that."
Pretty simple scam, described in those terms.
The kicker is that some poor bastard was indicted for paying the "consulting" fee!
"Paying the consulting fee" is just another way of saying "bribing people". The vendor got value out of that bribe, which is why they were willing to pay it.
Maybe? There are many companies and consultants that take payment from you and then negotiate across different shippers, mortgage companies, insurance companies, car dealerships, and so on. It's plausible someone could have paid a middleman and not known there were bribes involved.
Theoretically, what we want is for it to be illegal to solicit or offer a bribe. If we can construct a legal environment in which people can accept or pay bribes but report that in a constructive way, then the negative side gets riskier without making everyone involved co-conspirators.
Practical example: Tuna boats in the Pacific have onboard observers from one of the island nations that own the EEZs that are fished. Observers are paid okay for their countries, but not really a lot of money in the grand scheme of things. It would be a net positive if they could accept a bribe from a crooked boat owner and then report it once on shore. Turn over the money (with maybe keeping a small finders fee) and then that boat’s owner gets penalized across the entire Pacific. Now there’s a very strong incentive not to offer bribes.
I don't think the observers get an invitation to be on a boat. It's more like, you have been assigned observer X for this trip. They'll be on the boat if you plan on fishing in our waters.
This is the real kicker... how do you positively incentivize reporting the scheme instead of participating in it? Generally speaking the upside of participating is quite a bit larger than the upside of reporting. The downside of participating can be made pretty harsh by the government, but there can be negative downsides to reporting as well (e.g. physical harm)
> The kicker is that some poor bastard was indicted for paying the "consulting" fee!
Can you point me to where I can read more about that?
I'm assuming the indicted person knew exactly what he was doing, but it's still terrible to be stuck in a business situation where the only way to get your job done is to go along with something like that.
> "Also the owner of Cargo On Demand was himself indicted, for paying the bribes, which seems a bit harsh. He was dealing with a company, and all the senior executives he dealt with told him that he had to pay these fees! He thought they were a resort fee!"
It's also in the indictment. The defendant from Cargo On Demand is Patrick Lau, referred to as "Lau" throughout. As far as I can tell, there's nothing in the indictment to suggest that he was in on the scheme. Also, he had sued Polar in a Civil case a while back, which is probably how all of this had come to light in the first place! It seems bizarre that the Feds charged him.
He's indicted, not convicted. "I'm a sucker and didn't realize what was going on" is absolutely a possible defense; I would assume that the DOJ will lead evidence to show that he knew what was going on and willingly participated, but that's why there's a trial.
Another possibility is the DOJ not intending up take that person to trial, but instead offering to reduce or drop the charges in exchange for testimony.
Yeah, this surprises me a bit. If a company tells me "Pay $X to X company and $Y to Y company to get your cargo delivered", I'm going to do X and Y unless they actually look illegal.
Submitting invoices to two different companies wouldn't ring any obvious bells. If you have a company that calls making bids/examining cargo/whatever a "consulting fee", I'll roll my eyes, file the paperwork and pay the invoice.
I'm assuming the DOJ has emails or somesuch that actually acknowledge the scheme. However, that's probably going to be held for court.
IANAL and not sure of the exact name for this concept, but I believe when there's a practice that is very standardized it can be used as a legal defense that you're just doing what everyone else does.
From what I've heard about a lot of global freight contracting, it seems like there's a lot of favoritism - with ocean freight, for example, when ships are packed, you're not getting your shipments onto them unless you have good relationships with the carriers/brokers/other folks in the chain who can make it happen for you. I suppose blatantly taking kickbacks crosses the line, but it definitely seems like an industry where you'd expect to find this kind of thing.
It's like that in local shipping, too. Customers need shit shipped, and they need it NOW, and big rainmaker accounts will absolutely get the red carpet treatment. Shipping firm account reps are middlemen in this arrangement, and work on commission, so are strongly incentivized to do whatever it takes to make their big customers happy.
If your customer who is responsible for $200,000/year of your take-home commission is screaming at you, and you could get them what they want with a bribe to the trucking company's rep, you have a pretty strong incentive to pay it.
Which is why prosecuting people for corruption is important. Everyone would be doing it, otherwise.
You can find kickbacks everywhere, but in some industries it's so deeply embedded in the culture that it's nearly impossible to find any alternatives.
The common theme is that there is usually a bottleneck, monopoly, gatekeeper, or government-mandated middleman. This is what enables the kickback scheme to work without the threat of clean alternatives competing with it.
Ports are ripe for corruption and kickbacks because there aren't many of them. If you want to get your cargo in or out, you have to go through a nearby port. Trucking the freight to a different port is more expensive than any bribes/kickbacks/corruption (by design) so people just settle and pay it.
It should be noted that this isn't normal! He may get away with it because he's a supreme court justice, our supreme court sucks right now, and our constitution provides insufficient checks on the supreme court's power. But there's a reason Pro Publica did an exposé.
This whole expose is about the weakness of the disclosure rules levied on Supreme Court justices, the gaps, the amount open to interpretation. The only assurance you have is that some level of compliance is normal because a disclosure happened before.
"hey look, they actually disclosed something! good thing I don't live in this *other* corrupt country in the world where you would be disappeared for saying this! American exceptionalism!"
We just found out about this recently. How do we know it's not normal? This wasn't even the only thing, he also received multiple all expense paid luxery vacations from rich people. Surely his fellow justices have questions about his exotic all expense paid trips. If anything I would assume they are doing similar things until proven otherwise.
Impeachment by the house and conviction in the senate afterwards have high bars. Impeachment doesn’t happen very often, only once for a Supreme Court justice (and the senate didn’t convict).
Customers want to pay more for better service. Seems like this will eventually be rationalized and done officially and impersonally, like paying more for overnight package delivery?
Kickbacks, gifts, favors, or other customary considerations is basically how it works in many parts of the world. Just like a dowery or haggling is customary in some areas.
I really wonder which cog exposed the whole scheme, a whistleblower from
1) company stumbled on it, or a
2) vendor staff did, or,
3) a vendor started asking questions of the random invoices,
4) a dispute in the corrupted amounts between both (seems likely!) or
5) misreported earnings or high income tripped some flag at the irs level.
So the beneficiaries of the fraud are executives of Polar, a joint venture between DHL and Atlas. The executives put the squeeze on their own customers. The main victims are presumably DHL and Atlas, whose boards presumably appointed and oversaw those executives.
The squeezed customers could (I don't know) have gone to a competitor that didn't require shifty "consulting" contracts; I guess they chose Polar because it was cheaper, or because coughing up gave you more reliable access to cargo space.
Is there an argument that DHL and Atlas were negligent?
A running theme of this column, which is never legal advice, is that if you are going to do bribes you should try to be businesslike about your bribes, instead of being cutesy. Like if you send your colleague a text message saying “our ‘friend’ expects one million ‘chickens’ for his ‘help’ with this ‘contract,’” that’s gonna look really bad to the jury at your inevitable criminal trial. But if you send a professionally formatted invoice saying, like, “Consulting charges: 80 hours @ $1,250 per hour plus 45 basis point success fee on $200 million contract = $1,000,000 to be paid by ACH transfer to General Consulting Services LLC,” you might still get arrested, but at trial you can say “no that was for consulting, very standard, nothing wrong with that.”
Yesterday US prosecutors brought bribery charges against 10 people “in connection with a massive scheme to defraud Polar Air Cargo Worldwide, Inc. (‘Polar’), a leading cargo airline, of tens of millions of dollars” with bribes. Polar is a cargo airline — a joint venture of DHL and Atlas Air — that sold cargo space to shippers, and if you wanted cargo space on Polar you allegedly had to pay (1) Polar the rates that it charged you plus (2) some bribes to the Polar executives who were selling you the space.
The executives included Polar’s chief operating officer, its vice president of marketing, its vice president of operations and its senior director of customer service. “In general,” says the indictment, “the Executive Defendants often had the ability to propose vendors, to advocate on behalf of certain vendors or customers, and to exercise significant influence over both Polar's selection of vendors and the rates offered to its customers.” They were the people selling space on Polar’s planes, and so they could set the rates for that space — and the rates they set, allegedly, included both a payment to Polar and a payment to themselves.
But it was all businesslike. From the indictment:
> To conceal the kickbacks and conflicted ownership interests from Polar, and thereby to continue the fraud scheme, [they] often directed the kickbacks and ownership distributions be paid to limited liability companies with non-descript names that were, in fact, controlled by the Executive Defendants....
> From in or about 2009 through in or about July 2021, Polar contracted with freight forwarders to sell available cargo space on behalf of downstream shipping customers, who, in turn, paid freight forwarders to secure cargo space and coordinate logistics. ... These kickbacks were typically calculated based on how many kilograms of cargo the freight forwarders had shipped with Polar during a particular period. At no point before the discovery of the fraud in or about July 2021 were the kickbacks from freight forwarders known to Polar.
“At no point … were the kickbacks from freight forwarders known to Polar” is a weird sentence. Polar is not a person; it has no consciousness. The kickbacks were not known to Polar’s owners, I assume, or perhaps to its chief executive officer. But they were known to its chief operating officer, because he was allegedly receiving them. This was not some rogue salesperson taking bribes; this was a big chunk of the executive team.
And so there is an amazing civil lawsuit filed late last year by one of the customers, Cargo On Demand Inc., against Polar, complaining that Polar charged it bribes. Cargo On Demand’s point was, look, if Polar’s salespeople and senior managers told it to pay these fees as part of the price of cargo, it had to pay those fees. From the complaint:
> COD entered into the [Blokced Space Agreement] with Polar primarily because Polar’s rates on the specific air routes relevant to COD’s customers were typically lower than the rates quoted to COD by any other airlines providing service on the same routes.> However, in order to actually utilize its cargo space allotment, COD was advised by members of Polar Management that it was required to also pay Polar (via Polar Management), and certain third-party consulting companies connected to Polar, additional “consulting fees” separate and apart from the BSA.
> These consulting fees were charged beginning at the inception of COD’s relationship with Polar in 2014. …
> The consulting fees were calculated based on the monthly tonnage for all goods that COD shipped with Polar. The amount of the fee typically varied between $0.25-$0.50 per kilo of tonnage, in addition to the agreed BSA rates.
> The consulting fee requirement was articulated to COD by multiple members of Polar Management (which included, without limitation, the company’s Chief Operating Officer and multiple vice presidents and directors) over the course of seven years. …
> COD was advised and instructed by Polar Management that these additional “consulting fees” were part of Polar’s regular way of doing business with all customers that had annual BSA contracts with Polar.
> To COD, such fees seemed akin to a hotel “resort fee”. In other words, a mandatory fee that is not included (or not prominently included) in the quoted rate, yet mandatorily charged at either a flat amount or percentage basis in the final bill.
Also analogous to a resort fee, the “consulting fee” allowed Polar to generate additional cargo revenue by giving the appearance of offering lower rates in comparison to competitors than if Polar had quoted the full (i.e. all costs and fees included) cost.
That is, Polar could advertise low rates, but then tacked on an extra fee for bribes. The complaint includes as an exhibit an email from Polar’s vice president of marketing to the owner of Cargo On Demand, saying “bro here is the updated sheet — pls use this for distribution” and attaching an eight-page spreadsheet listing dozens of Polar flights, how much cargo Cargo On Demand had on each flight, and how much bribe it owed for each one. “As directed, COD then made the specified payments for that month via ACH wire transfer.”
The numbers are in the tens or hundreds of dollars per flight, and the entire alleged bribe invoice is for $41,291.93, to be distributed among the nondescriptly-named entities of several Polar executives. The indictment says that Cargo On Demand paid a total of about $1.6 million of kickbacks to Polar executives from 2016 through 2021, and if you just wrote a check for $1.6 million of bribes that would look bad. But sending monthly ACH transfers for detailed invoices measured in pennies per kilogram just looks like business.
Of course they got arrested anyway; I must emphasize that nothing here is legal advice. Also the owner of Cargo On Demand was himself indicted, for paying the bribes, which seems a bit harsh. He was dealing with a company, and all the senior executives he dealt with told him that he had to pay these fees! He thought they were a resort fee!
The customers were hit for an extra fee paid to a third party on top of the freight cost. The customers' lawyers can argue that they would have had to pay more if they used another carrier.
Are concert goers guilty of bribery when they pay extra fees to Ticket master?
I got curious, so I dug up some more details: https://archive.ph/gvYFE
And the indictment is here: https://www.justice.gov/usao-sdny/press-release/file/1579271...
Long story short, the indicted executives had fly-by-night LLCs that they used to accept payments from Polar Freight clients for preferential service. (Or for access to Polar Freight's shipping services in the first place.) They called this "consulting." Like:
> "Here's your invoice from Polar Freight at $2/kg for that recent air freight shipment. Oh, and you also owe Nightrunner LLC $0.5/kg for Consulting services. Here's a separate invoice for that."
Pretty simple scam, described in those terms.
The kicker is that some poor bastard was indicted for paying the "consulting" fee!