Medtronic and the ethics of 'lawyering'

  • Article by: STEPHEN B. YOUNG
  • Updated: June 20, 2014 - 6:21 PM

Under Covidien deal, it would do what lawyers say it can, but not necessarily what an ethical business should.


Medtronic's Fridley headquarters.

Photo: GLEN STUBBE • Star Tribune,

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Medtronic’s proposal last week to buy Covidien to grow earnings and avoid paying U.S. taxes is a smart bit of “lawyering.” But it exposes once again the gap between law and justice.

In the West since Aristotle wrote about politics, people have been uncomfortable when the law of the state fails to achieve their vision of fair outcomes. Some things may be legal as far as the government is concerned, but that does not always make them right. Aristotle attempted to bridge any gap between the two with a demand for the application of equity in addition to law.

Medtronic’s gambit is only the latest sophistry designed by astute (and highly paid) lawyers and accountants to manage corporate earnings to curry favor with Wall Street. As the Star Tribune rightly editorialized on June 19, “publicly held Medtronic is doing exactly what it should do to maximize shareholder value.“

My memory of the first round of such legalisms was the formation of conglomerates in the 1970s, when disparate companies were acquired to benefit from accounting and pricing conventions that made 2 plus 2 greater than 4 as far as reportable earnings were concerned.

Enron infamously used such lawyering techniques in its raptor transactions to book current profits and offload debt and in its sham sales of natural gas to banks (they were really very-high-interest-rate loans). So did Lehman Brothers use London-based “Repo 105” transactions to hide the true level of its overnight borrowings before its crash in September 2008. And, most recently, Caterpillar sent its sales invoices from Switzerland so that income could be received and banked there to escape U.S. taxation. Apple and other companies have routed the paperwork for sales transactions through Ireland to use that country’s laws to lower their tax obligations.

On the level of wealthy individuals, tax planning to avoid payment of taxes is serious business. Tax shelters were once widely used until the law was changed. There are wealthy Minnesotans who move to another state for a legally required number of days to avoid paying Minnesota income taxes.

Such lawyering, of course, is legal, but it tilts the field of justice in favor of the rich and powerful.

And then, at the level of consumers, buying goods over the Internet avoids (in many cases) payment of Minnesota and other state sales taxes.

As the Star Tribune noted — correctly, in my opinion — tax laws need to be designed to minimize such lawyering. But that is hard to do and runs against sentiment that demands heavy taxes on those who have the most wealth. The French economist Thomas Piketty, for example, has just stirred up quite a flurry of comment with his proposal for a global tax on wealth to offset what he says is capitalism’s inherent favoring of the rich.

Low rates taxed over a broad base of goods and services seem to be the best way to go.

But the Medtronic deal poses other, more disturbing questions of justice than those raised by clever lawyering.

A “new” global capitalism is emerging, but Medtronic is in retrograde. This new capitalism is stakeholder-focused. Boards and CEOs are more and more cognizant of the interests of customers, employees, suppliers, communities and the environment (global warming), and of the need for fidelity and transparency in governance.

Three forces drive the rise of this “new” capitalism: (1) the corporate social-responsibility movement since the late 1990s, (2) the failure of Wall Street market efficiency to deliver sustainable growth and (3) worry over climate change.

The “old” capitalism that now dominates Medtronic’s management is shareholder-focused. It seeks to serve shareholders first and foremost by meeting Wall Street expectations. This is done by earnings management to deliver maximum shareholder value.

Medtronic’s business model of growing earnings through acquisitions dates to the late 1990s. When earnings from its homegrown products became less and less appealing to investors, the company went out to buy new sources of revenue growth.

One such acquisition, that of Sofamor Danek, brought into the company a spinal fusion product along with a later but very notorious 2011 accusation of unethical practices adopted with respect to researchers who would write up their findings in a way that would promote sales of that spinal product.

Also in recent years, Medtronic pressed Congress to water down our federal anti-corruption act to permit it to “show appreciation” to medical professionals working for government health care systems in Europe for their “open mindedness” in ordering Medtronic products.

The ends, I suppose, always can be said to justify the means when capitalism is little more than laissez-faire social Darwinism.

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