By: Donald V. Watkins
April 9, 2023
An Editorial Opinion
On March 22, 2023, I introduced my readers to James Y. (Jim) Kerr, II. From 2014 to March 31, 2023, Kerr served in four executive capacities at the Southern Company in Atlanta, Georgia: (a) executive vice president, (b) chief legal officer, (c) chief compliance officer, and (d) chief of staff for Southern Company CEO Tom Fanning -- all at the same time. During this nine-year period, Kerr's four job titles and responsibilities effectively made him the “de facto" CEO of the Southern Company.
As the chief legal officer of the company from 2014 to March 31, 2023, Kerr led the Office of the General Counsel, which includes the company’s legal, corporate governance, audit, and compliance functions. Kerr's job was to make sure that the Southern Company maintained full compliance with all federal, state, and local laws and industry regulations.
As general counsel and chief compliance officer, Jim Kerr reviewed Southern Company regulatory filings like the Form 10-K for 2022 that was filed with the U.S. Securities and Exchange Commission (SEC) on February 15, 2023 and served upon various state of Georgia regulatory agencies. Each year, from 2014 to March 31st of this year, Jim Kerr conducted the final review of the company's Form 10-Ks before they were filed with the SEC and provided to state agencies.
Jim Kerr also reviewed the Sarbanes-Oxley certifications on the Form 10-K for 2022 (and prior years dating back to 2017) signed by the following company executives: (a) Thomas A. Fanning (CEO) and Daniel S. Tucker (CFO), for the Southern Company; (b) J. Jeffrey Peoples (CEO) and Philip C. Raymond (CFO), for Alabama Power Company; (c) Christopher C. Womack (CEO) and Aaron P. Abramovitz (CFO), for Georgia Power Company; (d) Anthony L. Wilson (CEO) and Moses H. Feagin (CFO), for Mississippi Power Company; (e) Christopher Cummiskey (CEO) and Gary Kerr (CFO), for Southern Power Company; and (f) Kimberly S. Greene (CEO) and David P. Poroch (CFO), for Southern Gas Company.
At the time of his review, Kerr knew that various state of Georgia agencies would rely upon the accuracy of the information contained in the Form 10-K for 2022 (and prior years dating back to 2017) to make administrative and regulatory decisions in the best interest of the people of Georgia. As discussed below, the 10-K for 2022 (and prior years dating back to 2017) did not present a fair and accurate picture of the Southern Company's true financial condition. Yet, Kerr advised the individuals who served as the CEO and CFO of the Southern Company and its affiliates, from 2017 to March 31st of this year, to sign the fraudulent financial statements anyway.
The Southern Company Got a "Twofer" in Donald M. James
Donald M. James is a Southern Company board member, a position he has held since 1999. James served on the Southern Company’s Audit Committee during the period when the company conceived, orchestrated, and perpetrated the massive $27 billion accounting fraud scheme discussed below.
James is also a member of the Wells Fargo Bank board of directors, a position he has held since 2000. As a Wells Fargo board member, James and his fellow board members oversaw the bank’s violation of 230 major criminal and civil laws since 2000. Wells Fargo has paid nearly $25.8 billion in fines and penalties because of lax oversight by the bank's its board of directors.
In February of 2020, alone, Wells Fargo Bank paid $3 billion in fines and penalties to settle criminal and civil investigations for opening up two million bank accounts without authorization from its customers. This particular crime spree was nationwide in scope and ran from 2002 to 2016.
Every presidential administration from George W. Bush to Joe Biden has placed Wells Fargo in the U.S. Department of Justice's "too big to prosecute" program, despite its unrelenting, decades-long crime spree. No CEO, CFO, or board member at Wells Fargo has ever gone to jail for these crimes.
Thanks to Donald James leadership on the bank's board of directors, Wells Fargo now holds the record for the longest documented crime spree in the United States. With his service on the Southern Company board, James has the added distinction of presiding over the largest accounting fraud scheme perpetrated by a New York Stock Exchange/Fortune 500 company -- $27 billion.
The Southern Company got a real "twofer"in Donald James. This power-player has more than 20 years experience in overseeing corporate criminal enterprises at the Southern Company and Wells Fargo Bank.
The Southern Company’s Fraud Scheme Duped Georgia State Agencies
As discussed in an April 2, 2023, article titled, “Southern Company Fraud Scheme: Is This the Resurrection of Bernie Madoff,” and a March 31, 2023, article titled, “How the Southern Company Cooked the Books in a Massive $27 Billion Accounting Fraud Scheme,” Jim Kerr used his four official executive positions at the Southern Company to run a massive $27 billion fraud scheme right under the nose of Fulton County, Georgia District Attorney Fani Willis.
Ms. Willis is a seasoned district attorney with a proven track record of fighting crime -- all crimes. Willis does not have one standard for prosecuting street crimes and another separate, more lenient "forgiveness" standard for prosecuting crimes committed by top executives and board members of giant corporations.
Ms. Willis is best known around the nation for leading the voter fraud investigation of Donald Trump's phone call to Georgia Secretary of State Brad Raffensperger in search of 11,780 votes after Trump's defeat in Georgia during the 2020 election.
At the Southern Company, Jim Kerr enjoyed the unqualified support of board member Donald James (and a couple of others) throughout the fraud period. Both men are lawyers and close friends.
From 2017 to the present, the Southern Company faked the appearance of profitability to pump up stock prices, secure new investors, and obtain additional debt and credit facilities. Additionally, regular shareholder dividends were paid out of borrowed money, rather than retained earnings.
In his position as chief of staff, Kerr helped Southern Company chairman and CEO Tom Fanning sneak the accounting fraud pass the board’s Audit Committee and a majority of the company's board of directors without close scrutiny. "Insiders" have identified Donald James as a key participant in helping Jim Kerr get the fraud scheme approved by the board of directors.
A Bond of Racial Hostility to Blacks
A secret tape recording made during a 2018 phone conversation between Jim Kerr and Kevin B. “K.B.” Forbes, the chief executive officer of CDLU, established that Kerr is a closet racist. Kerr smiles in the faces of black Southern Company executives, employees, and board members, while defiantly refusing to acknowledge and condemn environmental racism against the company's black customers when concrete examples of such racism were brought to his direct attention. Kerr’s unreformed racism is documented in a March 24, 2023, article titled, “Jim Kerr, Southern Company’s Top Lawyer & Chief of Staff, Exposed.”
Kerr became the CEO and President of Southern Gas Company on March 31st. Ironically, the Southern Gas Company has a heavy black presence in its workforce. Word of Kerr’s flaming racism preceded his appearance in this new job. As a result, Kerr’s reception at the company has been a bit frosty.
Donald James is the retired Chairman and CEO of Vulcan Materials Company, a construction materials company located in Birmingham, Alabama. He joined Vulcan Materials in 1992 and progressed through a variety of management positions at Vulcan Materials before he was named chief executive officer in 1996 and chairman in 1997, positions he held until July of 2014 and December of 2015, respectively.
James’ track record of supporting workforce diversity at Vulcan Materials was abysmal. What is worse, James’ negative attitude towards black Southern Company customers (and others) in Birmingham matches or exceeds Kerr’s.
Let the Prosecutorial Chips Fall Where They May
District Attorney Fani Willis has the prosecutorial skills and courage needed to properly investigate and clean up the fraud and corruption at the Southern Company. Unlike many prosecutors on the scene today, Fani Willis cannot be "bought off" with campaign contributions. What is more, Fani Willis' integrity is impeccable.
Ms. Willis has jurisdiction over the litany of state law crimes that were committed by Southern Company executives and a few board members during the company's long-running accounting fraud scheme.
Ms. Willis should start with a grand jury probe into the conduct of Jim Kerr, Donald James, and the accounting fraud shenanigans at the Southern Company. The grand jury might want to take a close look at the roles played in this criminal enterprise by board members Kristine L. Svinicki and David J. Grain, as well.
After that, let the chips fall where they may.