When deciding whether to do the right thing or not, the formula is (amount you save from breaking the law) - (cost of getting caught) * (chance of getting caught)).
If "cost of getting caught" is always less than "amount you save from breaking the law", then there's no reason to behave honestly. In fact, this causes the "market" to select against corporations run by honest people, because they're at a competitive disadvantage.
I mostly agree with your point, but not with the mathematics:
Your formula gives you positive Expected Value but there are many situations that are +EV which you shouldn't choose to visit.
Even if the penalty was more than you were saving (or if the penalty hit nominally responsible individuals), even if the chance were fairly low, that could act as a significant deterrant to unethical practices.
Situation: "ooh should I talk to my actuary/lawyer/partner about this difficult unethical decision? Arg but that would leave a paper trail."
One example: Mark Zuckerberg cheating Eduardo Saverin out of his FaceBook shares. He realized that it was cheaper in the long-run to cheat him, because he knew that the eventual lawsuit settlement would be less than Eduardo Saverin would have gotten if he were treated fairly.
Actually, if you talk about it with your lawyer, attorney-client privilege protects you. Just make sure you do it in person and aren't dumb enough to do it by E-Mail.
I wonder if, barbaric as it sounds, introducing more non-monetary punishments for corporate crimes would help with this. If CEOs of price-fixing companies were punished by public flogging or other pain-based punishments, something outside the normal money-based calculus...
Though I suppose the chances of something like that would be even less than such folks seeing jail time, which would also be a non-financial punishment.
The fix is to make individuals in the company, e.g. the directors, personally responsible. In many countries the legal framework is already in place for that.
As long as the fines are only coming from the company the only one you're really punishing are the shareholders who really have no control over the company's day to day activities and these decisions. They have no visibility into this either.
The CEO should be held responsible for any illegal activities the company undertakes under his direction as should the directors. Assuming they're aware of it. Otherwise the responsibility is probably at some lower level. This does not contradict the responsibility of the company as a legal entity which is a party to these contract.
EDIT: A decision that may cost the company 100M in fines in 10 years and help the CEO make his bonus this year is a no brainer. This is not unlike deciding to do share buybacks when you hold stock options...
There's no reason for barbarism. If the situation needs to be fixed then a change needs to happen one way or another (someone else pointed out a settlement amount hasn't been decided yet).
For this context a financial punishment is appropriate ("punishment should fit the crime"). And the existence of the formula above is actually helpful. It makes it simple to figure out exactly what the punishment amount should be, whereas flogging as a deterrent is a tad harder to measure, and as you point out, is barbaric.
If "cost of getting caught" is always less than "amount you save from breaking the law", then there's no reason to behave honestly. In fact, this causes the "market" to select against corporations run by honest people, because they're at a competitive disadvantage.