Phil Mattera

Challenging Corporate Greenwashing

Large corporations like to tout their environmental initiatives. The problem is that their claims are often exaggerated, misleading or completely unfounded. And rarely are they called to account for their deception.

Recently, there have been two exceptions to the rule, involving the petroleum industry, which has long been one of the most brazen practitioners of greenwashing. California Attorney General Rob Bonta announced the filing of a lawsuit against Exxon Mobil, alleging that it engaged in what the AG called “a decades-long campaign of deception that caused and exacerbated the global plastics pollution crisis.”

Bonta accused Exxon Mobil, a leading producer of the polymers used to produce single-use plastics, of employing “misleading public statements and slick marketing” to promote the idea that recycling is an adequate way to deal with the plastics pollution crisis.

The lawsuit, which seeks to get Exxon Mobil to cease making misleading statements and pay damages, bears a resemblance to previous actions against the corporation for its long history of denying the reality of the climate crisis and the major role the oil industry has played in exacerbating global warming.

Over in South Africa, another oil giant, France’s TotalEnergies, was recently found to have made misleading statements about its commitment to sustainable development. The Advertising Regulatory Board, acting on a complaint brought by the environmental group Fossil Free South Africa, based its ruling on the simple fact that the petroleum company’s core business is antithetical to sustainability.

The advertising board could also have looked at the environmental record of TotalEnergies. As shown in Violation Tracker, the company has paid more than $60 million in environmental penalties in the United States. It also paid $15 million to resolve allegations that it violated the False Claims Act by knowingly underpaying royalties owed on natural gas produced from federal and Indian leases. And it paid nearly $400 million to settle foreign bribery allegations.

As will soon be shown in Violation Tracker Global, TotalEnergies has also had regulatory challenges in other countries. For example, in 2010 a French appeals court upheld a 200 million euro judgment against the company in connection with a large oil spill by the tanker Erika off the coast of Brittany.

Of course, Exxon Mobil also has a checkered compliance record. Violation Tracker records more than $2 billion in environmental penalties in the U.S since 2000. That total would have been considerably larger if the Supreme Court had not slashed a multi-billion-dollar damage award stemming from the giant oil spill by the company’s Valdez supertanker off the coast of Alaska. Violation Tracker Global will contain $3 million in environmental penalties in other countries, especially Canada.

Supreme Court rulings such as the Citizens United case emboldened corporations to assert their free speech rights. Yet when that speech denies scientific reality and contributes to environmental devastation, society needs to respond. California’s lawsuit will not solve the plastics crisis, but it will help to make the case that Exxon Mobil is part of the problem rather than the solution.

Note: Violation Tracker Global will be launched in October

Cigna SLAPPs the FTC

Pharmaceutical companies, the big pharmacy chains and the middlemen known as pharmacy benefit managers, or PBMs, have been taking pains to blame one another for the high cost of prescription drugs. It is not unusual for business groups with conflicting positions to engage in this sort of finger-pointing, but now a major PBM is attacking a federal regulatory agency for criticizing its practices.

In a highly unusual and objectionable step, Cigna, parent of PBM Express Scripts, has filed a lawsuit against the Federal Trade Commission, seeking to force the agency to retract a recent interim report depicting PBMs as “powerful middlemen inflating drug costs and squeezing main street pharmacies.”

The FTC report points out that the market for PBM services has become highly concentrated, and the largest PBMs are now owned by the largest health insurers (as in Cigna’s ownership of Express Scripts) or pharmacy chains (CVS control of Caremark). “As a result of this high degree of consolidation and vertical integration,” the report states, “the leading PBMs can now exercise significant power over Americans’ access to drugs and the prices they pay.”

Cigna is certainly within its rights to disagree with and criticize the report, as the company did in a full-page advertisement in the Wall Street Journal. Yet Cigna did more than that. Its lawsuit, filed in federal court in Missouri, accuses the FTC of defamation and of violating the company’s due process rights. It seeks to have the report expunged from the FTC website along with “any other relief the Court deems just and equitable.”

Although the complaint does not explicitly ask for monetary damages, the action bears a close resemblance to the SLAPP suits filed by corporations seeking to silence their critics by causing them severe financial harm. This kind of tactic is seen, for example, in the lawsuit being pursued against Greenpeace by the pipeline company Energy Transfer. Like the SLAPP suits brought against NGOs, the Cigna action seems designed to intimidate—both the FTC and by extension its other critics.

Cigna’s claim it has been defamed ignores the fact that the company’s track record is hardly unblemished. Violation Tracker contains more than 200 entries for Cigna and its subsidiaries, with total penalties of $746 million.

Express Scripts accounts for about $30 million of that total, stemming from cases such as a $3.2 million settlement with the Massachusetts Attorney General in 2022 to resolve allegations the company failed to follow prescription pricing procedures designed to keep costs down and prevent overcharges in the state’s workers compensation insurance system.

Accredo, a specialty pharmacy owned by Express Scripts, paid $60 million in 2015 to resolve federal allegations that it received illegal kickbacks, in the form of patient referrals and other benefits, from the pharmaceutical company Novartis in exchange for promoting refills for its drug Exjade.

It is unacceptable for Cigna, or any other company, to seek to muzzle a federal regulator through the use of the legal system. Hopefully, the court will see the danger of this lawsuit and dismiss it promptly.

Apple Loses Its Sweet Irish Tax Deal

When governments in the United States decide to give special tax breaks to large corporations, the sky is the limit and no one can challenge that largesse. As Apple just learned to the tune of about $14 billion, things are different in the European Union.

The EU is much stricter about the tax benefits and other forms of financial assistance that can be given to companies. What is called state aid is not banned entirely, but it is supposed to be used only when it is “exceptionally justified” and does not distort competition.

Moreover, the European Commission can bring legal action when it believes that a member state has awarded state aid improperly, with the remedy being that the company has to give back the money.

Some state and local governments in the U.S. use procedures know as clawbacks to recover economic development assistance from companies that fail to meet job-creation or other promises they made to receive aid. The European Commission cases, by contrast, are not related to company performance but are instead based on an argument that the aid was illegitimate to begin with.

EU member states are supposed to get prior approval for state aid awards. Yet they often adopt practices, especially with regard to taxes, that the Commission may later decide constitute improper aid. That is what happened with Apple, which had received special rulings in Ireland dating back to the early 1990s that allowed it to avoid paying billions of euros in taxes in that country. Those rulings allowed two Irish subsidiaries of Apple that held valuable intellectual property licenses to exclude profits linked to those licenses from their taxable income in Ireland.

In 2016 the Commission challenged that arrangement and ordered Ireland to recover the aid. At the behest of both Apple and the Irish government, a lower court rescinded that order in 2020. The EU’s highest legal authority, the Court of Justice, just ruled the other way and put Apple on the hook for about 13 billion euros.

Legal disputes over state aid are common in the EU. Since 1999 the Commission has brought more than 300 challenges and forced companies to repay billions of euros. Yet it is also common for deep-pocketed corporations to appeal those decisions—and often they succeed. Amazon, for example, successfully appealed a ruling by the Commission against its tax deal with Luxembourg.

From what I can tell, the largest case prior to Apple in which a Commission challenge survived appeals was one in which the electric utility EDF had to pay back over 1 billion euros to the French government. When the Commission announced its action in 2015, the EU’s top competition regulator, Margrethe Vestager, was quoted as saying: “Whether private or public, large or small, any undertaking operating in the Single Market must pay its fair share of corporation tax. The Commission’s investigation confirmed that EDF received an individual, unjustified tax exemption which gave it an advantage to the detriment of its competitors, in breach of EU State aid rules.”

The Apple ruling reinforces the idea that special tax breaks are harmful both to competition and to fair taxation. We are a long way from that realization in the U.S., where tax deals and other incentives are widely treated as corporate entitlements.

Note: The Apple and EDF cases, along with much more, will be included in the forthcoming Violation Tracker Global.

Prosecuting the Boss

A courtroom in Germany is currently the scene of a rare occurrence in the business world: the trial of a high-level executive for corporate crimes. Martin Winterkorn, the former top executive of Volkswagen, is facing charges of commercial fraud, market manipulation and making false statements.

Arguably, he should be facing even more serious allegations. Winterkorn is being belatedly tried in connection with the vast conspiracy in which Volkswagen executives conspired to deceive regulators and the public about the environmental impact of its diesel cars. By rigging the vehicles so their emissions appeared to be within legal limits when they were actually much higher, VW was responsible for releasing vast amounts of extra pollution into the air. The health effects are incalculable.

Winterkorn’s trial, delayed for health reasons, comes nine years after the emissions scandal erupted. During that time, the company has faced perhaps the most wide-ranging regulatory barrage in business history.

In the United States, VW paid a series of enormous penalties. These included a $14.7 billion settlement with the federal government and the state of California announced in 2016. The deal included $10 billion to be used for buying back vehicles with the illegal defeat devices and $4 billion to mitigate pollution from the cars and invest in green vehicle technology.

The following year, VW paid another $4 billion to settle a case brought by the Federal Trade Commission concerning another group of vehicles. The company pled guilty to three felony counts and paid a criminal penalty of $2.8 billion.

VW also faced regulatory actions and lawsuits around the world. Here are some of the most notable.

In its home country of Germany, VW was fined the equivalent of $1.2 billion in a case brought by government prosecutors and another $900 million in a lawsuit brought by the Federation of German Consumer Organizations.

In a case brought by Environment and Climate Change Canada, VW paid a fine equal to $150 million. The Australian Competition and Consumer Commission fined VW the equivalent of $86 million for deceiving customers about compliance with Australian diesel emissions standards.

India’s National Green Tribunal fined VW 5 billion rupees (US$71 million) for installing the cheating devices. South Korea’s Fair Trade Commission fined VW the equivalent of $31 million for false advertising on vehicle emissions. Among the other countries that penalized VW are Poland ($31 million), Brazil ($13 million), and the Netherlands ($536,000).

As important as these cases have been in highlighting VW’s egregious misconduct and extracting financial penalties, the individual prosecution of Winterkorn could have a greater long-term impact. Even though he is no longer employed by the company (he resigned under pressure in 2015), his trial is a demonstration of how a high-level executive can be held personally accountable for misdeeds under his watch. This is especially true in a case such as Winterkorn’s in which the executive is accused of committing some of those misdeeds himself.

If convicted, Winterkorn, 77, is unlikely to spend time behind bars. But a guilty verdict would send a strong signal to other unscrupulous executives.

Note: the enforcement actions discussed above (and much more) will be included in the forthcoming Violation Tracker Global.

Attacking Price Manipulation

Throughout Joe Biden’s time in office, critics have complained he has not done enough to address high grocery prices. Now that his replacement as the Democratic presidential nominee has come forth with a plan to deal with the problem, many of those same critics are accusing Kamala Harris of going too far.

A wide range of pundits are particularly scandalized at Harris’s critique of price-gouging. It is perfectly valid to question whether her policies would be effective, but many commentators are trotting out simplistic and outdated economic principles to claim that corporate price manipulation is non-existent.

These believers in the supremacy of market forces are apparently unaware that the food sector is a hotbed of anti-competitive practices. This is especially true in the meat industry, where a small number of dominant corporations have had to pay out hundreds of millions of dollars in fines and settlements to resolve allegations that they collude to keep prices high.

Take the case of JBS, the giant Brazilian corporation that owns U.S. companies such as the poultry producer Pilgrim’s Pride and the beef producer Swift. As shown in Violation Tracker, JBS and its subsidiaries have paid out over $200 million in class action antitrust lawsuits since 2021. Pilgrim’s Pride was also sentenced to pay $107 million in criminal penalties after pleading guilty to federal charges of participating in a conspiracy to fix prices and rig bids for broiler chicken products.

Tyson Foods, another poultry goliath, has paid out over $120 million in class action settlements over the past three years, including one case in which it had to hand over $99 million. In the pork industry, Smithfield Foods, owned by the Chinese corporation WH Group, has paid around $200 million in price-fixing settlements.

Price-fixing conspiracies have also been alleged in the tuna industry, in which StarKist paid a criminal penalty of $100 million, as well as in milk processing, peanut processing and other food sectors. In 2020 the National Milk Producers Federation agreed to pay $220 million to settle litigation alleging it sought to boost prices through a program to reduce the number of dairy cows. There was even a $28 million settlement involving a mushroom marketing cooperative.

Aside from their illegal collusion on prices, food companies have been accused of entering into illegal agreements designed to suppress wages. A federal court in Oklahoma recently gave preliminary approval to a settlement in which Pilgrim’s Pride will pay $100 million. Other poultry processors such as Tyson and Perdue previously agreed to pay a total of tens of millions of dollars more.

Price-fixing is not exactly the same thing as price-gouging. The first involves illegal agreements among purported competitors, while the other may be committed by a powerful company acting on its own. Price-gouging can be illegal in certain circumstances under state law, especially if it happens during an emergency. Yet it is not, alas, illegal for companies to jack up prices in most circumstances.

That’s why all chief executives of food companies are not being led away in handcuffs. Yet it is all the more reason for the federal government to devise innovative ways to get corporations to bring down prices that escalated through market manipulation of one form or another.

A New DOJ Payday for Whistleblowers

Over the past decade, the Securities and Exchange Commission has paid out around $2 billion to individuals who provided information that led to successful enforcement actions against rule-breaking corporations. The awards can amount to tens of millions of dollars and sometimes reach the nine-figure level. More than a dozen other federal agencies such as the Commodity Futures Trading Commission have similar incentive programs.

The Justice Department recently announced that it will jump on the whistleblower bandwagon with a pilot program designed to assist in the prosecution of corporate crimes. DOJ’s initiative will cover certain crimes involving financial institutions, from traditional banks to cryptocurrency businesses; foreign corruption involving misconduct by companies; domestic corruption involving misconduct by companies; and healthcare fraud schemes involving private insurance plans.

To be eligible for an award, someone must provide DOJ with original non-public information that leads to a successful prosecution with a corporate penalty of at least $1 million. The whistleblower, who must not have participated in the illegal activity, could receive up to 30 percent of the first $100 million in net proceeds and 5 percent of proceeds between $100 million and $500 million. That means that a whistleblower could receive as much as $55 million.

Whistleblowing is not entirely new to DOJ. The department has long employed the False Claims Act qui tam program to investigate fraud against the federal government by contractors and Medicare healthcare providers. Many of the nearly 4,000 False Claims Act cases in Violation Tracker were made possible by whistleblowers. These cases are handled as civil matters, whereas the new pilot program will cover criminal charges.

DOJ sees the whistleblower program as part of its broader effort to encourage corporations to self-report when they detect illegal behavior within their ranks. The department took the unusual step of structuring the program so that whistleblowers remain eligible for an award if they first report the misconduct to corporate superiors and the company in turn discloses it to DOJ.

It would be ill-advised for the department to offer leniency deals to companies that engage in self-reporting only after learning that a whistleblower is ready to go public. Such deals are meant to incentivize companies to come forward of their own volition, not when the boom is about to be lowered.

Some critics complain that the DOJ pilot is deficient in that it does not adequately protect whistleblowers from retaliation. The program description deals with the issue by saying that the department could respond to retaliation by declining to award the company cooperation credit and/or “institute appropriate enforcement action.” DOJ would do well to adopt procedures like those in the Sarbanes-Oxley Act providing specific remedies for whistleblowers who experience retaliation.

Despite these limitations, it is encouraging that DOJ is adopting a practice for its criminal cases that has a long track record of success in bringing to light corporate wrongdoing of a civil nature. Let’s hope that this approach will put more pressure on rogue companies to clean up their act.

The World Against Google

The decision by a federal judge declaring Google’s search business to be an illegal monopoly came just in time. Several chief executives and Silicon Valley billionaires had begun to openly pressure Kamala Harris to commit to ousting Lina Khan as chair of the Federal Trade Commission because of her aggressive antitrust policies. That arrogant and clumsy lobbying effort was effectively torpedoed by the blockbuster court ruling.

It should come as no surprise to have Google found guilty of anti-competitive practices. Earlier this year, another federal court gave final approval to a settlement in which Google agreed to pay $90 million to resolve allegations that its Play Store practices violated antitrust law.

Google and its parent Alphabet Inc. have been facing legal challenges to their practices around the world. Most notable have been the conflicts with the European Union, which has imposed penalties of nearly $10 billion. These include a $5 billion fine in 2018 for putting illegal restrictions on Android device manufacturers and mobile network operators to cement its dominant position in general internet search.

The French Competition Authority has fined Google several times, including a $593 million penalty in 2021 for having disregarded previous injunctions protecting the rights of newspaper publishers. That same year, the agency fined Google $267 million for abusing its dominant position in the online advertising market.

The Italian Competition Authority fined Google $121 million for preventing Enel X Italia from developing an Android version of an app for users of electric vehicles. The agency is conducting a broader investigation of the company.

The Competition Commission of India has fined Google a total of nearly $300 million for abusing its dominant position in online general web search and web search advertising services and for anti-competitive practices in relation to its Play Store policies and in the market for Android devices.

The Korea Fair Trade Commission has fined Google a total of about $200 million for blocking competing mobile operating systems from entering the market and for undermining fair competition in the market for mobile games.

Even the Russian Anti-Monopoly Service has gotten in on the act. In 2022 it fined the company $21 million for abusing its dominant position in the video hosting market. When Google failed to pay that fine, the agency increased the penalty by $47 million.

Unless it gets overturned on appeal, the U.S. decision against Google is likely to have more significant consequences–both monetary and structural–than the foreign cases. It is also being regarded as an indicator of how things may go in the antitrust lawsuits pending against other tech giants such as Amazon, Apple and Meta as well as another case against Google concerning online advertising.

Google has come a long way since it presented itself as an upstart company with a Don’t Be Evil motto. It and the rest of Big Tech accumulated tremendous wealth and power. Maybe now they will be cut down to size.

The U.S. and foreign cases discussed above and much more will be contained in the forthcoming Violation Tracker Global.

Greenpeace Slaps Back

Asked to define the phrase Energy Transfer, most people would say it sounds like something they dimly recall from high school physics. Actually, it is the name of a giant corporation that owns the country’s largest petroleum transportation system, including the Dakota Access Pipeline (DAPL), which was the focus of intense protests in 2016.

Energy Transfer and DAPL are back in the news because a trial is set to begin in the latest phase of the company’s legal assault against opponents of the pipeline. Despite the protests led by the Standing Rock Sioux Tribe and other indigenous groups, the pipeline was completed and went into operation in 2017. That was in large part due to the intervention of the Trump Administration in one of its first acts. Energy Transfer CEO Kelcy Warren was a big contributor to Trump during the 2016 presidential race. This year he gave $5 million to a pro-Trump Super PAC.

Although it won the battle to build DAPL, Energy Transfer has been on a crusade against its adversaries. Initially, it targeted Standing Rock Sioux chairman Dave Archambault and other tribal leaders at the center of the protests. When that failed, it went after Greenpeace and has not relented. In doing so, it has mounted one of the most aggressive examples of what are known as SLAPP suits (strategic lawsuits against public participation)—legal actions meant to intimidate anti-corporate protests.

In 2017 Energy Transfer filed a federal racketeering suit against Greenpeace that made extravagant allegations that tried to depict the group’s legitimate criticisms of the company and DAPL as a violent criminal conspiracy. The complaint accused Greenpeace of “manufacturing a media spectacle based upon phony but emotionally charged hot-button issues, sensational lies, and intentionally incited physical violence, property destruction, and other criminal conduct.”

Greenpeace vehemently denied advocating or engaging in any violent acts, while also insisting it did not organize the protests but was simply supporting a campaign led by tribal groups. A federal judge threw out the racketeering case, but Energy Transfer has continued to pursue the matter at the state level and is seeking $300 million in damages.

The North Dakota complaint filed in 2019 employs much of the same overheated rhetoric as the unsuccessful federal action. It accuses Greenpeace and several co-defendants of pursuing an “extremist agenda — to attack and disrupt Energy Transfer’s business and its construction of DAPL — through means far outside the bounds of democratic political action, protest, and peaceful, legally protected expression of dissent.”

Yet the company focuses a great deal on such expressions of dissent, alleging that the defendants “engaged in large-scale, intentional dissemination of misinformation and outright falsehoods regarding Energy Transfer, DAPL’s environmental impact, and Energy Transfer’s extensive efforts to address the concerns of local North Dakota communities.”

It is language such as this that prompts Greenpeace to argue that the case represents a serious threat to First Amendment rights. If Energy Transfer is successful in pushing the idea that those criticizing its actions are guilty of defamation, that would indeed have a chilling effect on corporate accountability activism.

As Greenpeace points out, there is a lot to criticize about Energy Transfer even apart from DAPL. In Violation Tracker we document 383 instances since 2000 in which the company and its subsidiaries were fined or reached settlements in cases involving environmental, safety or other infractions. The associated penalties amount to $611 million.

Five of these cases were brought as criminal matters. These include a 2022 case brought by then-Pennsylvania Attorney General Josh Shapiro in which two Energy Transfer subsidiaries pleaded no contest to criminal water pollution charges relating to the release of large quantities of drilling fluids containing potentially hazardous substances in places where it could contaminate drinking water supplies. AG Shapiro stated that in bringing the case his office was “holding Energy Transfer accountable for their crimes against our natural resources.”

It is unclear whether Energy Transfer really believes the lawsuit will silence its critics. For its part, Greenpeace shows no sign of being intimidated and is defending itself forcefully, which is in keeping with its long track record of standing up to the powerful. Energy Transfer may have SLAPPed, but Greenpeace is slapping back.

For more details on the lawsuit, see this website just launched by Greenpeace.

Kamala Harris as A Corporate Crime Fighter

The coming weeks are likely to see much discussion, pro and con, about Kamala Harris’ record prosecuting street crime during her time as District Attorney of San Francisco. Perhaps even more relevant to her as a presidential candidate was her tenure as the California Attorney General.

State attorneys general involve themselves in many issues, but one of their key roles is to address business misconduct, especially in the areas of consumer protection and antitrust. As the California AG from 2011 through 2016, Harris was for the most part an aggressive corporate crime fighter.

In Violation Tracker we have more than 40 cases her office successfully prosecuted, resulting in over $3 billion in fines and settlements. About one-third of that total came from a 2016 judgment against the predatory for-profit Corinthian Colleges, which by that time had ceased operations and was in bankruptcy.

Here are some of the other more significant cases:

A $750 million settlement with the Canadian company Powerex, which was accused of manipulating the market during the 2000-2001 western energy crisis.

A $323 million settlement with SCAN Health Plan to resolve allegations the company overcharged the state’s Medicaid program, known as Medi-Cal.

A $298 million settlement with JPMorgan Chase, which was accused of misleading state pension funds in the marketing of residential mortgage-backed securities. This was part of a broader $13 billion settlement the bank reached with state and federal agencies concerning the toxic securities that helped bring about the financial crisis of the late 2000s.

A $241 million settlement with Quest Diagnostics, which also involved Medi-Cal billing abuses.

A $168 million settlement with K12 Inc., a for-profit online charter school operator, and 14 affiliated non-profit schools known as the California Virtual Academies it managed, over alleged violations of California’s false claims, false advertising and unfair competition laws.

An $86 million settlement with Volkswagen concerning the installation of defeat devices to evade emissions testing in its diesel vehicles. This was a supplement to the company’s $14 billion federal-state settlement.

Among the other companies her office successfully pursued were Walmart (for over-charging customers), Toshiba (price-fixing), Wells Fargo (privacy violations) and Chevron (improper hazardous waste disposal).

Harris’ office was also involved in many cases brought by groups of state AGs, often taking a leading role. The largest case was a $25 billion settlement reached by federal and state agencies in 2012 with five of the largest mortgage servicing companies over their foreclosure practices. Others included:

A $687 million settlement with Standard & Poor’s Financial Services, which had been accused of inflating ratings of residential mortgage-backed securities at the center of the financial crisis.

A $339 million settlement with Abbott Laboratories (now AbbVie) to resolve allegations it promoted its drug Depakote for uses not approved by the Food and Drug Administration.

A $151 million settlement with drug wholesaler McKesson to resolve allegations the company inflated the price of prescription drugs by as much as 25 percent, causing the states’ Medicaid programs to overpay millions of dollars in pharmacy reimbursements.

A $90 million settlement with the Swiss bank UBS on charges of anticompetitive and fraudulent conduct in the municipal bond derivatives industry, which took the form of bid-rigging, submission of non-competitive courtesy bids and submission to government agencies, among others, of fraudulent certifications of compliance with U.S. Treasury regulations.

Harris’s record as AG was not flawless. Most notably, she was criticized for failing to prosecute OneWest Bank for foreclosure violations. The bank was controlled by Steve Mnuchin, who would go on to become Donald Trump’s Secretary of the Treasury.

If she were to become president, Harris would be in a position to set the tone for the way her administration would address corporate misconduct. That would begin with her choice for attorney general and extend to the approach she encourages for all regulatory agencies.

This is an area in which she cannot simply promise to continue the policies of the current administration. Biden’s Justice Department initially signaled it would get tough on corporate miscreants after Trump’s lax approach, but it has largely failed to deliver. Instead, the DOJ has stressed leniency agreements, which have turned out to be a boon for recidivist companies.

Harris would do well to signal that she intends to change course and draw on her experience as state AG to be an aggressive corporate crime fighter at the federal level.

The False Hope of Vance’s Populism

The claim that Donald Trump’s near-death experience in Pennsylvania is a sign of divine intervention is not the only far-fetched notion emerging from the Republican Convention. It is also difficult to swallow the idea that the choice of J.D. Vance as Trump’s running mate is an indication that the GOP is embracing pro-worker populism.

Vance is one of a group of younger Republican senators who are seeking to address one of the key contradictions of the MAGA movement. Trump has done a good job tapping into the anger of working class voters, but he has used it mainly to stoke resentment against immigrants and cultural elites. He has offered little in the way of proposals that would improve the lot of communities still suffering the effects of economic dislocation.

In his 2016 campaign, Trump promoted the idea he would revive the coal industry. That excited many voters in states such as West Virginia, but it was a false promise. Coal continued to decline. Now Trump is relying on gimmicks such as eliminating payroll taxes on tips received by hospitality workers while pushing widespread tariffs that could seriously backfire. At the same time, he brought about a Republican platform containing tax and regulatory policies that are anything but populist.

Vance and his group are smart enough to realize that those workers flocking to the Republican Party may not be satisfied with cultural populism alone. They are thus willing to flirt with ideas that are antithetical to long-standing GOP orthodoxy.

They seem to be more receptive toward labor unions—a stance that got a boost after the Teamsters president agreed to speak at the convention. They have a more positive view of antitrust enforcement, at least when it comes to Big Tech. In the past, Vance has expressed support for increasing the minimum wage and raising taxes on corporations.

There is no indication that any of these ideas are going to be adopted by Donald Trump, who continues to espouse the corporate agenda on most issues. He clings to the business-friendly claims that regulation harms the economy and that low business taxes are the key to prosperity. He vilifies unions and environmental groups. A second Trump Administration would likely pander to corporate interests the way the first one did.

While many CEOs are still wary of endorsing Trump and his social agenda, some are moving into his camp. Most notable is Elon Musk, who has committed to spending tens of millions of dollars to support the Republican ticket. Other major figures in Silicon Valley are also jumping on the Trump bandwagon.

It is unclear whether Trump’s selective populism will continue to satisfy his supporters, but for now he seems to be riding high. As for Vance, it is more likely that Trump will change his views rather than the other way around. After all, this is the same Vance who once denounced Trump and now worships him. I am betting he will have a similar conversion when it comes to economic policy.