Solving the Corporate Identity Crisis

Like the Republican Party, Corporate America is embroiled in a battle between its evil impulses and its better angels. Nowhere is this clearer than with regard to environmental policy.

On one side are the ESG proponents such as BlackRock’s CEO Larry Fink, who according to the New York Times, is using his firm’s role as a massive institutional investor to pressure corporations to embrace sustainable practices. In his annual letter to companies, he called not just for vague aspirations but specific plans that are incorporated in long-term strategies and reviewed by boards of directors.

General Motors has just announced that it will phase out gasoline-powered cars and trucks and will sell only zero-emissions vehicles by 2035. The company will spend $27 billion developing about 30 types of electric vehicles.

At the same time, fossil fuel companies are going ballistic over the Biden Administration’s plan to suspend oil and gas leasing on federal lands, despite the fact that some 90 percent of exploration occurs on private property and is not affected by the executive order. Biden has also not called for a ban on fracking, despite allegations during the presidential campaign that this was his real plan.

The conflict within the business world was epitomized by the U.S. Chamber of Commerce, which issued a press release that welcomed the Biden Administration’s focus on climate change while rejecting the leasing action.

There is also a corporate identity crisis with regard to employment practices, especially those in the high-tech sector. For many years, Silicon Valley companies had reputations as great places to work and were even accused of coddling their employees.

Now companies such as Amazon have replaced Walmart as the exemplars of bad employers. That image has intensified as groups of workers have begun to turn to collective action to address their concerns. Rather than embracing the right of employees to have a real voice at work, high-tech employers are adopting old-fashioned union-busting tactics. Amazon has even taken a move from the Donald Trump playbook by opposing mail-in voting during a representation election in Alabama.

The one clear lesson from the corporate inconsistencies is that ESG and other voluntary business practices are no substitute for strong government oversight. We should not have to wait until big business decides whether it really wants to help save the planet or will cling to fossil fuels as long as possible.

We should also not have to wait until giant companies decide whether they will treat their workers with respect or continue to regard them as little more than vassals.

It is thus encouraging that the Biden Administration is taking decisive action to restore effective regulation of both the environment and the workplace as well as areas such as consumer protection. Once agencies such as the EPA, the NLRB and the CFPB go back to enforcing the law in an aggressive manor, corporate ambivalence will become much less relevant and we can be confident that the entire private sector will feel pressured to do the right thing.

Regulatory Renewal

One of the biggest betrayals committed by Donald Trump was his inclusion of a traditional Republican attack on regulation in a purportedly populist agenda. He managed to get many of his working-class followers to believe that weakening oversight of business was in their interest while it was actually a boon to the large corporations he pretended to challenge.

Some initial steps by President Biden indicate that he is ending that charade and will return regulatory agencies to their intended missions, especially when those involve helping working families. This intention can be seen both in his nominations for new agency heads and early confrontations with some Trump holdovers.

One of those confrontations took place at the Consumer Financial Protection Bureau, an agency that was created by the 2010 Dodd-Frank Act and which incurred the wrath of business-friendly Congressional Republicans for its aggressive enforcement actions against financial sector abuses. Those politicians took special aim at the provisions in Dodd-Frank that gave the CFPB’s director a great deal of independence.

The Trump Administration worked hard to defang the CFPB and in 2017 succeeded in putting the agency under the control of OMB Director Mick Mulvaney, who was openly contemptuous of its mission.  In 2018 Trump named Kathy Kraninger, a Mulvaney crony with no experience in financial regulation, to head the agency. After being confirmed on a party-line vote, Kraninger went on to weaken the CFPB’s rules against predatory lending and reduced enforcement activity against large banks.

Immediately upon taking office, Biden demanded Kraninger’s resignation. Ironically, Biden was able to take that action because opponents of the agency’s independence had prevailed in a Supreme Court decision. The new administration turned the tables and used the ruling to facilitate the reinvigoration of the agency.

While Kraninger agreed to resign, Biden had to fire Peter Robb, the powerful general counsel of the National Labor Relations Board. A veteran management-side lawyer whose anti-union activity dates back to his involvement with the Reagan Administration’s attack on the air traffic controller’s union, Robb has spent the past three years doing his best to thwart the agency’s mission of promoting collective bargaining. He even tried to limit worker free speech by asking a federal court to bar the use of large inflatable rats on picket lines.

Robb’s term was not supposed to expire until November, but the Biden Administration apparently decided it was worth alienating Republicans in order to stop the damage Robb has been inflicting on labor rights.

Replacing these key policymakers at the CFPB and the NLRB will go a long way in reorienting the agencies back to their mission of protecting working families from the predatory practices of the financial services industry and the abusive practices of employers. They fit together with the overall change of direction signaled in the executive order Biden issued on his first day reversing Trump’s deregulatory framework.

These personnel and broad policy moves will hopefully be just the first steps in an extended campaign by the Biden Administration to end the demonization of regulation and to use the powers of the federal government to promote economic justice.  

Corporate Consequences

The coming weeks will determine how big a price Donald Trump and his Republican enablers will pay for fabricating claims about election fraud and instigating the deadly attack on the Capitol.

Yet it is just as important for the country to determine what the consequences should be for the large corporations that directly or indirectly aided Trump’s rise to power.

At the moment, Corporate America is frantically trying to distance itself from Trump and his confederates. Trump himself has become a pariah. Social media platforms have banished him. His banks have severed ties. The PGA Championship will no longer be held at his golf course in New Jersey. The Wall Street Journal urged him to resign. The National Association of Manufacturers called for the use of the 25th Amendment to oust him from office.

Corporations are also turning on Congressional Republicans who perpetuated Trump’s lies about election fraud and sought to overturn Biden’s victory. Companies such as Marriott, Dow Chemical, and Morgan Stanley announced they would halt campaign contributions to the Republicans who objected to certifying the electoral college results as the Capitol was still reeling from the insurrection.

It is fine for big business to come out now in favor of democracy, but that does not completely free it of responsibility for the series of events that led to necessity to fill the Capitol with armed troops to protect it against another assault from U.S. citizens.

That culpability comes in various forms. Although he is hardly a major player, MyPillow CEO Mike Lindell, who continues to support Trump, deserves some commercial form of impeachment. It’s too late to do anything about the recently deceased Sheldon Adelson, who used his casino fortune to prop up Trump and other retrograde Republicans, but there are other major contributors who should be held to account.

Yet there are many other corporations that may not have explicitly supported Trumpism but which were bought off with tax cuts and regulatory rollbacks. This was part of one of the other big lies of the Trump Administration: that it was pursuing populist policies aimed at helping working people.

Trump cynically perpetuated this falsehood while collaborating with the likes of Mitch McConnell to advance the usual pro-business Republican agenda. There were a few variances in areas such as trade, but the new positions were less pro-labor than they were simply xenophobic and incoherent. Whatever benefits workers may have enjoyed under Trump were far outweighed by the harm caused by the weakening of workplace safety enforcement, continued anti-union animus and the like. Trump’s incompetent response to the pandemic and the insufficient relief efforts have only compounded the problem.

Soon the country will be finished with Trump and attention will turn to the priorities of the new Administration. Biden included numerous progressives in his transition team and has chosen some decent people to serve in his cabinet, yet his closest advisors include individuals with strong corporate ties. Although he moved a bit to the left during the campaign, Biden himself is firmly centrist and far from anti-business.

Having distanced itself from Trump, big business may feel that it is entitled to push its agenda with the new administration. Nothing is further from the truth.

If anything, corporate interests, having received undue benefits during the Trump years, should now take a back seat to truly worker-friendly and other progressive policies. Corporate America should, in effect, pay a kind of reparations for its failure to stand up to Trumpism. A Biden Administration that is allowed to provide real help to struggling Americans may do more than anything else to help reunify the country.

Accountability for Trump’s Corporate Enablers

NAM CEO Jay Timmons presents award to Ivanka Trump in February 2020.

Republican members of Congress who abetted the plot to overturn the election will go down in infamy along with the disgraced 45th President himself. That applies both to the dead enders who still repeat the lies and those Senators and Representatives who abandoned the shameful crusade only after a mob whipped up by Trump invaded the Capitol.

There is another group of enablers who should be called to account: Corporate America. Sure, big business is now frantically trying to distance itself from Trump, with the National Association of Manufacturers going so far as to urge that Vice President Pence and the Cabinet invoke the 25th Amendment. Amid the chaos on Wednesday, the Business Roundtable called on Trump to put an end to the violence. In late November, a group of more than 160 chief executives urged the Trump Administration to accept Biden’s victory and cooperate in the transition process.

Yet, as with Congressional Republicans, these gestures came after four years of enabling Trump’s anti-democratic practices. While Trump moved steadily along the path to authoritarianism, large companies allowed themselves to be bought off with tax giveaways and regulatory rollbacks. There were occasional confrontations with corporations such as Carrier and General Motors over layoffs and offshoring, but these were bogus, reality-TV-type confrontations that amounted to nothing.

More significant were the policies adopted by a purportedly populist President that weakened labor unions, rolled back OSHA enforcement, curtailed fair labor standards and installed employer-friendly Secretaries of Labor.

Corporate America has also benefited from Trump’s retrograde environmental policies, especially the efforts to roll back limits on greenhouse gas emissions. On their way out the door, officials such as Andrew Wheeler of the EPA are trying to limit the options the Biden Administration will have to restore pollution controls.

Specific corporations have also been the beneficiaries of Trump’s policies. Military contractors such as Lockheed Martin have profited from the Administration’s use of arms sales to countries such as Saudi Arabia as a key element of its foreign policy. Telecommunications equipment companies such as Cisco benefitted from Trump’s campaign against its Chinese competitor Huawei.

Even companies chosen by Trump for his faux confrontations have profited from him or have assisted his accumulation of power. News corporations such as CNN gave Trump’s early rallies undue coverage and helped propel his political rise. Social media corporations for the most part have allowed Trump to disseminate hate speech and dangerous falsehoods.

Some prominent corporate figures have directly supported Trump, both with endorsements and substantial campaign contributions. These include Stephen Schwarzman of The Blackstone Group, Kelcy Warren of the pipeline company Energy Transfer Partners, and casino magnate Sheldon Adelson.

Other corporations and trade associations have sucked up to Trump and his family over the past four years. Last February, NAM, the organization now promoting the 25th Amendment, gave its Alexander Hamilton Award to Ivanka Trump.

On the whole, big business has offered little more than mild rebukes to Trump’s dangerous tendencies while reaping substantial benefits. Like Congressional Republicans, Corporate America needs to be held to account.

The 2020 Corporate Rap Sheet

For all of his populist bluster, Donald Trump has done little during his four years in office to stem the power of big business. He criticizes corporations only when he feels personally slighted or when it fits into one of his many outlandish conspiracy theories.

Fortunately, career officials at regulatory agencies and career prosecutors at the Justice Department, as well as those at the state level, have continued doing their jobs. The following is a selection of significant cases resolved during 2020.

Opioid market abuses: The Justice Department announced an $8 billion global resolution of its criminal and civil investigations into abuses by Purdue Pharma LP. The company agreed to plead guilty to three felony counts and pay criminal fines and forfeitures of $5.5 billion and $2.8 billion in a civil settlement. Given that the company is going through bankruptcy, it is unclear how much of this will actually be paid.

Bogus bank accounts: As part of the ongoing prosecution of Wells Fargo for pressuring employees to meet unrealistic sales goal by creating bogus accounts without customer permission, the Justice Department announced that the bank would pay $3 billion to resolve criminal and civil charges. Wells was allowed to enter into a deferred prosecution agreement to avoid a guilty plea.

Foreign bribery: Goldman Sachs and its Malaysian subsidiary admitted to conspiring to violate the Foreign Corrupt Practices Act in connection with a scheme to pay over $1 billion in bribes to Malaysian and Abu Dhabi officials to obtain lucrative business for Goldman Sachs, including its role in underwriting approximately $6.5 billion in three bond deals for 1Malaysia Development Bhd.  Goldman Sachs agreed to pay more than $2.9 billion and disgorge $606 million as part of a coordinated resolution with criminal and civil authorities in the United States, the United Kingdom, Singapore, and elsewhere.

Emissions cheating: The Department of Justice, the Environmental Protection Agency, and the California Air Resources Board announced a $1.5 billion settlement with German automaker Daimler AG and its American subsidiary Mercedes-Benz USA, LLC resolving alleged violations of the Clean Air Act and California law associated with emissions cheating.

False claims and kickbacks: Novartis agreed to pay over $642 million in separate settlements resolving claims that it violated the False Claims Act.  The first settlement pertained to the company’s alleged illegal use of three foundations as conduits to pay the copayments of Medicare patients.  The second settlement resolved claims arising from the company’s alleged payments of kickbacks to doctors.

Tax evasion: Bank Hapoalim of Israel agreed to pay a total of more than $600 million in penalties to resolve criminal allegations by the Justice Department that it conspired with U.S. taxpayers to hide assets and Income in offshore accounts. The parent company entered into a deferred prosecution agreement while its Swiss subsidiary pled guilty.

Illegal robocalls: Dish Network agreed to pay $210 million to resolve a long-running federal-state lawsuit alleging that the company engaged in illegal telemarketing through unwanted robocalls to thousands of people on the Do Not Call registry.

Spoofing: The Commodity Futures Trading Commission and the Justice Department announced that JPMorgan Chase would pay $920 million to resolve civil and criminal allegations involving deceptive conduct that spanned at least eight years and involved hundreds of thousands of spoof orders in precious metals and U.S. Treasury futures contracts on the Commodity Exchange, Inc., the New York Mercantile Exchange, and the Chicago Board of Trade.

Predatory lending: Banco Santander’s U.S. arm agreed to pay $550 million to resolve multistate litigation alleging that the bank, through its use of proprietary credit scoring models to forecast default risk, knew that certain consumer segments were likely to default, yet issued high-interest automobile loans to them anyway.

Corruption: A criminal investigation of Commonwealth Edison was resolved with a deferred prosecution agreement under which ComEd agreed to pay $200 million and admit it arranged jobs, vendor subcontracts, and monetary payments associated with those jobs and subcontracts, for various associates of a high-level elected official for the state of Illinois, to influence and reward the official’s efforts to assist ComEd with respect to legislation.

Defrauding investors: SCANA Corp. and its subsidiary SCE&G agreed to settle a Securities and Exchange Commission lawsuit charging them with defrauding investors by making false and misleading statements about a nuclear plant expansion that was ultimately abandoned.  The company agreed to pay a $25 million penalty and $112.5 million in disgorgement.

Mortgage abuses: Nationstar Mortgage, which does business as Mr. Cooper, agreed to pay $86.8 million to resolve federal and multistate allegations that the mortgage servicer engaged in unlawful practices in the wake of the 2008 financial crisis. The settlement addressed alleged misconduct regarding servicing transfers, property preservation, loan modifications, and other issues, which in some cases led to improper foreclosure or borrowers being locked out of their homes.

Labor relations violations: CNN agreed to pay $76 million in backpay, the largest monetary remedy in the history of the National Labor Relations Board, to resolve a case that originated in 2003 when CNN terminated a contract with Team Video Services and hired new employees to perform the same work without recognizing or bargaining with the two unions that had represented the TVS employees.

Additional details on these cases can be found in Violation Tracker. Some will appear next week in an update to the database that will increase the number of its cases to 444,000 and the penalty total to $650 billion.

AstraZeneca’s Vaccine Stumbles

It’s difficult to decide whether to be more suspicious of the Trump Administration or the major drugmakers when evaluating the coming covid vaccine rollout.

The administration, eager to take credit for the unusually quick development of at least two products, is now revealed to have passed up the opportunity to lock in larger supplies of the Pfizer offering, prompting the company to make deals with other countries. Trump tried to cover up the error with an America First executive order, but that action is said to be unenforceable. Unless some of the other vaccines in development come to fruition soon, it may take a lot longer than promised to inoculate the U.S. population. The situation is worsened by the decision of the administration to leave states to work out distribution plans on their own.  

Pfizer, meanwhile, was getting showered with praise as its vaccine began to be administered in the United Kingdom, yet it soon had to contend with reports of several serious allergic reactions. The company, it turns out, had excluded people with a history of significant adverse reaction to vaccines from late-stage trials. UK officials are now telling those with serious allergies to put off getting the shot.

Then there is AstraZeneca, whose vaccine developed with the University of Oxford appears to be effective, but exactly how effective is in doubt given that researchers initially screwed up the doses given during the clinical trial and had to improvise.

Back in September, AstraZeneca had to halt the clinical trial after a participant fell ill. The company apparently infuriated the Food and Drug Administration by failing to warn it about the problem before the story became public. The New York Times called the incident “part of a pattern of communication blunders by AstraZeneca that has damaged the company’s relationship with regulators, [and] raised doubts about whether its vaccine will stand up to intense public and scientific scrutiny.”

AstraZeneca’s shortcomings did not start with its covid project. Like Pfizer, AstraZeneca has been accused of engaging in illegal marketing. In 2010 it paid $520 million to the U.S. Justice Department to resolve allegations that it promoted its anti-psychotic drug Seroquel for uses not approved as safe and effective by the FDA. Among other things, the company was accused of having paid doctors to give speeches and publish articles (ghostwritten by the company) promoting those unapproved uses.

The company has also been embroiled in controversies over pricing. In 2007 a federal judge ruled in a national class action case that AstraZeneca and two other companies had to pay damages in connection with overcharging Medicare and private insurance companies. The judge singled out AstraZeneca for acting “unfairly and deceptively” in its pricing of the prostate cancer drug Zoladex. The company was later hit with a $12.9 million judgment.

The combination of Trump Administration incompetence and the questionable track record of companies like AstraZeneca and Pfizer is giving ammunition to vaccine skeptics. We can only hope that the FDA review process makes a convincing case for the safety of the vaccines and that the new Biden Administration shows greater skill in working out the details for their distribution.

Barr Opts for Prisoner Executions over Corporate Prosecutions

The priorities of the Barr Justice Department came to light with the revelation that it is rushing to schedule a series of federal prisoner executions before the Trump Administration comes to an end in January. DOJ is exhibiting a lot less urgency about meting out penalties for corporate defendants.

Four years ago at this time, the Obama Justice Department used its final weeks to negotiate an extraordinary wave of settlements with big business, collecting more than $30 billion in fines and settlements. During a period of ten days there were four ten-figure settlements: Deutsche Bank’s $7.2 billion toxic securities case; Credit Suisse’s $5.3 billion case in the same category; Volkswagen’s $4.3 billion case relating to emissions fraud; and Takata’s $1 billion case relating to defective airbag inflators.

The rush to settle was based at least in part on concern that the incoming Trump Administration would downplay the prosecution of corporate offenses as part of the assault on government regulation. That concern turned out to be valid, though not to the extent many observers expected. Prosecutions and regulatory enforcement have declined in some areas but have not disappeared.

Since this year’s election results became clear, there have been no billion-dollar resolutions announced by DOJ. During this time the only significant announcement was one involving a $135 million settlement of a foreign bribery case against Vitol, the secretive European commodity trading company.

While Barr is not yet using the lame duck period to resolve cases, DOJ was showing some prosecutorial vigor in a few areas even before the election. One of these is the enforcement of the Foreign Corrupt Practices Act. Even though Trump himself has reportedly sought to strike down the law, claiming it is unfair to U.S. companies, the Justice Department has gone on bringing cases.

The Vitol action is one of five FCPA settlements DOJ has announced during the past few months. These follow about 20 others since Trump took office. There are a few things to note about these cases. First, the corporate defendant, while paying a penalty, was almost always offered a way to avoid a guilty plea, usually through a deferred prosecution or non-prosecution agreement.

The second significant feature of Trump’s FCPA cases is that most of them were brought against corporations headquartered outside the United States. Trump’s criticism of the law may have prompted DOJ to focus more on foreign culprits, perhaps using FCPA as a surreptitious trade weapon. When DOJ pursued a case against the very American company Walmart, the department was accused of going easy on the giant retailer in the settlement negotiations.

Occasionally, even Barr’s DOJ has had to get tough with a U.S. company in an FCPA case. That happened in October, when Goldman Sachs had to pay more than $2 billion to resolve its culpability in the notorious 1Malaysia Development Bhd. (1MDB) case, which also involved prosecutors from other countries such as the United Kingdom and Singapore.

Assuming he does not get fired for refusing to go along with Trump’s election fraud delusion, Barr still has some time to end his tenure in a blaze of corporate settlements. It would be a better legacy than a brazen misuse of the death penalty by a lame duck attorney general.

In Pfizer We Trust?

The world is in love with Pfizer and Moderna. The two pharmaceutical companies have each announced amazing results in their separate efforts to develop a coronavirus vaccine. Pfizer first announced that its product appeared to be 90 percent effective, only to be upstaged days later by Moderna and its claim of 94.5 percent. Pfizer then revised its efficacy rate to 95 percent.

Like everyone else, I am eager to see progress made in the fight against covid, but there is a part of me that wonders whether these announcements, coming in record-breaking time, are a bit too good to be true. Don’t get me wrong—I am not a vaccine skeptic. I recently got my flu shot and previously was inoculated against shingles and pneumonia.

Yet I am a wary when it comes to grand pronouncements by large corporations about advances that will generate vast amounts of profit. This is particularly the case with large drug companies, which have a long history of deception and malfeasance.

Pfizer is a prime example. Its track record is filled with cases in which it was accused of misleading regulators and the public about the safety of its products.

In the early 1990s, for example, Pfizer was embroiled in a controversy about scores of fatalities linked to heart valves produced by its Shiley division. In 1992 it agreed to pay up to $205 million to settle thousands of lawsuits. In 1994 the company agreed to pay $10.75 million to settle Justice Department charges that it lied to regulators in seeking approval for the valves.

In 2005 Pfizer had to stop advertising its arthritis medication Celebrex after a study showed that high doses were associated with an increased risk of heart attacks. Pfizer’s claims about the safety of the drug were further undermined when it came to light that the company had conducted a clinical trial back in 1999 that also pointed to the cardiac risk but which Pfizer kept secret.

Pfizer, which was a pioneer in the once controversial practice of advertising pharmaceuticals, has frequently been accused of making false or misleading claims about its products. It has paid millions of dollars to resolve state and federal allegations about these practices.

It has paid even larger amounts in cases involving allegations that the company promoted its drugs for uses not approved by the Food and Drug Administration. These include a $2.3 billion settlement in 2009 that covered criminal as well as civil allegations. Pfizer’s subsidiary Wyeth settled its own criminal-civil illegal marketing case for $490 million four years later. In 2016 Wyeth paid another $784 million to settle allegations that it reported false pricing information to the federal government.

Moderna has not been around long enough to get into much trouble, but other companies working on vaccines have track records similar to Pfizer’s. These include Johnson & Johnson, whose penalty total on Violation Tracker is $4.2 billion, AstraZeneca ($1.1 billion), GlaxoSmithKline ($4.4 billion) and Sanofi ($641 million).

We may have no choice but to depend on companies such as these to develop and produce the vaccines we need to overcome covid. Fortunately, their efficacy and safety claims will be subject to review by presumably independent experts before the vaccines are put into general distribution. I will continue to have my doubts about Pfizer, but I’m willing to trust Fauci.

Limiting Corporate Influence

Among the many challenges the Biden Administration will have to confront after Trump ends his temper tantrum is deciding on the posture it wants to take toward big business. There will be a battle for the soul of the new president as corporate Democrats vie with progressives to influence policy in areas such as regulation and antitrust.

The initial signs are encouraging. The Biden transition just released a list of some 500 individuals who will be staffing the Agency Review Teams charged with preparing the way for a transfer of power in all parts of the executive branch.

I went through the list of affiliations and found only about 20 for large corporations. The vast majority of the people are from academia, state government, law firms, non-profits, unions, think tanks and foundations.  It is likely that some of the law firms are there to represent specific corporate interests, but the numerous representatives from progressive public interest, environmental and labor groups should serve as an effective counterweight.

In the Labor Department list there are no law firms or corporations; in their place are representatives from five different unions along with people from the National Employment Law Project and other progressive groups.

What is particularly significant is the near absence of people affiliated with Wall Street banks. The Defense Department list has someone from JPMorgan Chase; Homeland Security has a representative from Capital One; and the International Development group includes someone from U.S. Bank. There is no one from Bank of America, Goldman Sachs, Citigroup, Wells Fargo or Morgan Stanley.

The Treasury Department group is led by someone from Keybank, which is based in Cleveland and ranks about 29th among U.S. banks. Fortunately, the Treasury group also includes representatives from places such as the Center for American Progress, the American Economic Liberties Project and the AFL-CIO.

Other balancing acts include the list for the Environmental Protection Agency, which includes a representative from Dell Technologies but also from Earthjustice (the lead person) and The Sierra Club.

Some of the corporations show up in surprising places. Walt Disney is represented on the Intelligence Community list. The cosmetics firm Estee Lauder has someone on the State Department list. Someone from Airbnb is in the National Security Council group.

Looking at current corporate villains, the one that stands out is Amazon.com. It shows up on two lists—the one for the State Department and the one for the Office of Management and Budget.

Lyft and Airbnb are also on the OMB list, along with some academics, a consultant, a state official and someone from Meow Wolf, a Santa Fe-based non-profit that produces immersive art experiences.

Given that OMB oversees regulatory policy, the absence of public interest, union and environmental people raises a concern. Otherwise, it appears that the Biden team is limiting corporate influence in the emerging administration. Let’s hope it stays that way.

Downplaying Corporate Misconduct

Despite all the effort it has put into eliminating business regulations, the Trump Administration insists that it diligently enforces those rules that are still in effect. Moreover, Trump likes to depict himself as some sort of crusader against corporate misconduct.

A new indication of the absurdity of these claims comes from the U.S. Labor Department, which recently decided it would no longer issue press releases when citing companies for violations of rules governing workplace safety, employment discrimination and labor standards. According to an internal memo obtained by the New York Times, the excuse for the change was that such releases tend to linger prominently in search results and would be misleading if an enforcement action was ultimately found to have been unjustified.

Rarely does an alleged violation turn out to have no basis, and in those very few instances the problem could be resolved by the issuance of a new press release that would presumably circulate as easily as the original one. The real motivation for the change is to reduce the ability of agencies to pressure corporate transgressors and could be a stepping-stone toward the elimination of all announcements of violations.

Some parts of the Trump Administration already seem to have moved in that direction. In the course of collecting data for Violation Tracker, I check the websites of more than 50 federal regulatory agencies every three months to find new cases to add to the database. By the way, only finalized cases are included.

Agencies report on different schedules. Some issue a press release on each case when it is resolved or add each penalty to an ongoing database. Others disclose the data periodically, whether monthly, quarterly or annually.

What I have found is that some agencies seemed to have given up on new reporting even while leaving their historical data in place. Here are some examples:

The Bureau of Safety and Environmental Enforcement, which regulates offshore oil drilling, has no data on its civil penalties page more recent than fiscal year 2018.

The Federal Maritime Commission’s Bureau of Enforcement has not updated its penalty announcements since May 2019.

The most recent item on the Consumer Product Safety Commission’s list of press releases relating to an enforcement penalty is dated November 26, 2018.

It is difficult to determine whether these agencies are not announcing enforcement actions or have stopped bringing them. Either would be troubling.

Publicizing violations and penalties is just as important as the enforcement actions themselves. For many companies, the fines they are required to pay are trivial. The disclosure of their conduct means much more in terms of the impact on the firm’s reputation among customers and investors. Those revelations, called “regulation by shaming” in the academic literature, can have a bigger deterrent effect.

Violation Tracker is meant to enhance the deterrence by collecting a wide variety of disclosures about corporate misconduct and showing the degree of recidivism, especially among large companies. Keeping the database current is a lot easier when agencies are not hiding their data.