Speaker emails

Two of the 2010 conference speakers have replied. Below is email correspondence from that.

[first speaker]

From: _________________
To: RDShatt@aol.com
Sent: 9/3/2010 8:17:36 A.M. Central Daylight Time
Subj: RE: To ECOA 2010 conference speakers

Dear Mr. Shatt:

Thank you for your email. I do not believe that I received your previous email that you indicated was sent to all speakers at the Chicago ECOA conference.

In any case, I have read your email as well as the supporting arguments that you made on your blog.

I am afraid I cannot agree with your arguments as presented. Your proposition that civil law liability is antithetical to promoting ethical conduct by business or deterring them for being unethical is not supported by any evidence or logic theory. Instead, you present it as “self-evident” truth and as a matter of strong belief on your part. Given this level of faith in your belief, I cannot see how a reasonable argument can be made as part of thoughtful discourse.

Taken at face value, and extended to other arenas of unlawful or unethical behavior, you would suggest that white collar crime can best be eliminated or reduced by allowing criminals to continue with their behavior. And that any indication of punishment would encourage them to continue with their unlawful conduct because it is profitable.

Furthermore, you are concerned about the compensatory aspects of the law that provide at least some restitution to the victims. Why not make a counter arguments that a higher level of punishment, both monetary compensation and even prison time, would serve as a deterrent to dissuade unethical conduct prohibitively expensive.

I am not suggesting that you are wrong, but simply that your arguments are just assertions which must be proved.

May I suggest that you reach out to ECOA leadership, or for that matter, ask some members of the business community, to organize a panel to raise and discuss these issues. However, to do so, you need to make sure that the sponsors of such a discussion panel are not merely interested in it as a matter of self-interest, but are concerned about it as a matter of wise public policy that would promote social good.

Sincerely,

_________

From: RDShatt@aol.com
To: __________
Sent: 9/6/2010 4:17:20 P.M. Central Daylight Time
Subj: Re: To ECOA 2010 conference speakers

Dear ______,

Thank you very much for taking the time to reply.

We may have a misunderstanding related to the fourth paragraph of your email.

I strongly believe financial penalties, liabilities, criminal punishments, and other sanctions are needed and should be imposed. That being said, I think a paramount question, whether the criminal law or the civil law is involved, is the extent to which enterprise level penalties and liabilities are sufficient, and, if not, the extent to which corporate officers and employees need to be held personally accountable and penalties and liabilities must be imposed upon them to achieve a satisfactory deterrent effect.

It is true that I have some strong beliefs, and that they have as a starting point common knowledge about human nature, to wit, that, in human nature, self-serving motivations are powerful and predominant, and altruism is weak.

If that is a fair evaluation of human nature, it immediately raises the questions posed above about whether enterprise level sanctions will suffice, or whether they are insufficient, because of human nature that can be too inclined to pursue self-interest and, in doing so, to discount costs and risks as long as those will get imposed on others and not on one's self.

I don't think I am taking undue liberties in my argumentation that starts with the foregoing common knowledge about human nature. I think I have as much evidence and logic that backs up my argumentation as have the authors of the Ethics Resource Center March 2010 white paper entitled "Ethical Leadership and Executive Compensation: Rewarding Integrity in the C-Suite" (http://www.ethics.org/files/u5/execComp.pdf), who say this:

From across the spectrum of experts and advocates, of political leaders and ordinary
citizens, there is a belief that executive incentives have overemphasized short-term performance,
encouraged excessive risk-taking, and failed to penalize poor performance. Many
believe that incentive plans have tempted some CEOs to put personal financial interests
ahead of good stewardship that serves the long-term interests of their organizations.

I have been endeavoring for three years to reach out to the ECOA leadership, but they will have nothing to do with me.

If you are interested, you may learn the gory details by scrolling down through my blog entries that appear here.

Again, many thanks for replying.

Sincerely,

Rob Shattuck

[please note that my email address rdshatt@aol.com represents a shortening of my last name Shattuck]

[second speaker]

From: RDShatt@aol.com
To: __________
Sent: 9/5/2010 10:48:08 A.M. Central Daylight Time
Subj: Re: To ECOA 2010 conference speakers

Here is my quick reaction:

Plaintiffs' lawyers don't care about compliance. If there is an opportunity they will take it.

A compliance program may be helpful if a case gets to a jury.

Your concerns would be best addressed in a scholarly article. The ECOA conference is aimed at practical concerns.

There is nothing that a compliance officer can do with regard to class actions, so it would not be something they would worry about.

____________

From: RDShatt@aol.com
To: _____________
Sent: 9/9/2010 7:26:53 A.M. Central Daylight Time
Subj: Re: To ECOA 2010 conference speakers

Thanks very much for replying, _______.

Are you referring to plaintiffs' lawyers not caring about compliance by themselves or not caring about compliance by other parties? If the latter, can I interpret your comment to mean that, in prosecuting their class action and other litigation and how they endeavor to shape the civil liability system, plaintiffs' lawyers don't care about how they impact compliance and/or business ethics?

I have attempted a scholarly article, but I think I lack needed credentials to get it published. Here is link to my article: http://robertshattuck.blogspot.com/2010/08/whither-quest-of-business-ethicists.html

I appreciate that, within the business ethics community, there is a range of perspectives, from the more practical to the more theoretical (which latter may be a basis for advocating change to improve ethics and compliance). I further appreciate that the ECOA probably has a more practical bent.

In recent years there has been a lot of theoretical consideration of how the criminal law can most effectively foster ethics and compliance. How much the ECOA has sought to inform its members about the various theories, I cannot say offhand. I would think ethics and compliance officers would have an interest in learning about the theories, and that knowledge about the same could be helpful to them in doing their jobs. I would like to think the same about my theorizing about the civil liability system.

Further, I think ethics and compliance officers, with their frontline experience with the conduct of corporate officers and other employees, and the factors that influence the same, are a very important source of information and evidence for evaluating theories about how the criminal law or the civil law can possibly be improve to better foster ethics and compliance.

Again, many thanks for your replying.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: __________
Sent: 9/14/2010 5:20:14 A.M. Central Daylight Time
Subj: Re: To ECOA 2010 conference speakers

Thank you very much for replying again, _______.

I posted your first email on my blog (without identifying you) prior to seeing your second email. See http://robertshattuck.blogspot.com/2010/09/speaker-emails.html Would you prefer that I remove your non-attributed first email from my blog?

From a compliance and a compliance officer's perspective, do you think it is objectionable the extent to which class action lawsuits get settled (usually with no admission of wrongdoing), because such settlements on a pervasive basis generate significant uncertainty about what is and what is not permitted under the law, such uncertainty greatly complicates compliance (because what is or is not permitted under the law does not get determined in particular cases to provide guidance to company lawyers and compliance officers), and, in the face of such uncertainty, compliance becomes based on an irrational in terrorum reaction to the legal uncertainties?

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: _____________
Sent: 9/14/2010 4:25:11 P.M. Central Daylight Time
Subj: Re: To ECOA 2010 conference speakers

Thanks once again, ______.

I am a retired lawyer who has had no experience as a litigator. I got onto the business ethics subject because I thought I discerned that it could provide novel argumentation against plaintiffs' lawyers, which argumentation I have articulated in my article Does the Civil Liability System Undermine Business Ethics? .

I have made little headway in propagating my argumentation.

I consider it progress in eliciting from you a view about whether there is a connection between compliance and uncertainties about the law that results from widespread incidence of legal settlements which are made without determinations or guidance about what is and what is not permitted by the law.

My lack of experience as a litigator includes a lack of experience in evaluating, on behalf of a corporation, relevant case law and known litigations, judgments, verdicts and settlements, and, based thereon, advising compliance officers and other corporate employees about what is and is not permitted under the law and what their activities for the corporation need to be in order to be in compliance with the law.

As a layperson, I have done a lot of review of class action lawsuits of which I have received class action notices (these are catalogued under labels J and J0 through J91 on the left hand side of How To Combat Plaintiffs' Lawyers) and of other lawsuits, such as are chronicled at http://overlawyered.com/.

Possibly there are few corporate officers and employees who have awareness of, give thought to, and, consciously or subconsciously, incorporate in their thinking and decision making processes understanding of how the law does not hold personally accountable wrongdoing officers and employees and instead allows risks, costs and liabilities to be shifted to non-wrongdoing persons.

Ethics and compliance officers have frontline involvement for having views about the foregoing. I am appreciative that you offered me your views, but virtually no one else has. I will probably continue in my quest to elicit views from other ethics and compliance officers, as well as academics and others.

Sincerely,

Rob Shattuck