Saturday, June 25, 2011

Statement of project

Project to investigate diverse perspectives on entity vs. individual liability

I wish to solicit assistance or outright collaboration for a project to investigate the perspectives, views, analyses, and information that multiple interested parties have concerning the subject of entity level liability versus officer and employee individual liability as a means to deter corporate  wrongdoing.

Parties who have an interest or should have an interest in this topic include lawmakers, judges, regulators, state attorneys general, criminal prosecutors, corporate management, ethics and compliance officers, corporation lawyers, various academics, plaintiffs' lawyers, defense lawyers, tort reform organizations, and consumer protection organizations.

Corporate wrongdoing seems to be an entrenched societal problem that is not shrinking. Efforts to attack corporate wrongdoing have become expansive and diverse.

Achieving satisfactory progress seems elusive. Perhaps satisfactory progress will never be made under prevailing societal conditions.

However sanguine or dismal prognostications are, there is no dearth of investigation, research, theorizing and experimentation about how best to try to deter corporate wrongdoing.

A persistent issue is the extent to which deterrence can be accomplished by punishing the corporation, or whether punishment needs to be imposed on responsible officers and employees who design, implement and carry out corporate activities that constitute wrongdoing.

Currently, there is a suggestion that the Obama administration believes there should be a shift to more punishing of culpable officers and employees. See these three recent articles from The Wall Street Journal: here, here, and here.

The numerous parties referred to above have different perspectives and may have very differing views. All the parties have influence in societal decisions that are made concerning the subject matter, and the parties may be variously oppositional to or supportive of actions that are attempted to be taken.

I believe there is a deficiency of dialogue among the interested parties concerning their varying perspectives, views, beliefs, and information about the subject matter, and this makes societal decision making more difficult.

The purpose of this proposed project is to try to contribute something to correcting the foregoing deficiency.

I have begun a lot of contacting of the interested parties, but it is just a start and there is a long, long way to go.

To continue, I would like to ask for suggestions of what reading I should do on the subject.

Next, I would like to locate representatives of the parties who would be willing to try to speak from their respective perspectives. For example, would the US Chamber of Commerce be willing to speak from the perspective of corporate management? Are there ethics and compliance officers who are willing to offer their frank views on the subject? Would the American Trial Lawyers Association be willing to dialogue from the perspective of plaintiffs' lawyers?

This project could quickly founder if parties refuse to participate and refuse to dialogue on the subject. There may turn out to be abject disagreement about the subject matter.

If the foregoing happens, I believe useful things would still be learned. Let's say corporate management, in the form of the US Chamber of Commerce, wants nothing to do with any discussion about the possibility of greater deterrence from increased officer and employee liability. Or let's say ethics and compliance officers will not be frank in expressing their views because of what corporate management thinks. What if plaintiffs' lawyers won't engage in discussion? One inference could be that corporate management and plaintiffs' lawyers do not believe they can defend their positions on the subject. If ethics and compliance officers cannot speak frankly, that would be enlightening in evaluating how they are carrying out their mission.

I personally have no standing to get parties to participate. The parties themselves have significant standing for trying to get other parties to participate, and I seek help from parties or representatives of parties to help elicit participation from other parties.

If you think this project is worthwhile, and you are willing to try to lend a helping hand in any way, please contact me.

Thank you.
Rob Shattuck

June- ethics and compliance contact list notified of project
September- ECOA annual conference speakers contacted about project
September- tort reform contact list notified of project
September- US Chamber of Commerce and its Institute for Legal Reform notified of project
September- DRI Corporate Counsel Committee leadership contacted about project 
September-National Association of Attorneys General
Oct./Nov. - Emailing to Business Ethics Quarterly authors: link, link, link
November- Project for Law & Business Ethics
March/April - Case study of $25 billion robo-signing settlement: linklink
April -  RAND (Institute for Civil Justice and Center for Corporate Ethics and Governance)
April - Interim project report

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