In February, the attorneys general of 49 states and the federal government finalized their $25 billion settlement agreement with Ally Financial, JPMorgan Chase, Wells Fargo, Citigroup, and Bank of America regarding mortgage-servicing and home-foreclosure abuses stemming from the so-called "robo-signing" practices. This would make for a good case study for inquiry about how corporate level liability versus officer and employee personal liability affects officer and employee decisions and action to participate or not in corporate wrongdoing. It could be informative to pose survey questions to officers and employees at the five banks along the lines of the following:
1. Do you believe that wrongdoing took place in the robo-signing practices that caused loss and damage to homeowners to the extent of at least $25 billion and that warranted payment of $25 billion by the banks in settlement?
2. To what extent do you believe that officers and employees who participated in the wrongdoing believed at the time they were participating in wrongdoing?
3. In their deciding to participate in the wrongdoing, to what extent do you believe that officer and employee participants made estimates of the likelihood of the wrongdoing getting exposed and becoming a problem?
4. In their deciding to participate in the wrongdoing, to what extent do you believe that officer and employee participants made estimates of the likelihood that they would bear any personal liability for the wrongdoing if it was exposed and became a problem?
5. Do you think the prevalence of legal settlements that corporations make in which the corporation denies or does not admit that there was any wrongdoing impairs the ability of employees to decide whether something is wrong or not and whether they should participate or not? Turning that question around, do you think it would improve the ability of employees to decide what is right or wrong if the legal system was less tolerant of allowing the ambiguity created, on the one hand, by corporations paying big settlement amounts and, on the other hand, the public record being that the corporation does not admit it did anything wrong?
6. To what extent do you believe that corporations enter into legal settlements in which there is not in fact any wrongdoing?
7. Do you believe that officers and employees who participated in the robo-signing practices should bear some personal financial responsibility in the settlement?
8. Do you think a greater deterrent effect would be achieved if there was a general rule of law that there could be no liability (or legal settlement) of a corporation for wrongdoing unless there was some personal liability (or legal settlement) of officer and employee participants in the wrongdoing? In answering this question, please consider your personal reaction to reading this article compared to your personal reaction when you read this article.
9. Do you think state attorneys general are more interested in getting headlines from big settlements with corporations than they are in deterring corporate wrongdoing by making responsible officers and employees bear some financial responsibility for corporate wrongdoing?
10. What do you think your board of directors and upper level management think about the law imposing greater personal liability on officers and employees who participate in corporate wrongdoing?
11. To what extent do you believe there is waste and diversion of economic resources in much litigation that could be better spent in other ways to improve corporate behavior?
12. What do you think your corporate ethics officers think about corporate level liability versus officer and employee personal liability relative to improving corporate and employee behavior?
13. Do you think increased deterrence could be achieved through legal machinery that allows stockholders who bear the burden of a corporate payment of a judgment or settlement amount to recover a part of the same from officers and employees who participated in the wrongdoing?