Corporate Liability for Rogue Employees Could Go to High Court

November 26, 2008

A federal appeals judge encouraged lawyers to ask the Supreme Court whether corporations should continue to be held criminally responsible for the acts of rogue employees.

Defense attorney Andrew Weissmann had hoped to get the 2nd Circuit Court of Appeals in Manhattan to rule on the issue in a case in which a company’s employee dumped waste on the high seas.

But Judge Guido Calabresi was reluctant to embrace the subject, though he called Weissmann’s arguments very interesting.

“You may have an argument to take to the Supreme Court,” Calabresi told Weissmann, who investigated the collapse of Enron Corp. for the Justice Department but now is a defense lawyer.

Weissmann argued that the criminal justice system has been wrong in assuming that a company can be held liable when one of its workers commits a crime designed to help the company.

Weissmann was arguing on behalf of business organizations, including the U.S. Chamber of Commerce and the National Association of Manufacturers, as well as bar associations. They included the National Association of Criminal Defense Lawyers and the Association of Corporate Counsel.

In submissions to the appeals court, the government argued that the Greece-based owner of a commercial oil tanker that delivered oil to U.S. ports was properly held responsible for its employees’ actions.

A Connecticut federal court jury convicted Ionia Management of violating laws related to dumping waste in the ocean. Jurors were properly instructed that they could consider Ionia’s compliance policies in deciding whether the corporation was to blame, the government said.

Stephanie A. Martz, senior director of the National Association of Criminal Defense Lawyers’ White Collar Crime Project, said outside court that corporations might eventually have to turn to Congress to change laws so companies are less vulnerable to illegal acts by rogue workers.

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