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For starters, there are a number of recent Supreme Court decisions (interpreting the Federal Arbitration Act) that allow ToS to prevent consumers from suing as

by ethbro 8y ago

For starters, there are a number of recent Supreme Court decisions (interpreting the Federal Arbitration Act) that allow ToS to prevent consumers from suing as a class [1, 2], thereby ensuring disparate legal resources in favor of a corporation. Generally speaking, the difficulty in bringing criminal cases against employees of corporations is convincing a court to pierce the corporate veil. Unfortunately, this presents a catch-22. In order to prosecute an individual for corporate actions, one typically needs to prove the individual engaged in fraud or knowingly illegal actions (circumstances that justify piercing). However, if proved, one is unable to also sue the corporation (as you just argued the individual was acting against corporate interests and/or without corporate knowledge). Furthermore, and I hope a lawyer corrects me if I'm wrong, criminal law requires much more stringent tests to prove guilty intent. In nebulous corporate power structures (and employing very expensive lawyers to design systems to shield themselves from exposing this proof), this is usually impossible. E.g. criminal prosecutions over the housing crisis [1] AT&T Mobility LLC v. Concepcion (2011), https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepcion https://en.wikipedia.org/wiki/AT%26T_Mobility_LLC_v._Concepc... [2] American Express v. Italian Colors (2013), http://www.scotusblog.com/2013/06/details-american-express-v-italian-colors-restaurant/ http://www.scotusblog.com/2013/06/details-american-express-v...

tptacek 8y ago
I'm not sure I find this argument credible, since "piercing the corporate veil" is mostly a civil law concept; as I understand it, the model "veil" case is one in which Joe performs some service for BobCo, which promptly goes out of business upon receiving Joe's invoice. Joe would like to sue Bob, but his contract is with BobCo. There are instances where Joe can in fact sue Bob; those are the typical "veil" cases. There is, as I understand it (as a company operator, not a lawyer, which I am not, though I have talked to them about this because I worry about getting sued) no "corporate veil" for torts. If Joe undertakes a service for BobCo, and Bob knowingly pays Joe in counterfeit dollars, Joe can sue Bob for fraud. If Joe performs that service competently and Bob defames him, maybe by claiming Joe stole all the company pencils and post-its, Joe can sue Bob for defamation. Joe might also be able to sue BobCo, but that's no consolation for Bob. Given all this: I am having a hard time getting my head around how limited liability shields agents of a corporation from criminal charges.
- ethbro 8y ago
  (IANAL) I believe the definition of corporations varies widely enough from state to state that there may not even be an answer to this question. My understanding is that there is still generally a veil in tort law, except when the tort was committed personally by an agent of the corporation. I hit you in a company vehicle through my own negligence, you sue me. I hit you in a company vehicle because I wasn't properly trained, you sue me and my company. I hit you in a poorly maintained company vehicle and the steering column failed... who knows? Fairly simple. But all cases of tort law are not personal. Example being the Volkswagen emission case (okay, criminal too, but let's say a citizen is suing under tort law). Who's at fault? As soon as I (the plaintiff) lose the ability to clearly point a finger, things get much murkier. Now I have to prove participation or a handful of other caveats to pierce and sue an employee. Probably by digging through thousands of emails. This is where I'd say from a system perspective corporations provide a de facto buffer, even if it's not a legal one. Compared to simply suing an individual, proving all of this is much more expensive. Which now can't be aggregated (why I highlighted arbitration) so costs can't be divided.
  - tptacek 8y ago
    I think we are now trying to work from axioms to a legal question neither of us are qualified to answer. But my current understanding is: working for a giant company while knowingly breaking the law, whether or not your company tells you to do it, does not shield you in any way from criminal liability. As I understand it, the "interesting" questions here are the extent to which you can hold directors or even major shareholders responsible for criminal conduct --- people who may not have been directly implicated in crimes themselves. But if you commit a crime while working for Dow Chemical, or instruct someone to commit a crime who then does so, Dow's liability shield can't keep you out of prison.
    - tripzilch 8y ago
      > But if you commit a crime while working for Dow Chemical, or instruct someone to commit a crime who then does so, Dow's liability shield can't keep you out of prison. How about if you, in a powerful role, change incentives within the company such that people working under you are all but guaranteed to commit crimes, simply because the ones who refuse to will end up lower on the corporate ladder, so the supplicants and ones that will gladly commit crimes for you without having to be explicitly instructed, will remain? Because that's not a very hypothetical power structure, at all.

by ethbro 8y ago

tptacek 8y ago

I'm not sure I find this argument credible, since "piercing the corporate veil" is mostly a civil law concept; as I understand it, the model "veil" case is one in which Joe performs some service for BobCo, which promptly goes out of business upon receiving Joe's invoice. Joe would like to sue Bob, but his contract is with BobCo. There are instances where Joe can in fact sue Bob; those are the typical "veil" cases. There is, as I understand it (as a company operator, not a lawyer, which I am not, though I have talked to them about this because I worry about getting sued) no "corporate veil" for torts. If Joe undertakes a service for BobCo, and Bob knowingly pays Joe in counterfeit dollars, Joe can sue Bob for fraud. If Joe performs that service competently and Bob defames him, maybe by claiming Joe stole all the company pencils and post-its, Joe can sue Bob for defamation. Joe might also be able to sue BobCo, but that's no consolation for Bob. Given all this: I am having a hard time getting my head around how limited liability shields agents of a corporation from criminal charges.

ethbro 8y ago
(IANAL) I believe the definition of corporations varies widely enough from state to state that there may not even be an answer to this question. My understanding is that there is still generally a veil in tort law, except when the tort was committed personally by an agent of the corporation. I hit you in a company vehicle through my own negligence, you sue me. I hit you in a company vehicle because I wasn't properly trained, you sue me and my company. I hit you in a poorly maintained company vehicle and the steering column failed... who knows? Fairly simple. But all cases of tort law are not personal. Example being the Volkswagen emission case (okay, criminal too, but let's say a citizen is suing under tort law). Who's at fault? As soon as I (the plaintiff) lose the ability to clearly point a finger, things get much murkier. Now I have to prove participation or a handful of other caveats to pierce and sue an employee. Probably by digging through thousands of emails. This is where I'd say from a system perspective corporations provide a de facto buffer, even if it's not a legal one. Compared to simply suing an individual, proving all of this is much more expensive. Which now can't be aggregated (why I highlighted arbitration) so costs can't be divided.
- tptacek 8y ago
  I think we are now trying to work from axioms to a legal question neither of us are qualified to answer. But my current understanding is: working for a giant company while knowingly breaking the law, whether or not your company tells you to do it, does not shield you in any way from criminal liability. As I understand it, the "interesting" questions here are the extent to which you can hold directors or even major shareholders responsible for criminal conduct --- people who may not have been directly implicated in crimes themselves. But if you commit a crime while working for Dow Chemical, or instruct someone to commit a crime who then does so, Dow's liability shield can't keep you out of prison.
  - tripzilch 8y ago
    > But if you commit a crime while working for Dow Chemical, or instruct someone to commit a crime who then does so, Dow's liability shield can't keep you out of prison. How about if you, in a powerful role, change incentives within the company such that people working under you are all but guaranteed to commit crimes, simply because the ones who refuse to will end up lower on the corporate ladder, so the supplicants and ones that will gladly commit crimes for you without having to be explicitly instructed, will remain? Because that's not a very hypothetical power structure, at all.