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Not punishing shareholders directly makes sense, at that level some sort of fine is probably best. But perhaps we should punish the board of directors for creat

Not punishing shareholders directly makes sense, at that level some sort of fine is probably best. But perhaps we should punish the board of directors for creating an environment where their subordinates need to look the other way when it comes to safety? They are the one who set the day to day policies and operations of the company. If enough of that happens, then maybe the board won't be as fast to push things without considering the consequences.

gruez 3y ago
>But perhaps we should punish the board of directors for creating an environment where their subordinates need to look the other way when it comes to safety? Due process typically requires mens rea, so you can't prosecute people for crimes that they're unaware of. I suppose you could phrase the law to be in terms of negligence, but that's not a silver bullet either. What if the company had a certified ESG box-checker (the "G" in ESG stands for "goverenance" which covers this sort of thing) and did all the required anti-"look the other way when it comes to safety" training sessions and audits, but for whatever reason the incident still happened? Do you still prosecute them? Seems a bit unfair to do so given their hearts were in the right place and took steps to prevent it. Or maybe you let them off? If that's the case what prevents unscrupulous actors from going through all the motions and ticking all the boxes, but not actually caring the underlying principles? eg. SOC2 or PCI compliance
- IshKebab 3y ago
  > you can't prosecute people for crimes that they're unaware of Actually you can. At least in the UK, and I assume it's similar in the US, directors can be held personally responsible for things that they allowed to happen through negligence even if they weren't directly aware of them. I guess if you want to be a HN pedant you can say that they are aware of the negligence.
- SturgeonsLaw 3y ago
  This is where the legal concept of intent comes in. It's common to have different judicial outcomes depending on how deliberate the actions were.
  - gruez 3y ago
    If the company has gone through the trouble of hiring a ESG officer, you're going to have a hell of a time providing intent. The ESG officer might be an insincere box ticker, but he sure as hell is going to make sure that there isn't a email along the lines of "btw I don't care about ESG compliance at all" sent by the CEO. Any litigation on this is inevitably turn into a gravy train for law firms, as they rack up tens of thousands of billable hours poring over company emails and arguing in front of a judge whether a CEO who's ostensibly sincere is really sincere.
- soerxpso 3y ago
  The idea that ordering audits and obviously-useless training sessions absolve someone of responsibility is ludicrous. If you run an organization that's conducting fraud (by the definition that any thinking person can see; latin is irrelevant) and causing a detriment to public safety, you should be responsible for it. If the board tried everything they could, in genuine good faith, and found that it was impossible to prevent their organization from causing harm, why didn't they choose to shut down the organization? Consider a pit bull owner who, knowing that their dog has a tendency to attack people, takes it to a two-week dog training class and then lets it off the leash around toddlers. He did everything he could! Clearly he's not responsible.
  - gruez 3y ago
    >If you run an organization that's conducting fraud (by the definition that any thinking person can see; latin is irrelevant) and causing a detriment to public safety, you should be responsible for it. So if you were running a bakery, hired some help to do some overnight prep/cleaning, did all the proper training, and it turned out that the guy was violating health codes, you personally should be held responsible? Note, this isn't saying the business itself shouldn't be liable if someone got sick or whatever, but that you personally should go to jail or whatever because it happened on your watch.
    - soerxpso 3y ago
      Do health code violations carry criminal charges in any relevant jurisdiction? Regardless, the situation is different for two reasons. 1. It's one isolated incident, and no connection can be made to show that the organization itself is responsible. If, instead, you trained 10 workers and they were all violating the health code, then I would find it hard to believe that it's coincidental, and you should probably be held responsible for whatever penalties that incurs. 2. In your example there's already a specific individual responsible (the employee who violated the health code, against orders). In the other, real example at hand, the legal system seems to be okay with saying that no person is responsible because all potentially-responsible parties are pointing fingers at the ghost of The Company itself. This system results in crime being committed that would hold criminal charges if an individual did it, but instead holds only fiscal penalties because it was done at scale by a group.

gruez 3y ago

>But perhaps we should punish the board of directors for creating an environment where their subordinates need to look the other way when it comes to safety? Due process typically requires mens rea, so you can't prosecute people for crimes that they're unaware of. I suppose you could phrase the law to be in terms of negligence, but that's not a silver bullet either. What if the company had a certified ESG box-checker (the "G" in ESG stands for "goverenance" which covers this sort of thing) and did all the required anti-"look the other way when it comes to safety" training sessions and audits, but for whatever reason the incident still happened? Do you still prosecute them? Seems a bit unfair to do so given their hearts were in the right place and took steps to prevent it. Or maybe you let them off? If that's the case what prevents unscrupulous actors from going through all the motions and ticking all the boxes, but not actually caring the underlying principles? eg. SOC2 or PCI compliance

IshKebab 3y ago
> you can't prosecute people for crimes that they're unaware of Actually you can. At least in the UK, and I assume it's similar in the US, directors can be held personally responsible for things that they allowed to happen through negligence even if they weren't directly aware of them. I guess if you want to be a HN pedant you can say that they are aware of the negligence.
SturgeonsLaw 3y ago
This is where the legal concept of intent comes in. It's common to have different judicial outcomes depending on how deliberate the actions were.
- gruez 3y ago
  If the company has gone through the trouble of hiring a ESG officer, you're going to have a hell of a time providing intent. The ESG officer might be an insincere box ticker, but he sure as hell is going to make sure that there isn't a email along the lines of "btw I don't care about ESG compliance at all" sent by the CEO. Any litigation on this is inevitably turn into a gravy train for law firms, as they rack up tens of thousands of billable hours poring over company emails and arguing in front of a judge whether a CEO who's ostensibly sincere is really sincere.
soerxpso 3y ago
The idea that ordering audits and obviously-useless training sessions absolve someone of responsibility is ludicrous. If you run an organization that's conducting fraud (by the definition that any thinking person can see; latin is irrelevant) and causing a detriment to public safety, you should be responsible for it. If the board tried everything they could, in genuine good faith, and found that it was impossible to prevent their organization from causing harm, why didn't they choose to shut down the organization? Consider a pit bull owner who, knowing that their dog has a tendency to attack people, takes it to a two-week dog training class and then lets it off the leash around toddlers. He did everything he could! Clearly he's not responsible.
- gruez 3y ago
  >If you run an organization that's conducting fraud (by the definition that any thinking person can see; latin is irrelevant) and causing a detriment to public safety, you should be responsible for it. So if you were running a bakery, hired some help to do some overnight prep/cleaning, did all the proper training, and it turned out that the guy was violating health codes, you personally should be held responsible? Note, this isn't saying the business itself shouldn't be liable if someone got sick or whatever, but that you personally should go to jail or whatever because it happened on your watch.
  - soerxpso 3y ago
    Do health code violations carry criminal charges in any relevant jurisdiction? Regardless, the situation is different for two reasons. 1. It's one isolated incident, and no connection can be made to show that the organization itself is responsible. If, instead, you trained 10 workers and they were all violating the health code, then I would find it hard to believe that it's coincidental, and you should probably be held responsible for whatever penalties that incurs. 2. In your example there's already a specific individual responsible (the employee who violated the health code, against orders). In the other, real example at hand, the legal system seems to be okay with saying that no person is responsible because all potentially-responsible parties are pointing fingers at the ghost of The Company itself. This system results in crime being committed that would hold criminal charges if an individual did it, but instead holds only fiscal penalties because it was done at scale by a group.