Second Circuit Refuses to Limit Corporate Criminal Liability


White-collar prosecutors and defense attorneys have been keenly awaiting today’s decision in U.S. v. Ionia Management. At oral arguments last November, the court permitted amicus filer Andrew Weissmann (former head of the Enron Task Force) to make a case for limiting the criminal liability of corporations. The fact that he was given oral argument time meant that the court was at least considering the argument, hence the interest in today’s decision.

Weissman’s argument was that, although the doctrine of respondeat superior holds a corporation criminally liable for the acts of an employee, the corporation should not be liable if the employee acted contrary to the corporation’s policies.

In today’s decision, the court flatly rejected this argument. “We refuse to adopt the suggestion that the prosecution, in order to establish vicarious liability, should have to prove as a separate element in its case-in-chief that the corporation lacked effective policies and procedures to deter and detect criminal actions by its employees.”

The court went on to re-state that a corporation cannot be immunized from liability just by having a compliance program, no matter how extensive it may be. The existence of a compliance program would only be relevant to whether an employee was acting within the scope of his authority. But if employees are acting within the scope of their authority, and they break the law, then the corporation is going to be liable.

The court’s decision was a disappointment to many defense attorneys, who believe that the standard for criminal prosecution of corporations is too low. The ability to charge a corporation with a crime is a deadly weapon, as demonstrated by the downfall of Arthur Andersen in 2002. The ease of bringing such charges gives prosecutors a lot of leverage to demand full cooperation from the company when its employees are under investigation. The government can often stiff-arm corporations into making huge concessions, including stiff fines, to avoid prosecution.

But the decision was not exactly a surprise. During oral arguments, Judge Guido Calabresi questioned whether judges even could limit the existing scope of respondeat superior. It was an interesting academic issue, but Congress or perhaps the Supreme Court would have to deal with it.

It wouldn’t be very surprising to see this issue brought before the Supreme Court. Weissmann has been working on changing this bit of law since he left the government. At the heart of the problem, he says, is a misinterpretation of the Supreme Court case New York Central v. U.S., 212 U.S. 481 (1909). That case has been interpreted in such a way that criminal liability is easier to prove than civil liability under respondeat superior. That’s the opposite of how it usually works, of course.

Our prediction is that the Supreme Court won’t make the change, and it will be up to Congress to tighten up the doctrine. If at all. For the time being, nothing is changed.

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