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Ordinary Americans take on a powerful corporation and change everything.
The Prisoner’s Dilemma is a provocative story about what happens when private citizens try to sue corporations. When a poorly maintained truck loaded with tons of concrete loses its brakes, careens down a mountain, and collides with a school bus, killing 25 children, and the teacher, the parents decide to sue. They quickly learn they cannot because of a Supreme Court case from the late 1880’s that protects corporate leaders from personal liability. While corporations can be sued, corporate leaders cannot even though they make decisions that create major damage or loss of life. The case lands in Supreme Court where the fate of millions could depend on the single swing vote of a Justice.
Outside the United States District court
One week later
A gaggle of reporters gathered on the steps of the United States District Court at 450 Main Street, Hartford. David Killiam handed out prepared packets that gave detailed information about the upcoming lawsuit. He approached the microphone and cleared his throat.
“Good morning, ladies and gentlemen. Thank you for coming on such a chilly morning. I will make a brief statement and then I will open it up for questions.
“As you know several months ago a terrible accident happened on Avon Mountain. Twenty-five children were killed due to the poor and neglected maintenance of the truck owned by Edifice Wrecks and its parent company, Mighty Meadows. But first, I want to introduce the parents of the children whose lives were cut short.” He turned and pointed out several parents behind him. Many held posters with pictures of their children. Some held favorite possessions of their children like stuffed animals.
“This morning we filed a civil, class-action lawsuit in the United States District Court in Hartford, Connecticut. However, this lawsuit will be different from the ones usually filed against a corporation.
“Let me be perfectly clear. We are not filing a suit against Mighty Meadows, Edifice Wrecks, or any other corporate entity. Rather, based on documented evidence such as memos and other material, we are filing a civil suit against the individuals who we believe were directly responsible for this tragedy. They are Taney Smith, the CEO of Mighty Meadows, Nate Kirkland, the CFO of Mighty Meadows, and Arthur March, Lead Attorney for Mighty Meadows. We are suing these individuals for $15 million each. We are also filing suit against the Board of Directors of Mighty Meadows for $10 million each. Additionally, we will be seeking $8 million in damages from all stockholders who hold 12 percent or more of Mighty Meadows shares.”
Shocked looks and startled gasps came from the crowd. Several yelled out questions. Killiam held up his hand forestalling further questions.
“I know you are wondering why we are suing individuals instead of corporations. The answer is very simple, ladies and gentlemen. We are not suing Mighty Meadows because we can’t. You see, a lawsuit can only be filed against a person. Mighty Meadows is not a person. It is a corporation. Let me explain.
“We feel that since Mighty Meadows is not a person, it can’t be liable for the decisions that owners, managers and others make on its behalf. We believe that those who make corporate decisions that harm others should shoulder the responsibility for those decisions. We feel that justice can best be served by going after those persons, not an artificial entity like a corporation.”
Killiam went on to discuss the Santa Clara decision and the belief of the plaintiffs that it will be impossible to sue the corporation because corporate personhood violates the Thirteenth and Fourteenth Amendments of the United States Constitution.
He continued by saying, “I will circulate a handout that will explain our position in more detail, but for now let me paraphrase the Thirteenth Amendment. It clearly prohibits slavery and involuntary servitude.
“What is slavery and involuntary servitude? Your handout will explain this in more detail but for now let me just say that slavery is the ownership of one person by another or one person under the control of another.
“It is a contradiction to say that a corporation is a person and yet is owned by others, the stockholders, who demand and control the actions of that corporation. If the Santa Clara decision is correct, a corporation is a person with all the rights and due process of a person; others can neither own it nor control it.”
Several reporters raised hands yelling out questions. “Let me continue and then I’ll take questions,” he continued.
“Next, I want to discuss the Fourteenth Amendment.
“We believe that the Santa Clara decision is a clear violation of the 14th amendment of the United States Constitution. As you know the equal protection clause of the Fourteenth Amendment says, ‘Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’”
Killiam went into several reasons why the Santa Clara decision was a violation of the ‘equal protection clause’ of the 14th amendment. “In 1954 in the Brown v. the Board of Education case, the Supreme Court ruled that the concept of ‘separate but equal’ was unconstitutional.
“We argue that the immense resources of the corporate entity provide resources, rights, and privileges not available to the ordinary person. For example, we would argue that these excessive resources of the corporation, i.e. money, access to government legislators and officials, creates a powerful class separate from the ordinary citizen. This separation of classes is unconstitutional, because corporate accessibility to the courts, government officials, and the media serve to segregate and separate the human person from equal access to power. This unequal access to power is discrimination.
“Just as before Brown, white people had resources and rights that the African-Americans didn’t, so corporations have similar powerful resources unavailable to the ordinary citizen.
“In light of this argument, we are raising the following questions for the Court:
1. Is the practice of corporate personhood another variation of the ‘separate but equal doctrine’ which was declared unconstitutional by the Brown Decision?
2. Is the practice of corporate personhood a form of discrimination or segregation?
3. Is natural human personhood inferior for practical reasons to corporate personhood even though it is not inferior by law? In other words, are human beings at a legal disadvantage to the power of corporations?
“We believe the answer to all these questions is yes.”
“Before opening up the briefing to questions, I would like to introduce Susan Jones, one of the parents who lost her child in this horrific accident. Susan is the president of the newly formed organization, PNG. Susan?”
“Thank you, David. I want to thank all of you for coming out here this morning. First I want to expand on what Attorney Killiam is saying. We are not suing the corporation because we believe that legally we can’t. If corporations are entities rather than persons and we believe they are, we can only go after the persons who make the decisions.
“We have formed a non-profit corporation, PNG. PNG means persona non grata. We also want to announce that we have developed an informational website, www.persona.non.grata.org. We know that this case is going to cost a lot of money. Therefore, we are accepting donations that can be made on our website. Now we’ll take questions.”
The first question came from Felicia Sanchez of ABC News. “What do you mean that you can’t sue corporations? Many corporations have been sued like McDonalds.”
Killiam answered. “Yes, corporations have been sued in the past. We believe those suits went after the wrong defendants. The defendants should have been those corporate officers who allowed or may have even encouraged their harmful decisions. They need to take responsibility for those decisions.”
“Are you trying to get rid of corporations?”
“No. Corporations have been around since the 1600s. The East India Tea Company was a corporation under King George III. We are simply trying to restore corporations to the status they had before Santa Clara, that of artificial entities. We are trying to equalize or level the playing field.”
“Are you saying that if Mighty Meadows offers an acceptable settlement you will not accept it?”
“That is correct. We will accept no settlement from Mighty Meadows because it has no authority to offer a settlement. We will, however, consider settlements from individual officers, board members, and stockholders named in this suit. They are free to enter into individual discussions regarding settlement.”
“However,” he paused. Then his voice became clearer because he really wanted to get this point across. “In the final analysis this is not about money. It is about justice; it is about corporate decision makers taking responsibility. It is about reversing an old Supreme Court decision that should never have been made. When you check the history of this case, you’ll see that this old decision was wrong and corporations have been using it to their advantage ever since.”
Everyone was silent for a moment. He realized he had made his point.
One of the reporters asked, “Suppose you are successful. Have you considered what the economic ramifications are? I mean, if individuals would be liable for corporate mistakes instead of the corporation, who would want to put themselves in such a liable position?”
Killiam smiled as he took the question. “The plaintiffs believe that there will always be those persons who will seek such positions for a variety of reasons: power, prestige, the perks, and so on. Also, just as corporations have insurance against such liabilities, so corporate heads will also have insurance, much like doctors have malpractice insurance; indeed most companies already have director and officers insurance, key man insurance and so on.”
Susan spoke up. “We also believe that if officers of a company can be held personally liable for decisions made, they will take more care about the kinds of decisions they make. Perhaps these CEOs should begin actually earning their high salaries by making more responsible choices. Paying more attention to corporate decisions rather than flying around in corporate jets to conferences at posh resorts might…”
Killiam cut her off by saying that the plaintiffs were not concerned with the economic repercussions but rather with the simple act of achieving justice.
Justin Robertson for NBC News spoke up. “Aren’t you contradicting yourself? You claim to be against the corporate liability shield, yet you have formed a non-profit corporation, PNG?”
“Yes,” Killiam answered, “PNG is a non-profit corporation. However, PNG was formed not to protect its officers but to legally collect donations. This step is necessary to comply with current law.”
Another reporter asked what they thought their chances of success were.
“We believe,” said Killiam, “that the fight will be long and difficult. But we also believe that in the end justice will prevail. The American people are at heart decent and fair-minded. We believe that success will ultimately be ours.”
“How do you think the markets will react?” asked another reporter.
“There will undoubtedly be repercussions in the marketplace. But the market will ultimately reward those companies that are responsible and there are many of them. Those companies that put the public interest ahead of corporate profits will thrive.
“Let me put it to you another way. Those companies that place public interest first need not fear the loss of corporate personhood. Will they make mistakes? Of course. But honest mistakes can be covered by insurance just as they are now. The only difference will be that there will be true accountability for those who choose to put greed above the public interest. They should have every reason to fear the loss of their unjust protection.
“We do not wish by this lawsuit to claim that all corporations are evil. There are many responsible corporations that respect their customers, the public, and their shareholders. We applaud and praise such companies. However, we want to put socially irresponsible companies on notice that their actions will no longer be tolerated.”
“Thank you, ladies and gentlemen, for your time this morning.”
An Attorney reacts to The Prisoner's Dilemma
Thank you so much for the book! I really enjoyed reading it! A Civil Action was the first book assigned to me going into law school, and I learned a lot of lessons from Jan Schlichtman.
I like the way you started with the insertion of the Santa Clara case. I didn't know about that.
In future editions, I hope you will develop the characters more, especially the children. You want to take your reader to the brink of despair to make them outraged enough to want to change the law. In order to do this, you have to breathe more life into the characters and children so the reader identifies with them ("it could have been me!") Also, it would increase your chances of making it to the big screen.
In Chapter 7, add some footnotes to explain the cases.
Cite some reference to the $200k value for the life of a child. Draw this out more to outrage the reader.
I like the theories used to overturn corporate personhood. The combo of the 5th, 13th, and 14th Amendments are sound, though 13th Am litigation goes nowhere unless there is literal slavery. I thought the idea of slavery through stock ownership was brilliant, even if it wouldn't fly in real life.
You did a good job explaining the Santa Clara case in Chapter 10.
I like how you had the parents form a non profit to pay for the litigation. That's a big problem in our judicial system in litigating against deep pockets. Depositions can average around $10k, experts can be $10k each, plus factor in legal fees (usually $300/hr), motions, delays, other discovery costs. Justice doesn't come cheap!
I really liked "How to be and Expert Witness" in Chapter 18. It was spot on.
The quotes from Lincoln, Jefferson, T, Roosevelt, and J's Black and Douglas against corporations were interesting.
Chapter 24 had some good advice about sticking it to corporations and defeating databases.
I liked Prison's Dilemma and Tragedy of the Commons and believe all law schools should utilize these exercises. I am glad that you are doing it with your students.
I love your shameless plug on page 214! LOL!
Good job portraying the back door deals of SCOTUS. (Supreme Court of the United States)
The 5th Am bootstraps the 14th Am protections to the federal government.
The 14th Am proscribes State conduct ("No State shall..."), so the Court used the 5th AM’s Due Process clause to apply the 14th Am to D.C. and other fed gov entities.
The Due Process Clause applies to substantive and procedural due process. Substantive rights are narrowly defined and the Court refuses to sculpt new rights. There is a substantive right to petition the court to redress grievances, and this right is imperiled when fighting deep-pocket entities.
However, under our current Justices, there is virtually no chance of winning under this argument even though it is legally sound.
Procedural due process only requires sufficient notice and the opportunity to be heard. It could be argued that a lack of money to fund litigation is a violation of the right to be heard, but the Court would rule that a party could proceed pro se and ask for reimbursement of costs (if successful) or forego expensive discovery all together.
The ABA is fighting to push a right to counsel for civil matters, but this has not been successful. If this ever comes to pass, your 5th Am arguments might have some weight.
You're better off lobbying legislators to change the law or broaden exceptions to "pierce the corporate veil." A constitutional amendment is highly unlikely, so the best chance is to work within the laws we already have.
Your plaintiff’s brief was excellent! Well done!
Law Offices of Milner & Zheng
5 East Broadway, Suite 302
New York, NY 10038
Oh I forgot to mention that I was happy with how the story ended with
a new relationship and the tour.
The Prisoner's Dilemma
THE PRISONER’S DILEMMA
MELVIN CHARLES HATHORN
Ever think of “taking on” the big boys, those evil corporations who reportedly own America? Well this story will give you some idea of what you’d be in for if you did.
After the brakes of a poorly maintained truck loaded with tons of concrete fail, sending the vehicle down the mountainside and into a school bus killing 25 children, a teacher and the parents decide to sue.
They find to their surprise, that while corporations can be taken to court, then individual officers cannot, regardless of their complicity in the accident. Undaunted, they forge ahead and sue the corporation’s CEO, causing the local business community to block them by legal and illegal means. Eventually the case lands in the Supreme Court, where its fate depends on the swing vote of just a single justice.
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