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September 22, 2015

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Just a pedantic note: the $7.5 B VW/Audi/Porsche is setting aside is for recall/repair of the 11 million affected cars, not the rest of the potential liability.

Mind-boggling.

I hope that some day we hear the real story of how this happened. I'm guessing that someone made a bet that soon they would be able to engineer an emissions system that passed the test legitimately and they could then remove the hack and never get caught. But it's hard to justify committing engineering resources to a problem that on paper has already been solved. This must have caused great stresses within the company. Many Volkswagen owners are disappointed in the company -- think how employees who were kept in the dark must feel.

If I'm wrong and this was a cynical monetary calculation which was widely known and tolerated in the company, then the situation is even uglier.

Between this and the hedge fun manager who bought up a generic drug and raised the price to $750/pill, I'm beginning to think Shakespeare was wrong. The first people we kill are not the lawyers, it's the MBAs.

i've had two VWs and two Audis. none of them were diesel, thankfully. but i can't help but wonder (as i'm sure all VW/Audi/Porsche owners are) if there are any of these tricks going on with my car. am i i going to get a big surprise next time i have to have an emissions check?

(luckily, NC just did away with emissions checks for cars less than three years old!)

I guess we'll see how the DOJ's new supposed emphasis on white collar crime pans out in this case.

Pretty tough, I'm guessing - after all, this isn't a US firm which makes campaign donations to congresspersons...

More pertinent is the question of how many other auto manufacturers have been playing this game, and just how many diesel cars are going to get recalled.
This could be a very big deal indeed in Europe, where there is probably a lot less leeway in terms of emissions - and certainly less leeway for national governments to change the rules to give the manufacturers a 'breathing space', even if they wanted to.

As I thought, this is gaining traction...

http://www.telegraph.co.uk/finance/newsbysector/industry/11881819/Volkswagen-live-VW-issues-profit-warning-sets-aside-6.5bn.html

From the link I just posted...

Diesel cars account for about 4pc of US sales.
In the UK, they make up almost a third of the cars on the road – 11m in 2014, out of a total of 32m...

This also accounts for the disconnect between manufacturers figures and the local air quality monitoring around the country (mandated under EU rules) which has been throwing up rather disturbing figures.

Nigel - i meant to note in the post that it seems doubtful that VW was the only company doing this.

It's fraud.

Everyone who was knowingly involved with perpetrating it should be subject to legal penalties, and the higher up the food chain, the more stringent those penalties should be.

Ayn Rand got it wrong in Atlas Shrugged. The sociopathic chosen don't find their way to Galt's Gulch. They live among us, f*cking us every unregulated, profitable way they can conceive of.

The opportunistic Dagny Taggerts running for President and their cohorts who swoon over and tongue-bathe the regulatory prevaricators and cheats, and this includes their conservative forbears of the past 50 years who fought EVERY regulatory and safety measure mandated for auto emissions and safety, to name just one area, and who seek to decommission and defund environmental and safety regulation on the books at the federal, State, and local levels, make an ideological fetish of it in their "jobs" as "public servants" in our legislative bodies as they are paid off the private sector actors who pull this crap, or would, if the regulatory state is demolished as desired by so many.

Thus, in related matters:

http://www.motherjones.com/environment/2015/09/climate-change-pope-paganism

https://www.washingtonpost.com/opinions/pope-franciss-fact-free-flamboyance/2015/09/18/7d711750-5d6a-11e5-8e9e-dce8a2a2a679_story.html

The Pope is a trained chemist, among his other pagan attributes, which is merely one free flamboyant piece of facticity Will ignores while looking down his eminently punchable snot nose at the rest of us.

The Pope is not calling for rolling back technological progress to the Middle Ages, anymore than he is calling for abortion to be legalized.

The air in the London of Dickens' (that bleeding heart liberal) "Bleak House" Will references, was cleaned up in spite of the tut-tutting, nattering, conservative nabobs of the day, and if there were conservatives who favored that progressive action, they were conservative in the true sense of the word.

Will, in turnabout, needs to read the first page of Dickens' "A Tale Of Two Cities" to see what happens when frenchified, frilled collar toffs like him are provided free haircuts for scattering crumbs and calling it cake.

George Will is an unctuous, sniffing, patrician trained seal in big boy pants, alternating between swallowing three-day-old fish tossed at him by his conservative benefactors, and barking out their do-nothing scripts using five dollar vocabulary.

That he loves baseball is little comfort.

Let's see, Scott Walker is out so who cares what he says. Will the remaining vermin in the Republican primary race have the cojones to stand with VW and call once again (it's only been three or four days since the last similar utterance) for getting rid of the EPA and letting flourish the true exercise of freedom that VW's actions represent to them.

Cruz will, I'm guessing, though first probably he'll blame Obama's Muslim sympathies for causing VW to act in this way.

Paul's on the record in favor of rescinding all regulations except for the ones that prevent me from physically kicking his a*s, so he's got nothing to lose by coming out in favor of VW's right to f*ck with us.

Trump, I expect, will come up with an angle no one expects (probably naming VW as the pace car for his campaign) and Bush et al, will follow these others by incoherently exposing their Putin nipples like so many chimpanzees in rut, just to look like they have what it takes to let VW have its way.

It's fraud, but NOT by a financial entity, so the law might actually apply in this case. Will have to wait and see if the 'money' guys at VW qualify for the 'we got to look forward not backwards' rule of law.

One has to wonder how many deaths this is responsible for.
In Europe, with the high number of diesel cars and high urban density, it's possibly a fairly large number.

http://www.theguardian.com/environment/2015/apr/02/air-pollution-may-cause-more-uk-deaths-than-previously-thought-say-scientists

This could be a very big deal indeed in Europe, where there is probably a lot less leeway in terms of emissions - and certainly less leeway for national governments to change the rules to give the manufacturers a 'breathing space', even if they wanted to.

Actually, US emissions standards tend to be tougher than European ones, at least concerning the type of pollution that the Volkswagens were emitting (nitrogen oxides). That was part of the reason they got caught in the US; the organization that blew the lid off was trying to make the case that clean diesels could pass the tough US standards and have very high fuel efficiency, since, they figured, Volkswagen had already done it.

In practice, this seems to be feasible only using a system that catalyzes the bad stuff out of the exhaust using a consumable fluid called "AdBlue". But while some Volkswagen diesels have all this, the cars that were cheating on the tests didn't; they just modified their engine tuning depending on whether an emissions test was being run.

I'm actually glad that VW is looking at big fines, massive profit drops, and possible bankruptcy. Why? Because it investors lose big on this one, i.e. from stocks becoming worthless, other investors will have some serious incentives to make sure that the companies they invest in don't do the same. If the days when boards of directors are stacked with friends of the CEO and friends of the company CEO (overlapping categories) are gone, it will be good for us all.

But that said, I also want to see the company managers who signed off on this to get two kinds of penalties:
a) massive fines, intended to take away most of what they earned during the years that they were doing so,
b) prison time -- and not in a "white collar" prison either.
The whole point is to make sure that managers have a massive personal incentive to avoid this kind of thing.

And finally, I'd like to see some kind of penalty for the technical guys who suggested, and oversaw the implementation. Managers are generally clueless about how something like this could be done, or even that it would be possible. So somebody had to let them know that is was technically possible. And he shouldn't get off scot-free either.

Business school classes in ethics are all very well. But some kind of 2x4 up side the head, to get managers' attention on the subject, is also required.

Car companies are having a difficult time catching up with computer technology, so expect the revelations this year (someone can wirelessly hack your car! VW screwed up engine software) to be just the tip of the iceberg.

C'mon. You all know what programmers are like. How many OTHER 'fortune cookies' are embedded in car firmware?

Hit the right sequence of inputs, and the steering starts 'doing the hokey-pokey'.

It is truly a Brave New World that we inhabit.

i've never put a fortune cookie in anything i've written.

it's hard enough to get the stuff to do what it's supposed to do to have time to fiddle around with making it do more than that.

@Nigel: One has to wonder how many deaths this is responsible for.

I did some quick, back of the envelope calculations, and figure it's probably in the low thousands per year in the US. This affects about 500K cars in the US, and those cars are putting out as much as 40x the legal limit for NOx. That means they're generating as much pollution as 20M cars that meet the standards. There are about 250M cars on the road, so that's roughly 8% of the total NOx pollution in the country. Recent estimates put the early deaths due to automotive exhaust at about 53K/year, so that would mean 8% of the emissions would be responsible for about 4K deaths per year. It's probably a bit lower than that- the cars in question are only terrible for NOx, not for CO or PM2.5- but it's still substantial.

I understand an auto company or two are working on a seat belt system that via optical and movement sensors will automatically strap you in, but only when a police cruiser stops your vehicle, so you can avoid being ticketed for not wearing those freedom-sapping confinements the rest of the time.

If you are black or Mexican, the seat belts will sense an approaching squad car and will engage and an automated billy club and taser device emerges from the dashboard and softens you up a bit before the cop even gets to your car window.

Technical experts at the Google driverless car testing facilities have perfected an airbag system for the clueless passenger that instead of exploding a possibly life-saving airbag in your gob, merely sends out a vapor that forms itself into the message "Hold On, Suckers!" in front of your eyes long enough for you to read it before you are launched thru the windshield, which itself belies its advertising and is made of glass that breaks only into jugular-slicing, maiming shards.

Some freedom lover in a think tank, which no one ever filters or otherwise cleans out, came up with those ideas at the request of Newt Gingrich and John Kasich.

Apparently, Fiorina is being considered for the top job at VW because she has an ability to look squarely in to the camera and repeat endlessly that something is not so when it plainly is, or vice versa, especially the vice part.

The whole point is to make sure that managers have a massive personal incentive to avoid this kind of thing.

Does anyone know what the legal bar is for an individual to be criminally or civilly liable for things they do while acting on behalf of a corp?

In other words, at what point is the "corporate shield" no longer sufficient to protect an individual from personal prosecution or lawsuit?

Is there any such point?

russell :

The term of art is "piercing the corporate veil"

Googling it will be informative.

too rushed to explicate myself

The GOP brainuntrustworthy have gotten ahold of Roger Moore's 4000 early deaths figure and are mulling it over to see where those premature deaths fit into the their overall political platform and strategy.

The general tenor of the debate among these hopeless romantics is that 4000 dead is all well and good in and of itself, if chump change is your thing, but if you want to really kill Americans by the carload, let's get rid of Obamacare, deregulate completely the clips permitted on weapons carried openly in public, and for the really big game body counts, squash Medicare, Social Security, and Medicaid.


The noxious fumes issuing from Republican mouths these last seven years smelled worse than the reality turned out to be, but that's no reason not to mandate that a cork be put in it, with force:

http://talkingpointsmemo.com/dc/obamacare-employers-hiring

@russell: Does anyone know what the legal bar is for an individual to be criminally or civilly liable for things they do while acting on behalf of a corp?

I would assume the line for criminal liability is when they do something that they could be prosecuted for were they not doing it on behalf of a corporation. So I can't, for example, commit burglary and expect to be let off the hook personally because my boss told me to.

A more interesting question in this case is whether VW's pattern of behavior would qualify it for prosecution under RICO. For example, people here have already accused VW of criminal fraud. If they were also guilty of obstruction of justice for lying to the EPA, they would meet the criteria for a RICO prosecution and the corporate leaders would potentially be criminally liable for actions of their subordinates. I rather doubt it would go that far, but the threat of a RICO prosecution might be enough to get people to come clean to protect their own hides.

Business ethics? There is only one: A duty to their shareholders. And of course that duty is limited to the time-horizon of whichever figure is making the call, who plans to parachute out and upward after his options vest.

And they won't, as long as those making the calls are safe from prosecution -- and the fines lower than the profits. (And let me tell you, despite them fancy MBAs, so many of them calculate profits using only a first order assessment over a very short timeframe. So damages to stock, reputation, future sales? Doesn't exist. Only "Is Probable Fines > Profits While I Work Here").

Yes, but aren't we told ad nauseum and ad Miltonauseum Friedmanauseum that the magic results of that single business ethic are the actions of the Invisible Hand (think Peter Lorre) which reaches into your VW digital systems and turns off the pollution control measures when the Visible Hand of government isn't looking/fondling?

A similar story, except that the scientists/employees (read: hoaxing elitists/overhead-burning, redundant manunits, in conservative MBA-speak) of the company, Exxon, warned the executives/managers (God's chosen/Ayn Rand's pimps, in conservative MBA-speak) braindeadtrust what was likely to be up:

http://digbysblog.blogspot.com/2015/09/exxon-they-knew-in-1977-by-gaiuspublius.html

it's hard enough to get the stuff to do what it's supposed to do to have time to fiddle around with making it do more than that.

Having spent the last two weeks (including weekends) on this kind of problem research/attempted fix, I can definitely relate. Guess that's why I don't have the potential to become a hacker.

the corporate veil

All the "corporate veil" does is keep you from being personally liable for the corporation's debts. So if the fines to the corporation exceed the value of its assets (and the corporation goes bankrupt), the officers and shareholders cannot be required to make up the difference out of their own funds.

But if the individual is fined (for example, for engaging in the sort of behavior that VW's execs did), the corporate veil does nothing for them.

All the "corporate veil" does is keep you from being personally liable for the corporation's debts.

yes, though "you" = "owner" above. That's key.

This seems more a principal-agent problem?

This seems more a principal-agent problem?

Yes, that's really more what I'm asking about.

Not so much about "piercing the veil" in terms of the limited liability granted to shareholders, but rather (what appears to be) the normal procedure when people do harmful or criminal things while acting on behalf of corps.

Which is, the corp is fined, but no criminal or civil penalties reach the actual people who did the harmful actions, or took the harmful decisions.

Maybe the corp will fire them, but then again maybe not.

What do you have to do to find yourself *personally* criminally or civilly liable?

Is it something that is decided on a case-by-case basis? Or are there some set of legal or procedural standards that apply?

From here:

With rare exception, statutes which expose a corporation to criminal liability do not absolve the officers, employees, or agents whose violations are responsible for the corporation’s plight. From time to time, the courts have encountered the argument that an individual cannot be at once both the person who violates the statute and the personification of the corporation that violates the statute: “[W]hen the officer is acting solely for his corporation, the appellee contends that he is no longer a ‘person’ within the Act. The rationale for this distinction is that the activities of the officer, however illegal and culpable, are chargeable to the corporation as the principal but not to the individual who perpetrates them.”22 To which the courts have responded, “No intent to exculpate a corporate officer who violates the law is to be imputed to Congress without clear compulsion."23

There's lots more on the subject at the link.

The PDF at the link regards federal law, specifically, BTW. I'm sure that would apply in the VW case, though. I would also guess that similar rationales would apply to laws enacted by lower levels of government, though places like Delaware and Florida, off the top of my head, would likely be more loose (again, guessing).

What do you have to do to find yourself *personally* criminally or civilly liable?

You'd have to violate a statute with the requisite intent, not that you don't know that.

For example, in the VW case I assume (but don't know) the statute governing the emissions rules makes the "manufacturer" (or "producer" or whatever term it uses) liable for violations of the rules and thus subject to $37,500 (or whatever) fine and then goes on to define manufacturer in a way that would ordinarily exclude individuals, at least as a practical matter in modern automobile construction.

But, there are other statutes, RICO mentioned above and other conspiracy statutes, that could get at the individuals as decision makers and subject them to criminal liability for a conspiracy to violate the emissions standards. That is, it is one thing to produce a car that violates the emission standards because of shoddy manufacturing, say, (no one is going to jail although a fine may be owed) and another to produce and execute a plan specifically to violate the emissions standards and cover up the evidence thereof (someone should go to jail).

But again, it all depends on what the statute says.

Also, as Slarti notes upthread, this also amounts to just straight up fraud - claiming they're selling a clean emission car when they know they're not - which itself carries criminal penalties.

And it occurs to me that this is going to create a huge problem for VW with its dealers, who have significant clout at the state and federal levels through the National Automobile Dealers Association. VW defrauded them too (unless they were in on it).

What do you have to do to find yourself *personally* criminally or civilly liable?

IANAL

I am under the impression that a great deal depends on the AG or DA or prosecutor's discretion, and that it is very unusual in the US for individual directors to be sued for actions taken by the corporation.

I am also under the impression that many corporate directors are provided with insurance by their employers that covers them in the case they are charged.

I'm actually glad that VW is looking at big fines, massive profit drops, and possible bankruptcy. Why? Because it investors lose big on this one, i.e. from stocks becoming worthless, other investors will have some serious incentives to make sure that the companies they invest in don't do the same. If the days when boards of directors are stacked with friends of the CEO and friends of the company CEO (overlapping categories) are gone, it will be good for us all.

Are you happy for the VW owners who's products have artificially depreciated overnight? For the 1000's of employees and their families who did nothing wrong? Me too! Kill 'em all!

Look, something like this is just too stupid not to be able to find the "who did it?" answer. It looks like a fairly discrete point of production: rigging output on test vehicles. Someone, or a group of someone's, inside VW with a particular interest in diesel sales in the US decided to fudge the books. My guess is VW already knows who it is, thus the reference to "our internal investigation" and the target defendants already know who they are.

They are probably in Germany. So, getting jurisdiction over the individuals may be problematic. We will be stuck with fining the shit out of VW.

Ugh is right about mens rea and BP is right, that it's principal/agent, not veil piercing. You'd never pierce a publicly traded entity, by definition.

The pearl clutching seems a bit overwrought to me--it is highly unlikely the fiddling was a senior management decision. Someone well up and fairly well insulated inside the diesel group is probably looking at hard time and maybe getting his/her stock options yanked.

Companies as big as VW have divisions and units and subdivisions and business-this and business-that, and they operate semi-autonomously. My somewhat educated guess is that a fairly small number of people--people who probably convinced themselves in the first place that our standards were BS and therefore no harm, no foul--found a pretty sneaky work-around that involved a small enough control group that they were able to pull it off--or so they thought.

I'd say before passing sentence, it might be good to hear the actual evidence. This might not be quite the big thing some say it is.

I am also under the impression that many corporate directors are provided with insurance by their employers that covers them in the case they are charged.

Directors and Officers Insurance, called D&O by savvy, in-the-know people like me, seldom covers criminal conduct. Criminal conduct is usually excluded. Ordinarily, insuring oneself against criminal conduct and prosecution is void as against public policy, although there are exceptions, mostly for auto related offenses. But if there was coverage (it depends on the policy--there could be some coverage), it would be to pay for a lawyer. You can't put an insurance policy in jail.

it is highly unlikely the fiddling was a senior management decision. Someone well up and fairly well insulated inside the diesel group is probably looking at hard time and maybe getting his/her stock options yanked.

Companies as big as VW have divisions and units and subdivisions and business-this and business-that, and they operate semi-autonomously.

I don't know, it was 11 million cars across multiple countries. It also apparently encompassed both the VW and Audi (i.e., the luxury) brands. Moreover, once the EPA caught wind of this there was further efforts to cover up what VW had done, going on for more than a year. So, a coverup to boot.

Yes it could be a small group, but it is hard for me to believe that there isn't any criminal conduct here. And the U.S. has an extradition treaty with Germany.

Are you happy for the VW owners who's products have artificially depreciated overnight?

Artificially? It seems their value was artificially inflated at purchase because of fraud by VW. Their recourse is to VW who has already set aside $7 billion (or took a charge to earnings or whatever the accounting pain is).

For the 1000's of employees and their families who did nothing wrong?

Of course not. But what does it say about a business where - to take your theory McTx - a small group of employees in business unit subdivision X can take down the entire enterprise? Where are the internal controls? The lawyers? The compliance personnel? The environmental engineers?

And VW shares are cheap now! A p/e ratio of 4.91 and dividend yield of 4.58% at today's share price!

Are you happy for the VW owners who's products have artificially depreciated overnight? For the 1000's of employees and their families who did nothing wrong? Me too! Kill 'em all!

I imagine wj is glad that the company will suffer - given what they did - because he doesn't want other companies to do similar things that will screw over people who bought the product and their thousands of employees and the people who are breathing the emissions.

I'm sure wj would prefer that VW's emissions people never committed the fraud in the first place and that no one would be suffering, particularly the people who are breathing the emissions, the people who bought what they thought were compliant vehicles, and the employees who had nothing to do with the fraud.

I know it must be satisfying to think mush-brained liberals like wj (I kid, wj!) are bloodthirsty for big corporations to the point that they don't care about collateral damage when one can be taken down, but that's not how it is. If anything he, and I assume others - certainly me - are pissed precisely because of all the other people who will be hurt by this.

Are you happy for the VW owners who's products have artificially depreciated overnight? For the 1000's of employees and their families who did nothing wrong?

This might not be quite the big thing some say it is.

What I'd say is that your first and last statements are at odds with each other.

Plus, you can add to the list of folks harmed in the first statement all of the people who hold equity in VW, the value of which is significantly lower than it was before this disclosure.

I doubt the environmental damage is all that large, VW just doesn't sell all that many diesels in the US. But it does seem like there was intentional fraud.

My question here mostly about the weird vagueness of "corporate personhood" as it applies to cases where harm is done.

"Corporations" don't do anything, they are a legal artifact. Some person or persons make decisions that are harmful, or are negligent or even malicious in ways that are harmful.

That doesn't always rise to the level of criminality or civil liability - accidents actually do happen - but in this case it seems hard to imagine somebody, somewhere didn't intend to fraudulently work around the US emission standards.

So, what happens? We have Great Big Fines, which sucks for everyone who owns a piece of VW, or owns a TDI VW, or works for VW.

And VW may decide to find and fire the folks who are responsible.

But what recourse does the *public* have, as regards the actual human beings involved?

I'm not sure that fines are a sufficient deterrent. IMO, when there is clear evidence of intentional malfeasance, at least some degree of personal culpability is appropriate.

So, I'm wondering if that exists, and if so what the bar is for going after natural human persons, rather than hitting the corp with fines.

Ugh's point about who the law or regulation names as the responsible party - "manufacturer" vs "VP for diesel sales in North America" - seems relevant.

But IANAL.

Oh look, this is not the first time car/truck manufacturers have thought of this particular, uh, trick.

looks like they got away with some minor slapping.

Here's a good article that discusses possible criminal charges.

But what does it say about a business where - to take your theory McTx - a small group of employees in business unit subdivision X can take down the entire enterprise? Where are the internal controls? The lawyers? The compliance personnel? The environmental engineers?

I'm going to make up the phrase "negligent incompetence" for the people running the show if all this was able to happen without them knowing about it. At some point, saying you didn't know what was happening isn't a defense if you totally f*cking should have know, assuming your head wasn't 10 feet up your arse.

Do the top brass engineers at VW/Audi drive their own product?

If they do and were in the dark, I can feel some sympathy for their feeling of foolishness and betrayal at this point.

"Wait till I get hold of Jurgen in Emission Control, that Dummkopf!"

If they do and were aware of this scandal from the getgo, I'm trying to imagine their snickering to themselves when they went for their annual emissions test stickers, and more, the long compliance meetings their people sat through with state regulatory folks while trying to maintain eye contact and not bursting into laughter.

If they were oblivious and don't own and drive the product, there will be another set of questions. In due time, my pretties.

If they were in the know and don't own or drive the product, I guess in Europe anyway, regulators need to look into Mercedes-Benz practices, since the VW/Audi folks obviously must have upgraded and wouldn't have settled for any less in the finagling area.

Also, Hillary Clinton has more 'splaining to do.

If the mid-level engineers perpetrated this on their own and the folks who determine their salaries and bonuses didn't know about it, what was the motivation for pulling this off in the first place?

Was it just a cavalier practical joke, a joshing dare between puckish engineers, who as we know, lead double-loves as hilarious pranksters, when they aren't grimly measuring the square corners on their bedclothes every morning.

"I told you, Gerhardt, we should have let the higher-ups know about this, so we could have at least been awarded stock options for our cleverness. But, nnnoooooo, you thought it would be funnier if we kept it to ourselves. Now look at the fine Durcheinander you've gotten us into!"

a smoking comes across the highway

The first people we kill are not the lawyers, it's the MBAs.

and next, the author(s) of Perl.

Yes it could be a small group, but it is hard for me to believe that there isn't any criminal conduct here. And the U.S. has an extradition treaty with Germany.

It almost certainly is criminal--the big unknown is how widespread. I'm betting up to $10 that it's relatively contained.

But what does it say about a business where - to take your theory McTx - a small group of employees in business unit subdivision X can take down the entire enterprise? Where are the internal controls? The lawyers? The compliance personnel? The environmental engineers?

Depending on what's at issue, one person is enough (for an IT related crime). You can trace money, which is mostly what internal control is, but it would be a passing strange company that had outside auditors check every aspect of company operations for intentionally hidden criminal conduct.

I know it must be satisfying to think mush-brained liberals like wj (I kid, wj!) are bloodthirsty for big corporations to the point that they don't care about collateral damage when one can be taken down, but that's not how it is. If anything he, and I assume others - certainly me - are pissed precisely because of all the other people who will be hurt by this.

Then, logically, you'd want to know what actually happened and have the punishment fit the crime, rather than rush to judgement and kill them all because God will know His own.

So, I'm wondering if that exists, and if so what the bar is for going after natural human persons, rather than hitting the corp with fines.

This is a huge memory stretch, but I vaguely recall that the Model Penal Code provides for prosecuting individuals who commit crimes in a corporate capacity (although the general rule is that criminal conduct is outside the course of employment), and I suspect there are applicable statutes that impose criminal liability on the person who signs, or who requires someone to sign, off on a certification much like the certification when you borrow money that triggers federal law if you lie on your loan app (wholesale amnesty there). I'm assuming VW has to certify that its engines discharge no greater than X particulate. The signor or whoever allowed that person to sign with knowledge of the deception is probably reading up on the 5th Amendment right now. Or the German equivalent.

I'm going to make up the phrase "negligent incompetence" for the people running the show if all this was able to happen without them knowing about it. At some point, saying you didn't know what was happening isn't a defense if you totally f*cking should have know, assuming your head wasn't 10 feet up your arse.

Yeah, I'm guessing that you really don't want a law like this because it would apply to a lot of people whose are no more omniscient than you are. It might even apply to you someday.

I represented a doctor who employed a nurse whose duty it was to prepare some paperwork related to a state audit for ambulatory surgical centers. Under the impression that the state auditors were due the next day and having completely failed to get her work done, she returned to the office after hours and lit the office suite on fire. Three people were killed. Her demeanor post fire would not have excited any suspicion whatsoever. The doc was clueless and took a huge financial hit, plus he got sued.

Your rule would require people to find what other people want to hide and to hold them liable for not finding it. Bad law. Bad.


Are you happy for the VW owners who's products have artificially depreciated overnight? For the 1000's of employees and their families who did nothing wrong?

No. though the owners are in the same position as any other defrauded consumer. What that's worth I don't know. As for the employees who may well lose their jobs if VW sales get hit hard, well, it would be possible, though not easy, to distribute some of the fines collected from the company to these workers. Ten billion in fines, ten thousand workers, equals $1 million per.

I don't expect that to happen, and it doesn't need to be $1 million, but it's worth thinking about. Is it unreasonable to say that VW workers who lose their jobs because of management malfeasance are entitled to some damages?

Then, logically, you'd want to know what actually happened and have the punishment fit the crime, rather than rush to judgement and kill them all because God will know His own.

If you're determined to read what people write in the stupidest possible way, you would respond like this. The problem is that no one is suggesting no investigation take place or that due process not be followed. We're discussing the potential legal consequences given what it appears, at this point, happened. No one here actually has the power to pass binding legal judgement on anyone.

Yeah, I'm guessing that you don't really want a law like this...

A law like what? It's not a matter of omniscience to have the responsibility to have some level of knowledge of what's going on at a company it's your job to run. It's total baloney to think one IT guy did this. But, again, built into this discussion is some amount of speculation. I don't claim to know what happened, but it certainly doesn't look good at this point.

You will admit there is some point at which you can't reasonably claim not to know. Isn't that what plausible deniability, or the lack thereof, is about? Are you suggesting that management can be completely clueless about and have no knowledge whatsoever of what people are doing on behalf of the company they run? I don't think you are. I only ask because, were I to assume that was your position, it would be as silly as your suggestion that I think management can be expected to be omniscient.

And I had to logon to my wife's laptop to comment. My iPad, since being updated it seems, doesn't allow me to comment. The post and preview buttons are grayed out and do nothing as of late. I even loaded Chrome to see if using another browser would fix it, to no avail. It appears to be an iOS problem.

Not that there's evidence near so damning in this case, but who knows prior to proper investigation:

Mother Jones: You Can't Go to Prison for Destroying the Economy, But Bad Peanut Butter Is Another Story

It seems to me that, based on what I've read and assuming it's true, Volkswagen Aktiengesellschaft has committed a crime through its agents and should be duly punished, which would include the maximum Clean Air Act $18 billion civil fine, plus any fines for criminal conspiracy, followed by having its US corporate charter and license to do business revoked (and whatever the German equivalent is).

As I noted above, this has to go pretty far up the corporate org chart if VW, when the EPA got wind of what it was doing, lied to the EPA about fixes for a year. From an article I linked above "The Clean Air Act contains criminal provisions which apply to tampering with monitor devices, as well as making false statements to the EPA."

Here's a student law review note on revoking corporate charters, FWIW.

The experience with large civil fines for Exxon Valdiz, and of criminal convections for Enron, makes me wonder how realistic it is to expect severe penalties on VW or on high-level VW executives.

Low level minion scapegoats, perhaps.

wrt cleek: Larry Wall delenda est!

I've been able to fix the problem of the post and preview buttons been grayed out by adding a leading space to the comment's text.

Is it unreasonable to say that VW workers who lose their jobs because of management malfeasance are entitled to some damages?

How would we distinguish, and would we really want to distinguish, between those who lose their jobs when their company goes under as a result of management acting illegally, and those who lose their job in another company as a result of management merely acting incompetently?

Both are out of work -- even though they personally may have done nothing wrong. But nobody, that I have heard, is arguing that anyone whose company goes under should be entitled to compensation. (And if the restaurant where you work goes under, as most do, who pays that compensation? Or do only employees of large corporations get protected?)

it is highly unlikely the fiddling was a senior management decision

It seems highly likely to me.
The gaming of emissions testing has been a matter of public debate for years now; things like whole fleet fuel economy are directly regulated, and how to meet those regulations a matter for board level strategic decisions.

The CEO is an engineer (so much so he worked on the gearbox of one of their cars during last year's Le Mans. Ignorance of this on his part would likely have to be deliberate.

And to confirm my above surmise...
http://www.bbc.co.uk/programmes/p033863f
Martin Leach, former president of Ford Europe and managing director of Mazda, describing how this wasn’t just some rogue engineer:
“Something like this would have had to have come to my attention…”

Here's a fun fact I didn't know:
"(corporate) Bribes were tax-deductible in Germany until 1997..."

To address the headline question:

"Do they not teach ethics in B-School?"

Of course! Rule #1: don't get caught.

Snarki - or the headline here.

traders at Citi, JPMorgan, Barclays, UBS and RBS referred to themselves as ‘The Cartel’ in chatrooms where they used coded language to set benchmark rates. One Barclays fx trader, desperate to join the invitation-only group, was given a one month ‘trial’ and told “mess this up and sleep with one eye open at night”.

cheap, legal, fast, efficient.
pick two.

Nigel, I know. And the change was not undisputed. Our high court has produced some outwardly strange cases and that was one of them. It seems that no legislator had entertained the idea that a briber would try to deduct bribes as such from his tax as business expenses and so no law forbidding it existed. And when somone finally did, the case had to go through the courts up to the highest which decided that the violation of morality (Sittenwidrigkeit) of/by a payment could not have by itself an influence on tax deductability absent an explicit law according to the principle of equality. And any law could not violate that principle either, so the case for lawmakers was a difficult one (a related thing is the taxation of gains of prostitutes while prostitution is/was illegal, same principle in reverse). In short, it was not originally a decision by a corrupt court or a law by corrupt lawmakers but a legal conundrum that could not easily be solved without the risk of a higher principle. And don't forget: in order to deduct the bribes from one's taxes one had to declare them explicitly opening oneslef to criminal investigation. Plus there was a difference between in-country bribes (illegal) and bribes abroad (not per se illegal according to in-country law). So a corporation could for example bribe some official in a 3rd world country and deduct that as corporate expenses since this fell not under German jurisdiction but under that of the country where the bribe took place. Companies have argued successfully for a long time that in some countries bribes were more or less mandatory and staying clean would in essence mean stopping all operations there. It took some major scandals and the general shift in international judicial procedures to in the end have the law changed (without the high court stepping in).

In breaking news: the CEO of Volkswagen has resigned. His statement said:
“I am shocked by the events of the past few days. Above all, I am stunned that misconduct on such a scale was possible in the Volkswagen Group.”

Which seems to say that he is at least claiming to have been unaware. Pity he didn't say something about who in the executive suite was aware.

One hopes those practices are history - but they're pretty recent history.

Given the Greece/Germany interactions, this one is particularly pungent...
http://www.spiegel.de/international/europe/complicit-in-corruption-how-german-companies-bribed-their-way-to-greek-deals-a-693973.html

...Not that I can claimant special virtue on behalf of the UK:
http://news.bbc.co.uk/1/hi/business/8500535.stm

Bribery of "public servants" has been legal in America for a long time and is now solidly entrenched by Citizens United.

Other countries have to go to the trouble of doing these things under the table, baksheesh-wise, looking the other way, unlike the U.S., which exceptionally enables bribery by the "rule" (henh ha hah) of lawhawhaw.

Does anyone not think that VW's antics in emission decontrol were merely a stopgap measure as they and other industrial actors awaited the demise of the EPA, and the Product Safety Commission, and the Dept of Labor, and the Labor Relations Board, and OSHA, and EEO, and State Environmental Standards and Agencies altogether once the bribery of the filthy GOP had full kicked in and enabled them to take control of all three branches of government and every state government.

Is our MBA candidates learning?

Most certainly they are.

Count, I'm shocked... just shocked that you could confuse bribery with free speech.

You cynic, you.

No MBA for him, but it's obvious that top shelf business schools include rigorous religious and ethics instruction in their curriculum at the undergraduate level as well:

http://www.motherjones.com/kevin-drum/2015/09/donald-trump-once-again-shows-hes-probably-never-cracked-open-bible-his-life

I can certify and represent to you that this is true, ovah heah. What, you think I'm funny? Funny, how? No, you said I'm funny, so funny how? Tell me how you think I'm funny. Hanh?

"It is easier for a needle to pass through a camel
Than for a poor man to enter a woman of means."

Deutelobotomy IV, Verse 7 an' don't get me started on, whatchamacalit, the Paasalms, annat.

Actually, the first two lines from Poet Mark Strand's "Some Last Words."

Count, I'm shocked... just shocked that you could confuse bribery with free speech.

You cynic, you.

Perhaps all he's saying is that apparently they don't teach ethics in law school either. At least, in the couple elite Ivy League law schools which are, on the evidence, almost the sole source for Supreme Court Justices.

I'm pretty sure that the neither the courts nor the public support waving jail time for convicted criminals because "think of how my family and friends will suffer with me not around".

So why should we go easy on VW because of shareholders and workers?

The shareholders, well -- that's part of the risk, isn't it? Nobody said stock was risk-free, and even then they have options (a lawsuit of their own). Owners of VWs, of course, have the option of lawsuits as well (for fraud, for instance).

The workers...well, businesses fall every year from mismanagement. Why would THIS be any different?

By all accounts, VW was horribly managed. They've exposed themselves to billions in EPA fines, lost 20 billion in stock value, and are open to shareholder and class action lawsuits.

Sucks to work for VW, but it sucks to work for any business that goes under.

It's strange to plead for charity for poor, poor VW.

...are open to shareholder and class action lawsuits.

Given that Porsche owns around 50%, and Saxony another 20%, it's likely a pretty small class.

Yea, though I walk through the valley of the shadow of death, I will fear no evil: for I am fully hedged.

it is highly unlikely the fiddling was a senior management decision

It seems highly likely to me.

A marker of the left is presumption that the private sector is bad, and to impute the worst as widely as possible, even knowing the investigation has yet to occur--we saw this with Michael Brown and the Hands Up, Don't Shoot libel. The corollary marker is to presume the opposite when the party involved is one of the family.

Based on the logic on display here, Barack Obama had direct personal knowledge and approved Hillary Clinton's private email server. He also knew of the donations to the Clinton Foundation during her tenure (those were actually knowable facts) and did not object.

When you have to assume/imagine evidence to get a conviction, it's probably a pretty good sign you are witch hunting and not getting even within shouting distance of due process.

This isn't the only context in which progressives bypass the presumption of innocence at the speed of light.

Massive layoffs at Firm X due to hedgie and/or private equity firm buying out (with other people's money) and 'slimming down' the firm in the name of *efficiency* and *shareholder value*: the way of our Lord, Blessed Capitalism.

Massive layoffs at Firm X due to the shuttering/handcuffing of a firm engaging in systemic fraud to evade environmental rules which affect the health and lives of millions: a sin against God and Nature by Socialist Evildoers.

Compare. Contrast.

There is rather a difference between having a piece of engineering installed in a vehicle which is specifically designed to make that vehicle cheat the pollution tests, and keeping track of what e-mail server a single staffer is using.

The former is significant enough that, as someone noted above, it would likely be a board decision to do it. Certainly someone pretty high up in management had to sign off on the far from trivial work (and expense!) to design and implement the sensors and computer code to make it work.

The latter should probably get flagged by the IT staff -- assuming anyone had even realized that there ought to be a policy on the specific subject. And, since no expense (except to Clinton) was involved, probably no upper management signoff required. In most e-mail usage, nobody (outside the IT staff) pays much attention to what your e-mail address is. You make a one-time entry in your Contacts file, and then just type the name henceforth.

Not that the way things were handled with Clinton's e-mail was right, because it wasn't. But as for who in the chain of command might reasonable be expected to sign off on it, not really the same.

Really, McKT.
You can do better than that.

I was giving a realistic assessment of the probabilities - with which the
former president of Ford Europe and managing director of Mazda, as cited above, seems to concur.

presumption that the private sector is bad...
Bollocks. I don't presume any such thing.

Bottom line is that VW, prima facie, are guilty of fraud - and there is very good evidence indeed of the link between NO2 exposure and excess mortality.

It is fairly improbable that the "engineers' engineer", who until this afternoon was CEO of VW, was entirely ignorant of this.

You could argue, quite rightly, that I shouldn't sit on any jury which has to decide on the matter, but if you deny that the facts are pretty damning, then you are blinded by your own prejudices.

Slart's and the Ford CEO's liberal bona fides can only be "alleged" on this thread, I'm thinking.

Hey, these are the cheap seats. There is no due process required.

If money can be speech, then speech can be speech too and I'd say that's all we have on this thread.

If a news article was being written instead, the word "alleged" would be a frequent adjective.

If this was a Court of Law, we would observe the legal proprieties and presumptions of innocence and maybe sneak in a leading question or two and a leering look at the jury, at worst.

If I was Jason Chaffetz or Trey Gowdy in the House of Reprehensibles, on the alleged other alleged hand, I would be fitting Hillary for a noose in my leaks to the press while positioning her over a trapdoor and I'd be requesting that Obama stand right next to her for the final group photograph, evidence be damned.

If due process exonerates VW the corporation or its personnel, that's what the record will show.

And then I'm sure rotten cabbages will be thrown by me and others, to no avail.

So what.

OJ was guilty of double homicide.

So sue me.

A marker of the left is presumption that the private sector is bad

Meh.

I have no idea how far up the chain, down the chain, or in any direction on the chain responsibility for the VW thing falls.

That said, Nigel presented fairly specific reasons for why he thought responsibility might go to the top.

Perhaps you could address those, instead of talking about "markers of the left".

How would we distinguish, and would we really want to distinguish, between those who lose their jobs when their company goes under as a result of management acting illegally, and those who lose their job in another company as a result of management merely acting incompetently?

I think the way to distinguish lies in the words illegally and incompetently

Do we want to? Well, I don't know. But I do know that in the case of illegal acts we often have available a means of actually collecting the money from the company - fines.

Nigel,

The class action suits would be by the owner of VW cars that were fiddled with. They were effectively defrauded, and suffered considerable loss of value -- and that's assuming there is a recall that can fix the car without loss of performance. Resale value has plummeted, any fix might alter performance, and of course they were outright lied to about whether the car met US emissions standards.

Shareholders can file for other reasons (and being owned by other corporations might indeed).

And of course there's potential criminal liability.

Winterkorn resigns. Winterkorn is the CEO of VW.

McK,

I agree that we should wait for some evidence before accusing the top management at VW of criminal conduct, though I don't think it's unfair to say that perhaps they weren't as on top of things as they should have been. This is basic product design, not a peripheral matter.

And here is something else that bothers me. Let's say that VW engineers had in fact produced a remarkable low-emission, high-performance, high-efficiency engine. One better than what these diesels purported to be. As a result, in this imaginary world, VW sales take off, profits soar, and so on. Do you doubt that the CEO would be hailed as a genius manager, worthy of some giant paycheck, etc., whether he had anything to do with the marvelous design at all?

That strikes me as a one-way street.

You can do better than that.

I was giving a realistic assessment of the probabilities - with which the
former president of Ford Europe and managing director of Mazda, as cited above, seems to concur.

Yes, he's likely guilty because a competitor says so.

That's evidence?

If a former US Pres were to say, "I was president and I would have known X and therefore the current president probably knew X", that would make it *likely* that was the case?

Anyone who takes the time to read what I've said can see, rather plainly, that I believe something criminal happened. I believe this because VW has admitted it. If it was a charge by our gov't or the German gov't, I would wait to hear the evidence.

It isn't a question of what, it is a question of who and how far. It could go to the top. Sure, that could happen. Or, it could be a relatively narrow group of executives and senior management in a relatively autonomous unit or division. We don't f'ing know.

For those who think nuance sometimes has a role to play, knoweldge from a civil and criminal liability comes in a variety of shapes and forms.

Actual knowledge = self explanatory

Imputed or presumed knowledge = for policy reasons, a given person in a given position is presumed to know certain things. It's a very narrow category.

Constructive knowledge = what a person of ordinary care knows or reasonably should know based on information reasonably available to that person.

This is an actual vs constructive knowledge situation. Actual = jail time; constructive = civil fine, corporately and possible termination of careers depending on the size and color of the warning flags.

What goes without criticism here is the rush to throw the entire company under the bus and the belief that it had to be known at the top.

Yes, a marker of progressives is a complete bypass of the presumption of innocence outside the family.

Yet, when Ms. Lerner takes the 5th, that's much ado about nothing, a tempest in a teapot, the pot calling the kettle black, a partisan distraction, blah, blah, blah.

I think the way to distinguish lies in the words illegally and incompetently

So, how high up the management chain do we require either one, before we cut in damages to employees? Because it is at least possible for the failure to be somewhat low level and still bring down the company.

To reprise the restaurant example, it the busboy repeatedly bangs into the customers, they will rate the place low, tell their friends not to go there, etc. The manager/owner might well know to keep an eye on what the cooks do (and that the food is not poisonous), and probably on how the wait staff treats the customers. But who watches the busboy (beyond making sure that the tables do get cleared)? NB: banging into the customers is, technically, battery (right, McK?) -- and so, illegal behavior.

OK, it's a trivial example. And maybe a stretch. But it does illustrate the principle.

Yes, a marker of progressives is a complete bypass of the presumption of innocence outside the family.

wtf is wrong with you?

The resignation statement:

I am shocked by the events of the past few days. Above all, I am stunned that misconduct on such a scale was possible in the Volkswagen Group.
As CEO I accept responsibility for the irregularities that have been found in diesel engines and have therefore requested the Supervisory Board to agree on terminating my function as CEO of the Volkswagen Group. I am doing this in the interests of the company even though I am not aware of any wrong doing on my part.
Volkswagen needs a fresh start – also in terms of personnel. I am clearing the way for this fresh start with my resignation.
I have always been driven by my desire to serve this company, especially our customers and employees. Volkswagen has been, is and will always be my life.
The process of clarification and transparency must continue. This is the only way to win back trust. I am convinced that the Volkswagen Group and its team will overcome this grave crisis..

Shocked, I tell you !

In a spirit of clarification and transparency, the board have declared that “certain illicit action happened…”

The Germans clearly rival us Brits in masterful understatement.

Meanwhile, German prosecutors (those well known leftists) have launched a criminal enquiry...

It could go to the top. Sure, that could happen. Or, it could be a relatively narrow group of executives and senior management in a relatively autonomous unit or division. We don't f'ing know.

Quite right, we don't know. But we are talking here about something that involves substantial initial (design and engineering) expense. Plus on-going manufacturing expense. Which, at least in any big company I have worked for, means that it involves budgets. Budgets have to get signed off on -- and the bigger the item, the higher it has to get approval.

And that's before we reach the question of: We want to market this diesel car. Which means that we have to meet air-quality standards. The engineers' initial report says it won't work. So do we spend the money to work around the requirement?

That's not just a budget decision, that's a policy decision. Which means we're talking EVP level at minimum.

We don't know, in the "beyond a reasonable doubt" sense. But a "reasonable man" would think it enormously likely.

I'm mostly just sad to find that the TDI diesels aren't what they were cracked up to be.

They seemed to be a nice option for people who wanted a nice car that got really good mileage, but who didn't want (for whatever reason) to go with a hybrid or fully electric car.

It's a shame.

For the record, as far as I can tell there is nothing like unanimity among folks on "the left" here at ObWi regarding whether there is C-level responsibility for the fraud. I don't think there is any conclusion to be drawn from the comments here about what "the left" thinks about "the private sector".

Everyone commenting here appears to agree that, in the VW case, there was fraud, and that it likely extends to criminal behavior.

Beyond that, it appears that opinions vary, and are not aligned in any notable way with political persuasion.

The relevance of Ms Lerner escapes me.

The initial statement, wj's, set McKinney off. It regarded the fact that wj was glad VW was potentially facing significant losses over this. Why? Because he didn't want companies to think they could get away with this kind of thing with nothing but a slap on the wrist. Yes, it will hurt customers who did nothing wrong. Yes, it will hurt employees who did nothing wrong. That's not what anyone is happy about. No one is suggesting that anyone face criminal charges who doesn't deserve criminal charges. Speculating about who might deserve criminal charges of a fncking blog does nothing to bypass due process. If the friggin' CEO didn't know about it and it was somehow hidden from him well enough that it would be unreasonable to expect him to find out, fine. He resigns and that's that. Okay?

So, how high up the management chain do we require either one, before we cut in damages to employees?

wj,

How high do we go before we asses fines?

I think I wasn't clear. Given that we are going to collect substantial fines, what should be done with the money? That's my question.

wj is on the left now?

He resigns and that's that. Okay?

Sure, it's OK that that's that (did I really write that???) -- for him. The problem comes if it works out that his resignation is the sum total of punishment for any employee.

what should be done with the money?

there's always tax cuts for millionaires.

but, i'd put it into renewable energy.

If we are going to collect substantial fines, why should we do anything different than we do with any other fine? As long as we aren't in a situation where we are funding most of the government by collecting fines, I don't see why we don't just pay down the debt a little.


wj is on the left now?

If you get far enough to the right, I suppose that would be true. But, to channel Yogi, I'm not far enough to the right to think I'm on the left. ;-)

A marker of the left is presumption that the private sector is bad

A marker of the right is the assumption that the private sector not just can, but will outperform any public-sector endeavor engaged in a given task.

I can make sweeping, mind-reading generalizations, too.

and to impute the worst as widely as possible, even knowing the investigation has yet to occur--we saw this with Michael Brown and the Hands Up, Don't Shoot libel. The corollary marker is to presume the opposite when the party involved is one of the family.

[...]

This isn't the only context in which progressives bypass the presumption of innocence at the speed of light.

Oh please, McKTx. This isn't a left-right thing, it's an American thing. Look at Benghazi. Hell, look at the example of Clinton that you yourself invoked: that an investigation vindicated suspicions on the right doesn't change the fact that the right was gleefully engaging in the exact pre-judgement you lament here as a marked sin of the left.

The right's also not all that keen on due process and presumption of innocence within their blind spots, either. So long as it's about "terrorism" or "security", those concepts can bugger right off. And "the Right" certainly isn't hesitant to start talking about sentencing before suspects of crimes that offend their sensibilities set foot in court, either.

This is not meant as a tu quoque, BTW. I agree these are noxious practices. However, they're American practices, and trying to portray them as "markers" of left-wing thought rather than the common cultural toxins that they are is also a noxious practice.

wj is a mush-brained liberal, says me.

I was going to show him the secret handshake, but now I'm not sure if I should....

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