How To Combat Plaintiffs' Lawyers: Emails to Business Ethics Quarterly authors

From: RDShatt@aol.com
To: Sean.hannah@usma.edu, bavolio@u.washington.edu, Fred.Walumbwa@asu.edu
Sent: 10/1/2011 12:41:10 P.M. Central Daylight Time

Subj: "Relationships between Authentic Leadership, Moral Courage, Ethical and Pro-Social Behaviors"

Dear Col. Hannah and Professors Avolio and Walumbwa,

I have initiated this project to investigate the perspectives, views, analyses, and information that multiple interested parties have concerning the subject of entity level liability versus officer and employee individual liability as a means to deter corporate wrongdoing.
Parties who have an interest or should have an interest in this topic include lawmakers, judges, regulators, state attorneys general, criminal prosecutors, corporate management, ethics and compliance officers, corporation lawyers, various academics, plaintiffs' lawyers, tort reform organizations, and consumer protection organizations.

My project has been undertaken following my unsuccessful effort to get my article "Whither the Quest of Business Ethicists?" published in Business Ethics Quarterly in 2009. See my correspondence with Professor Weaver here.

While I appreciate that your above referenced article concerns an "internally oriented approach" to engendering ethical behavior, as opposed to an "external sanctions oriented approach," I am contacting you to inquire whether you could refer me to any academic colleague of yours who you think would be interested in helping me with my project and eventually trying to publish a paper growing out of the same.

Thank you for your attention to this email.

Sincerely,

Rob Shattuck

From: Sean.Hannah@usma.edu
To: RDShatt@aol.com, bavolio@u.washington.edu, Fred.Walumbwa@asu.edu
Sent: 10/1/2011 3:05:05 P.M. Central Daylight Time
Subj: Re: "Relationships between Authentic Leadership, Moral Courage, Ethical and

Rob, I know of nobody working on civil law liability. There is plenty of literature on ethical climates and ethic cultures that take a transactional/punitive stance or focuses on codes and policies in the organizational behavior literature that a quick search will produce. The corporate social responsibility (CSR) lit also has some discussion of laws and regulations that may be of use.
Cheers, Sean
COL Sean T Hannah, PhD.
Director, Center for the
Army Profession and Ethic

From: bavolio@uw.edu
To: Sean.Hannah@usma.edu, RDShatt@aol.com, Fred.Walumbwa@asu.edu
Sent: 10/1/2011 3:10:26 P.M. Central Daylight Time
Subj: RE: "Relationships between Authentic Leadership, Moral Courage, Ethical and

Rob

I would say the same, but I am not familiar with the literature on civil law liability.

Bruce

From: RDShatt@aol.com
To: msh@rouenbs.fr, tom_lawrence@sfu.ca
Sent: 10/6/2011 4:18:55 A.M. Central Daylight Time

Subj: UNDERSTANDING WIDESPREAD MISCONDUCT IN ORGANIZATIONS: AN INSTITUTIONAL THEORY OF MORAL COLLAPSE"

Dear Professors Shadnam and Lawrence,

In your article's section "Implications of Arguments about Regulation", you say:

In our model, a second set of conditions associated with moral collapse are those that lead to breakdowns in regulation. These are conditions that involve failures to adequately support morally charged institutions with social controls that enforce compliance. We argued that breakdowns in regulation are more likely when the social and economic costs of accusing individuals of misconduct accrue significantly to the organization or the moral community within which it operates, and when the working conditions of organizational members diminish the costs to members of expulsion and/or reduce the effectiveness of organizational surveillance.

My project is greatly concerned with whether "economic costs . . . accrue" to the organization or to individuals; however, I am not clear about the extent to which the regulation you are talking about is intra-organizational versus extra-organizational regulation, and the importance you attribute to whether extra-organizational regulation (i.e., regulation imposed by government and the law) imposes cost on the organization or on the individual. (As the above link to my project indicates, it seems that the Obama administration believes more cost should be imposed on responsible officers and employees.)

Would you care to elaborate for my benefit where extra-organizational regulation fits into your thinking?

Thank you for your attention to this email.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: hasnasj@georgetown.edu, rprentice@mail.utexas.edu, strudler@wharton.upenn.edu
Sent: 10/10/2011 8:34:41 A.M. Central Daylight Time
Subj: "New Directions in Legal Scholarship"

Dear Professors Hasnas, Prentice and Strudler,

I am endeavoring to determine what the current state of research is on the question of entity level liability versus officer and employee individual liability as a means to deter corporate wrongdoing. I have not found the full text of your above 2010 forum paper and have seen only the synopsis on the Business Ethics Quarterly website. If you can lend me any help in tracking down relevant literature on the above subject, I would be very appreciative.

Thank you for your attention to this email.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: elms@american.edu, Stephen.Brammer@wbs.ac.uk, harrisj@darden.virginia.edu, rphilli3@richmond.edu
Sent: 10/10/2011 8:58:43 A.M. Central Daylight Time
Subj: "New Directions in Strategic Management and Business Ethics"

Dear Professors Elms, Brammer, Harris and Phillips,

I have not found the full text of your above 2010 forum paper and have seen only the synopsis on the Business Ethics Quarterly website. Officer and employee individual liability as a means to deter corporate wrongdoing (and improve business ethics) is something that would seem to have a consequence for "strategic management".

Would you care to provide me the benefit of your thoughts on this?

Thank you for your attention to this email.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: BEQeditor@uncc.edu, audi.1@nd.edu, mzwolinski@SanDiego.edu
Sent: 10/21/2011 7:55:17 A.M. Central Daylight Time
Subj: "Recent Work in Ethical Theory and Its Implications for Business Ethics"

Dear Professors Arnold, Audi, and Zwolinski,

Your above article starts out by saying, "Business ethics as an academic discipline originated in the mid-1970's in response to ethical lapses in the practice of business." The article then proceeds to discuss modes of ethical theorizing that have the goal of determining, or assisting in determining, what actions are right or wrong in the business world. This is presumably with the aspiration that the same will be employed in some fashion and result in improving business conduct.

In simple terms, human nature is selfish in great measure, and altruism is frequently absent. This is especially so in the business world, particularly taking into account Adam Smith's enshrinement of the pursuit of self interest as a virtue for achieving a greater good for all.

Selfishness can harm others, and mankind, for many centuries, has endeavored to mitigate human selfishness, including through religious and philosophical teachings, and also by means of law and punishments.

I would submit that most of the "ethical lapses in the practice of business" that the first sentence of your article refers to involve easily discernable manifestations of human selfishness that society is in agreement should be mitigated, and that these "ethical lapses" do not require much "ethical theorizing" for identifying the lapse and what the "ethical" action or decision is that society desires. I would say these "ethical lapses" can be identified by the presence of dishonesty, conflicts of interest in which self-interest is put ahead of obligations owing to other parties, and/or improper concealments.

The different modes of "ethical theorizing" that your article describes are not, in my view, needed for purposes of determining or identifying these "ethical lapses" in the business world.

Such modes of ethical theorizing, I think, are more aptly directed towards lawmakers regarding the laws they enact for society (and towards citizens to help them decide who their lawmakers should be and the laws that should be enacted, and possibly even for their personal lives), rather than towards the business world.

Take, for example, your article's lengthy discussion of rights. Isn't it primarily a function of government and the law to define what rights exist or don't exist? Are you saying that business ethicists who are propounding their various modes of ethical theorizing as regards rights should endeavor to persuade actors in the business world to give recognition to rights that government and the law, through the political system, have chosen not to recognize?

I would say similarly about the environment and climate change that you discuss in your article. Those, I believe, are primarily in the domain of government and lawmakers to address and make societal decisions about in the form of laws, and then actors in the business world need to obey those laws.

I would recast the matter and say I think that business ethicists should believe that they have largely accomplished their goals if actors in the business world would merely obey the law, with the law spelling out prohibitions and limitations related to dishonesty, dishonest business practices, conflicts of interest, putting self interest ahead of obligations to others, and disclosure and transparency, as well as spelling out "rights" that exist and embodying societal decisions about such things as the environment and climate change. So long as the actors in the business world follow the law, their selfish pursuit of their self-interests should not be considered much of a problem for business ethicists.

From the foregoing it would then follow that a prime concern, if not the prime concern, of business ethicists should be, "How do we get actors in the business world to obey the law?"

Whether you agree with that as a prime concern or not, the answer to the question, in my view, needs to be rooted in using the selfishness of human nature that will respond to incentives of things that are selfishly desired and the selfish avoidance of punishments. That is not to abandon the use of religious and philosophical teachings to try to influence human beings to be less selfish in their decisions and actions, and those should be continued. Business ethicists can divide as to which branch they wish to dedicate themselves to (i.e., the branch of selfish incentives and punishments to obtain the desired business conduct, versus the branch of purveying religious, philosophical and ethical teachings to mitigate human selfishness), and all business ethicists should be supportive of continued efforts on both branches.

My greater interest lies in the first of the two branches. More particularly, I have initiated this project to investigate the perspectives, views, analyses, and information that multiple interested parties have concerning the subject of entity level liability versus officer and employee individual liability as a means to deter corporate wrongdoing.
Parties who have an interest or should have an interest in this topic include lawmakers, judges, regulators, state attorneys general, criminal prosecutors, corporate management, ethics and compliance officers, corporation lawyers, various academics, plaintiffs' lawyers, tort reform organizations, and consumer protection organizations.
My project has been undertaken following my unsuccessful effort to get my article "Whither the Quest of Business Ethicists?" published in Business Ethics Quarterly in 2009. See my correspondence with Professor Weaver here.

Your article is concerned with the second branch of endeavoring to use religious, philosophical and ethical theorizing and teaching to mitigate human selfishness.

In terms of the "ethical lapses in the practice of business" that have engendered "business ethics as an academic discipline," I would be interested in your citing some lapses that you think are in need of the ethical theorizing your article discusses, as opposed to being subjected to my assertion that what is mainly needed is for actors in the business world to obey the law.

Second, if you think my project is meritorious, I would be very appreciative of your citing me any literature in the business ethics field that you would recommend that I read relative to my project.

Thank you.

Sincerely,

Rob Shattuck

From: DenisArnold@uncc.edu
To: RDShatt@aol.com, audi.1@nd.edu, mzwolinski@SanDiego.edu
Sent: 10/21/2011 9:00:44 A.M. Central Daylight Time
Subj: Re: "Recent Work in Ethical Theory and Its Implications for Business Ethics"

Dear Rob,

Thank you for your message and for reading our contribution to BEQ. The first thing I would note is that the three of us (the co-authors of the article) do not agree on which aspects of ethical theory are most relevant to business ethics. The article is pluralistic in that it presents a range of perspectives that scholars might draw from in advancing business ethics scholarship. Second, as you may be aware, the massive literature in organizational ethics utilizes ethical concepts such as justice, fairness, care, compassion, and integrity, and many organizational ethics scholars have pointed out that the use of those concepts must be grounded in philosophical or theological justification for them to have meaning. Third, you may have noticed in studying business organizations that many companies explicitly identify specific ethical values or principles in their mission statements. For example, over 5,000 companies have committed to adhere to the UN Global Compact which includes respect for human rights as a basic requirement. More recently the UN, after extensive consultation with the business and NGO communities, has promulgated a tripartite framework on business and human rights endorses by many companies and industry groups (see the forthcoming issue of BEQ for six articles on this subject). This framework explicitly identifies the human right responsibilities of business. Various self-regulatory initiatives in different industries also utilize ethical concepts and principles. Fourth, as you no doubt are aware, Smith's account of selfish behavior in the Wealth of Nations was supplemented by a rich discussion of altruism and virtue in The Theory of Moral Sentiments. The contemporary psychology literature includes rich discussion of human motivation and altruism. One of the more important works on this subject that you may wish to consult is CD Batson's Altruism in Humans. Of course, organization culture can greatly shape which human dispositions and values are acted upon in organizations so the study of ethical organizational culture has become quite important for business ethics scholars.

None of this is to suggest that public policy is not important and that ethical considerations are not essential to policy debates and policy implementation. I would think nearly all business ethicists would agree with that judgment. In general, for discussion of these issues, I would recommend to you the rich literature published in Business Ethics Quarterly as well as the Oxford Handbook of Business Ethics edited by Beauchamp and Brenkert. Good luck with your own research.

Kind Regards,

Denis

---------------------------------------------------------------------------
Denis G. Arnold, Ph.D. |Associate Professor of Management

Surtman Distinguished Scholar in Business Ethics
University of North Carolina, Charlotte

9201 University City Blvd. | Charlotte, NC 28223
Phone: 704-687-7703 begin_of_the_skype_highlighting 704-687-7703 end_of_the_skype_highlighting | Fax: 704-687-3123
http://belkcollege.uncc.edu/directory/denis-g-arnold

Editor in Chief, Business Ethics Quarterly

President, Society for Business Ethics

From: RDShatt@aol.com
To: DenisArnold@uncc.edu
CC: audi.1@nd.edu, mzwolinski@sandiego.edu
Sent: 10/22/2011 8:20:02 A.M. Central Daylight Time
Subj: Re: "Recent Work in Ethical Theory and Its Implications for Business Ethics"

Dear Professor Arnold,

Thank you very much for replying to me. I desire more replies to my email correspondence than I get, and I am very appreciative that you responded to me.

My greatest familiarity is with the unending train of well publicized corporate scandals, wrongdoing, misconduct and other ethical lapses (continuing to the present time) that the first sentence of your article alludes to, and also with the many unethical business practices on a smaller scale that one encounters or becomes aware of in the ordinary course of life.

I am gaining familiarity with the CSR movement, organizational ethics, corporate mission statements, and psychological research about motivation and decision making in the business world. I do not have a basis for an opinion about the extent to which the same are contributing to lessening, or will contribute to lessening, the aforesaid train of publicized corporate wrongdoing and unethical business practices on the smaller scale.

Regarding the importance and relevance of the law and punishments for lessening corporate wrongdoing, and more particularly related to my project, we know that, following the financial accounting scandals that came to light in the first half of the last decade (in which the law was broken by someone), the response of Congress was to pass Sarbanes-Oxley to try to achieve greater deterrence by increasing personal liability of CEO's and CFO's. Also, as the statement of my project indicates, the Obama administration has recently taken actions that may be a shift to more individual officer and employee liability, in order to try to deter corporate wrongdoing.

I sent you my email as a result of looking at the BEQ's tables of contents, starting with the current issue and working backwards, to see what articles there were related to my area of interest. I am continuing with that and other avenues to find try to find relevant literature.

I submitted "Whither the Quest of Business Ethicists?" to BEQ in 2009. I continue to think it is meritorious of consideration by business ethicists, and I have not found any comparable literature.

I will continue to try to propound this topic to other business ethicists.

Thank you.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: brenkg@msb.edu
CC: DenisArnold@uncc.edu, audi.1@nd.edu, mzwolinski@sandiego.edu
Sent: 10/23/2011 5:50:58 A.M. Central Daylight Time
Subj: "The Limits and Prospects of Business Ethics"

Dear Professor Brenkert,

I have not been able to find the full text of your above article and have read only the synopsis that appears when I place my cursor over the article title that appears on this webpage. I particularly noted the sentence in that synopsis that says, "Even if business ethicists can rationally defend what businesses should be doing, unless we can relate this to how businesses can come to operate in those ways, our normative arguments will lack power, persuasiveness and effectiveness."

Without the full text of your article, I am not sure what all the things are that "business should be doing" (the goal "of businesses acting ethically" being referred to in the article synopsis), and, more importantly, I don't know what ideas you have for how business "can come to operate in [the desired] ways."

In email correspondence with Professor Denis Arnold concerning his own co-authored article "Recent Work in Ethical Theory and Its Implications for Business Ethics," I argued for the importance of actors in the business world simply obeying the law, and for consideration to be given to more officer and employee individual liability in order to try to achieve greater deterrence of corporate wrongdoing.

For what it may be worth to you, I append below the email correspondence I have had with Professor Arnold. (I did not mention in the correspondence the possible role of whistleblower incentives to deter corporate wrongdoing, which received extensive public comments to the SEC last year, including my own comment.)

Professor Arnold cited to me your Oxford Handbook of Business Ethics. My public library does not have that in its collection, and I will see if I can get it from a local university library.

Thank you.

Sincerely,

Rob Shattuck

From: RDShatt@aol.com
To: DenisArnold@uncc.edu
CC: carrick.mollenkamp@wsj.com, ethics@bnymellon.com, audi.1@nd.edu, mzwolinski@sandiego.edu, brenkg@msb.edu
Sent: 10/26/2011 9:16:27 A.M. Central Daylight Time
Subj: Bank of New York currency trading matter

Dear Professor Arnold,

I don't know if you are willing to continue our conversation, but I thought I would try.

Please consider the current Bank of New York Mellon currency trading story.

Please further consider BNY Mellon's Code of Conduct.

Questions:

If there has been wrongdoing (unethical conduct) in this case, how should it be deterred?

Do you think there will be an adequate societal determination of whether wrongdoing (unethical conduct) has taken place, and, if there is wrongdoing, that there will specificity as to the wrongdoing that may guide the behavior of others to avoid similar wrongdoing?

If there is wrongdoing, do you think individual officers and employees should be held personally liable to some extent for purposes of more effective deterrence?

Do you think any individual officer or employee will in fact be held personally liable?

How do you feel about whistleblowing as a tool for trying to deter corporate wrongdoing?

Do you think there is anything you could learn from the BNY Mellon ethics and compliance department that would be helpful in answering the foregoing questions?

What advice would you give to the BNY Mellon ethics and compliance department? What advice would you give to BNY Mellon management?

My reason for asking these questions is that I could not sense from our prior email correspondence the extent to which you believe business ethicists should be concerned with the law and punishments for lessening corporate wrongdoing.

You said in response to my first email that, "None of this is to suggest that public policy is not important and that ethical considerations are not essential to policy debates and policy implementation. I would think nearly all business ethicists would agree with that judgment." You did not respond to my second email to you, and that left me up in the air about what you think about the role of law and punishments.

If law and punishments have a role, I would be interested in whether there is any new thinking or research going on about the law and punishments. (Obviously I thought "Whither the Quest of Business Ethicists?" was meritorious in 2009 for consideration and still do.)

Any information you can give me, or steer me here, will be most appreciated.

Many thanks.

Sincerely,

Rob Shattuck

How To Combat Plaintiffs' Lawyers

Friday, October 21, 2011

Emails to Business Ethics Quarterly authors

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