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Corporate Criminal Liability
In January, the Second Circuit affirmed the conviction of Ionia Management S.A. (Ionia) for criminal acts of its non-management employees. United States v. Ionia Mgmt. S.A., Nos. 07-5801-cr & 08-1387-cr, 2009 U.S. APP. LEXIS 902, 2009 WL 116966 (2d Cir. Jan. 20, 2009) (per curiam). While the affirmance of a conviction is commonplace, what set this appeal apart is that the Association of Corporate Counsel, the Chamber of Commerce of the United States of America, and other prestigious amici supported Ionia's argument that the Second Circuit should revisit its long-standing rule that a company can be held criminally liable for acts of even low-level employees. Although the court refused to alter the standard for vicarious criminal liability, the Ionia appeal raises an important policy issue that warrants consideration by Congress and the courts.
Ionia operates and manages shipping vessels, including the oil-tanker M/T Kriton, which transported oil to the United States. Ships such as the Kriton produce a quantity of oil-contaminated bilge waste, which they are required to store for proper disposal or process with pollution prevention and control devices. To ensure that ships entering U.S. ports comply with international protocols regulating the shipping industry, the Act to Prevent Pollution from Ships (APPS), 33 U.S.C. ” 1901, et seq., makes it a crime to knowingly violate the international protocols and requires that every ship maintain an Oil Record Book recording treatment and disposal of the oily mixtures generated on board.
The indictment charged Ionia and an engine room crew member with conspiring to maintain an inaccurate Oil Record Book, falsify the Oil Record Book to mislead the U.S. Coast Guard, and obstruct justice. It alleged that Ionia's agents and employees illegally dumped oil-contaminated waste and then doctored its Oil Record Book to conceal the dumping. The company was charged with the substantive offenses supported by allegations that it had been “acting by and through its agents and employees, acting in the scope of their employment and for the benefit of their employer.”
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