Criticism of the US model of a strongly “adversarial” justice system is definitely valid; it wastes a lot of resources on inefficiently resolving certain sorts of disputes. However, the bankruptcy case is in a US federal court, and at least most of the key players are within the jurisdiction of said court. And I don’t think you usually get to a fair, equitable, or efficient outcome by not asserting your rights and interests when the other side is going out with guns blazing. The system tends to give both sides some good cards and some cards that suck; getting an outcome that is fair to all involved generally involves giving up your good cards in exchange for the other side giving up theirs too.
There is a parallel system of alternative dispute resolution (ADR) like mediation which tends to be much more efficient and more likely to produce outcomes everyone can live with. But it requires give and take by both sides, and right now the debtors are not in a position to engage with it. They have much more pressing issues to deal with in the next few months, like trying to track down $10B in missing crypto before it ends up untraceable or outside the practical control of a US court.
In my view, many organizations do have a moral obligation to return some of the funds—and an ADR process is the best way to do that. It is reasonable for the organizations to ask for dismissal of any claimed liabilities they should not morally have to bear in exchange for that.
Most litigation of note will be against organizations—like Willie Sutton didn’t actually say about banks, because that’s where the money is. To me, the likely story is that corporate counsel is advising organizations about the desirability of directing their employees to stay mum to protect the organization’s legal interests. In fact, organizational counsel does not represent the employees (which is a good thing to remember if you ever are involved with a lawyer at work!) That directive may incidentally benefit the employees and directors, though.
It is really difficult to give specific examples of the corporate/individual interplay because we don’t know what the identified legal risks are. But two general principles: first, an employer is generally liable for an employee’s actions in the scope of the employee’s employment. What “in the scope” means is pretty fact-specific. As an extreme example, we have the Department of Justice arguing at the moment that denying allegations of sexual misconduct from decades ago is in the scope of employment of the (former) U.S. president.
Second, corporations lack minds and cannot “know” anything other than through affiliated people. So for instance, if the CEO of Organization X comes on here and writes that he knew A, B, and C (at a time they were CEO), that will probably establish that Organization X knew A, B, and C. That might or might not be the case if a more junior employee said that they knew A, B, and C but higher-ups did not know. All that is to say that the speech of affiliated individuals tends to have effects on the legal interests of the organization too.
Unfortunately, because none of us know what is being discussed by the people involved, we are limited to speculation about what might be going on. Speculation is a poor substitute for information, but it can’t leak knowledge (that the speculator does not have) or be attributed to a person or organization (with whom the speculator has no affiliation). I know that is not very satisfying.
Criticism of the US model of a strongly “adversarial” justice system is definitely valid; it wastes a lot of resources on inefficiently resolving certain sorts of disputes. However, the bankruptcy case is in a US federal court, and at least most of the key players are within the jurisdiction of said court. And I don’t think you usually get to a fair, equitable, or efficient outcome by not asserting your rights and interests when the other side is going out with guns blazing. The system tends to give both sides some good cards and some cards that suck; getting an outcome that is fair to all involved generally involves giving up your good cards in exchange for the other side giving up theirs too.
There is a parallel system of alternative dispute resolution (ADR) like mediation which tends to be much more efficient and more likely to produce outcomes everyone can live with. But it requires give and take by both sides, and right now the debtors are not in a position to engage with it. They have much more pressing issues to deal with in the next few months, like trying to track down $10B in missing crypto before it ends up untraceable or outside the practical control of a US court.
In my view, many organizations do have a moral obligation to return some of the funds—and an ADR process is the best way to do that. It is reasonable for the organizations to ask for dismissal of any claimed liabilities they should not morally have to bear in exchange for that.
Most litigation of note will be against organizations—like Willie Sutton didn’t actually say about banks, because that’s where the money is. To me, the likely story is that corporate counsel is advising organizations about the desirability of directing their employees to stay mum to protect the organization’s legal interests. In fact, organizational counsel does not represent the employees (which is a good thing to remember if you ever are involved with a lawyer at work!) That directive may incidentally benefit the employees and directors, though.
It is really difficult to give specific examples of the corporate/individual interplay because we don’t know what the identified legal risks are. But two general principles: first, an employer is generally liable for an employee’s actions in the scope of the employee’s employment. What “in the scope” means is pretty fact-specific. As an extreme example, we have the Department of Justice arguing at the moment that denying allegations of sexual misconduct from decades ago is in the scope of employment of the (former) U.S. president.
Second, corporations lack minds and cannot “know” anything other than through affiliated people. So for instance, if the CEO of Organization X comes on here and writes that he knew A, B, and C (at a time they were CEO), that will probably establish that Organization X knew A, B, and C. That might or might not be the case if a more junior employee said that they knew A, B, and C but higher-ups did not know. All that is to say that the speech of affiliated individuals tends to have effects on the legal interests of the organization too.
Unfortunately, because none of us know what is being discussed by the people involved, we are limited to speculation about what might be going on. Speculation is a poor substitute for information, but it can’t leak knowledge (that the speculator does not have) or be attributed to a person or organization (with whom the speculator has no affiliation). I know that is not very satisfying.