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(The Compensation Committee of Independent Directors for

Corporate Criminal Liability

Corporations were not initially held criminally responsible for corporate activities. A corporation was considered to be a legally fictitious entity, incapable of forming the mens rea necessary to commit a criminal act. The Supreme Court ultimately rejected this notion in 1909 in New York Central & Hudson River Railroad v. U.S. A railroad company employee paid rebates to shippers in violation of federal law. The court upheld the corporation's criminal conviction, finding no reason that corporations could not be held "responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them." The Supreme Court concluded that criminal liability could be imputed to the corporation based on the benefit it received as a result of the criminal acts of its agents. The case and its progeny have essentially imported the doctrine of respondeat superior from tort law into the corporate criminal realm. A corporation may be convicted for its agent's unlawful acts when the agent acted within the scope of his or her actual or apparent authority. Another theory of corporate criminal liability is the "collective knowledge doctrine." As knowledge of criminal activity is often the scienter element of a particular crime, the requisite knowledge can be imputed to the corporation based on the collective knowledge of the directors and officers.

Directors' Ignorance of Corporate Affairs

To carry out fully their duties and responsibilities to shareholders and the corporation, directors must be reasonably familiar with the workings of the corporation and have a general knowledge of how the corporation conducts its business. Directors are not expected to have superior knowledge about all business and financial aspects of the corporation, but they are assumed to have competent knowledge of the duties they have taken on when named to the board.

The Antitrust Exemption for Joint Newspaper Operating Arrangements

The Newspaper Preservation Act, 15 U.S.C.S. §§ 1801-1804, provides a limited exemption from antitrust laws for joint operating arrangements between newspapers in a particular locality. The objective of the legislation is to preserve independent reporting and editorial operations of the two newspapers while allowing shared production facilities that through a lowering of costs would allow both newspapers to survive.

The Duty of Directors and Officers Regarding Corporate Opportunities

The corporate opportunity doctrine provides that corporate directors and officers have an obligation not to take personal advantage of opportunities that may be to the advantage of their corporation. The doctrine follows from the duty of loyalty of directors and officers to the corporation.