the strong suit

Filly was meeting her sister who was an attorney for lunch at a little diner that she loved.

Filly knew her sister could not tell her about the case she was working on specifically but at the same time, she could in fact tell a hypothetical or general story. As an attorney, she had wanted to find the best way to approach this case, to best represent the client so she shared an analogy with Filly to get feedback.

Filly’s sister was smart and she was competent, and this was a big case that she was about to take on. There was this business, a big business, which had a substantial number of low level employees who did a great deal of work, producing for the company, and providing a benefit to the company.

And in this hypothetical “story” the employees always did exactly what the CEO said because there were rewards for following the company rules and potential loss of employment for not following. Those who did as they were instructed, moved up the corporate ladder.

The employees as a result, were not, for the most part, rule breakers, they were rule followers. And the work that they did enhanced the company value as they generated intellectual property for the company, and most had been required to sign non compete clauses in order to live and work for the company.

The company was nationwide and the employees totaled tens of thousands. None of them had met the actual owners of the company or even knew what the managers did, as the company culture was disseminated through the marketing firm or through HR, and were the mid-level managers, not the people at the top. The employees however, looked at these mid level enforcers of the company culture as legitimate representation of the owners and board of directors of the company.

In the hypothetical story, the most industrious of the employees, who had the greatest tenure, who had moved up, had also accrued the greatest value, both in intellectual property and in life savings. This had been achieved over years of personal development, combined with rigorous adherence to company policies almost as if the company was one great big family. Only it was not a family, because in a family, most times, the members of the family know who is the leader and the enforcer of the family values and the family culture. In the corporate “family” no employee really had concrete representation of who exactly was the company enforcer or bottom line, was but rather depended on memos and meetings with mid level management upon which to operate.

Filly’s sister attorney, said that her client, the defendant was one such person who had been devoted to company protocol, and had delayed self gratification throughout the company tenure, in favor of being committed to team playing. The leadership was unquestionably obeyed, and the employee behaviors fell within acceptable parameters to avoid negative consequences. This client had risen to the top, literally the cream of the crop, and had been faced with a huge challenge, which was why there needed to be legal representation.

The HR representatives and marketing CEO who were new to the company culture, and who worked remote, had told the defendant a fraudulent story, that they had been asked to carry out an internal investigations protocol using the years entire marketing budget. The defendant was told to cooperate, and had been informed that the investigation was clandestine, and since the behavior the defendant had established was one of obedience to the corporate structure and strategies, the defendant complied.

In this internal investigations, the defendant who was the client, was told to use marketing funds budget, as bait for those who were believed to be defrauding the company. The defendant did exactly what the virtual managers (the HR people and the Marketing CEO) directed, step by step in a very timely fashion since time was of the essence.

True to form, the funds that the defendant made available, served as bait after which, they were appropriated by the virtual managers, back to the specific project they had initially been designated for. The funds, which appeared to have been tracked, so that those who took the bait could be caught, seemed to have achieved the ultimate goal. Instead of being rerouted back to their initial designation, however, the funds themselves had disappeared or basically had been stolen.

Filly’s sister the attorney, said that her client assumed that the new managers had their hands on the perpetrators, since they were an integral part of the company, closely monitoring and closely involved in the marketing strategy from the outset so they should have been able to recover the funds. This was an expected outcome according to the defendant, because from the start, the plan had been, to use the funds as bait, and then reimburse them, as directed and promised by the new remote managers.

The problem became apparent when the funds could not be found. When the defendant called the new managers, who had only been operating remotely, their identity was suddenly questionable because their credentials could not be verified and their location was no longer valid and they no longer answered the phone.

The defendant immediately called the corporate Marketing Headquarters as well as the HR corporate department, and reported the event as a weird anomaly, documenting the chain of events because a portion of the funds were still showing up in the destination bank, as though they were still serving as “bait”. There was still time at this point, for corporate to pull those funds back out of the destination bank for safekeeping, but they did not, and their response was agonizingly slow and ponderous.

Filly’s sister, the attorney, was saying that the corporation was potentially gearing up to file a claim against the defendant, demanding payment for the missing funds that were supposed to have been bait. If the funds had disappeared, they claimed that her client, was responsible.

From Filly’s sisters legal point of view, as an attorney for the defendant, was that the corporation, the plaintiff, had been implementing a long standing culture of unarguable obedience to its corporate infallibility, using mid level management, such as HR and Marketing as boss, and this protocol had been adhered to the entire employment history of the defendant. This method was impersonal and regimented. The client had no way of distinguishing between the legitimate HR/marketing and illegitimate Marketing/HR via the remote locations that had been designated via electronics.

The corporation, was planning to discredit the defendant, saying that duress was the reason for the actions of the defendant, and that they should have not listened to the strategy of the remote directives and put the funds at risk, even though the defendant had obeyed directives from unknown entities the entire history of employment, establishing a consistent behavior of obedience to corporate headquarters.

The attorney wanted to argue that the defendant was not responsible for the funds because it was the company culture that imposed unquestioning obedience and prevented conscientious objection to those higher up in the corporate structure when something seemed amiss. Taking orders from a remote manager was not a novel or questionable event for the employees…therefore duress was not the primary motivation. Obedience was.

The attorney for the plaintiff however, wanted to argue in favor of putting the substantial consideration of responsibility for the money loss on the defendant by implying that the defendant acted under duress, when in fact the defendant had been defrauded, by means of intentional misrepresentation, using the very culture of unquestioning obedience established by the corporation itself. Duress implied having information that allowed a free choice. But a free choice implies full knowledge and comprehension of all parts of the decision.

To paint a picture of the employee as acting under duress would indeed benefit the corporation because it would imply that the employee made a bad transaction based on emotions, when in fact the employee had been given seemingly valid instructions with no information to indicate that there was any reason to doubt the validity of the transactions.

Duress was acceptable to the PLAINTIFF but fraud was unconscionable? One was indefensible, the other was defensible. Filly’s sister the attorney was concerned for the client, because the corporation was “kindly” grooming their own employee to accept the mislabeling of the event to call it duress, because in the long run it benefited them. The corporation might even place a lien on the property or personal assets of the employee, to gain restitution.

Filly thought of the master in the bible who had several men who worked for him and he had given them each funding to go do with what they would. He did not want them to bury their talents but to use them. Those who used their talents were not punished. But the one who chose to do nothing and bury the talent, was the one that the master said had defrauded him. What the master looked at was intent.

It was not the amount of money that the men gained or lost that was the focus, but rather it was the intent of the men that was taken into consideration. The master did not punish the men who used their abilities as best they could but punished the one who intended to do nothing to accomplish gainful employment. The intention was what determined fraud had happened. Filly felt like this was a great scenario to study from a legal point of view.

To punish the employee and make the same, responsible for the lost funds, instead of finding and punishing those who defrauded the company, was a travesty of justice.

Filly thought that the federal government was in many ways very similar to a giant corporation like the one in the lawsuit. People were afraid to stand up to the government and had no way of knowing which government officials were legitimate and which were illegitimate, because the government as an entity was so huge, often unverifiable, had many who engaged in criminal behavior, and were often accused of misrepresentation because they were approved of by a biased media and the local representatives.

If a person, whose income was used to FUND the government was defrauded of any portion of their own hard earned income, by some entity successfully impersonating that same government, shouldn’t evil destroy itself? How could government insist on collecting taxes on those missing funds that it stole from itself? How could the legal system punish obedience to one of their seemingly legitimate government representatives, and not go after the fraudster that impersonated them?

Filly thought of the children’s story of Jack and the beanstalk. Jack stole the goose that laid the golden eggs from the Giant when he was able to climb the bean stalk. Filly tried to imagine a Starbucks beanstalk… So in her analogy, when the golden egg producer goose got stolen by Jack, the giant would not go after Jack (play on words lol) he would go after the golden goose and punish it????Kind of self defeating doncha think Mr. Giant??

Filly knew that her sister the Attorney was helping someone who had been firmly planted, who had produced good fruit, and who could not be pulled up because of deep roots in God. The Giant of oppression would not win.

Her randomly chosen bible verse…

I will plant them in their land, And no longer shall they be pulled up From the land I have given them,” Says the LORD your God.

This land is ours, God gave this land to US.