Can a Business Be Held Liable for Crimes Committed by Clients? [e272]

Full Podcast Transcript

NASIR: Welcome to our podcast where we cover business in the news and add our legal twist to the business news.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: And so, business news, right? That’s what we cover? What’s the business news that we have today?

MATT: Well, it could be business or it could be legal – preferably if it’s a Venn diagram, it’s something in the middle.

NASIR: That’s where we come in.

MATT: Yeah, that’s what we try to cover at least.
This would quality as business news even though we don’t do—

NASIR: Drugs?

MATT: A drug or a criminal – too much criminal law – or at least I don’t. I don’t know about you.

NASIR: I don’t do too much of it. Let’s just put it that way – just the right amount of criminal law.

MATT: Fair enough.
So, this is a pretty interesting case. I think the actual indictment was two years ago? 2014, I believe.

NASIR: Yeah.

MATT: Brought against FedEx. Yeah, 2014, Grand Jury indictment.
Essentially, they were accused of a few things – conspiracy to distribute controlled substances, distribution of controlled substances, conspiracy to distribute misbranded drugs, and misbranding drugs – things of that nature. Basically, what was happening, I believe it dealt with pharmaceuticals was the primary area here but, essentially, FedEx was being the courier between people shipping these illegal drugs and the people on the receiving end. I think it’s really the case is going to come down to – at least when I was reading this – I mean, when we’re recording this I guess the trial has just started so I guess we might know more once this comes out, as we often say, but what was FedEx’s knowledge of what it was transporting between Illegal Point A to Illegal Point B?

NASIR: The complaint and some of the press around this describes the situation where drivers literally complained about bringing parcels – specifically pharmacy parcels because I think they’re labeled differently – to delivery addresses that were nothing more than parking lots or schools or even vacant homes. And then, when they delivered it, there was all these multiple cars parked and people waiting outside for the deliveries. Of course, as soon as the packages or package is dropped off, people come and get it and bring it home.

MATT: Right, and that’s definitely one of the big points here, obviously, is the driver of these trucks – and they are employees if you recall, we’ve talked about that before – it was FedEx, right? That had that issue.

NASIR: They both had that issue, yeah, but I was thinking it was specifically FedEx, I think so – at least in California.

MATT: The drivers were coming back to upper level management telling them exactly what you just said – that these deliveries don’t seem 100 percent legitimate here – you know, pulling up to a location near the delivery address and people running up. I think there were instances of people just actually jumping into the FedEx trucks and trying to get these packages. You had the drivers reporting issues like this and, from how it’s been painted – at least in the media here – is that, you know, FedEx knew about these things and just kind of chose to do nothing about it. I think the prosecution had a pretty good quote, if I can find it. Here is part of it – basically, they faced a choice and the choice was to stop or go meaning that they knew that these illegal deliveries were happening. Time and time again, they went. That’s probably not the quote I was looking for but you get the point that they’re being accused of essentially knowing that these illegal deliveries are occurring and I think they’re playing the card of “well, we’re just the courier; we didn’t know about it; we’re not responsible for the fact that these are illegal drugs that are being shipped.”

NASIR: Yeah, and this isn’t the first time FedEx or even some of the other carriers have been caught in this mess because I would imagine, especially when you’re order drugs on the Dark Web as people talk about and so forth, it’s transported somehow, obviously, and a lot of times, as we all know, how is the carrier going to know what’s in the package unless they open it and inspect it which, from a domestic perspective, doesn’t really happen. And so, there’s been cases where, even in Harris County here in Houston, there was a case where a resident actually received a FedEx package apparently intended for their neighbors that included a certain number of pounds – literally pounds – of cocaine as well as an AR-15 rifle and a military grade night scope. Of course, you receive this package and you’re like, “What is this?” but then you call the police and apparently, of course, they track it down to the neighbors and there’s this big drug bust but this happens all the time. There was another case where this drug kingpin actually got caught shipping through some kind of freight delivery, I believe – some massive cocaine shipment. You can imagine, if they got caught, it makes you wonder how many times did they not get caught, right? Transporting this stuff.

MATT: And so, what it boils down to is how much responsibility or how much should FedEx be responsible for? I think I have the numbers here. It moves more than 10 million shipments each day on average. Obviously, it’s not going to be able to pay close attention to over 10 million shipments each day but I don’t agree with what their attorneys are saying – that they aren’t criminally responsible for holding or transporting controlled substances. It’s got to come down to how much they knew about the situation at hand. I mean, a few of your drivers, multiple drivers coming back, telling you about these things that were happening, something you should probably look into a little bit – just based on the facts of I think one person even described it as a Walking Dead scenario – that’s what it was like because they’d pull up and people would just run out of everywhere because they knew that’s where these delivery trucks pulls up and that the deliveries were what they were.

NASIR: Yeah, I can imagine.
There is this defense that FedEx has used – and other carriers have used in the past – successfully for that matter which is something called the common carrier exception and it’s a federal statement that basically says, “Look, if you’re delivering for the public, you can’t be held responsible for the transportation of illegal drugs,” which makes sense to a certain extent. I mean, there’s also requirements on these common carriers or certain regulations that they also must adhere to as well. And so, really, the federal government under this standard has to show that FedEx acted with knowledge of a specific intent and that’s what would be required for a conviction.
So, really, obviously, it’s not like the federal government doesn’t know that. And so, really, they are banking with the fact that FedEx, literally, because of the financial incentives they have of supposedly a pretty large industry of drug shipment that, since they’re turning this blind eye, that they are profiting from it and that exception should not apply.

MATT: We’ll go back. I mean, this isn’t a new thing. In 2004, the justice department filed an indictment against FedEx – this time, it was ignoring warnings from government officials basically saying – I guess this was what was happening – an online pharmaceutical company, all you had to do is go online and fill out a questionnaire and they would ship you these pharmaceuticals which obviously there’s a big problem there. In this case, it was actual warnings from government officials telling them this and FedEx, I guess, just thought that they could get by with no liability – presumably under this common carrier exception. I mean, it seems like their stance is pretty clear of going, “we didn’t know about anything, how could we? It’s just too difficult to tell. Our job is to be the courier and that’s what we’re doing.”

NASIR: Absolutely. Here’s the thing. Let’s kind of bring it home to small and medium-sized businesses. I mean, not everyone’s a FedEx like FedEx but, when you’re operating your business, there’s always going to be these cases where you may encounter – either through your clients or vendors – some so-called shady business and it’s always interesting how that occurs. Just because you’re not involved directly may not mean that you may not become involved later and actually have some co-liability to those kinds of things and it may not just be criminal – it may also be just a tort or civil remedy as well.

MATT: Yeah, I had to keep repeating it but it’s one thing if you are completely oblivious – oblivious probably isn’t even the right word – you’re completely unaware of some sort of illegal action that’s going on. But, the more that you know about it and are a – what do you want to say? Well, not a co-conspirator but…

NASIR: An accomplice or aiding abetting.

MATT: Yeah, the more you know about it, the more you’re going to cross over that line. And then, once the feds get involved, they’re going to question everyone and everything so you don’t obviously want to be involved in that. As much as I think connecting to the small business, relating to what FedEx did too, as much as it’s great to possibly get some business and do whatever as a small business and possibly overlook something, you know, you have to decide if it’s worth it from later criminal charges being brought against you. Just like FedEx, they’re being accused of is, “Well, you know, we’re not going to turn down this business. We’re still going to do it and just try to plead innocence.”

NASIR: It kind of reminds me of when you’re an online merchant and you go through a lot of transactions per day and what’s famous with these are these kind of vitamin and supplement industry and these kinds of things where they do a large number of transactions and there’s a lot of fraud associated with some of the credit cards that are processed through certain industries. If you end up kind of not having a fraud protection of some kind of review of that, you could be opening yourself to potential liability in the sense, yeah, on one hand, your business is doing great because you’re getting all this money but then all your business is coming from stolen credit cards. Of course, it’ll come back to haunt you because then you’ll have chargebacks and so forth and things of that nature. It’s the same thing if you’re selling something online where people are using, if you have some kind of platform, let’s say you’re kind of creating an eBay store where people are buying and selling certain things but, if they’re buying and selling illegal things and you’re allowing that to happen, yeah, you may be making some money off of the transaction but you could be personally liable for those types of things.

MATT: Right. I finally found the statement from the US attorney I was trying to find earlier.

NASIR: Okay, perfect. Just in time.

MATT: I’d actually copied it and pasted it somewhere specific so I would remember to look at it.

NASIR: Oh, yeah, I see it now.

MATT: This is what they’re alleging – that FedEx knew that drugs and millions of packages are delivered over a decade were illegally prescribed but shipped them anyway because it did not want to lose millions of dollars in revenue to rival UPS. That’s the same thing I was just mentioning earlier with it could relate to small businesses. I mean, it’s just a matter of how much business you’re doing and possibly losing out to a competitor that might be willing to cross that line and you aren’t. obviously, we’re going to give the advice of don’t do illegal things but people still decide to do them. You know, I think you mentioned this before, it’s not even necessarily doing something criminally wrong but something that could make you liable from a civil perspective, too. It’s just not something that, as a business owner, you’re going to want to get involved with because, as we’ve said many times, once the lawsuit’s filed, you’ve already lost.

NASIR: Yeah, that’s right.
I was looking to see, you know, we’re talking about FedEx today but I was just looking to see if there’s any preference from drug users, so to speak, whether FedEx or UPS is better because it seems like both FedEx and UPS both have the same kind of troubles but FedEx seems to have a little bit more trouble with the government so I don’t know if it’s a little bit more rampant there. But I’m also looking to see that apparently there’s also these other kind of lesser known couriers too that kind of involve themselves – I shouldn’t say that – that they end up being involved in this basically drug trade, black market drug trade.

MATT: Well, yeah, I know you’re going to hate this.

NASIR: I hate this

MATT: UberEATS launched in San Diego last week.

NASIR: Ugh.

MATT: I happen to know one of the people that’s involved here in San Diego so both my wife and I got five free meals essentially up to $25.00.

NASIR: Nice.

MATT: Anything we order, they pay up to $25.00 – that’s including delivery, price of food, whatever. Yeah, like you said, that’s obviously a food delivery but there’s lots of companies like that and I think Uber is probably going to even do some sort of expansion and maybe start delivering other items too and they’re going to run into the same issue if they start doing things like this.

NASIR: Yeah, if you think about it, it’d be a great cover-up that, if you order a certain menu item in a certain way from a certain restaurant, then you get drugs delivered to your door. How great would that be – for drug users?

MATT: Yeah, I think that’s pretty common in shows. Did you ever watch – it’s on top of my mind because it’s coming back Season 2, I saw the trailer – Narcos?

NASIR: Yeah, oh, is Narcos back?

MATT: No, it’s not until September but I just saw the trailer for Season 2.

NASIR: I did see it. It was very, very well-done.

MATT: Yeah, it’s a good show.

NASIR: The only problem is you can’t passively watch it – unless you know Spanish – but everything is transcribed so you actually have to pay attention.

MATT: Yeah.

NASIR: It’s a great show to pay attention to anyway.

MATT: I was a little bit skeptical at first but I came around on it. I think it’s pretty common in shows. Obviously, was it Breaking Bad? People like the drug-related shows. I don’t know why.

NASIR: People like drugs and drug-related shows.
What’s our lesson for the day? Say no? Just say no?

MATT: Yeah, DARE – Drugs Abuse Resistance Education. Did I get that right? Drug Abuse Resistance Education, I did, yeah.

NASIR: Nice.

MATT: But, yeah, I mean, we hit on it earlier. This applies to small businesses as well. It’s not just criminally, anything that’s going to make you liable as a business owner….

NASIR: I guarantee you, as we’re talking, there’s a business owner out there that is thinking about something that they thought was suspicious that they were like, “Well…” Again, there’s no obligation to report when you see a crime in most states that I know of.

MATT: Unless you’re a police officer.

NASIR: But, if you’re involved in the business and you’re intimately involved and you’re kind of turning a blind eye, I’d be a little careful.

MATT: Yeah, I think that’s it, that’s the takeaway for today.

NASIR: All right. Well, just say no.
Have a good one.

MATT: All right, keep it sound and keep it smart.