CORPORATE CRIME REPORTER
Energy's CEO Blankenship and the Reverse Nuremberg Defense –
Just Giving Orders, Not Carrying Them Out
21 Corporate Crime Reporter 16, April 8, 2007
The Nuremberg defense is widely known – sorry, just carrying out orders.
Now comes the reverse Nuremberg defense – sorry, just giving the orders, not carrying them out.
Lawyers for widows of two miners killed in a January 2006 West Virginia mining fire argue that Don Blankenship – the CEO of Massey Energy – is using something close to the reverse Nuremberg defense to escape personal liability for the deaths of the men.
“It appears that Mr. Blankenship and the two companies under his direct control are attempting to argue something akin to a reverse Nuremberg defense – I am not guilty because I was only giving the orders, not carrying them out,” the lawyers for the widows write. “The outrageousness of such a position cannot be tolerated in modern society, and is, in fact, squarely contradicted by existing law.”
On April 16, a state court judge in Logan County, West Virginia will hear these and other arguments in a lawsuit concerning the deaths of miners Elvis Hatfield, 46, and Don Bragg, 33.
Both were miners in Aracoma Coal Company’s Alma #1 mine in Logan County, West Virginia.
Both died in January 2006 when a fire broke out in the mine.
Both died of asphyxiation and carbon monoxide poisoning.
Aracoma is owned by Elk Run Coal Company.
Elk Run is a subsidiary of A.T. Massey Coal Co.
A.T. Massey is a subsidiary of Massey Energy Company.
Massey Energy is the fourth largest coal company in the United States – the largest in Appalachia.
Blankenship is the CEO of Massey Energy and A.T. Massey.
Lawyers for the widows of Hatfield and Bragg will appear in a courtroom in Logan, West Virginia, before Judge Roger Perry.
One of the widows’ lawyers – Bruce Stanley, is a partner in the corporate powerhouse law firm of Reed, Smith. The other is Tonya Hatfield, a lawyer based in Gilbert, West Virginia.
They have filed a lawsuit on behalf of the widows against Aracoma Coal, A.T. Massey, Massey Energy and Blankenship.
They allege that the defendants put profits ahead of safety at the Alma #1 mine.
In papers filed with the court, Blankenship argues that he’s not liable for the deaths.
Blankenship says he has instituted numerous safety programs, including the “Safety First” or “S-1" program – “a program that exceeds the requirements of state and federal law.”
During his tenure as CEO, Blankenship says the company he heads has received “numerous safety awards” and Massey’s safety record has “consistently been far better than the national average.”
Blankenship claims he has “created a culture of safety at Massey.”
And Blankenship claims that an officer of a corporation cannot be held responsible for the wrongs of the corporation just because he’s an officer.
“Indeed the reason for the creation of the corporation is to limit liability,” Blankenship argues.
Blankenship is arguing that the widows can’t pierce the corporate veil.
The lawyers for the widows of the miners argue that Blankenship’s corporate veil arguments are irrelevant.
“The widows are contending that Mr. Blankenship is independently liable for his actions – and so, therefore, are the two companies on whose behalf he was acting directly – over and apart from the illegally dangerous conduct in which Mr. Bragg and Mr. Hatfield's statutory employer, Aracoma, was engaged,” the lawyers write.
The lawyers for the widows base their case, in large part, on an October 19, 2005 memo that Blankenship wrote to “All Deep Mine Superintendents.”
“If any of you have been asked by your group presidents, your supervisors, engineers or anyone else to do anything other than run coal (i.e. build overcasts, do construction jobs, or whatever), you need to ignore them and run coal. This memo is necessary only because we seem not to understand that the coal pays the bills.”
The lawyers write that “the sum and substance of the widows’ claims against Mr. Blankenship, Massey Energy and A.T. Massey all stem from the same operative factual allegations – that Mr. Blankenship, personally and in his capacity as the President, Chief Executive Officer, and Chairman of Board of Directors of Massey Energy and A.T. Massey, directed the superintendent of the Alma Mine No. 1, Mr. Lawrence Lester, to ignore work necessary to insure safe operation at the mine in favor of increasing coal production.”
For his part, Blankenship says the memo is being blown out of context.
In fact, he says, one week later, he wrote a second memo to clarify the first.
In this memo, dated October 26, 2005, Blankenship says some of his workers interpreted the first memo that “safety and S-1 are secondary.”
“By now, each of you should know that safety and S-1 is our first responsibility,” Blankenship wrote. “Productivity and P-2 are second. It has been the culture of our company for a long time.”
“I would question the membership of anyone who thought that I consider safety to be a secondary responsibility,” he wrote.
But lawyers for the widows see the second memo as a threat to the workers.
“It is important to understand that Massey Energy refers to the coal mine employees of its subsidiaries as ‘members,’” they write. “With that understanding, it is evident that Mr. Blankenship is actually stating that anyone who wants to keep his or her job at a Massey mine had better not question his motives.”
And they go into a long recitation of safety problems at Massey.
They quote one Alma #1 miner, Larry Browning, as saying that the operation at that mine is like a fast-food restaurant.
“It’s like a fast-food restaurant to me, you know, hurry up and get it up, hurry up and get it up,” he says.
They argue that Blankenship’s claims to have created a “culture of safety” at Massey are “ill-founded and misleading.”
Indeed, they list sixteen miners who have died at Massey mines since 2000 – Ronnie Wright (May 24, 2000), Ricky Dale Vance (October 30, 2000), Allen Harris, Jr., (February 2, 2001), Herbert J. Meadows (March 29, 2001), Gregory Barron (August 27, 2001), Paul Miller (September 14, 2001), Danny Adkins (January 2, 2002), Keith L. Casey (March 22, 2002), Rodney Alan Scurlock (July 19, 2003), William P. Birchfield and Rodney W. Sheets (September 17, 2003), Kenneth Adrian McNeely (February 5, 2004), Christopher McGuire (March 29, 2005), Don Bragg and Elvis Hatfield (January 19, 2006), and Paul Moss (February 1, 2006).
But Blankenship points to a key measure of coal mine safety – Non Fatal Days Lost (NFDL).
“Massey’s NFDL has been better than the industry average in 13 out of the last 15 years,” he says.
That’s true as far as it goes, the lawyers for the miners’ widows argue. But include contractor accident data and it becomes among the highest, they say.
And they say that the NFDL at Alma #1 and overall incident rates in particular were more than twice the national averages in 2005.
all of the foregoing, and given their late spouses' untimely, unnecessary and
unimaginably horrendous deaths, described as ‘statistically insignificant’
by Massey’s president, chairman and chief executive officer, the widows
can hopefully be forgiven if they do not take seriously Mr. Blankenship’s
protestations that he ‘has created a culture of safety at Massey and,
under his leadership, Massey has achieved successful results.’”
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