Meta Platforms, Inc., the parent company of Instagram and Facebook, is under intense fire as contentious litigation continues to mount across the country and abroad. At last count, Meta was facing 33 State Attorneys General in a Federal lawsuit in California, 9 independent State Attorneys General in separate U.S. State lawsuits, a Federal suit by a Federal Attorney General in the U.S. Virgin Islands, and a private class action lawsuit filed by a consumer protection group in the District of Columbia.  Vermont has even entered the litigious fray. Meta, along with Google’s YouTube, was found liable in a private suit in Los Angeles County (a single Plaintiff – 6 million in actual and punitive damages) and in a class action suit filed by the New Mexico Department of Justice (NMDOJ) (375 million in damages).

“The NMDOJ’s final claim against Meta will be heard via a bench trial that is scheduled to begin on May 4th. During the bench trial, the NMDOJ will argue its public nuisance case and seek injunctive relief that requires Meta to pay additional damages and make specific changes to its platforms and company operations, including enacting effective age verification, removing predators from the platform, and protecting minors from encrypted communications that shield bad actors.”

As if civil litigation isn’t enough, in an interesting turn of events, Meta and Mark Zuckerberg are now facing criminal charges in Sweden. I don’t purport to know the laws of European countries, but the mounting barrage of litigation spells serious trouble for this broken Titan of Tech.  It’s cliché, but where there is smoke, there is almost certainly fire.  While Meta has easily absorbed unprecedented fines such as the 5-billion-dollar U.S. Federal Trade Commission (FTC) and Department of Justice (DOJ) sanction which was meted out in 2019, it is not only taking fire in the U.S., but worldwide as well.

Incredulously, Meta continues to deny that it has a gargantuan problem. Meta’s stance of denial continues in spite of incontrovertible evidence that Meta knew what it was doing was wrong. In a nutshell, profit prevailed over corporate accountability and sound governance. An age-old human / corporate condition.

There is an excellent article that was published recently on LinkedIn and posits the question, can Mark Zuckerberg be held criminally liable for his avarice, mendacity, and greed? Well, it depends. From a civil standpoint, Mark Zuckerberg has dodged personal liability and has been shielded from civil liability after the recent verdicts in California and New Mexico. “Control of corporate activities,” standing alone, is not enough to establish Mark Zuckerberg’s personal liability.

Up until now, few corporate executives in America have faced criminal prosecution. It’s not impossible. As Attorney Christopher Boeraeve aptly pointed out in his recent LinkedIn article, “The executives who actually went to prison shared one feature: [P]rovable, direct financial fraud.  Jeffrey Skilling (Enron), Elizabeth Holmes (Theranos), and Sam Bankman-Fried (FTX).  They fabricated financials and stole money.”

There’s movement in the United Kingdom to hold tech executives criminally liable. U.K. Culture Secretary Nadine Dories was recently quoted by the Cayman Island News:

“What [tech firms] need to do now is to remove those harmful algorithms on [their] platforms. Stop directing people to suicide chat rooms, stop allowing [pile-on] hate, stop allowing people-trafficking, stop allowing threats of hate, violence and rape, and remove it all now.”

If we were to take Senator Josh Hawley’s position that Mark Zuckerberg may well have perjured himself before the Senate Judiciary Committee, it is rare that one sees an actual charge for perjury before Congress. As many articles point out, it appears that Meta has gotten a pass under our current Washington administration. Attorney Boeraeve points out in his extensive research that there have been “[f]ewer than two dozen” Congressional perjury prosecutions since 1945.

Corporate Directors and Officers generally enjoy broad protection from personal liability. The veil of protection remains intact when Directors and Officers act in good faith and as a reasonably prudent person would do under like or similar circumstances. This corporate veil is designed so that corporations may attract and retain talent. A similar standard is the “business judgment rule.” Officers and Directors enjoy limited liability when they act with prudence, good faith, and in the best interest of the corporation.

In my estimation, Mark Zuckerberg is perilously close to losing his veil of limited liability. Just as Meta clung to its mistaken belief that Act 230 of the Communications Decency Act imbued Meta will omnipotence and absolute  immunity from liability, Zuckerberg fundamentally misunderstands the corporate veil of limited liability. It can be pierced, particularly when fraud or willful misconduct is involved. There is myriad of evidence that Zuckerberg took Meta down the path to perdition, knowing full well the perils involved (design flaws) and in direct contravention of advice from those around him.

Just as Meta opened up a whole new field of jurisprudence regarding Act 230 immunity, Zuckerberg may have opened the eyes of our judiciaries regarding just how far the corporate veil of limited liability for Directors and Officers will go.  Yes, there are consequences when Directors & Officers act with unbridled and mistaken impunity.

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JAMES M. WALSH, ESQ. is a former Navy JAGC officer and a recipient of the American Bar Association’s coveted LAMP Award for excellence in military legal assistance practice. A rolling stone, J.M. has globetrotted most of his adult life. After the military, J.M. pursued commercial real estate development, leasing, and asset management. He resides in Catania, Sicily. He spent almost twenty years in the Commonwealth of Pennsylvania’s Luzerne, Erie & Lackawanna Counties. His handiwork as an editor and author is interspersed throughout this novel. Leo A. Murray fondly refers to J.M. as his collaborative, literary ‘Coach’ or ‘Lieutenant.’ Agnes claims that he has gypsy in his heart and rabbit in his feet.