Do you remember Surge? Caffeine addicts of a certain age will know exactly what we’re referring to, but younger readers may only know the product’s name from online campaigns to bring it back. Now that the product’s biggest fans are young adults with disposable income and credit cards, Coca-Cola has brought the beverage back into production, sold exclusively on Amazon. The first batch sold out within hours.
Yes, before you ask, here’s the Amazon link to buy Surge. Now then: let’s go back in high-fructose history. Surge began its life as a Norwegian competitor to Mountain Dew, which was called Urge. The product was even referred to as “MDK,” which stood for “Mountain Dew Killer,” internally at Coca-Cola. The product was popular when it was introduced in 1996, but waned and was off the market by 2002. A similar Coca-Cola product, Vault, went on and off the market last decade: Vault was effectively Surge with 50% more caffeine.
For now, Coca-Cola says that the return of Surge to refrigerators nationwide is a limited-time thing. Of course, if customers continue to buy cases of the stuff from Amazon, that will indicate to Coke that they can bring the stuff back to regular stores and soda fountains. They’d have to rethink the marketing, though: Americans aren’t so much into “carbos” anymore.
Coca-Cola credits a Facebook page, Surge Movement, with inspiring them to bring back the product. The dedicated people behind that page went to amusing lengths to prove their love of Surge, even tapping a decade-old, technically expired box of Surge syrup and selling it to fans to promote their advertising efforts.
We also learned this weekend that Zima, the first sort of sweet, clear “beer alternative” beverage to hit the market in 1993, never really went away, but lives on in Japan, where it is inexplicably popular among men in their twenties. You can even buy it in bars. It was still in production in the United States until 2008.
If we’re going to bring back products from the ’90s, can we talk about crystal Pepsi?
I remember liking it, but in 1992 I may have been too young to know any better. That may be the case for people who are clamoring to buy cases of Surge now, too.
Coca-Cola Is Bringing Surge Back [Buzzfeed]
The New York Times reports that Ken Feinberg, the lawyer hired by GM to compensate victims for accidents caused by the ignition switch issue, has found 19 death claims to be eligible for the estimated million-dollar payments.
The program, which began accepting claims on August 1 and will continue until December 31, aims to provide relief for the victims and families affected by ignition switch issues that resulted in the recall of 2.6 million vehicles and a number of federal probes related to the company’s 13-year delay in acknowledging the problem.
On Monday, Feinberg released statistics for the program that reveals the submission of 125 death claims, 58 series injury claims and 262 claims for less serious injuries.
The Times reports that so far the program has found four claims of serious injury – which include injuries resulting in quadriplegia, paraplegia, double amputation, permanent brain damage or pervasive burns – eligible for compensation. Eight of the less serious injury claims have been approved; those injuries are described as requiring hospitalization or outpatient treatment within 48 hours of the accident.
According to the program, claims that have not been accepted are still under review or awaiting additional evidence.
The new statistics did not reveal the identities of the victims involved in the approved death claims, making it unclear whether the new figure includes any or all of the 13 deaths originally tied to the defect by GM.
The compensation plan, which was unveiled in late June, does not put a cap on the payment amount victims could receive. Instead those affected by the faulty switch could receive anywhere from $20,000 to double-digit millions depending a number of factors including loss of wages, severity of injuries and more.
According to the plan’s formula, families of those who died are entitled to at least $1 million, plus the calculation of lifetime earning lost, and $300,000 for a spouse and for each dependent.
Consumers who suffered life-altering injuries could receive even more when the cost of lifetime medical care, lost earnings power and other factors are considered.
The plan also addresses consumers who faced less-severe injuries. Those who were treated at a hospital or an outpatient medical facility within 48 hours of the accident are eligible for a claim.
The formula for that claim is $20,000 for one night in the hospital; $70,000 for two to seven overnights, $170,000 for eight to 15 overnights, with a maximum of $500,000 for 32 or more overnights. Those treated on an outpatient basis could receive a maximum of $20,000.
Additionally, the plan provides for payout for accidents that have yet to occur. The protocol will cover crashes that happen through December 31, 2014.
The compensation program covers approximately 1.6 million model-year 2003-2007 recalled vehicles manufactured with an ignition switch defect and approximately 1 million model year 2008-2011 recalled vehicles that may have been repaired with a recalled ignition switch.
While GM officials are hopeful the compensation program will deter victims from seeking relief through the courts, they say filing a complaint doesn’t necessarily mean consumers forfeit their right to sue.
Feinberg said in June that victims only waive their right to sue if they accept the payment from GM.
Number of Victims Eligible for G.M. Payouts Reaches 19 [The New York Times]
In a statement posted to Twitter, Urban writes:
Urban Outfitters sincerely apologizes for any offense our Vintage Kent State Sweatshirt may have caused. It was never our intention to allude to the tragic events that took place at Kent State in 1970 and we are extremely saddened that this item was perceived as such. The one-of-a-kind item was purchased as part of our sun-faded vintage collection. There is no blood on this shirt nor has this item been altered in any way. The red stains are discoloration from the original shade of the shirt and the holes are from natural wear and fray. Again, we deeply regret that this item was perceived negatively and we have removed it immediately from our website to avoid further upset.
Around the same time as UO was apologizing, the leadership at Kent State were declaring their disgust.
“We take great offense to a company using our pain for their publicity and profit,” reads a statement from the school. “This item is beyond poor taste and trivializes a loss of life that still hurts the Kent State community today.”
Urban has removed the shirt from its website, but at least one person claimed to be selling it on eBay, though that listing has since been removed.
For those coming to this story late, Amazon and Hachette Book Group, one of the nation’s largest publishers, have been unable to agree on wholesale pricing terms, most notably on e-books.
Amazon is attempting to pressure Hachette into making a deal by refusing to take pre-orders on new Hachette titles. Shipping on the publisher’s in-stock titles is often delayed, and books from other publishers are receiving more attractive discounts.
“These sanctions have driven down Hachette authors’ sales at Amazon.com by at least 50 percent and in some cases as much as 90 percent,” reads the letter from Authors United, which currently has around 1,070 names attached. “Because of Amazon’s immense market share and its proprietary Kindle platform, other retailers have not made up the difference. Several thousand Hachette authors have watched their readership decline, or, in the case of new authors, have seen their books sink out of sight without finding an adequate readership. These men and women are deeply concerned about what this means for their future careers.”
Amazon has yet to post a response on its ReadersUnited.com site to this latest letter from the authors, but in the reply to the August letter, the e-tail giant pointed out that it had made a number of offers to Hachette that it claims would have minimized any damage to authors.
“We first suggested that we (Amazon and Hachette) jointly make author royalties whole during the term of the dispute,” wrote Amazon at the time. “Then we suggested that authors receive 100% of all sales of their titles until this dispute is resolved. Then we suggested that we would return to normal business operations if Amazon and Hachette’s normal share of revenue went to a literacy charity. But Hachette, and their parent company Lagardere, have quickly and repeatedly dismissed these offers even though e-books represent 1% of their revenues and they could easily agree to do so. They believe they get leverage from keeping their authors in the middle.”
According to the Staten Island Advance, a New York woman filed a lawsuit last week claiming she inadvertently bit into an employee’s nametag that was mixed in with her order of french fries.
The woman alleges that she was injured by the tag’s pin and suffered serious mental and emotional injuries from the ordeal that happened in November 2013.
According to her lawyer, the woman, who was pregnant at the time of the event, suffered emotionally after “realizing that food isn’t always safe to eat.”
The suit, which seeks unspecified monetary damages from McDonald’s Corporation, alleges that the fast food restaurant failed to properly train workers, operated the restaurant in a “careless, reckless and negligent manner” and failed to safeguard against potential hazards.
The woman’s lawyer said he tried to resolve the issue with McDonald’s before filing the suit with the New York Supreme Court, but had no success.
“Although our client was injured by the negligence of McDonald’s and its employees, McDonald’s has so far been completely silent about this incident,” the lawyer told the Staten Island Advance. “They could have easily avoided a lawsuit if they were willing to discuss the matter with us. Unfortunately, McDonald’s callous behavior has only exacerbated the situation.”
A manager for the McDonald’s location in question says she was unaware of the incident and directed questions to the company’s headquarters, which did not reply to the Advance.
Lawsuit: Woman bit McDonald’s worker’s nametag in her spuds [Staten Island Advance]
Drive-thru convenience stores exist. They are not popular, which is sort of surprising. Would the American public really resist a way to become even lazier? The 7-Eleven in Lombard, Illinois doesn’t have a drive-thru, but somehow acquired one yesterday when a man drove through a wall while stopping at the store to get some milk. He says that his brake pedal was stuck.
When police arrived at the store, they found a running car between the checkout and rack of chips, but no driver. The local sheriff’s department says that the suspect fled the scene, probably because he didn’t have a current driver’s license. Police did track him down, though, since he wasn’t able to get far on foot.
Police charged him with driving without a current license, leaving the scene of an accident, and failure to give information to the owner of the building that you just smashed into. Fortunately for everyone involved, no people were injured in this crash. Buildings and cars, sure, but those are both much easier to repair.
You probably want to see surveillance camera footage, but that apparently hasn’t been released to local media yet.
Car crashes through DuPage 7-Eleven, man charged [Chicago Tribune]
It’s official — Microsoft has decided it wants to play a lot of Minecraft, and it’s willing to pay $2.5 billion for the right to do so. The company announced today that it reached a deal to purchase Swedish Minecraft developer Mojang.
Microsoft believes the deal will be completed by the end of the calendar year, putting Mojang and its 100 million or so downloads of Minecraft — and all the users that come with those downloads — under its umbrella.
The game was already one of the most popular computer and mobile games ever when a console version of Minecraft finally launched on Microsoft’s Xbox 360 in 2012. Since then, Microsoft claims that players have spent a total of 2 billion hours on the game just on that console alone.
The game has subsequently been made available on the Xbox One as well as both the PlayStation 3 and 4 from Sony.
Some games owned by Microsoft, most notably the Halo series, are held back from competing platforms, but in spite of the Microsoft acquisition, the company says Minecraft will continue to be made available on all its current platforms.
One of the most important aspects of the Mojang acquisition is the loyalty of Minecraft users. Microsoft says that around 90% of paying Minecraft players on the PC have played the game within the past 12 months.
“‘Minecraft’ is one of the most popular franchises of all time,” said Phil Spencer, head of Xbox. “We are going to maintain ‘Minecraft’ and its community in all the ways people love today, with a commitment to nurture and grow it long into the future.”
Comcast Decides Anyone Using Ultra-Private Browser Is Probably A Criminal, Threatens To Kill Their Connections
Tor is a specialized web browser: its target audience is the very security-minded user, someone who wants to stay private and anonymous. That includes all kinds of folks, from tech writers to, well, some people who have a strong and vested interest in law enforcement not knowing what they’re up to. The browser boasts over a million users now, but Comcast seems to be of the opinion that it knows what every one of those people are up to, that they are up to no good, and that Comcast has the right to cut off their web service for using it.
Business Insider reports that Comcast is identifying Tor users as participating in “illegal activity,” and threatening to cut off their internet service.
According to DeepDotWeb, one Tor user was told by a Comcast representative, “Users who try to use anonymity, or cover themselves up on the internet, are usually doing things that aren’t so-to-speak legal. We have the right to terminate, fine, or suspend your account at anytime due to you violating the rules.”
Tor is popular with the criminal element, it’s true. But it’s also popular with highly tech-savvy, security-minded users. Last we checked, preferring privacy and anonymity online were far from illegal on their own.
Comcast is basically claiming psychic powers, to know what evil lurks in the hearts of men who prefer private browsing. And they’re saying that anyone who doesn’t want to be spied on is doing something against the rules.
Users, of course, probably have no alternative service to use. So Comcast is getting to decide what they do with their service, and what level of privacy they’re entitled to.
Call it another reason that letting Comcast take over more of the nation’s broadband connections is a bad idea.
Comcast Is Threatening To Cut Off Customers Who Use Tor, The Web Browser For Criminals [Business Insider via Yahoo News]
The Washington Post reports the new measure, called “The Envelope Please” is a partnership with the nonprofit organization A Woman’s Nation. The organization’s founder, Maria Shriver, approached Marriott after speaking with housekeepers and hotel guests from around the country.
“I was talking to room attendants, who were overwhelmingly women, and they would tell me that people were pretty sophisticated about tipping the bellman or concierge, but they hadn’t been educated that they could leave a tip for a room attendant,” Shriver says in an interview with the Post. “There didn’t seem to be a general awareness that you could, or should, tip a room attendant.”
The American Hotel and Lodging Association tells the Post that it suggests tipping housekeepers between $1 and $5 per night. It also recommends tipping daily rather than at the end of an extended stay to make sure the tip goes to the person who cleans the room each day.
Marriott currently employs more than 20,000 housekeepers at it 18 branded hotels including the Marriott, Gaylord, Ritz-Carlton and Renaissance hotels.
Those employees are often paid by the hour with varying schedules based on the level of hotel occupancy. According to the Bureau of Labor Statistics, housekeepers and maids earn a median salary of $19,780 – or $9.51 per hour.
Marriott president Arne Sorenson tells the Post that the initiative is a step in the right direction and recognizes one of the hotel’s most valuable employees.
“In a hotel, obviously we tip the bellman or wait staff,” he says. “But often we don’t see our housekeepers. We don’t have that personal interaction, so we just don’t think about it.”
Marriott to urge guests to tip their housekeepers as part of new campaign [The Washington Post]
This is according to the Wall Street Journal, which reports that AB InBev — the Brazilian-Belgian beer giant that owns everything from Budweiser to Beck’s to Bass to Blue Point — has been talking to banks about how to finance a merger with London-based SABMiller, which is also runs several non-beer bottling operations for other beverage companies, including Coca-Cola.
The amount of money being discussed is around $122 billion. That’s more than double the cost of the $52 billion 2008 merger of Anheuser-Busch and InBev that formed AB InBev.
The Journal’s sources say that there are no active discussions between the two companies, so this might all be a bit of wishful third-beer thinking on AB InBev’s part.
If AB InBev and SABMiller were someday able to work out a deal, the combined company would account for around 30% of the worldwide beer market. Any merger would likely face substantial opposition from parties concerned about one company having that much leverage. Both companies would probably have to sell or spin off operations to appease regulators.
Meanwhile, SABMiller has its eyes on Heineken, but its most recent offer to the Dutch beer company was rejected over the weekend.
2014 hasn’t been a great year for our planet overall, but here’s one bit of great news in our otherwise gloomy world. Following the news that Five Guys plans to offer bacon as an ingredient in their new customizable shakes, even wackier burger chain Red Robin has announced that they’ll be offering bacon shakes with bourbon, caramel, and a strip of candied bacon to stir the whole thing with.
This milkshake is called the Beam-N-Bacon Boozy Shake, with that “beam” standing for Jim Beam. Specifically, that brand’s maple bourbon. There’s also caramel, bacon bits, vanilla ice cream, and that strip of candied bacon to stir the whole thing up. Or you can eat it. More likely, both.
Red Robin’s head mixologist explained that people just can’t get enough bacon. “Bacon goes with so many things. We even see people putting bacon on top of bacon,” she told USA Today.
The candied bacon does menu double duty and also appears on another limited-time item, the Southern Charm Burger. That burger features BBQ sauce, cheddar cheese, red onions, lettuce, and mayonnaise. That’s all pretty great, but it’s not a milkshake.
Does this sound magical to you? You’re not alone. The popularity of bacon is currently soaring, increasing for the fourth year in a row.
‘Bacon Shake’ takes milkshakes to new level [USA Today]
When zoos first began in this country, there was nothing wrong with going shopping for the animals that they wanted to have in their collections. Explorers would capture critters from all over the world and bring them back for Americans to gawk at. After the passage of the Endangered Species Act, that changed, and institutions now only barter or donate animals. So where do new animals come from?
Barter systems are, on the surface, very simple. When two parties each have something that the other wants, they can trade. That’s how animals move from one aquarium to another: for example, the New England Aquarium wanted to acquire some puffins, and they orchestrated a trade of 800 mackerel for a dozen puffins. They maintain a jellyfish breeding program in order to have something to trade to other institutions for the critters that they seek.
Meanwhile, zoos don’t usually barter in this way: their animal-sharing model is more like Freecycle. Zoos that need to re-home animals share the news with others, but receive nothing in return other than good karma, and maybe donations from the same or other institutions when their own collections have a gap that needs filling.
The wee birdie took up residence in the store a few weeks ago, reports the BBC, and spent its time flying around the aisles and eating crumbs. The wily bird refused to be captured, prompting Tesco to give up and apply for a license to shoot it this Sunday after the store closed.
That didn’t go over so well with customers and conservationists including Chris Packham, presenter for nature program Springwatch. He tweeted at Tesco asking it to reconsider, and the company responded that it was open to advice. Tesco now says it will look for another solution with the help of the British Trust for Ornithology, as Packham suggested.
Tesco confirmed the plan, saying in a statement that it would work on capturing the bird for the next several weeks:
“Our goal is always to release any birds which have found their way into our stores, while ensuring we maintain our high standards of hygiene. In spite of repeated efforts to free the bird including laying down traps, deploying nets and opening windows, we have been unsuccessful so far. We’re going to continue to try to release the bird over the next few weeks. We want to give ourselves more time to catch it and we will be liaising with different groups on how best to do this. Our position has always been that we want to catch it and let it go.”
The wagtail has its fans, who are bound to be relieved at the stay of execution.
“You rarely see a wagtail in the wild so it was a lovely to see this one here,” one shopper told the BBC. “It has obviously got quite tame and doesn’t seem to mind being around lots of people. I am glad it is not being shot. I can understand why it should not really be in the store – but I would be much happier if they managed to net it.”
Earlier this week, we looked at the various offers being thrown out by the four major wireless carriers in their attempts to attract people switching to the iPhone 6 or iPhone 6 Plus. What was left out of that discussion — and which seems to be catching a number of customers by surprise today — is that some of them must pay a fee to upgrade.
For example, over in the AT&T forums, numerous customers are complaining that they have to pay a $40 fee to upgrade to the new iPhone, even if they are out of contract and willing to sign up for another two years. That brings the total for the phone up to $239 for the least expensive version of the phone (assuming you aren’t trading in your old phone).
The only way to escape this fee is to switch to the AT&T Next program, which requires the customer to pay the full price (starting at $649) spread out in installments over up to two years.
Customers are complaining — and not without good reason — and some are saying they will switch to another provider.
If they do switch to Verizon, they could take advantage of the $200 gift card offer that can be used to pay for the phone, but everything we’ve seen shows that you’ll still be hit with Verizon’s “activation” fee on top of the price of the phone. Additionally, the only way to get that $200 offer is to trade in an older iPhone. Sorry, Android users.
Current Verizon customers are in the same boat as AT&T customers — if you want to get the phone at the $199 price (without trading in your old device) you’ll have to pay an upgrade fee in addition to the cost of the phone. AT&T is offering competitive trade-in pricing for your old phones, but customers who switch will have to pay the activation fee.
The only way to avoid an activation fee from Sprint is to pay full price for the device via Sprint’s Easy Pay system. That is also the only way to get Sprint’s new $50/month unlimited data plan for iPhones.
And T-Mobile no longer offers data plans that include subsidized phones, so anyone switching to T-Mo will have to pay the full sticker price for the phone. Though it has also said it will match all competitors’ trade-in offers, so this is a way to knock a couple hundred dollars off the total you pay.
So if you want to pay the $199 price for a phone at any of the major national carriers, you’re probably going to have to pay either an upgrade or activation fee on top of that. None of this is new or specific to the iPhone 6 models; it’s just been pushed into spotlight because of the popularity of this launch.
Earlier this week, the House’s Creative Rights Caucus threw a bash with various Hollywood types — Patrick Duffy!! — including the Motion Picture Association of America, one of the most powerful backers of SOPA and other anti-piracy legislation.
But when MPAA CEO Chris Dodd — a former Senator who is no stranger to controversy — spoke to The Wrap at the event, he said his organization is giving up legislative efforts to penalize pirates.
“The world is changing at warp speed. We are not going to legislate or litigate our way out of it,” said Dodd. “We are going to innovate our way out by educating people about the hard work of people.”
That was the point, he claims, of the D.C. event — to show lawmakers that piracy hurts not just the studio execs with their fancy cars, but all sorts of people who the studio execs can’t name because they aren’t important enough.
“In this space everyone has to contribute to ensure that peoples’ content can be respected,” continued Dodd. “Instead of finger pointing at everybody and arresting 14-year olds, the answer is making our product accessible in as many formats and distributive services as possible at price points they can afford. We are discovering that works.”
Of course, one of the MPAA’s recent efforts is trying to convince theatergoers to call the cops on people they see trying to record a movie in the theater.
In a situation that works out quite nicely for Dolan, when it came time to choose which musical act would have the honor of taking the stage before your Uncle Jimmy’s favorite band, he had one already lined up to go: Turns out his band JD & The Straight Shot was available for the gig at Madison Square Garden, which Cablevision has owned since the mid 1990s. Imagine that.
They’re opening tomorrow night, reports The New York Post, with Dolan saying out there, on that stage, in front of all those people? He’s not CEO and chairman you all know him to be.
“I am the singer-songwriter,” he told the NYP, adding that the artist in him needs to be free to express is own opinion.
Fans can look forward to a ballad inspired by a dispute with ex-Gov. Eliot Spitzer over relocating MSG in 2008, “Fall from Grace.” Sample lyrics: “See the shame on your face/Look at what you’ve become/And smiling at your fall from grace.”
“He [Spitzer] threatened me at the meeting,” Dolan said. “We were figuring we were going to have a big fight, and on Monday he started not being the governor anymore.”
But seriously guys, you’ve gotta give it to the guy for having the ability to enjoy his hobby by opening for a six-time Grammy-winning rock group by being a billionaire who Runs Things. He’s got feelings too, after all. Rock on, Dolan.
“You are definitely putting it out there and making yourself vulnerable and susceptible to criticism, and since it’s so personal, you run the risk of being hurt,” he said.
He’s not the only CEO who loves to get his jam on — British media magnate Richard Desmond is the resident drummer in his band with Roger Daltrey of The Who, RD Crusaders. I’m sensing a cross-Atlantic collaboration in the future, guys.
Jim Dolan’s band to open for the Eagles at MSG [The New York Post]
Apple announced new iPhone models earlier this week, which means that for many people, it’s time to trade up. While your mobile phone carrier might offer a sweet trade-in deal, some customers are able to get even more by using outside trade-in services. That’s what Steve tried to do, selling his iPhone 5 to the site CashForiPhones.com. The site offered him $263, but once they had the phone, only sent him a check for $41.
“I was offered $263 for my iPhone 5 which is in excellent condition. They sent me a prepaid mailer, and I sent the phone to them,” he writes. Simple enough. With most services, the next step in the process is that the company sends the seller their revised estimate once they’ve inspected the condition of the iPhone.
Here’s a screen shot from the company’s site. You’ll notice that there’s something missing from this process: the part where sellers get to confirm the real trade-in price for the item they’re buying. Maybe they do that, but Steve says that wasn’t his experience.
“Two weeks later, I received a check in the mail for only $41,” he wrote. “At no time did they inform me of the lowered offer, or give me the option to refuse the offer and get my device back.” His estimate is that his phone must be worth at least four times that much, and more likely about $200.
The site’s terms and conditions spell out what’s supposed to happen in this situation. Spoiler alert: it’s not “we short you two hundred bucks and keep your phone.”
F. Should we, upon inspection of your device, decide to offer you a lower price than originally quoted, you will have three days to either accept or reject that new price quote. The three days begins to run upon inspection of your device, our e-mailing you notice of payment and our sending you payment either pursuant to the original quote or such value as we determine in our sole discretion. If you reject the price quote and payment made prior to the elapsing of this three-day period, you must return the payment and we will return your device to you within five days thereafter.
Did Steve miss an e-mail, or did something go awry? That’s possible. Still, there’s an important lesson in here for everyone getting in the real-life and virtual lines for a new iPhone. Be careful where you trade in your own cast-off phone, and learn the details of the process before you ship off your once-beloved device. With this much money in the balance, take the time to read the details of the site’s policies before you commit to a quote. Be realistic about your device’s condition so you don’t get a nasty surprise when the company finally comes up with a total.
We tried to get a comment from the company regarding Steve’s issue, but eCycleBest, the parent company of this site, CashForLaptops.com, and some other sites, couldn’t put us in contact with anyone who is authorized to speak to the media.
According to ABC News, passengers started to worry when they realized the weird names popping up during the flight.
“He changed it to ‘the bomb is on this seat,’ and then he changed it to something about the stewardess being hot,” one passenger said. “And so that’s why once we found all that stuff out we realized he was probably just goofing off.”
Whether or not he was just goofing off like an insensitive jerk — especially in light of the fact that the flight was on Sept. 11, as the passenger pointed out added an extra layer of concern — authorities ordered the plane to a side tarmac, surrounded the plane and took the man into custody.
All passengers deplaned and bags were re-screened, before the plane could be reloaded and back on the way to Denver. Southwest said it was the captain’s decision to report the potential security threat, and that the airline’s “highest priority is the safety and security” of passengers and employees.
In every common-sense, everyday way, a corporation is not a person. Corporations don’t date, don’t have families, don’t go catch a movie on Friday night. They also don’t go to jail when they do something criminal. But in the eyes of the law, corporations enjoy many of the same rights — including free speech and religious expression — and protections afforded to individuals.
Groups of people have joined together to become a single legal entity for, literally, thousands of years. But in modern American law, this useful legal fiction — of a corporation as a single legal person — has taken on new aspects. Over the past two hundred years, and particularly in the last five, the Supreme Court has repeatedly found that not only are corporations people, but also that being people gives them the same constitutional rights as the rest of us.
But corporations are not actually living, breathing, physical beings. They cannot go to jail, they cannot lose their lives, and they do not think or feel. Their actions and inactions are the sum total of the actions and inactions of their members.
It’s easy for us to point to an individual and say, “There he is, this man did a thing, and he is responsible.” It’s harder for us to point to a group. So where does the fictional person of a corporation begin and end? What rights does it have, and what responsibilities? Where is the corporation at fault, and where do the real people come in?
The Evolution Of Constitutional RightsImage courtesy of Adam Fagen Section Permalink Bookmark Section Share on Facebook Share on Twitter
The basis for the idea of corporations as persons comes from the literal beginning of federal law: section 1 of the U.S. code.
Criminal statutes that apply to “whoever” violates them, or to any “person” that commits a crime, are legally defined as including “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
But the legal extent to which corporations have shared the same legal rights and responsibilities as other kinds of people, including actual people, has changed significantly over time.
In late 2013, a report from the Congressional Research Service (PDF) explained the constitutional protections afforded to corporations:
“Corporations have no Fifth Amendment privilege against self-incrimination. On the other hand, the courts have recognized or have assumed that corporations have a First Amendment right to free speech; a Fourth Amendment protection against unreasonable searches and seizures; a Fifth Amendment right to due process and protection against double jeopardy; Sixth Amendment rights to counsel, jury trial, speedy trial, and to confront accusers, and to subpoena witnesses; and Eighth Amendment protection against excessive fines.”
Law is iterative. It evolves whenever a conflict between two parties ends up being resolved by the courts. The legal foundation that guarantees corporate persons those rights and protections was not delivered wholesale by an act of Congress, but rather is the sum total of several different Supreme Court rulings.
In 1819, when the Supreme Court protected the rights of corporations to exist and to act without interference from the states. Since then, there have been a handful of particularly important cases that redefined or clarified the constitutional protections afforded to corporations as we know them today.
Santa Clara County v. Southern Pacific Railroad, 1886
Sometimes, landmark case law springs from the most unlikely of sources. In this case, the issue was over whether or not the state of California had the power to tax the railroad for their fencing (the railroad paid taxes on other property, like rails and train cars).
The Court unanimously held that the state was improperly assessing taxes on the railroad, but in the long history of corporate personhood, that part — and the rest of the case — doesn’t matter at all. Instead, the case is remembered for a headnote appended to it by the court reporter, in which the Court’s Chief Justice, Morrison Waite, said he and the other justices believed that the protections of the Fourteenth Amendment of course applied to corporations as well as to individuals:
“The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution which forbids a state to deny to any person within its jurisdiction the equal protection of the laws applies to these corporations. We are all of opinion that it does.”
Although that note is not part of any official opinion, concurrence, or dissent, it is part of the official court record and was reaffirmed in later cases. Corporate persons have since been granted equal protection under the law, which forms the foundation for granting a number of other rights.
Through the 20th century, the Supreme Court debated and affirmed those rights in dozens of other cases. Through the 1950s, 1960s, 1970s, and 1980s, corporations were found to have rights against unreasonable search and seizure and double jeopardy. They were also found to have rights to due process, legal representation, and to public and speedy trials (or at least, what passes for “speedy” in the system we have).
In the 21st century, questions of corporate personhood have moved away from questions of legal process in criminal and civil liability, though, and have moved on to a different core concept entirely: freedom.
Conscience, Speech, and SoulsImage courtesy of Ashi Fachler Section Permalink Bookmark Section Share on Facebook Share on Twitter
In all of the 20th century court cases that afforded corporations rights under the Fifth Amendment, one key right was withheld: corporations do not have the right to avoid self-incrimination. If someone asks a corporation about a bad thing it allegedly did, it cannot plead the fifth.
The 2013 Congressional Research Service report cites an 1892 case that found “since a corporation has no soul, it cannot have actual wicked intent” to, for example, intentionally defraud or murder someone, and in 1909, the Supreme Court found it “true that there are some crimes which, in their nature, cannot be committed by corporations.”
These cases are among the historical legal precedents separating corporate “people” from physical people. A corporation has no soul, no intent, and no need not to incriminate itself because it has no body and cannot be executed or go to jail. It’s a complicated web of federal law, but still all pretty straightforward — until we get to the current decade.
In a pair of now-infamous cases from 2010 and 2014, the Supreme Court expanded the legal view of corporate personhood to include some rights under the first amendment that had previously been reserved for the sort of actual humans who do have bodies and can act with intent: enter free speech and religious expression.
Citizens United v. Federal Election Commission, 2010
The case began when a lobbying group, Citizens United, wanted to spend a large pile of money making and advertising a film critical of a presidential candidate right up against the primary elections. At the time, it was illegal for corporations to spend on “electioneering” within 30 days of a primary or 60 days of a general election.
Citizens United argued that limits on campaigning were violations of their rights to free speech under the First Amendment, and the Supreme Court agreed.
In a 5-4 ruling, the court held that if individuals have free speech, then so must collected groups of individuals. Corporations are groups of individuals and, therefore, they have free speech rights. Further, the Court found, the ability to spend money is central to the ability to disseminate speech. Therefore, limiting spending is also unconstitutional, because limiting money is equal to limiting speech.
Burwell v. Hobby Lobby Stores, 2014
In a particularly contentious and hot-button case from earlier this year, the Supreme Court moved to protect the religious beliefs not just of individuals, but of the corporations they work for.
The Affordable Care Act requires health insurance plans provided by employers to include coverage for an array of health services, including certain contraceptives. The family that owns Hobby Lobby claimed that providing contraception to female employees runs contrary to their Christian religious beliefs. Explicitly religious non-profit organizations, like churches, were exempted from the law but no such provision existed for for-profit, secular corporations and so the family, representing the company, sued the government.
In another 5-4 ruling, the Supreme Court ruled with Hobby Lobby, finding that closely-held companies — ones that aren’t publicly traded on the stock market — can file for exemptions to federal law on religious grounds, in the same way that churches can.
In the Hobby Lobby case, the Court set the precedent that for-profit corporations can have a religion that the government must not interfere in the practice of, just as individuals do.
Corporations Can Be Criminals, But Only Bodies Can Go To JailImage courtesy of ash Section Permalink Bookmark Section Share on Facebook Share on Twitter
If a person breaks into your house and steals your money, the process of arresting, prosecuting, convicting, and incarcerating that burglar is (relatively) straightfroward. But if a corporation steals your money, things are a little trickier.
“Corporations,” as the CRS report explains, “cannot be incarcerated. Nor can they be put to death,” although “government action, public scorn, or the two in concert may wipe them out of existence.”
Otherwise, though, they “face many of the same consequences [as individuals] following conviction.” They can be fined, placed on probation, or ordered to pay restitution. They can have their assets confiscated, or can be prohibited from engaging in certain kinds of activity.
Although corporations are fictional persons rather than literal ones, they can indeed be held both civilly and criminally responsible when they get caught doing bad things. But how do you decide whether an incorporeal, fictional “person” had intent to commit a crime?
Corporate criminal liability focuses on the actions of individuals within the corporation, because it has to. Companies, as solo entities, can’t actually do anything; the people employed by them do. And so corporate criminal liability covers crimes committed by the corporation’s “officers, employees, or agents,” within the scope of their work, and “at least in part for the benefit of the corporation.”
That’s still a definition with a lot of wiggle room in it. The Department of Justice makes a determination whether or not to prosecute a corporation as a whole, instead of just individuals in it, based on a wide array of factors.
Basically, if a (usually high-ranking) person employed by a corporation does something illegal, related to their job, with the purpose of helping the corporation, then the company can be found criminally liable — even if the employee was told not to do the thing. So if the CFO of SmithCo shreds all of the incriminating files in her office, even though the CEO of SmithCo told her, “Don’t shred those files,” SmithCo can still be prosecuted (along with the CFO).
As corporations are collections of individuals, another kind of criminal problem pops up fairly frequently: conspiracy. If multiple employees in a corporation conspire to commit or hide a crime, then the corporation, along with the individuals, can ben held responsible for the conspiracy. But if there’s just one corporate officer involved, the individual and the company cannot be treated as co-conspirators.
The Justice Department has discretion deciding whether to prosecute individuals, corporations, or both for a criminal action. When deciding whether or not to prosecute a corporation, they can take into account whether it looks like something was the act of a rogue employee or whether it looks like it went all the way up. They can also consider the past history of a corporation and at how well it has complied or not complied with processes and regulations.
Freedom from Jail, Freedom From LawImage courtesy of Ben Balter Section Permalink Bookmark Section Share on Facebook Share on Twitter
The problem with law is that, like the personhood of a corporation, it exists only on paper. In reality, things shake out a little differently. As we have seen since 2008, the biggest corporate disasters are also the least likely to result in prosecution or in guilty verdicts.
Earlier this year, Attorney General Eric Holder insisted that no corporation is too big to jail, but the facts say otherwise. Actions and inactions by several large banks both spurred and worsened the 2008 economic crisis from which we are still recovering, and yet prosecutions have been few and far between.
(The executives who ran the banks likewise mostly still have jobs and have not been prosecuted. And the former DOJ prosecutor in charge of investigating these banks admitted he lost sleep at night over concerns about the damage that could result from bringing charges against these execs.)
Prosecutions do occasionally happen. In 2013, for example, Bank of America was found liable for actions taken by Countrywide. Usually, however, investigations result in settlements before any further action can take place, like the $25 billion group settlement in 2012, or the $13 billion JPMorgan Chase settlement in 2013, or the $16.65 billion Bank of America settlement earlier this year.
Those agreements cost corporations big bucks, but allow them to defer prosecution and avoid admitting or being found guilty of any actual criminal wrongdoing. The head of the SEC has been pushing hard to make companies admit wrongdoing in these settlements, as has Senator Elizabeth Warren, but we’ve seen very little change.
Of course, if you can argue that a law doesn’t apply to you at all, then you don’t have to worry about being prosecuted for ignoring or breaking that law. The expanding rights of corporate persons into the arena of the first amendment also makes it likely that companies will gain ever more freedom to pick and choose which laws and regulations they feel like following, and which their legal teams find a way to declare them exempt from.
Justice Ruth Bader Ginsburg pointed to such future problems in the dissent to Hobby Lobby earlier this year:
“In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith — in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.”
If a corporation can lay claim to any earnest belief that exempts it from law and regulation, then law and regulation lose their power and third parties, as Justice Ginsburg pointed out, will suffer.
Can a for-profit corporation claim religion as a reason to discriminate in hiring, if the C-suite officers think women shouldn’t do certain work? Can a company with a highly religious ownership refuse to permit patrons of the “wrong” race, religion, or sex?
An individual can believe whatever she or he wants, in daily life. But a corporation, by its nature and under the law, is comprised of and works with any number of different and different kinds of people, each of whom is also free to believe whatever she or he wants. Now, nominally secular corporations get to pick and choose religious exemptions to federal law — and employees and customers with different beliefs are now subject to all of the challenges that arise.
Third parties — meaning “ordinary people” — are also the most vulnerable to harm from corporations having gained expanded first amendment rights. Removing barriers to unlimited corporate political spending in Citizens United also led to the removal of limits on individual political spending in McCutcheon vs FEC earlier this year.
Corporations (and individuals) still face firm limits on contributions directly to candidates or their campaigns, but the removal of aggregate contribution and “electioneering” limits immediately led to a massive increase in political spending that still continues unchecked. In the 2012 election cycle, “outside spending” — the non-campaign organizations that corporations are allowed to give to — topped $1 billion for the first time. This was not a gradual increase; spending in every previous cycle stayed well south of the $400 million mark.
The result is a political system that, even more than it already was, is basically available for purchase by the highest bidders. And as giant wads of undisclosed corporate cash become more and more critical for getting into office, fewer elected officials will be willing or able to take any stance against it.
The Future…Image courtesy of DoorFrame Section Permalink Bookmark Section Share on Facebook Share on Twitter
In the dissent to Citizens United, Justice John Paul Stevens wrote, “Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
For now, it seems corporations increasingly are joining the ranks of we other people. Some lawmakers, though, are working to push back.
The effort that has gotten the most traction at both the state and federal level is a call for a constitutional amendment that would reverse the effects of Citizens United.
The Senate debated on a Constitutional amendment to do just that this week. The text of the proposed amendment reads:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
An amendment needs to be passed by a two-thirds majority in both the Senate and the House in order to be sent to the states, where it must then be ratified by three-fourths (38) of the states. The proposed amendment received 54 (of 66) yea votes in the Senate this week, on a party-line vote.
Advocacy groups are urging the House also to debate the potential amendment, but getting 2/3 of either house of Congress to do anything in the current political climate is unlikely at best… especially when the status quo benefits so many of them.
According to the warehouse club’s handbook for new employees, BJ’s is named for Beverly Jean Weich, the daughter of the company’s first president. That was in 1984, so it’s not like nobody knew that the name had a possible secondary meaning other than “a person with the initials B.J.” Right? Josh really questions the wisdom of the company’s new slogan.
He’s not the first one person to notice this, obviously, and maybe that’s the problem. “Does BJ’s really believe that a question mark is enough to stop people from reading it wrong?” he wrote to Consumerist.
Is that it? Are they just daring us to move that question mark?