BOB INGERSOLL: THE LAW IS A ASS #344: BATMAN’S PROPERTY RIGHTS AND WRONGS
Batman Eternal, the Energizer Bunny of comics that keeps going and going and going and… (If I repeated “and going” for another thousand words think Mike and Glenn would complain? It would certainly make my job easier.) Batman Eternal is taking a novel approach to comic books, both figuratively and literally, by telling a year-long, novel-length Batman story. Here’s the thing about novels, though, to make them long enough to be novels, things have to happen. Usually lots of things. But here’s the thing about things, especially lots of things, not all things work.
So it is that we come to Batman Eternal #34, where something happened. Something that shouldn’t happen happened. No, something that couldn’t happen happened.
Seems that over the years, Batman secreted seventeen bunkers loaded with weapons and explosives in little hidey holes all over Gotham City . He financed these caches with his corporate cash. Which is to say, Batman – secretly Bruce Wayne – used money from Wayne Enterprises, which supported Batman, Inc. financially, to fund these weapons caches. But the secret of those secret caches had been compromised. And compromised in a bad way. Not bad as in declaring slaves were only three-fifths of a person, but it was a bad compromise.
Tommy Elliot, Bruce Wayne’s one-time childhood friend and now the masked villain known as Hush, broke into the Batcave and learned the location of the caches. In addition, Hush took some of Alfred Pennyworth’s blood, so he had the genetic material needed to bypass the DNA-encoded locks on the caches. And if you think that spells trouble, you don’t know how to spell. It does, however, mean trouble with a capital T and that rhymes with B and that stands for boom!
In Batman Eternal #32, Hush used the first of the explosives he stole from Batman to blow up a police military vehicle. He knew that the explosives used would be traced back to Batman. How he knew that I don’t know, because I don’t know how what was left of explosives after they exploded could be traced back to Batman. Did Batman’s mother sew his name on them? (What too soon?) Anyway, in Batman Eternal# 32, they were. Traced back to Batman, that is.
Meanwhile, at Wayne Enterprises, business home of billionaire-playboy Bruce Wayne, he said in his best William Dozier voice, CEO Lucius Fox had a cow. (No, not a delicious steak dinner, the kind of cow that Bart Simpson says you’re not supposed to have.) Lucius knew that if the weapons used could be traced back to Wayne Enterprises’s financial backing of Batman, it would look bad for the business. Bruce Wayne assured Lucius that the situation was under control.
It wasn’t. Which brings us to Batman Eternal #34. And to the second explosion in a building somewhere down by the docks. And finally, to the angry confrontation between Mayor Hady and Lucius Fox. The Mayor was understandably upset that the weapons Wayne Enterprise bought were being used to blow up Gotham City. Lucius was understandably a Fox in sheepish clothing.
Now while this scene played out, Batman tracked down and captured Hush. Thus preventing any more explosions. But Lucius didn’t know that Batman had gotten the situation under control, so he took steps of his own.
Just after he caught Hush, Batman learned that the federal government, acting I assume with the cooperation of Lucius Fox, seized “the chief operating functions of Wayne Enterprises” along with all of its holdings “both foreign and domestic.” “For all intents and purposes, Wayne Enterprises is no more.”
First, isn’t that a bit of an overreaction? Two explosions and the government seizes all the assets of a multi-billion dollar international conglomerate? The Gulf oil spill caused more damage than both explosions combined and the government never went to BP stations grabbing up the beef jerky. And all this over two explosions? In Gotham City two explosions would be a slow news day.
Second – and this is where that whole something that couldn’t happen happened comes into play – remember last week when I said that under the combination of the Fifth and Fourteenth Amendments of the United States Constitution, people can’t be deprived of their liberty without due process of law? Well, funny thing, the Fifth Amendment doesn’t mention only liberty. What it actually says is that no person shall be “deprived of life, liberty or property, without due process of law.” You probably noticed the italics I added back there and are way ahead of me. You’ve already figured out that today we’re talking about property and the “Takings Clause” of the Fifth Amendment. If so, congratulations, cause that’s what we’re doing.
Corporations don’t actually own their assets. The shareholders own them. Thus, when the federal government seized all the holdings of Wayne Enterprises both foreign and domestic, it was seizing property owned by Wayne Enterprises’s shareholders; chiefly Bruce Wayne. Under the Fifth Amendment, the federal government could not seize this property without due process of law.
What would constitute due process of law? There are a few things. It’s likely the weapons and explosives were contraband. (Well, the explosives, anyway. Under the Second Amendment seventeen caches of military-grade ordnance is just a firearm safe.). Anyway, if either the explosives or the weapons were contraband, then the government could seize them right away. Contraband is property which the government has decreed no private citizen – real or corporate – may own such as drugs or counterfeit money, but not, unfortunately, box sets of Keeping Up With the Kardashians. Because people have no right to possess contraband, the government may seize it as soon as it finds it. But the other Wayne Enterprises property – the real estate holdings, the office furniture, the keys to the executive washroom – these wouldn’t be contraband. The government couldn’t simply seize those things without due process of law.
In order for due process of law to work, the government would have to file some sort of forfeiture proceedings. It could, for example, claim that Wayne Enterprises was involved in racketeering operations and seize the property under the RICO statutes. Before the government could do that, however, it would have had to indict Wayne Enterprises under the RICO statutes, and then move for an injunction to seize the assets so that Wayne Enterprises could not dispose of them. The federal government did not file any RICO indictments against Wayne Enterprises, so it had no authority to swoop in and seize its assets.
Moreover, even if the government had indicted Wayne Enterprises and moved to seize the assets, there would have to have been a hearing before a judge on the government’s forfeiture motion. A hearing in which all Wayne Enterprise shareholders – including Bruce Wayne – would have had the right to be present. There were no such hearings. No hearings means, no seizures. No seizures means Wayne Enterprises is hale and hardy and Bruce Wayne is still rich.
The government could also file some other sort of forfeiture proceeding, say a motion to seek the assets because they were a nuisance or some such complaint. Once again, there would have had to be a hearing in front of a judge, before the assets could be seized in this way. Once again, there was no hearing. Once again, Wayne Enterprises is still free of government control. And once again, Bruce is still solvent.
Ah, but couldn’t Lucius Fox as CEO of Wayne Enterprises have voluntarily agreed to the government seizing control of Wayne Enterprises and it’s assets, thereby obviating the need for any hearings? In a word, no. In two words, no no.
As a corporate officer of Wayne Enterprises, Lucius owed a fiduciary duty to the shareholders to act in their best interests. He could not willingly give the shareholders’ property to the federal government without the permission of those shareholders. Doing so would have been an act against the shareholders’ best interests and a violation his fiduciary duty. So again, I am left with the conclusion that Wayne Enterprises still stands and Bruce is still a billionaire-playboy.
Now I freely admit that twenty-eight years as a public defender practicing criminal law left me a little unfamiliar with corporate law. So if there are corporate lawyer types out there who can think of a way in which the federal government could have seized all of Wayne Enterprises assets in less than twenty-four hours and without any sort of indictments, forfeiture motions, or hearings on the matter, I’m willing to listen. Not sure I’ll be convinced, but I’ll listen.
After all, it’s the law that’s a ass, not me.