Corporate Criminal Liability, Moral Culpability, and the Yates Memo

This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo on corporate charging decisions and the Principles of Prosecution.

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Individual Accountability for Corporate Crimes after the Yates Memo: Deferred Prosecution Agreements & Criminal Justice Reform

In response to the criticism regarding lack of accountability for individual corporate wrongdoers, Deputy Attorney General Sally Quillan Yates of the Department of Justice issued a memo on September 9, 2015, outlining new guidelines for individual accountability. These guidelines have since been incorporated into the United States Attorney's Manual. Even so, the Department of Justice has entered into several deferred prosecution agreements since the issuance of the Yates Memo where no individual wrongdoers were charged, raising concerns about adherence to the new policy. Several months before the release of the Memo, Judge Richard Leon of the District Court for the District of Columbia refused to approve a deferred prosecution agreement because he found the agreement to be overly lenient for the corporate crime at issue.

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Nieuw beleid DOJ tegen ‘piling on’

Deputy Attorney General Rod Rosenstein heeft afgelopen woensdag nieuw beleid van de. DOJ aangekondigd die de coördinatie tussen verschillende afdelingen van DOJ alsmede andere opsporingsautoriteiten aanmoedigt. Dit met als doel te voorkomen dat voor hetzelfde gedrag meerdere sancties worden opgelegd, het zogenaamde "piling on". Piling on creëert onzekerheid voor bedrijven. 

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Foreign Corrupt Practices Act Continuity in a Transition Year

Like prior years, 2017 was notable for enforcement actions against business organizations across a wide industry spectrum, involving conduct around the globe, and ranging from egregious instances of corporate bribery executed at the highest levels of the company and involving hundreds of millions of dollars to garden variety allegations of sports tickets, internships for family members of alleged foreign officials, and charitable donations. In addition, 2017 was also notable for enforcement agency policy and related developments including the Department of Justice’s announcement of an “FCPA Corporate Enforcement Policy.”

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What's new about the DOJ's new FCPA corporate enforcement policy?

FCPA practitioners welcomed Rod Rosenstein’s announcement that the Department of Justice has made the FCPA Pilot Program permanent, and incorporated it into the U.S. Attorneys’ Manual. The audience “noticeably lightened up” at the Deputy AG’s news. Now that we’ve had an opportunity to digest the newly-styled FCPA Corporate Enforcement Policy, let’s examine some of the key differences from the original 2016 FCPA Pilot Program. 

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