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Mixed Messages from Justice

By Brien T. O'Connor and Peter L. Welsh

The very public prosecution of Arthur Anderson LLP demonstrated the willingness of the Department of Justice (DOJ) to bring criminal charges against organizations no matter how large and prominent or how severe the collateral consequences. Under the doctrine of respondeat superior, moreover, the government has breathtakingly broad power to convict an organization based solely on misconduct by even just one employee. So, the reality is that corporate counsel must assess the potential criminal exposure of the entire corporation in nearly every government investigation of an employee.

Assessing exposure has, in recent years, involved the factors set forth in the Holder and Thompson memos (June 16, 1999 and Jan. 20, 2003) on the “Principles of Federal Prosecution of Business Organizations.” Recent pronouncements by the DOJ, however, cast some doubt on the continued significance of the Thompson Memo and have made it harder to assess a corporation's criminal exposure.

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