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By Steven F Reich

The framework that prosecutors and regulators use to assess a corporation's response to corporate wrongdoing changed forever on June 16, 1999. That day, then-Deputy Attorney General Eric Holder announced DOJ's new principles for the prosecution of corporations. The so-called Holder Memorandum emphasized cooperation with prosecutors and the requirement that corporations make full and voluntary disclosure of wrongdoing if they hoped to avoid or mitigate prosecution.

The twin themes of cooperation and disclosure have become the standards by which federal and state prosecutors and regulators now judge a corporation's response to instances of corporate misbehavior. Following the Holder Memor-andum, the SEC, in October 2001, issued the so-called “Seabord Report,” which established require-ments for “self-policing, self-reporting, remediation and cooperation” for publicly traded corporations hoping to avoid or minimize regulatory sanctions. In 2003, following the formation of the federal Corporate Fraud Task Force, then-Deputy Attorney General Larry Thompson revised the Holder Me-morandum to increase “emphasis on and scrutiny of the authenticity of a corporation's cooperation.” The Thompson Memorandum openly targeted companies that, “while purporting to cooperate,” engage in “conduct that impedes the investigation (whether or not rising to the level of criminal obstruction).”

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