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This article outlines the principles of corporate criminal liability, including the factors prosecutors consider when making charging decisions, and the potentially available sanctions in light of applicable U.S. Sentencing Guidelines, and offers strategies for minimizing risk, including lessons from recent criminal enforcement actions.
The Department of Justice (DOJ) “Yates Memo” in 2015 renewed the federal government’s commitment to hold individuals accountable for corporate wrongdoing and offered related incentives. Companies, looking to minimize their enforcement risks and avoid indictment, are incentivized to provide the government information about employees and executives, sometimes to support a claim that a rogue employee acted against company policy. These incentives apparently have been successful; individual prosecutions for corporate malfeasance have increased in recent years. See, “The Yates Memo is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing,” Business Crimes Bulletin (June 2019).
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By Robert J. Anello and Richard F. Albert
When federal prosecutors focus their attention on high profile misconduct that is not an obvious violation of federal criminal law, they often cannot resist the attractions of broadly worded “catch-all” fraud statutes. From time to time, however, the U.S. Supreme Court has pushed back on efforts to further expand the boundaries of these statutes, leading to reversals of some well-publicized criminal convictions.
By Margaret A. Dale and Mark D. Harris
Given the current turmoil in the markets, an increasing number of plaintiffs are bringing shareholder class action suits, citing corporate statements about COVID-19. As first-quarter earnings season draws to a close, now is a good time to reflect on the shareholder class actions that have been brought to date related to COVID-19, and others potentially yet to come.
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For more than 10 years, federal investigators have investigated criminal conduct in connection with the 2008 recession-era TARP program. From those investigations, U.S. Attorneys across the country brought cases and earned convictions for offenses spanning the federal criminal code. We can expect that these same agencies will use the same techniques and strategies to investigate crimes and bring cases involving fraud related to the COVID-19 stimulus packages.
By Russell Koonin and Adam Schwartz
In the midst the current COVID-19 pandemic, the SEC is paying attention. The Division of Enforcement has made clear that it will act, and act quickly, to stop fraudulent conduct that falls under its jurisdiction related to the pandemic.