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Corporate Criminal Liability and Prevention

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Richard S. Gruner


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“A comprehensive, wide-ranging and balanced book on the topic of corporate criminality.”
John C. Coffee, Jr., Adolf A. Berle Professor of Law at Columbia University Law School

“Beyond question, this is the most comprehensive and thoughtful treatment of corporate crime on the market.”
Christopher D. Stone, J. Thomas McCarthy Trustee Professor of Law, USC School of Law


With corporate criminal prosecutions on the rise, the potential impact of corporate fines and sanctions looms over corporate officers and directors and their legal advisors. Corporate Criminal Liability and Prevention provides essential guidance on all aspects of this critical area—the sources of corporate criminal liability, the immediate and collateral consequences of conviction, and the available defenses to, and limitations on, liability.

This thoroughly up-to-date guide also examines current prosecutorial discretion standards, amnesties and sentencing guidelines. It instructs corporate counsel on how to adopt forward-looking compliance policies that can prevent criminal liability and how to mitigate the severity of penalties when they are unavoidable.

Corporate Criminal Liability and Prevention is a comprehensive work, providing both substantive analysis of the law and strategic advice for practitioners. Whether you are handling a corporate criminal case or advising a corporation on how to avoid one, this book will help you give your clients clear guidance on the best strategies and compliance policies in light of the latest legal developments.

Book #00676; looseleaf, one volume, 1,550 pages; published in 2004, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-125-5


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1550
  • ISBN: 978-1-58852-125-5
  • Pub#/SKU#: 676
  • Volume(s): 1

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  • Richard S. Gruner

Richard S. Gurner is a former inside counsel to the IBM Corporation and consultant to the United States Sentencing Commission concerning corporate sentencing standards.  He is a co-author with Louis M. Brown and Anne Kandel of The Legal Audit (1990), published by West Corporation and is also the author of numerous articles on corporate crime and crime prevention systems.  He is a frequent speaker on these topics at continuing legal education programs.  Mr. Gruner is an Emeritus Professor of Law at the John Marshall Law School in Chicago, Illinios.   He is a graduate of the California Institute of Technology (B.S. 1975), the USC Law School (J.D. 1978), Columbia Law School (LL.M. 1982), and the Department of Criminology, Law, and Society, University of California, Irvine (Ph.D. 2008).
    Professor Gruner served as a member of the United States Sentencing Commission's Advisory Group on the Organizational Sentencing Guidelines. The Advisory Group’s recommendations for changes in corporate sentencing standards and evaluation criteria for organizational law compliance programs were generally accepted by the Sentencing Commission, forming the basis for new organizational sentencing guidelines effective in 2004.


CHAPTER 1
Characteristics of Corporate Crime

§ 1.01 Introduction
§ 1.02 Defining Corporate Crime
§ 1.03 Social Significance of Corporate Crime
§ 1.04 Public Injuries from Corporate Offenses
§ 1.05 The Relationship Between Corporate Crime and Corporate Management
§ 1.06 Sources of Corporate Crime
[1] Individual Offenders
[2] Corporate Environments
[3] Management Policies and Practices
§ 1.07 Distinctive Features of Corporate Crime
[1] Concealment
[2] Diffuse Responsibility
§ 1.08 Distinctive Agency Relationships Constraining Corporate Crime
[1] Top Managers as Law Enforcement Agents Serving Corporate Shareholders
[2] Operating Employees as Law Enforcement Agents of Corporate Principals
[3] Corporate Managers as Agents of Law Enforcement Officials
§ 1.09 Measuring Corporate Crime
[1] Broad Range of Affected Firms
[2] Federal Offenses
[3] State Offenses
[4] Economic Crime Patterns
§ 1.10 A New Perspective: Evaluating Corporate Crime as a Manageable Defect in Corporate Performance
[1] Components of a Performance Defect Interpretation of Corporate Crime
[2] A Taxonomy of Corporate Crime in Terms of Performance Defects and Prevention Methods
[3] The Role of Compliance Programs in Corporate Criminal Law
§ 1.11 Case Studies in Corporate Misconduct: Corporate Accounting Fraud
[1] Characteristics of SEC Enforcement Actions
[2] Types of Corporate Misconduct Involving Accounting Fraud
[3] Persons Involved in Misconduct
[4] Developing Characteristics of Corporate Offenses: Changing Patterns of Corporate Financial Reporting Fraud
§ 1.12 Patterns in Corporate Law Compliance and Ethical Conduct
[1] The Compliance and Ethics Climate
[2] Absence of Employee Reporting
[3] Concerns About Futility and Retaliation
[4] Elements of Successful Compliance and Ethics Programs
[5] Enhancing Law Compliance: Building an Ethical Culture
[6] Ethical Culture Promotes Law Compliance
[7] Complimentary Impacts of Ethical Cultures and Compliance Programs
§ 1.13 Conclusion

CHAPTER 2
Rationales for Corporate Criminal Liability

§ 2.01 Why Punish Inanimate Corporate Entities?
§ 2.02 Historical Roots of Corporate Criminal Liability
[1] Irrelevance of Corporate “Personhood”
[2] Rejection of Organizational Fault as a Basis for Corporate Criminal Liability
§ 2.03 Policy Justifications for Corporate Criminal Liability
[1] Corporate Fault Rationales
[2] Incentive Rationales
[3] Economic Rationales
[4] Signaling Rationales
[5] Retributive Rationales
[6] Reformative Rationales
[7] Compensatory Rationales
§ 2.04 Constraints on Corporate Criminal Liability
[1] Constraints Derived from Individual Liability Principles
[2] Economic Constraints
§ 2.05 Criminal Liability for Corporations Closely Aligned with Their Owners
§ 2.06 Conclusion—The Need for a Corporate Jurisprudence

CHAPTER 3
Corporate Criminal Liability Under Federal Law

§ 3.01 Types of Corporate Criminal Liability Under Federal Law
§ 3.02 Corporations as “Persons” Under Federal Statutes
[1] Corporate Provisions of the Federal Dictionary Statute
[2] Grounds for Excluding Corporations from Criminal Statutes
§ 3.03 Respondeat Superior Bases for Corporate Criminal Liability under Federal Law
[1] History of Respondeat SuperiorStandards for Corporate Criminal Liability
[2] Generally Applicable Standard for Corporate Criminal Liability Under Federal Law
[3] Goals of Respondeat SuperiorLiability
[4] Organizational Failure to Satisfy Nondelegable Law Compliance Duties
§ 3.04 Features of Corporate Criminal Liability Controlled by Respondeat SuperiorPrinciples
[1] Imputing Conduct
[2] Imputing Mental States
§ 3.05 Scope of Employment Limitations on Corporate Criminal Liability
[1] Scope of Employment in Determining Corporate Criminal Liability
[2] Purposes Underlying Scope of Employment Limitations on Corporate Criminal Liability
[3] Employee Actions Falling within the Scope of Corporate Employment
§ 3.06 Corporate Benefit Limitations on Corporate Criminal Liability
[1] Benefit Tests for Corporate Criminal Liability
[2] Purposes Underlying Corporate Benefit Limitations on Corporate Criminal Liability
[3] Sufficient Types of Corporate Benefit
[4] Time Period for Assessing Corporate Benefit
[5] Corporate Criminal Liability Absent Corporate Gain
[6] Insufficient Corporate Benefit for Corporate Criminal Liability
[7] Potential Impact of Corporate Law Compliance Programs on Offense Benefit Assessments
§ 3.07 Rejected Limits on Respondeat SuperiorLiability
[1] Managerial or Supervisory Fault Need Not Be Shown
[2] Authorization to Complete Illegal Conduct Is Not Needed
[3] Policies or Instructions Prohibiting Illegal Conduct Will Not Prevent Liability
[4] Failure to Convict Responsible Individuals Does Not Preclude Corporate Criminal Liability
§ 3.08 Corporate Criminal Liability Based on the Actions of Corporate Managers
[1] Directing Corporate Agents to Undertake Criminal Conduct
[2] Plain Indifference to Legal Requirements
[3] Ratifying Offenses Committed by Employees Outside the Scope of Their Employment
§ 3.09 Improving the Clarity and Fairness of Corporate Criminal Liability Based on Respondeat SuperiorPrinciples

CHAPTER 4
Corporate Criminal Liability Based on Collective Knowledge and Action

§ 4.01 Collective Knowledge and Action as a Basis for Corporate Criminal Liability
[1] Basic Principles
[2] Goals of Collective Liability
§ 4.02 Offense Features That Can Be Established Through Collective Knowledge and Action
[1] Corporate Knowledge Based on Group Knowledge
[2] Willful Corporate Action Based on Group Knowledge
[3] Corporate Specific Intent
[4] Corporate Entity Liability Without Agreement on the Responsible Individuals
§ 4.03 Boundaries of Corporate Liability Based on Collective Knowledge and Group Action
[1] No Liability for Failures to Collect Information
[2] Collective Knowledge is Limited to Information Having a Reasonably Identifiable Relationship to Law Compliance
[3] Collective Knowledge is Limited to Material Information
§ 4.04 Implications of the Collective Knowledge Doctrine in Corporate Criminal Law

CHAPTER 5
Special Sources and Limitations of Corporate Criminal Liability Under Federal Law

§ 5.01 Corporate Conspiracy Liability
[1] Corporate Liability Under the Federal Conspiracy Statute
[2] Corporate Conspiracies to Restrain Trade
[3] Corporate Conspiracies Under Other Statutes
§ 5.02 Corporate Criminal Liability Based on the Conduct of Parties Outside of Corporate Organizations
[1] Corporate Liability for Offenses by Independent Contractors and Other Independent Agents
[2] Corporate Criminal Liability Based on the Conduct of Employees of Corporate Subsidiaries
[3] The Minimum Unit for Measuring Liability: Criminal Liability of Corporate Divisions and Other Independently Managed Corporate Subcomponents
§ 5.03 Criminal Liability for the Offenses of Dissolved Corporations
§ 5.04 Criminal Liability for the Offenses of Predecessor Corporations
[1] Liability for the Offenses of Constituent Corporations in Mergers and Consolidations
[2] Liability of Successor Companies for Offenses of Acquired Firms
[3] Liability of Companies Based on the Acquisition of the Stock of a Corporate Offender
[4] Liability of Companies Based on the Acquisition of the Assets of a Corporate Offender
§ 5.05 Corporate Criminal Liability After Bankruptcy
[1] The Status of Corporate Criminal Fines in Bankruptcy Proceedings
[2] Corporate Criminal Fines as “Debts”
[3] Limits on the Dischargeability of Fines Imposed on an “Individual Debtor”
[4] A Case Study in the Discharge of Corporate Criminal Fines
§ 5.06 Constitutional Limitations on Corporate Criminal Liability
[1] Due Process and Equal Protection
[2] Procedural Protections
[3] Search and Seizure Limitations
[4] Self-Incrimination
[5] Grand Jury Indictment
[6] Speedy Trial
[7] Jury Trial
[8] Right to Counsel
[9] Vagueness
[10] Ex Post Facto Laws
[11] Cruel and Unusual Punishment
[12] Double Jeopardy

CHAPTER 6
Support for a Due Diligence Defense to Corporate Criminal Liability Under Federal Law

§ 6.01 Authority for a Due Diligence Defense
[1] Why Cases Testing Due Diligence Are Rare
[2] Judicial Support for a Due Diligence Defense
[3] The Significance of Due Diligence Under Corporate Criminal Liability Standards
§ 6.02 Possible Reasons to Reject a Due Diligence Defense
[1] Punitive Arguments against a Due Diligence Defense
[2] Incentive Arguments against a Due Diligence Defense
§ 6.03 The Corporate Due Care Defense to Controlling Person Liability under Federal Securities Laws
§ 6.04 Measuring Due Diligence in Detecting and Preventing Crimes by Corporate Employees
[1] Due Diligence in Advance of Offenses
[2] Due Diligence in Detecting Offenses
[3] Due Diligence in Reacting to Offenses
§ 6.05 Three Case Studies in Measuring Compliance Due Diligence
[1] United States v. Kroger Grocery & Baking Co.
[2] In re Holland Furnace Co.
[3] United States v. Greyhound Corp.
§ 6.06 Conclusion

CHAPTER 7
Corporate Criminal Liability Under State Laws

§ 7.01 Aims and Limitations
§ 7.02 Corporate Criminal Liability Under State Laws Incorporating Respondeat SuperiorStandards
§ 7.03 Corporate Criminal Liability Under State Standards Based on the Kinship of Agent Authority and Offense Conduct
§ 7.04 Corporate Criminal Liability Under State Laws Based on Model Penal Code Standards
[1] Origins of Model Penal Code Standards for Corporate Criminal Liability
[2] Code Standards
[3] Properly Categorizing Offenses within the Code
[4] Corporate Liability for Acts of High Managerial Agents under Model Penal Code
[5] Corporate Respondeat SuperiorLiability Under the Model Penal Code
[6] Corporate Liability Under the Model Penal Code for Failures to Meet Statutory Duties
[7] Corporate Liability Under the Code for Strict Liability Offenses
[8] Does the Code Achieve Its Goals?
§ 7.05 Corporate Criminal Liability Based on Managers’ Inattention to Concealed Hazards: The California Corporate Criminal Liability Act
§ 7.06 Roster of State Standards for Corporate Criminal Liability
§ 7.07 State Penalties for Corporate Fraud and Other Offenses
§ 7.08 Conclusion

CHAPTER 8
CORPORATE SENTENCES FOR FEDERAL OFFENSES: AN INTRODUCTION TO THE ORGANIZATIONAL SENTENCING GUIDELINES

§ 8.01 Transformation of Corporate Sentencing Under Federal Sentencing Guidelines
§ 8.02 Historical Patterns of Corporate Sentencing
[1] Pre-Guideline Practices
[2] Changes in Corporate Sentencing Under the Sentencing Reform Act of 1984
[3] Precursor to Organizational Sentencing Standards: Sentencing Guidelines for Individuals
[4] Developing Sentencing Guidelines for Organizations
§ 8.03 Overview of the Organizational Sentencing Guidelines
[1] Underlying Principles
[2] Sentencing Covered by the Guidelines
[3] Federal Sentencing Procedures for Corporate Offenders
§ 8.04 Determining Recommended Corporate Sentences Under the Guidelines
[1] Corporate Fines
[2] Other Corporate Sentences: Restitution, Remedial, and Probation Requirements
§ 8.05 Future Impact of the Guidelines on Corporate Criminal Liability
[1] Prosecutorial Impacts
[2] Corporate Impact
[3] Employee Impact
§ 8.06 Constitutional and Statutory Restrictions on the Organizational Sentencing Guidelines
[1] Constitutional Restrictions
[2] Statutory Restrictions
§ 8.07 Unresolved Policy Questions
[1] Governing Sentencing Rationales
[2] Real Offense Versus Charged Offense Sentencing
[3] The Role of Individual Sentencing Patterns
§ 8.08 Effect of the Guidelines on Criminal Law Enforcement in Corporate Organizations
[1] Corporations as Public Trustees Concerning Prevention and Detection of Internal Crimes
[2] Agency Analysis of Criminal Law Enforcement Through Corporate Trustees
[3] Demands for Private Policing in Corporate Organizations
[4] Altered Managerial Relationships Following the Internalization of Corporate Law Enforcement
[5] Changes in Corporate Legal Practice
[6] Ongoing Impacts of Organizational Sentencing Guidelines
§ 8.09 Risks and Opportunities Concerning Corporate Criminal Liability

CHAPTER 9
Offense Severity Characteristics Determining Corporate Fines

§ 9.01 Introduction
§ 9.02 The Impact of Offense Severity Measures on Corporate Fines
§ 9.03 Fines Based on Illegal Gains
[1] Rationales for Varying Corporate Fines Based on Illegal Gains
[2] Limits on Gain-Based Deterrents
[3] Measuring Offender Gains
§ 9.04 Fines Based on Victim Losses
[1] Rationales for Varying Corporate Fines Based on Victim Losses
[2] Limits on Loss-Based Incentives
[3] Loss Measurement
[4] Special Loss Measures for Specific Offense Categories
§ 9.05 Fines Based on Offense Levels
[1] Translating Offense Levels into Corporate Fines
[2] Reconsidering Gains and Losses in Determining Offense Levels
[3] Types of Corporate Fines Governed by Offense Levels
[4] Determining Offense Levels for Group Conduct
§ 9.06 Incapacitating Fines for Criminal Purpose Organizations
[1] Rationale for Incapacitating Fines
[2] Grounds for Imposing Incapacitating Fines
§ 9.07 Gaps in the Severity Measures: Some Illustrative Cases
[1] Statutory Fine Caps as Limits on Corporate Fines
[2] Estimating Losses from Altered Conduct: Special Treatment of Antitrust Offenses
[3] Measuring the Value of Information
[4] Food and Drug Offenses: Distinguishing Between Economic Fraud and Health and Safety Threats
[5] Environmental Crimes: Future Challenges in Measuring Harm and Setting Corporate Fines
§ 9.08 Conclusion

CHAPTER 10
Offender Culpability Characteristics Determining Corporate Fines

§ 10.01 The Role of Corporate Culpability in Federal Sentencing
[1] Adjusting Corporate Fines to Match Organizational Culpability
[2] The Underlying Test for Organizational Culpability
§ 10.02 Objectives of Varying Corporate Fines Based on Organizational Culpability
§ 10.03 Corporate Culpability Indicators
[1] Managerial Fault
[2] Preventive Fault
[3] Reactive Fault
§ 10.04 Limitations of Fault-Based Corporate Fines
[1] Criminal Liability Despite Low Corporate Culpability
[2] Uncertain Organizational Effectiveness in Promoting Compliance
[3] Adverse Incentives Created by Compliance System Rewards
[4] Sentencing Process Limitations
§ 10.05 Conclusion: Critical Functions Served by “Carrot and Stick” Sentencing

CHAPTER 11
Adjusting Corporate Fines: Sentencing Discretion, Guideline Departures, and Fine Reductions

§ 11.01 Introduction
§ 11.02 Considerations in Setting Fines Within Recommended Ranges
[1] The Role of Judicial Discretion
[2] Fine Adjustments Based on Federal Sentencing Goals
[3] Fine Adjustments Based on an Organization’s Role in an Offense
[4] Fine Adjustments Based on Collateral Consequences of a Conviction
[5] Fine Adjustments Based on Nonpecuniary Losses
[6] Fine Adjustments Based on Involvement of a Vulnerable Victim
[7] Fine Adjustments Based on the Prior Criminal Record of a High-Level Participant
[8] Fine Adjustments Based on Prior Civil or Criminal Misconduct
[9] Fine Adjustments Based on Exceptionally High or Low Culpability Scores
[10] Fine Adjustments Based on the Partial Presence of a Culpability Indicator
[11] Fine Adjustments Based on Statutory Factors
[12] Fine Adjustments Based on Factors Considered in Determining Recommended Fine Ranges
§ 11.03 Departures from Recommended Fine Ranges
[1] General Standards for Guideline Departures
[2] Justifying Guideline Departures
[3] Factors Supporting Downward Departures
[4] Factors Supporting Upward Departures
[5] Additional Factors Justifying Departures
[6] Additional Guideline Departures on Constitutional Grounds
§ 11.04 Fine Reductions to Accommodate Limited Corporate Resources
[1] Lowering Fines to Reduce their Impact on Corporate Viability
[2] Procedures for Fine Reductions
[3] Fine Reduction Amounts
[4] Payment Terms Allowing Deferred Fine Payments
§ 11.05 Corporate Fine Reductions to Offset Fines Paid by Owners of Closely Held Firms
§ 11.06 Conclusion

CHAPTER 12
Beyond Fines: Innovative Corporate Sentences

§ 12.01 Innovative Sentencing Options
[1] Significance of Nontraditional Corporate Sanctions
[2] Role of Nontraditional Sanctions in Corporate Sentencing
§ 12.02 Remedial Sanctions
[1] Immediate Restitution
[2] Deferred Restitution
[3] Remedial Orders
[4] Community Service
[5] Notices to Crime Victims
§ 12.03 Preventive Sanctions
[1] Crime Prevention Through Corporate Probation Sentences
[2] Mandatory Offender Reforms
[3] Enhanced Offense Disclosures
[4] Adverse Publicity
[5] Punitive Probation Terms
§ 12.04 Conclusion

CHAPTER 13
Collateral Consequences of Corporate Crime

§ 13.01 Introduction
§ 13.02 Civil Penalties for Criminal Conduct
[1] Relationship to Criminal Penalties
[2] SEC Penalty Standards
[3] SEC Whistleblower Incentives
§ 13.03 Suspension and Debarment
[1] Business Impacts of Suspension and Debarment
[2] Criminal Conduct as a Basis for Suspension and Debarment
[3] Standards of Proof Governing Suspension and Debarment Following Criminal Conduct
[4] Suspension and Debarment Under State and Local Standards
[5] Case Studies of Corporate Suspension and Debarment Based on Criminal Activity
§ 13.04 Exclusion from Government Programs
[1] Federal “Common Rule”
[2] Grounds for Suspension or Debarment from Nonprocurement Programs
[3] Impact of Suspension or Debarment from Nonprocurement Programs
§ 13.05 Loss of Licenses
§ 13.06 Constitutional Limitations on Civil Penalties for Criminal Misconduct
[1] Double Jeopardy
[2] Excessive Punishment
[3] Due Process
§ 13.07 Coordinating Criminal and Civil Sanctions
[1] Need for Coordination
[2] Coordination Approaches
[3] Federal Sentencing Procedures
§ 13.08 Civil Damage Liability of Corporations Based on Criminal Conduct
[1] Federal Standards
[2] State Standards
[3] Impacts of Shareholder Suits
§ 13.09 Civil Damage Liability of Corporate Officers and Directors Arising Out of Illegal Corporate Activities
[1] Civil Liability for Knowingly Causing Illegal Corporate Conduct
[2] Liability of Corporate Officers and Directors for Inadequate Law Compliance Systems
[3] Civil Damage Liability of Corporations and Company Officials Based on Inadequate Disclosures of Illegal Corporate Conduct
[4] Compliance Management in Context: Lessons from the Corporate Director’s Guidebook
§ 13.10 Loss of Civil Claims
§ 13.11 Corporate Harm from Adverse Offense Publicity
§ 13.12 Criminal Liability of Individuals in Connection With Corporate Offenses
[1] Liability of Individuals for Participation in Corporate Offenses
[2] Liability of Individuals for Aiding or Concealing Offenses
[3] Conspiracy Liability for Offenses by Fellow Corporate Employees
[4] Liability of Controlling Officers with Substantial Shares in Offenses by Subordinates
[5] Liability of Corporate Managers for Failures to Report Detected Offenses

CHAPTER 14
Preventing Corporate Criminal Liability with Law Compliance Programs

§ 14.01 Liability Reductions Through Law Compliance Programs
[1] Preventing Illegal Activities
[2] Avoiding Corporate Liability for Employee Misconduct
[3] Meeting Legal Requirements
[3A] Statutory Requirements for Health Care Com-pliance Programs
[4] Influencing Charging Decisions
[5] Reducing Criminal Penalties
[6] Minimizing Regulatory Auditing and Oversight
[7] Additional Advantages of Law Compliance Programs
§ 14.02 Evaluating Compliance Programs Under the Federal Sentencing Guideline Standards
[1] Importance of the Guidelines’ Standards for a Generally Effective Compliance Program
[2] General Criteria for an Effective Program
[3] Due Diligence
[4] Targeting Principles
[5] Disqualifying Program Characteristics
[6] Required Program Components
[7] Ongoing Risk Assessments
[7A] Operational Risk Assessments
[8] 2010 Amendments to Compliance Program Standards
§ 14.03 Evaluating Compliance Programs Under Other Statutory, Regulatory, Judicial, and Industry Standards
[1] Statutory Tests
[2] Regulatory Standards
[3] Prosecutorial Discretion Provisions
[4] Judicially Developed Criteria
[5] Industry Standards
[6] Privately Developed Standards
[7] International Standards
[8] State Standards

CHAPTER 15
Constructing and Operating Compliance Programs

§ 15.01 Design Principles Governing Compliance Programs
[1] Treating Compliance Programs as Specialized Performance Quality Control Systems
[2] The Importance of Agency Processes in Law Compliance Programs
[3] Potential Sources of Compliance System Designs
[4] Goals of Successful Compliance Program Designs
§ 15.02 Operational Features of Effective Law Compliance Programs
[1] Interpreting Compliance Programs as Management Systems
[2] Organizational Practices Furthering Law Compliance: A General Framework of Alternatives
[3] Trends in Compliance and Ethics Program Implementation
[4] Whistleblower Protections Under the Sarbanes-Oxley Act
§ 15.03 Targeting of Law Compliance Programs: The Importance of Risk Management
§ 15.04 Commonly Encountered Problems
[1] Balancing Retrospective Compliance Inspections and Forward Looking Compliance Processes
[2] Program Administration Problems
[3] Problems in Planning Compliance Efforts
[4] Agendas for Legal Auditing
[5] Compliance Records
[6] Change Management
[7] System Verification Studies
[8] Lessons from Boeing Company Compliance Failures
§ 15.05 A Model Compliance Program
§ 15.06 Aggressive Pursuit of Compliance: A Case Study
§ 15.07 Risks Inherent in Law Compliance Programs
[1] Disclosure Risks
[2] Damage from Defective Compliance Efforts
[3] Harm from Incomplete Responses to Detected Misconduct
[4] Inadequate Compliance Efforts Creating New Grounds for Liability
[5] Possible Overreporting of Offenses
[6] Tort Claims Based on Inaccurate Statements
[7] Waste in Operating Compliance Programs
[8] Promoting Undue Risk Aversion Among Managers
[9] Increasing Employees’ Mistrust of Corporate Managers
[10] Potential Unprofessional Conduct by Counsel

CHAPTER 16
Reducing Corporate Criminal Liability Through Post-Offense Responses

§ 16.01 The Importance of Proper Post-Offense Responses to Illegal Corporate Conduct
[1] Evaluating the Seriousness of Compliance Program Failures
§ 16.02 Types of Post-Offense Responses Affecting Corporate Criminal Liability
[1] Required Responses
[2] Responses Avoiding or Limiting Corporate Criminal Liability for the Illegal Acts of Employees
[3] Responses Expanding Corporate Criminal Liability
[4] Responses Influencing Charging Decisions Under the DOJ’s Prosecutorial Standards for Corporations
[5] Responses Influencing Charging Decisions Under Other Governmental Standards
§ 16.03 Collateral Consequences of Post-Offense Responses
[1] Civil Liability
[2] Debarment from Government Contracting
[3] Impaired Corporate Reputations
§ 16.04 Crisis Management Techniques for Developing and Implementing Post-Offense Responses
§ 16.05 Strategies for Managing Post-Offense Responses
[1] Actions Before an Offense
[2] Actions Comprising the Immediate Reaction to an Offense
[3] Actions After an Offense
§ 16.06 The Self-Reporting Decision
[1] Disclosures That Are Necessary to Obtain Sentence Reductions
[2] Considerations in Deciding Whether to Disclose Detected Misconduct

CHAPTER 17
The Future of Corporate Criminal Law

§ 17.01 New Emphasis on Organizational Culpability
§ 17.02 Balancing Individual and Organizational Considerations
§ 17.03 Clarifying Standards for Organizational Culpability
§ 17.04 Reconciling Measures of Preventive and Reactive Culpability
§ 17.05 Expanding the Role of Corporate Self-Policing
§ 17.06 Increasing Prosecutors’ Commitments to Rewards for Corporate Self-Policing
§ 17.07 Analyzing Costs and Benefits of Law Compliance Programs
§ 17.08 New Operating Paradigms for Law Compliance Systems
[1] New Compliance Practices Based on Proven Processes
[2] Reconceiving Law Compliance as Performance Quality Control
§ 17.09 Creating a New Jurisprudence for an Organizational Age

Index