Federal Corporate Sentencing: Compliance and Mitigation

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Jed S. Rakoff, Jonathan S. Sack

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The first book to examine the Organizational Sentencing Guidelines in detail, Federal Corporate Sentencing: Compliance and Mitigation shows how to develop and improve an internal compliance program—a critical preventive tool and the most important mitigating factor in sentencing. Because the Guidelines give legal recognition to compliance programs, a properly designed program can make the difference between a fine of several thousand dollars and one in the tens of millions.

This essential reference also brings you comprehensive coverage of subjects such as: determination of sentences, including aggravating and mitigating factors; global compliance programs; standards of conduct under Sarbanes-Oxley; advocacy strategies when dealing with prosecutors, judges and probation officers; guidance on advising corporations already under federal scrutiny; the use of deferred and non-prosecution agreements; government policies on waiver of the attorney-client privilege and work product protection as proof of a corporation's full cooperation; “corporate probation”; the interplay between the sentencing guidelines for individuals and for corporations; environmental and antitrust offenses; and more.

Book #00619; looseleaf, one volume, 1274 pages; published in 1993, revised edition published in 2007, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-058-6

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1274
  • ISBN: 978-1-58852-058-6
  • Pub#/SKU#: 619
  • Volume(s): 1

Author Image
  • Jed S. Rakoff

Jed S. Rakoff is U.S. District Judge in the Southern District of New York. Mr. Rakoff completed his work on the original edition of Corporate Sentencing Guidelines while a partner with Fried, Frank, Harris, Shriver & Jacobson in New York, prior to assuming his present duties. He does not have any continuing editorial relationship with the book.

Also by Jed S. Rakoff:
RICO: Civil and Criminal Law and Strategy

Author Image
  • Jonathan S. Sack
Jonathan S. Sack is a principal of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C. His practice includes the representation of corporations and individuals in federal and state investigations and prosecutions, civil and criminal enforcement actions, regulatory proceedings and internal investigations.

Before joining Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C., Mr. Sack served for more than twelve years as an Assistant U.S. Attorney for the Eastern District of New York, where he held a number of supervisory positions, including Chief of the Criminal Division. As chief, he oversaw a wide range of investigations and prosecutions of federal crimes conducted by more than 100 prosecutors. As an Assistant U.S. Attorney, Mr. Sack was responsible for a number of significant prosecutions in the areas of securities fraud, financial institutions fraud, RICO violations, export control violations and drug trafficking.

Mr. Sack is a graduate of Harvard University and the Yale Law School. Following law school, Mr. Sack was law clerk to the Honorable W. Arthur Garrity, Jr., Senior United States District Judge, District of Massachusetts. Mr. Sack has written and spoken on issues relating to attorney-client privilege, work product protection and internal investigations. He is an adjunct professor at St. Johns University School of Law, where he teaches a course in White-Collar Crime.

An Overview of the Organizational
Sentencing Guidelines
§ 1.01 Introduction
§ 1.02 Corporate Criminal Liability
[1] History of Corporate Criminal Liability
[2] Principles of Corporate Criminal Liability
[3] Trends in Corporate Criminal Prosecutions
§ 1.03 The Sentencing Guidelines for Individuals
[1] Origins of the Federal Sentencing Commission
[2] Federal Sentencing Before the Guidelines
[3] Principles of the Sentencing Guidelines for Individuals
[4] Criticisms of the Individual Guidelines
[5] Booker’s Impact: Advisory Federal Guidelines
§ 1.04 Promulgation of the Organizational Guidelines
[1] Procedural Background
[2] Theoretical Approach
§ 1.05 Executive Summary of the Organizational Guidelines
[1] When Do the Organizational Guidelines Apply?
[2] The Fine Calculation
[3] Calculating the Culpability Multiplier
[4] Establishing and Imposing the Guideline Fine
[5] Departures
[6] Restitution
[7] Remedial Orders
[8] Organizational Probation
§ 1.06 Application of Guidelines by the Courts
[1] Cases Involving Sentences Under the Guidelines
[2] Type of Defendant
[3] Compliance Programs
[4] Culpability Score
[5] Type of Offense
[6] Fines and Restitutions
[7] Probation, Restitution and Other Remedies
§ 1.07 The Future Role of the Guidelines
[1] Amendments to the Organizational Sentencing Guidelines
[2] 2010 Amendments to the Organizational Sentencing Guidelines: Further Guidance on Effective Compliance and Ethics Programs
[3] Impact of Booker on the Organizational Sentencing Guidelines

Determining the Fine in Organizational Sentencing

§ 2.01 Introduction
§ 2.02 Applicability of Fine Guidelines
§ 2.03 Preliminary Determination of Inability to Pay Fine
§ 2.04 Offense Level
§ 2.05 Base Fine
[1] The Three Alternatives
[2] Special Instructions
[3] Undue Prolongation or Complication of the Sentencing Process
§ 2.06 Culpability Score
§ 2.07 Minimum and Maximum Multipliers
§ 2.08 Guideline Fine Range—Organizations
§ 2.09 Determining the Fine Within the Range (Policy Statement)
§ 2.10 Disgorgement
§ 2.11 Departures from the Guideline Fine Range
§ 2.12 Anti-“Piling On” Policy

Aggravating Factors in Organizational Sentencing

§ 3.01 Introduction
§ 3.02 Involvement in or Tolerance of Criminal Activity
[1] Operation of the Rule
[2] Participation, Condonation, or Willful Ignorance of Individual Within High-Level Personnel
[3] Pervasive Toleration of Offense by Substantial Authority Personnel
[4] Participation, Condonation, or Willful Ignorance of Individual Within Substantial Authority Personnel
[5] Organization Versus Unit of Organization Dynamic
§ 3.03 Prior History
[1] General Rule
[2] Prior History Resulting in Higher Culpability Score
[3] Separately Managed Line of Business Limits Scope of Prior History
[4] Effect of Change in Legal Structure or Ownership
§ 3.04 Violation of an Order
[1] General Rule
[2] Separately-Managed Line of Business Limits Definition of Prior Criminal History
§ 3.05 Obstruction of Justice
[1] General Rule
[2] Categories of Conduct
[3] Standards Developed Under the Analogous Individual Guidelines
§ 3.06 Factors the Court May Consider in Determining the Fine Within the Range
[1] Factors Under Section 8C2.8(a)
[2] The Organization’s Role in the Offense
[3] Collateral Consequences of Conviction
[4] Non-Pecuniary Loss Caused or Threatened by the Offense
[5] Offense Involved Vulnerable Victim
[6] Prior Criminal Record of High-Level Personnel
[7] Prior Civil or Criminal Misconduct of the Organization
[8] Culpability Score Higher than Ten
[9] Partial But Incomplete Satisfaction of the Conditions for Aggravating Factors
[10] Factors Listed in Section 3572(a)
[11] Factors Used in Determining the Range
§ 3.07 Upward Departures from the Guideline Range
[1] Factors Justifying Departure from the Guideline Fine Range
[2] Treatment of Departures Under the Individual Guidelines
[3] Implications of Booker

Mitigating Factors in Organizational Sentencing

§ 4.01 Introduction
§ 4.02 Effective Compliance and Ethics Program
[1] The General Rule
[2] Criteria for an Effective Program
[3] Exceptions to the General Rule
§ 4.03 Self-Reporting, Cooperation, and Acceptance of Responsibility
[1] The General Rule
[2] The Two-Point Reduction
[3] The One-Point Reduction
§ 4.04 Downward Departures from the Guidelines Range
[1] Substantial Assistance to Authorities
[2] Members or Beneficiaries of the Organization as Victims
[3] Public Entities
[4] Remedial Costs that Greatly Exceed Gain
[5] Exceptional Organizational Culpability
[6] Exceptional Circumstances
§ 4.05 Commentary

Corporate Compliance Programs

§ 5.01 Corporate Compliance Programs
[1] Introduction
[2] Empirical Studies of Corporate Codes and Compliance Programs
§ 5.02 The Evolution of Corporate Compliance Programs
[1] Compliance Programs as a Response to Corporate Crises
[2] Compliance Programs as a Response to Caremark
§ 5.03 Issues Commonly Addressed in Compliance Programs
[1] Statement of Principles
[2] Administration of the Compliance Program
[3] Bribes, Kickbacks and Other Improper Payments
[4] Proper Accounting Practices
[5] Conflicts of Interest
[6] Confidentiality of Corporate Information
[7] Communications with the Public
[8] Insider Trading
[9] Discrimination
[10] Harassment
[11] Cybersecurity
[12] Sanctions
[13] Certification of Compliance
§ 5.04 Design and Implementation Issues
[1] Tailoring a Compliance Program to the Corporate Culture
[2] Implementation of the Corporate Compliance Program
[3] Management and Monitoring
[4] Enforcement of the Compliance Program
[5] Updating the Compliance Program
[6] Settlements and Consent Decrees
[7] The Board of Directors and the Compliance Program
§ 5.05 The Legal Effect of Corporate Compliance Programs
§ 5.06 Specialized Aspects of Compliance Program
[1] Post-Sarbanes-Oxley Standards for Codes of Conduct
[2] Statutory Whistleblower Protections and Their Impact on Corporate Compliance Programs
§ 5.07 The Auditor Relationship and Compliance
[1] Compliance Standards and the Audit Process
[2] Proposed New Requirements for Audit Committees: The Blue Ribbon Committee Report
[3] Practical Guidelines
[4] The Audit Committee and the Whistleblower
[5] Conclusion
§ 5.08 The Legal Counsel Relationship and Compliance
[1] Sarbanes-Oxley and the Lawyer’s Obligation to Report Misconduct
[2] Lawyers Covered by the SEC’s Rules
[3] The Reporting Obligation
[4] Practical Considerations Regarding the SEC’s Lawyer Rules
[5] The Potential Liability of Lawyers as Supervisors under Federal Securities Laws
§ 5.09 Compliance Standards and Document Control
[1] Introduction
[2] The Medium and the Risks
[3] Preventive Steps

Advocacy Considerations for Practitioners

§ 6.01 Pre-Indictment Advocacy on Behalf of the Corporate Client
[1] Introduction
[2] Pre-Indictment
[3] Managing the Risk that an SEC Examination Could Ripen into an Enforcement Action
§ 6.02 Privilege Issues and Compliance
[1] Introduction
[2] Summary of Primary Privileges
[3] Structuring Compliance to Preserve the Privilege
[4] Selective Disclosures to Government Investigators
§ 6.03 The Filip Memorandum and Arguments for Not Prosecuting Corporations
[1] Corporate Cooperation, Attorney-Client Privilege, and Work Product Protections
[2] Cooperation under the Yates Memorandum
[3] Yates Memorandum-Inspired Self-Reporting Programs
[4] Consequences for Lack of Cooperation
[5] Deferred and Non-Prosecution Agreements
[6] Disputes over Compliance with Non-Prosecution Agreements
§ 6.04 Plea or Trial: The Decision on Whether to Cooperate
§ 6.05 Considerations in Negotiating a Plea Agreement Under the Guidelines
[1] Charge Agreements
[2] Recommendation Agreements
[3] Fact Stipulations
[4] Cooperation Agreements
[5] Withdrawal Agreements
§ 6.06 Trial
§ 6.07 Pre-Sentence Investigation and Report
§ 6.08 Departures
§ 6.09 Appeal

Antitrust: The Special Rules

§ 7.01 Introduction
§ 7.02 Offenses Covered by the Antitrust Guideline
§ 7.03 Statutory Penalties for Sherman Act Violations
[1] The Statutory Authority
[2] Implications of Booker and Its Progeny
§ 7.04 Sentences for Individuals
[1] Imprisonment
[2] Fines and Community Service
[3] Antitrust Leniency Program for Individuals
§ 7.05 Sentences for Organizations
[1] Fines
[2] Probation

Environmental Crimes: The Indirect Applicability of General Guidelines and the Utility of Environmental
Self Audits and Compliance Programs
§ 8.01 Scope of the Organizational Sentencing Guidelines
[1] Exclusion of Environmental Crimes from the General Guidelines for Fines
[2] The Advisory Group’s Proposed Guidelines for Environmental Offenses
[3] Reasons for Exclusion of Fines for Environmental Crimes From Fine Provisions of Chapter Eight
[4] Inconsistencies in the Department of Justice’s Approach
[5] Applicability of the "Remedial Orders" and "Probation" Provisions of the Guidelines
[6] Applicability of the Guidelines to Prosecution for False Statements
[7] Impact of the Guidelines in the Environmental Context
§ 8.02 Utility of "Environmental Audits" and "Compliance Programs"
[1] The 2000 EPA Policy Statement
[2] The 1991 Department of Justice Guidance Document
[3] The 1990 Clean Air Act Amendments
[4] "EPA Policy Statement" Regarding "Delisting" of Violating Facilities: The EPA Contractor Listing Program
§ 8.03 "Multi-Level" Audit/Compliance Program Technique
§ 8.04 Multiple Proceedings and Sovereigns
§ 8.05 Double Jeopardy
§ 8.06 Parent-Subsidiary Relations
§ 8.07 Privilege Issues
§ 8.08  Compliance with SEC Requirements
§ 8.09 Impact of Sarbanes-Oxley in the Environmental Crimes Context