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The book 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.
“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

Additional Information
SKU ccc
Division Name LJP
Volumes 1
Brand LJP
Publication Date March 28, 2019
Jurisdiction National
ISBN 978-1-58852-125-5
Page Count 1854
Edition 0
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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 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
[5] Case Study: Financial Consequences of the BP Oil Well Blowout
[6] Consequences of Corporate Convictions: Empirical Research on Penalties Threatening Corporate Survival
§ 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
[8] Recommendations for Program Improvements
§ 1.13 Conclusion

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

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 Superior Standards for Corporate Criminal Liability
[2] Generally Applicable Standard for Corporate Criminal Liability Under Federal Law
[3] Goals of Respondeat Superior Liability
[4] Organizational Failure to Satisfy Nondelegable Law Compliance Duties
§ 3.04 Features of Corporate Criminal Liability Controlled by Respondeat Superior Principles
[1] Imputing Conduct
[2] Imputing Mental States
§ 3.05 Scope of Employment Limitations on Corporate Criminal Liability
[1] Role of the Scope of Employment in Determining Corporate Criminal Liability
[2] Purposes Underlying Scope of Employment Limitations on Corporate Criminal Liability
[3] Types of 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 Superior Liability
[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 Employment
§ 3.09 Improving the Clarity and Fairness of Corporate Criminal Liability Based on Respondeat Superior Principles

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 Outer Boundaries of Corporate Liability Based on Collective Knowledge and Group Action
[1] No Liability for Failure to Collect Information
[2] Collective Knowledge is Limited to Information with 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

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 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 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 Offenses of Dissolved Corporations
§ 5.04 Criminal Liability for Offenses of Predecessor Corporations
[1] Liability for Offenses of Constituent Corporations in Mergers and Consolidations
[2] Liability of Successor Companies for Offenses of Acquired Firms
[3] Liability of Companies Based on Acquisition of Stock of Corporate Offender
[4] Liability of Companies Based on Acquisition of Assets of Corporate Offender
[5] Prosecutorial Discretion Principles Limiting Successor Liability for Corporate Crimes
§ 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 Dischargeability of Fines Imposed on “Individual Debtor”
[4] A Case Study in 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

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] Significance of Due Diligence Under Corporate Criminal Liability Standards
§ 6.02 Possible Reasons to Reject a Due Diligence Defense to Corporate Criminal Liability
[1] Punitive Arguments Against a Due Diligence Defense
[2] Incentive Arguments Against 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 Monitoring to Detect Offenses
[3] Due Diligence in Reacting to Offenses
§ 6.05 Three Case Studies in Measuring Compliance Due Diligence Compliance
[1] United States v. Kroger Grocery & Baking Co.
[2] In re Holland Furnace Co.
[3] United States v. Greyhound Corp.
§ 6.06 Conclusion

Corporate Criminal Liability Under State Laws

§ 7.01 Aims and Limitations
§ 7.02 Corporate Criminal Liability Under State Laws Incorporating Respondeat Superior Standards
§ 7.03 Corporate Criminal Liability Under State Standards Based on 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 Superior Liability Under Model Penal Code
[6] Corporate Liability Under the Model Penal Code for Failure 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 Hazard—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

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] A Precursor to Organizational Sentencing Standards: Sentencing Guidelines for Individuals
[4] Developing Sentencing Guidelines for Organizations
§ 8.03 Overview of Organizational Sentencing Guidelines
[1] Underlying Principles
[2] Sentencing Covered by Guidelines
[3] Federal Sentencing Procedures for Corporate Offenders
§ 8.04 Determining Recommended Corporate Sentences Under Guidelines
[1] Corporate Fines
[2] Other Corporate Sentences: Restitution, Remedial

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