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Make It Go Away!

By Jeffrey T. Green
August 17, 2003

Forget about Global Crossing, WorldCom, and Enron. These are extreme examples of corporate misconduct. The more typical criminal case against a corporation involves greater ambiguity and often turns on the actions of a very few individuals, or perhaps even one employee acting alone. The vicarious liability case law that is the vehicle for all corporate prosecutions casts a very broad net. An individual need only be acting pursuant to his or her duties (or even apparent duties) in order to create criminal liability for the corporation as a whole. Liability attaches even if the individual's motives were primarily self-serving, like 'making the books look better,' and in direct contravention of a corporate code of conduct.

Many well-intentioned and otherwise well-behaved corporations have found themselves caught in this broad net of vicarious criminal liability. To protect themselves, corporations across the country have instituted strict policies to prevent and detect crime by employees. Yet despite such measures, crime will still occur. When it does, the corporation itself is on the hook.

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