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Corporate Criminal Liability

By Robert J. Anello
January 29, 2013

The concept of corporate criminal liability in the United States is expansive; corporations can be held liable for the actions of a single employee or a small group of employees, even if those actions violate clear company policy. Nevertheless, for years, legal scholars, white-collar practitioners, and the mainstream media have proclaimed that government efforts to police corporate wrongdoing are failing. A parade of Department of Justice (DOJ) press releases detailing the resolution of criminal charges against one corporation after another tells a different story. In numerous recent cases, utilizing a combination of substantial fines, deferred prosecution agreements, regulatory settlements, and required institutional reforms and monitors ' remedies that may not be available as a consequence of an actual conviction ' the DOJ has exacted a steep toll on companies for their institutions' legal violations.

While the government is busy holding businesses liable for criminal conduct, skeptics remain critical of its methods. Some have argued that the government's increased reliance on deferred prosecution and non-prosecution settlement agreements is too soft a reaction to corporate wrongdoing and has resulted in “cookie-cutter” justice. Others believe corporations feel constrained to enter into these agreements rather than assert meritorious defenses in the face of potentially disastrous business consequences. Still others feel that the government's focus on settling with corporate entities has resulted in a failure to prosecute the individuals who actually engage in the criminal conduct.

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