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Counter-Point Written Response to Reading - Essay Example

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I. Summary of the Case Structuring Corporate Plea and Settlement Agreements: An Exercise in Damage Control When a corporate entity commits crime such as fraud, it does not go jail like a natural person. The penalty that is typically meted against an erring corporation usually comes in the sanction of fines, restitution and possible forfeiture…
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Counter-Point Written Response to Reading
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Download file to see previous pages To avoid going to court and risk getting being convicted and suffer its dire consequence, pretrial arrangements are usually resorted to as a damage control measure of corporations who are subjected to a criminal charge. The most common measures employed to control the collateral consequence of litigation comes in the form of pretrial agreements. Types of Pretrial Agreements a. Plea agreements Plea agreement is the most common form of pretrial agreement whereby a corporation pleads guilty to the most provable charge in the indictment. It requires an admission of guilt as a mitigating factor and in exchange for a lesser punishment including the avoidance of a jail term. The following memoranda sets the guidelines of a plea agreement between government prosecutor and the corporation investigated of a corporate crime. The Thompson Memo The Thompson Memo guidelines, Plea Agreement with Corporations set the limit of a prosecutor’s ability to bargain. Per Thomson memorandum, prosecutors should only bargain to the most serious cases which is also known as “top count” policy. This memorandum requires the accused corporation to plead guilty on the charge and its provisions ensure “punishment, deterrence, rehabilitation, and compliance with the agreement. The deterrence mechanism of this policy comes in the hefty fines, mandatory restitution and compliance measures. The McNulty Memo The McNulty memo was drafted by Deputy Attorney General Paul McNulty as Guidelines for Prosecuting Corporate Fraud. This new memo removed few of the restrictions in the Thompson Memo to ensure the complete and fruitful corporate cooperation. The provision that were removed from the previous memo includes; “that the corporation waive attorney-client and work product protection, make employees and agents available for debriefing, disclose the results of internal investigation, file appropriate certified financial statements, agree to governmental or third-party audits, and take whatever other steps are necessary to ensure that the full scope of the corporate wrongdoing is disclosed and that the responsible culprits are identified and prosecuted”. Filip Memo The Filip Memorandum is a revision of McNulty Memo and was updated on August 28, 2008. This process of revisions of the policy culminated in the incorporation in the final policy form into the United States Attorney’s Manual (USAM). This memo requires the prosecutors to ask permission from DOJ before requesting waivers of attorney-client privilege and work product protections during criminal investigations. In summary, Filip Memo; Prohibits prosecutors from asking protected materials from charged corporations. Not to treat refusal of such request as non-cooperation Prohibits prosecutors from including the disciplinary action of corporations in their evaluation of cooperation; and Refusal to cooperate in the part of corporation is not an admission of guilt b. Deferred prosecution agreements (DPA) The usage of deferred prosecution agreement as a resolution to a corporate criminal investigation is rare. It is an alternative disposition towards a corporate criminal case whereby government files the charge against the corporation in a court and agrees to “defer” the prosecution of the case and to dismiss the charge if the corporation pays the fines and rehabilitate itself. c. Nonprosecution agreem ...Download file to see next pagesRead More
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