Chapter 19

Supporting a Criminal Prosecution

Albert A. Vondra, Thomas W. Golden, John Gallo, and Isabel M. Cumming

This chapter addresses the issues your client and your client's counsel confront in evaluating when and how to refer a matter to a prosecutor for investigation of those believed to be involved in criminal acts.1 U.S. Department of Justice (DOJ) guidelines lay out in unambiguous language the DOJ's desire for vigorous enforcement of criminal laws against corporate wrongdoers, including the corporation itself. The government's view is that indictment of corporations for wrongdoing in appropriate circumstances enables the government to be a positive force in changing the corporate culture in favor of a new paradigm of deterring, detecting, and punishing white collar crime. The environment has changed such that corporate cooperation with government prosecutions of illegal activity is becoming commonplace. The question of whether or not to report the crimes of individual employees when the corporation is the victim is an extremely important decision, and this chapter explores considerations related to it.

Our experience shows that many corporations find the decision to refer an errant employee for prosecution a difficult one because of the reality that prosecution can have long-lasting, widespread effects on the company. The decision as to whether or not to refer a matter generally rests with senior management and counsel, including the company's general counsel and, in ...

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