APPENDIX 8. Title 9, chapter 9-28.000 principles of federal prosecution of business organizations (U.S. Department of Justice)

• Author: Robert W. Tarun
• Pages: 581-602

APPENDIX 8

Title 9, Chapter 9-28.000

Principles of Federal

Prosecution of Business

Organizations (U.S.

Department of Justice)1

9-28.100 Duties of Federal Prosecutors and Duties of Corporate Leaders

9-28.200 General Considerations of Corporate Liability

9-28.300 Factors to Be Considered

9-28.400 Special Policy Concerns

9-28.500 Pervasiveness of Wrongdoing Within the Corporation

9-28.600 The Corporation’s Past History

9-28.700 The Value of Cooperation

9-28.710 Attorney-Client and Work Product Protections

9-28.720 Cooperation: Disclosing the Relevant Facts

9-28.730 Obstructing the Investigation

9-28.740 Offering Cooperation: No Entitlement to Immunity

9-28.750 Qualifying for Immunity, Amnesty, or Reduced Sanctions Through

Voluntary Disclosures

1. While these guidelines refer to corporations, they apply to the consideration of the prosecution of all

types of business organizations, including partnerships, sole proprietorships, government entities, and unincor-

porated associations.

581

582 APPENDICES

9-28.760 Oversight Concerning Demands for Waivers of Attorney-Client

Privilege or Work Product By Corporations Contrary to This Policy

9-28.800 Corporate Compliance Programs

9-28.900 Restitution and Remediation

9-28.1000 Collateral Consequences

9-28.1100 Other Civil or Regulatory Alternatives

9-28.1200 Selecting Charges

9-28.1300 Plea Agreements with Corporations

9-28.001 DUTIES OF FEDERAL PROSECUTORS AND

DUTIES OF CORPORATE LEADERS

The prosecution of corporate crime is a high priority for the Department of

Justice. By investigating allegations of wrongdoing and by bringing charges where

appropriate for criminal misconduct, the Department promotes critical pub-

lic interests. These interests include, to take just a few examples: (1) protecting

the integrity of our free economic and capital markets; (2) protecting consumers,

investors, and business entities that compete only through lawful means; and (3)

protecting the American people from misconduct that would violate criminal laws

safeguarding the environment.

In this regard, federal prosecutors and corporate leaders typically share com-

mon goals. For example, directors and officers owe a fiduciary duty to a corpora-

tion’s shareholders, the corporation’s true owners, and they owe duties of honest

dealing to the investing public in connection with the corporation’s regulatory

filings and public statements. The faithful execution of these duties by corporate

leadership serves the same values in promoting public trust and confidence that

our criminal cases are designed to serve.

A prosecutor’s duty to enforce the law requires the investigation and prosecu-

tion of criminal wrongdoing if it is discovered. In carrying out this mission with the

diligence and resolve necessary to vindicate the important public interests discussed

above, prosecutors should be mindful of the common cause we share with respon-

sible corporate leaders. Prosecutors should also be mindful that confidence in the

Department is affected both by the results we achieve and by the real and perceived

ways in which we achieve them. Thus, the manner in which we do our job as prosecu-

tors—including the professionalism we demonstrate, our willingness to secure the

facts in a manner that encourages corporate compliance and self-regulation, and also

our appreciation that corporate prosecutions can potentially harm blameless inves-

tors, employees, and others—affects public perception of our mission. Federal prose-

cutors recognize that they must maintain public confidence in the way in which they

exercise their charging discretion. This endeavor requires the thoughtful analysis of

all facts and circumstances presented in a given case. As always, professionalism and