Imposing limits on prosecutorial discretion in corporate prosecution agreements

New York University Law Review

Volumn 82, Issue 5, 2007, Pages 1434-1469

  Paulsen, Erik ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 36549076493     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (237)

1. Paul J. McNulty, U.S. Deputy Att'y Gen., Prepared Remarks of Deputy Attorney General Paul J. McNulty at the Lawyers for Civil Justice Membership Conference Regarding the Department's Charging Guidelines for Corporate Fraud Prosecutions (Dec. 12, 2006), available at http://www.usdoj.gov/dag/ speech/2006/dag_speech_061212.htm [hereinafter McNulty Speech].
2. Id. ("Today I'm announcing revisions to the Thompson Memorandum. The previous guidance is superseded, and a new memorandum, under my signature, will provide revised guidance to corporate fraud prosecutors across the country.").
3. See infra notes 77-85 and accompanying text.
4. See Jason McLure, Coalition Scores Major Victory in Policy Retreat: How Business, Civil Liberties Groups Pushed DOJ To Alter Fraud Stance, LEGAL TIMES, Dec. 18, 2006, at 1.
5. A wide variety of organizations and individuals criticized the cooperation provisions in the Thompson Memo. The American Civil Liberties Union and American Bar Association (ABA) combined lobbying efforts with strange bedfellows like the National Association of Manufacturers and the U.S. Chamber of Commerce. McLure. supra note 4. Ex-attorneys general and solicitors general from previous administrations, both Republican and Democrat, co-signed a letter asking for a repeal of the practice.
6. Jason McLure. Ex-DOJ Officials Blast Current Policy: Letter Signed by Bell, Thornburgh, and Others Criticizes Approach Outlined in Thompson Memo, LEGAL TIMES, Sept. 11, 2006, at 18.
7. Senator Arlen Specter introduced legislation to change DOJ policy. Lynnley Browning. Senator Calls for an Easing of Corporate-Wrongdoing Rules. N.Y. TIMES, Dec. 8, 2006, at C3.
8. A federal judge in New York declared the Memo, in part, unconstitutional. United States v. Stein, 435 F. Supp. 2d 330, 365 (S.D.N.Y. 2006). Even Thompson himself, the eponymous author of the memorandum, expressed reservations.
9. See Lynnley Browning, Former Deputy at Justice Dept. Would Limit Legal Disclosure. N.Y. TIMES, Dec. 1. 2006, at C6 (quoting Thompson as saying that use of waiver should be "extremely limited").
10. Memorandum from Paul J. McNulty, U.S. Deputy Att'y Gen., to Heads of Dep't Components and U.S. Att'ys (Dec. 12, 2006), available at http://www.usdoj.gov/dag/speech/2006/mcnulty_memo.pdf [hereinafter McNulty Memo].
11. See infra Part I.A.
12. See infra Part I.B.
13. Declination means to decline to prosecute criminally. Benjamin M. Greenblum, What Happens to a Prosecution Deferred? Judicial Oversight of Corporate Deferred Prosecution Agreements, 105 COLUM. L RFV, 1863, 1868 (2005).
14. See infra Part IV.B.
15. This is, of course, a bit simplistic. A prosecutor can arrange for civil penalties with the Securities and Exchange Commission (SEC). for example, instead of pursuing any kind of criminal discipline. Such options, however, essentially amount to declinations.
16. Despite their frequent use today, prosecution agreements were not engineered in the context of corporate liability. Rather, they began as a means to rehabilitate juvenile offenders. Greenblum, supra note 9, at 1864. It was not until the early 1990s that agreements of this type were used to settle criminal charges against entities. Id.
17. Eugene Illovsky, Corporate Deferred Prosecution Agreements: The Brewing Debate, CRIM. JUST., Summer 2006, at 36, 36, available at http://www.abanet.org/crimjust/cjmag/21-2/corporatedeferred. pdf.
18. Interview with David Pitofsky, CORP. CRIME REP., Nov. 28, 2005, at 8, 13.
19. See id. (noting that a non-prosecution agreement "communicates something that is substantially less harsh than a deferred prosecution agreement . . . [and] provides the prosecutor with the ability to send a graded message about the seriousness of the misconduct").
20. Id.
21. Id.
22. The HealthSouth Non-Prosecution Agreement, for example, features a three-year, six-month duration; over $500 million in penalties and restitution; substantial internal governance reforms; and a compliance monitor. Non-Prosecution Agreement Between U.S. Dep't of Justice and HealthSouth Corp., paras. 3, 8-9 (May 18, 2006) (on file with the New York University Law Review) [hereinafter HealthSouth NPA]. The Boeing Non-Prosecution Agreement features a two-year duration; over $600 million in penalties; substantial internal governance reforms; and an agreement to provide a limited privilege waiver. Non-Prosecution Agreement Between U.S. Att'y's Office for E. Dist. Va. and Boeing Co., paras. 3-4, 6-7 (June 30, 2006) (on file with the New York University Law Review) [hereinafter Boeing NPA]. These conditions are comparable to modern deferred prosecution agreements. E.g., Deferred Prosecution Agreement Between U.S. Att'y's Office for S. Dist. of N.Y. and KPMG, para. 3 (Aug. 26, 2005) (on file with the New York University Law Review) [hereinafter KPMG DPA] (noting substantial penalties, internal business reforms, and privilege waiver).
23. The overwhelming majority of these agreements share the same features despite their different titles. If a distinction is to be drawn regarding the agreements' terms, one might separate out the early non-prosecution agreements from the rest. For example, many of the early non-prosecution agreements did not feature any set duration - that is, once the agreement was signed, the company's relationship with the prosecutor's office was essentially over. Of the fifty-nine agreements signed between 1992 and 2006, seven fit this mold: the Aurora Agreement, the Lazard Agreement, the Merrill Lynch First Agreement, the John Hancock Agreement, the AETNA Agreement, the Sequa Agreement, and the Salomon Brothers Agreement. See Lawrence D. Finder & Ryan D. McConnell, Devolution of Authority: The Department of Justice's Corporate Charging Policies, 51 ST. LOUIS U. L.J. 1, 6-7. app. (2006) (indicating that six of seven agreements signed before 1999 did not contain explicit expiration dates): infra notes 46-47 (noting fifty-nine total agreements from 1992 to 2006).
24. These seven agreements are probably best described as official statements detailing the reasons why the government declined to prosecute the organization in question. Once the Holder Memo was released, nearly all deferred and non-prosecution agreements took on the same form. Memorandum from Eric H. Holder Jr., U.S. Deputy Att'y Gen., to All Component Heads and U.S. Att'ys (June 16, 1999) (on file with the New York University Law Review) [hereinafter Holder Memo]. Of the seven agreements noted above which differ from the modern form, six were signed before 1999, the date that the Holder Memo was issued. The one exception to this generalization is the Aurora Agreement, which was signed in 2001 and is perhaps best treated as an anomaly.
25. See Non-Prosecution Agreement Between U.S. Att'y's Office for S. Dist. of N.Y. and Aurora Food (Jan. 22, 2001) (on file with the New York University Law Review). Other than the Aurora Agreement, all the deferred and non-prosecution agreements issued since 1999 are sufficiently similar that they can be spoken of as a group.
26. Many corporations, either by explicit employment contract or by historical practice, provide their employees with attorneys' fees to cover criminal allegations involving actions committed in the course of employment. United States v. Stein. 435 F. Supp. 2d 330, 353-55 (S.D.N.Y. 2006) (summarizing historical practice of employers indemnifying employees for legal expenses).
27. In certain circumstances, prosecutors have frowned on these agreements, and have pressured companies to waive or limit these arrangements to demonstrate cooperation. The Thompson Memo explicitly stated that the advancement of attorneys' fees might be evidence of non-cooperation as the company is "protecting . . . culpable employees and agents." Memorandum from Larry D. Thompson. U.S. Deputy Att'y Gen., to Heads of Dep't Components and U.S. Att'ys § VI(B). at 7-8 (Jan. 20, 2003). available at http://www.usdoj.gov/dag/cftf/business_organizations.pdf [hereinafter Thompson Memo].
28. The Thompson Memo stated that a corporation's willingness to waive attorney-client privilege was highly relevant evidence of a corporation's cooperation. Thompson Memo, supra note 20, § VI(B), at 6-7. While the Thompson Memo stated that such waiver was not an "absolute requirement,"
29. id., many practitioners found that prosecutors demanded disclosure of privileged documents in nearly all circumstances. Companies that resisted risked appearing uncooperative.
30. Stephen W. Grafman & Jeffrey L. Bornstein, New Memo Won't Help, NAT'L L.J., NOV. 14, 2005, at 31, 31 ("In reality today, a corporation that does not waive these valuable privilege rights effectively is considered a non-cooperator.").
31. See supra note 6 and accompanying text.
32. See, e.g., Am. Coll. of Trial Lawyers, The Erosion of the Attorney-Client Privilege and Work Product Doctrine in Federal Criminal Investigations, 41 DUO. L. REV. 307, 321-22 (2003) (criticizing government for asking for privilege waiver);
33. Mary Beth Buchanan, Effective Cooperation by Business Organizations and the Impact of Privilege Waivers, 39 WAKE FOREST L. REV. 587, 595-607 (2004) (summarizing and responding to criticisms of privilege waiver);
34. George Ellard, Making the Silent Speak and the Informed Wary, 42 AM. CRIM. L. REV. 985, 992-93 (2005) (criticizing pressure exerted on companies to waive attorney-client privilege);
35. Lisa Kern Griffin, Compelled Cooperation and the New Corporate Criminal Procedure, 82 N.Y.U. L. REV. 311, 319-21 (2007) (discussing Thompson Memo factors for assessing corporate cooperation, which include corporation's identification and sanctioning of employees);
36. Joseph F. Savage, Jr. & Melissa M. Longo, 'Waive' Goodbye to Attorney-Client Privilege, BUS. CRIMES BULL., Oct. 2000, at 1, 8 (discussing waiver in context of inadvertant disclosure);
37. Mary Jo White, Corporate Criminal Liability: What Has Gone Wrong?, in 2 37TH ANNUAL INSTITUTE ON SECURITIES REGULATION 815, 821 (PLI Corporate Law & Practice, Course Handbook Series No. B-1517, 2005) (arguing that waiver has "become a heavy stick and a company, only at its extreme peril, declines a prosecutor's request for waiver");
38. Christopher A. Wray & Robert K. Hur, Corporate Criminal Prosecution in a Post-Enron World: The Thompson Memo in Theory and Practice. 43 AM. CRIM. L. REV. 1095, 1170-74 (2006) (summarizing criticisms of cooperation policy).
39. E.g., Deferred Prosecution Agreement Between U.S. Dep't of Justice and BankAtlanlic. para. 2 (Apr. 26, 2006) (on file with the New York University Law Review);
40. Deferred Prosecution Agreement Between U.S. Dep't of Justice and Monsanto Co., para. 4 (Jan. 6, 2005) (on file with the New York University Law Review).
41. E.g., Boeing NPA, supra note 18. para. 12(a)(4);
42. Deferred Prosecution Agreement Between U.S. Att'y's Office for D. of Conn. and Operations Mgmt. Int'l. para. 9 (Feb. 8, 2006) (on file with the New York University Law Review) [hereinafter OMI DPA].
43. Admissions within a prosecution agreement can have significant consequences on subsequent or pending litigation, as "a plaintiff will seek to use [them] against the corporation in later civil proceedings." Michael R. Sklaire & Joshua G. Berman. Deferred Prosecution Agreements: What Is the Cost of Staying in Business?. LEGAL OPINION LETTER, June 3, 2005, at 2. available at http://www. sonnenschein.com/docs/Cost_of_Staying_in_B.pdf.
44. See Stephanie Martz, Trends in Deferred Prosecution Agreements, CHAMPION, NOV. 2005, at 45, 45 ("[F]or corporations, the ripple effect of these admissions could be devastating.").
45. Boeing NPA, supra note 18, para. 4(b)-(c).
46. KPMG DPA, supra note 18, para. 3.
47. See Finder & McConnell, supra note 19, app. (noting various prosecution agreements with nine-figure fines).
48. Deferred Prosecution Agreement Between U.S. Att'y's Office for Dist. of R.I. and Roger Williams Med. Ctr., para. 12 (Jan. 27, 2006) (on file with the New York University Law Review) [hereinafter Roger Williams DPA].
49. E.g., Non-Prosecution Agreement Among U.S. Att'y's Office for E. Dist. of N.Y., U.S. Att'y's Office for S. Dist. of N.Y. and Bank of New York, para. 10(a) (Nov. 8, 2005) (on file with the New York University Law Review);
50. HealthSouth NPA. supra note 18, para. 8(a).
51. Non-Prosecution Agreement Between U.S. Att'y's Office for E. Dist. of N.Y. and Symbol Techs., para. 9(b) (June 3. 2004) (on file with the New York University Law Review) [hereinafter Symbol NPA].
52. E.g., HealthSouth NPA, supra note 18, para. 8(b);
53. Symbol NPA, supra note 33, para. 9(c).
54. E.g., HealthSouth NPA, supra note 18, para. 8(d);
55. Deferred Prosecution Agreement Between U.S. Att'y's Office for S. Dist. of N.Y. and Prudential Sees., Inc. 3 (Oct. 27, 1994) (on file with the New York University Law Review).
56. E.g., HealthSouth NPA, supra note 18, para. 8(c);
57. Symbol NPA, supra note 33, para. 9(d).
58. E.g., OMI DPA, supra note 25, paras. 5-6.
59. Professor John C Coffee argues, for example, that there is little to stop a prosecutor from demanding as a condition of deferred prosecution that a board without much diversity reconstitute itself as half female and at least one-third minority. John C. Coffee Jr., Deferred Prosecution: Has It Gone Too Far? NAT'L L.J., July 25, 2005, at 13, 13. Coffee believes that shareholders should have the right to choose their own directors, and such interference by prosecutors goes beyond their "competence or entitlement."
60. Id.
61. See Finder & McConnell, supra note 19, app. (tabulating terms of deferred and non-prosecution agreements, including monitors).
62. In the Bristol-Meyers Squibb Agreement, for example, the prosecutor and company agreed to use Frederick B. Lacey. a former U.S. Attorney and federal judge. Deferred Prosecution Agreement Between U.S. Att'y's Office for D.N.J, and Bristol-Meyers Squibb Co., para. 5 (June 15, 2005) (on file with the New York University Law Review) [hereinafter Bristol-Meyers DPA].
63. E.g., Roger Williams DPA. supra note 31, paras. 21-31;
64. HealthSouth NPA, supra note 18, para. 11.
65. See Christopher J. Christie & Robert M. Hanna, A Push Down the Road of Good Corporate Citizenship: The Deferred Prosecution Agreement Between the U.S. Attorney for the District of New Jersey and Bristol-Meyers Squibb Co., 43 AM. CRIM. L. REV. 1043, 1055 (2006) ("A strong, independent monitor is in a far better position to ride herd over a mammoth corporation than any U.S. Attorney's Office or Probation Office. . . . Monitors are able to observe and understand the business they oversee. . . . in ways that federal prosecutors never could or should.");
66. Interview with David Pitofsky, supra note 14, at 9 ("One of the reasons why the deferred prosecution agreements require a monitor to be put in place is that the prosecutor's office has no experience or skills to analyze whether a company is reforming its internal governance practices.").
67. See supra notes 32-38 and accompanying text.
68. Deferred Prosecution Agreement Between State of Oklahoma and WorldCom. Inc. 2 (Mar. 12, 2004) (on file with the New York University Law Review).
69. Bristol-Meyers DPA. supra note 40, para. 20.
70. The OMI Agreement contains a similar provision with the Coast Guard Academy. OMI DPA, supra note 25, app. A. Christopher Christie, the U.S. Attorney who negotiated the Bristol-Meyers Squibb Agreement, states that the idea of endowing a chair in ethics came from defense counsel. Further, Seton Hall was chosen because Rutgers University School of Law already had a chair in business ethics endowed by Prudential.
71. Christie & Hanna, supra note 42, at. 1058 n.29.
72. Finder & McConnell, supra note 19, app. Lawrence Finder and Ryan McConnell have assembled the most comprehensive index of known agreements. In the appendix to their article they count ten deferred and non-prosecution agreements during the period from 1992 to 2002. They intentionally excluded the agreements with Coopers & Lybrand, Salomon Brothers, and Sequa because those agreements were never made public.
73. Id. at 36 n.193. For the purpose of this counting exercise, however, I am including those three agreements as well as three agreements not considered by Finder and McConnell - the agreements with JB Oxford & Co., Hilton Hotels, and Doyon Drilling. Deferred Prosecution Agreement Among U.S. Att'y's Office for Cent. Dist. of Cal., JB Oxford Holdings, Inc., and JB Oxford & Co. (Feb. 12, 2000) (on file with the New York University Law Review); Press Release, Office of U.S. Att'y for W. Dist. of Mo., Hilton Kansas City Corporation and Hildeon Gaming Enter Pretrial Diversion Agreement Over Investigation of $1.25 Million Grant (Aug. 12, 1998) (on file with the New York University Law Review);
74. Deferred Prosecution Agreement Between U.S. Att'y's Office for Dist. of Ala. and Doyon Drilling Inc. (Apr. 1998) (on file with the New York University Law Review).
75. Finder & McConnell, supra note 19, app. Finder and McConnell counted thirty-eight deferred and non-prosecution agreements between 2003 and 2006. They intentionally excluded two agreements from their list: the Hilfiger Agreement, because the agreement was never released to the public, and the WorldCom Agreement, because it was negotiated with the Attorney General of Oklahoma. For the purposes of this counting exercise, I have included both agreements. Further, three agreements were signed in the final months of 2006, too late to be included in Finder and McConnell's article. These three agreements - the Statoil Agreement, the SSI Korea Agreement, and the Intermune Agreement - are also included in my final count of forty-three agreements. Press Release. U.S. Dep't of Justice, U.S. Resolves Probe Against Oil Company that Bribed Iranian Official (Oct. 13, 2006) (on file with the New York University Law Review); Press Release, U.S. Dep't of Justice. Schnitzer Steel Industries Inc.'s Subsidiary Pleads Guilty to Foreign Bribes and Agrees to Pay a $7.5 Million Criminal Fine (Oct. 16, 2006) (on file with the New York University Law Review);
76. Deferred Prosecution Agreement Between U.S. Att'y's Office for N. Dist. of Cal. and Intermune, Inc. (Oct. 28, 2006) (on file with the New York University Law Review).
77. This count includes the fifteen 2006 agreements listed in Finder and McConnell's matrix, as well as the Statoil Agreement, the SSI Korea Agreement, and the Intermune Agreement. See supra note 47 and accompanying text.
78. See infra notes 54-66 and accompanying text.
79. 212 U.S. 481 (1909); Developments in the Law - Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions. 92 HARV. L. REV. 1226, 1246 & n.12 (1979).
80. N.Y. Cent., 212 U.S. at 489-91.
81. The decision in New York Central was not completely without precedent; there had been some development of corporate liability for public nuisances and strict liability crimes before 1909 in non-federal forums. See V. S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 HARV. L. REV. 1477, 1479-82 (1996) (describing evolution of corporate criminal liability).
82. In addition. Justice Day, the author of the New York Central opinion, cited a variety of non-federal sources for the proposition that corporations could be held liable for crimes of intent, including a contemporaneous criminal treatise and court decisions from Massachusetts and England. N.Y. Cent., 212 U.S. at 492-93.
83. However, as New York Central was the first case where the Supreme Court explicitly used these precedents in formulating federal law, commentators generally consider this case to be the progenitor of entity liability in the United States.
84. See, e.g., Shaun P. Martin, Intracorporate Conspiracies, 50 STAN. L. REV. 399, 406-07 (1998) (noting that Supreme Court ratified previous developments in corporate liability in New York Central, signaling "beginning of the end of corporate immunity from criminal liability").
85. See N.Y. Cent., 212 U.S. at 492 ("Some of the earlier writers on common law held the law to be that a corporation could not commit a crime.").
86. Specifically, Justice Day noted that Blackstone's Commentaries stated, "'A corporation cannot commit treason, or felony, or other crime in its corporate capacity, though its members may, in their distinct individual capacities.'"
87. Id. (quoting WILLIAM BLACKSTONE, 1 COMMENTARIES *476).
88. See id. at 493-94 (describing liability of corporation for acts of employee). Respondeat superior is defined as "[t]he doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of employment or agency." BLACK'S LAW DICTIONARY 1338 (8th ed. 2004).
89. N.Y. Cent., 212 U.S. at 495-96.
90. See id. ("[T]o give [corporations] immunity from all punishment because of the old and exploded doctrine that a corporation cannot commit a crime would virtually take away the only means of effectually controlling the subject-matter and correcting the abuses aimed at.");
91. Khanna, supra note 52, at 1483 (describing deterrence as motive for change in jurisprudence).
92. Cf. Developments in the Law - Corporate Crime: Regulating Corporate Behavior Through Criminal Sanctions, supra note 50, at 1241 (noting that "mental state has no meaning when applied to a corporate defendant").
93. See N.Y. Cent., 212 U.S. at 493-95 (allowing criminal prosecution of corporation where agents act "within the authority conferred upon them" and where "the corporation . . . profits by the transaction").
94. See, e.g.. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1. 892-93 (D.D.C 2006) (applying New York Central test of corporate criminal liability).
95. An employee acts with actual authority if "a corporation knowingly and intentionally authorizes [the] employee to act on its behalf." Michael Viano & Jenny R. Arnold, Corporate Criminal Liability, 43 AM. CRIM. L. REV. 311, 314 (2006);
96. see also Joel M. Androphy et al., General Corporate Criminal Liability, 60 TEX. B. J. 121, 122 (1997) (discussing actual authority).
97. An employee acts with apparent authority "if a third party reasonably believes that the [employee] has the authority to perform the act in question." Viano & Arnold, supra note 60, at 314;
98. see also Androphy, supra note 60, at 121-22 (discussing apparent authority).
99. See United States v. Automated Med. Labs., Inc.. 770 F.2d 399, 407 (4th Cir. 1985) ("The fact that many of [the employees'] actions were unlawful and contrary to corporate policy does not absolve [the defendant-corporation] of legal responsibility for their acts.");
100. United States v. Hilton Hotels Corp.. 467 F.2d 1000, 1007 (9th Cir. 1972) (holding that company can be found liable "for the acts of its agents in the scope of their employment, even though contrary to general corporate policy and express instructions to the agent").
101. See Automated Med. Labs., 770 F.2d at 407 ("[W]hether the agent's actions ultimately redounded to the benefit of the corporation is less significant than whether the agent acted with the intent to benefit the corporation.");
102. Viano & Arnold, supra note 60, at 316 ("The corporation [to be held liable] need not have actually received a benefit; the employee's mere intention to bestow such benefit suffices.").
103. Viano & Arnold, supra note 60, at 316.
104. See Automated Med. Labs., 770 F.2d at 407 (upholding conviction of corporation based on employee's acting "at least in part" to benefit corporation);
105. Viano & Arnold, supra note 60, at 316 (noting that "courts recognize that many employees act primarily for their own personal gain").
106. See Standard Oil Co. of Tex. v. United States, 307 F.2d 120, 129 (5th Cir. 1962) (reversing conviction of corporate defendants because criminal acts of corporate employees were intended to defraud company itself);
107. Viano & Arnold, supra note 60, at 317 Sc n.41 (noting that corporation cannot be subject to criminal liability on basis of employee behavior that is "expressly contrary to the interests of the corporation and for which the corporation derives no benefit").
108. Edward, First Baron Thurlow. is famously said to have quipped that a corporation has "no soul to be damned, and no body to be kicked." MERVYN KING, PUBLIC POLICY AND THE CORPORATION 1 (1977) (attributing quote to Thurlow);
109. John C Coffee, Jr., "No Soul to Damn: No Body to Kick": An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 MICH. L. REV. 386, 386 & n.1 (1981) (same).
110. On this subject, see Samuel W. Buell, The Blaming Function of Entity Criminal Liability, 81 IND. L.J. 473, 475 & n.8. 517 & n.191 (2006). Buell observes that scholars have long doubted the logic of respondeat superior criminal liability, "pointing to illogic in retribution toward objects and the impossibility of fitting liberal concepts about responsibility with nonhuman actors."
111. Id. at 475.
112. Samuel W. Buell notes that although the rule of entity liability allows virtually all crimes committed by corporate agents to be imputed to the corporation, the law is not actually applied in such an aggressive manner: Prosecutors have developed a social practice of evaluating an institution's "real responsibility" in determining whether or not to charge the institution. Buell, supra note 67, at 526;
113. see also Thompson Memo, supra note 20, § IV. at 5 (noting that it may not be appropriate to apply respondeat superior liability for an employee's "single isolated act" and that prosecutors "should exercise sound discretion in evaluating the pervasiveness of wrongdoing within a corporation").
114. See infra note 123 and accompanying text.
115. See generally Khanna, supra note 52 (comparing efficacy of corporate civil and criminal liability and concluding that civil liability can provide more effective deterrence at lower cost).
116. See Thompson Memo, supra note 20, § at 12-13 (expressing this concern).
117. See id. (describing collateral effects of corporate prosecution).
118. Holder Memo, supra note 19.
119. See Finder & McConnell, supra note 19, at 14 (observing that Holder Memo did not receive as much attention as later Thompson Memo).
120. See id. (noting that Holder Memo was "drafted in a period of unprecedented prosperity").
121. Id.
122. See John C. Coffee, Jr., What Caused Enron? A Capsule Social and Economic History of the 1990s, 89 CORNELL L. REV. 269, 270, 281-82 (2004) (arguing "that Enron and related scandals were neither unique nor idiosyncratic; rather, pervasive problems arose that undercut existing systems of corporate governance").
123. See generally BETHANY MCLEAN & PETER ELKIND. THE SMARTEST GUYS IN 'THE ROOM: THE AMAZING RISE AND SCANDALOUS FALL OF ENRON (2003) (providing detailed history of Enron scandal and description of business culture that generated it). Coffee notes, among other explanations for the spate of corporate scandals, that emphasis on earnings and stock price, with executive compensation tied to success in those metrics, induced managers to engage in risky behavior.
124. Coffee, supra, at 275.
125. See Carmen Couden, The Thompson Memorandum: A Revised Solution or Just a Problem?, 30 J. CORP. L. 405, 413 (2005) ("|I]n response to the corporate fraud scandals . . . Deputy Attorney General Larry D. Thompson issued a revision of the DOJ's guidelines on corporate prosecution.");
126. Wray & Hur, supra note 23, at 1097 ("The spate of corporate scandals that began with Enron's meltdown in 2001 prompted the Bush Administration to dramatically increase the federal government's focus on rooting out corporate fraud . . . .").
127. Thompson Memo, supra note 20, § 1(B). at 1.
128. Id.
129. Id.
130. The factors are: 1. the nature and seriousness of the offense, including the risk of harm to the public, and applicable policies and priorities, if any, governing the prosecution of corporations for particular categories of crime; 2. the pervasiveness of wrongdoing within the corporation, including the complicity in, or condonation of, the wrongdoing by corporate management: 3. the corporation's history of similar conduct, including prior criminal, civil, and regulatory enforcement actions against it; 4. the corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection; 5. the existence and adequacy of the corporation's compliance program; 6. the corporation's remedial actions, including any efforts to implement an effective corporate compliance program or to improve an existing one, to replace responsible management, to discipline or terminate wrongdoers, to pay restitution, and to cooperate with the relevant government agencies; 7. collateral consequences, including disproportionate harm to shareholders, pension holders and employees not proven personally culpable and impact on the public arising from the prosecution; 8. the adequacy of the prosecution of individuals responsible for the corporation's malfeasance; 9. the adequacy of remedies such as civil or regulatory enforcement actions. Id. § II(A). at 3 (internal cross-references omitted).
131. For an analysis of each factor, see Couden. supra note 78, at 407-14.
132. U.S. DEP'T- OF JUSTICE, CRIMINAL RESOURCE MANUAL § 163 (2005) ("The Thompson Memorandum sets forth nine factors that federal prosecutors must consider in determining whether to charge a corporation or other business organization.");
133. see also United States v. Stein, 435 F. Supp. 2d 330, 338 (S.D.N.Y. 2006) (noting that, unlike Holder Memo, Thompson Memo was binding on all federal prosecutors).
134. Thompson Memo, supra note 20, § II(B). at 4.
135. Id.
136. McNulty Memo, supra note 6.
137. See supra notes 4-5 and accompanying text.
138. Specifically, the McNulty Memo states that prosecutors should not consider a corporation's advancement of legal fees as indicative of non-cooperation except in rare cases where the totality of the circumstances indicates that the corporation's actions were intended to impede a government investigation. McNulty Memo, supra note 6, § VII(B)(3), at 11-12;,
139. see also McNulty Speech, supra note 1 (emphasizing that McNulty Memo "generally prohibits] prosecutors from considering whether a corporation is advancing attorneys' fees").
140. See United States v. Stein, 435 F. Supp. 2d 330, 362-69 (S.D.N.Y. 2006) (holding that government violated Fifth and Sixth Amendments by causing company to cut off payment of legal fees to emplovees).
141. McNulty Memo,",supra note 6, S VII(B)(2), at 8-9.
142. Id. § VII(B)(2). at 9.
143. Id. § VII(B)(2), at 10.
144. Id. § VII(B)(2), at 9.
145. See infra Part IV.B.
146. David Pitofsky, the lead prosecutor in the prosecution agreement negotiations with Computer Associates, believes that a distinction needs to be drawn between prosecutions of corporations for financial fraud and prosecutions for other kinds of crimes: You have to draw a distinction between the types of violations. If it is a Foreign Corrupt Practices Act violation, or an antitrust or an environmental violation, that's different than if it is an accounting fraud violation. The market receives an accounting fraud violation as a black cloud over the entire company. Investors don't know what they are buying when they buy a share of stock of the company. With an FCPA violation, it doesn't undermine your confidence in the entire company, top to bottom. Its [sic] something that can be carved out. You can see that the company can go forward, that it has good products and strong finances and that it is worth investing in. But when you are talking about a securities fraud case, you really have to ask yourself - is this company a total sham? Interview with David Pitofsky. supra note 14. at 12.
147. (1 E.g., Ken Brown et al.. Called to Account: Indictment of Andersen in Shredding Case Puts Its Future in Question: Obstruction of Justice Count May Speed the Departure of Clients and Partners: Firm Calls It 'Death Penalty,' WALL ST. J., Mar. 15, 2002, at Al;
148. Monica Langley & Ian McDonald. Marsh Averts Criminal Case with New CEO, WALL ST. J., Oct. 26, 2004, at Al.
149. Finder & McConnell. supra note 19, at 14-15.
150. Id.
151. See infra notes 104-07 and accompanying text.
152. Deputy Attorney General James Comey has remarked that corporate criminal prosecutions should only be used in cases where the prosecutor is willing to "put down" the corporation. James Comey, U.S. Deputy Att'y Gen., Statement at Justice Dep't News Conference (Sept. 22, 2004) (LexisNexis Media Transcripts).
153. In this vein, then-New York Attorney General Eliot Spitzer backed off prosecuting Marsh & McLennan when told that the company "was in an 'Arthur Andersen situation.'" BROOKE A. MASTERS, SPOILING FOR A FIGHT: THE RISE OF ELIOT SPITZER 218 (2006).
154. Of course, this particular advantage of prosecution agreements may not be the only explanation for their increased use. Part of this increase can perhaps be attributed to the general reprioritization of corporate crime prevention following the accounting scandals of the early part of the decade. On July 9, 2002, President George W. Bush formed a Corporate Fraud Task Force, which focused the DOJ and U.S. Attorneys' Offices on the issue of corporate crime. See Exec. Order No. 13.271, 3 C.F.R. 245 (2002),
155. reprinted as amended in 28 U.S.C. §509 (Supp. IV 2004) (establishing Task Force). At the state level, attorneys general like Eliot Spitzer reinvigoraled efforts to root out fraud.
156. See generally MASTERS, supra note 100 (highlighting Eliot Spitzer's campaigns against white collar fraud). However, while the reallocation of resources aimed at detection and prosecution of corporate crime certainly explains the attention paid to corporate crime, it does not explain the increased use of one particular tool: prosecution agreements.
157. See infra notes 118-19 and accompanying text (arguing thai powers prosecution agreements offer to prosecutors incentivize their increased use).
158. Prosecutors may also want to avoid the collateral consequences of corporate prosecution - but not to the same extent as the shareholders and employees of a targeted company. Prosecutors must accept that their job may sometimes require the use of the ultimate penalty against a corporate offender, despite the collateral consequences. See Thompson Memo, supra note 20. § IX(B), at 12 ("[T]he mere existence of [collateral consequences] is not sufficient to preclude prosecution of the corporation.").
159. see White, supra note 23. at 817 ("[T]he sweep of corporate criminal liability could hardly be broader. . . . It is essentially absolute liability.");
160. supra Part II.A.
161. 1040 See Andrew Weissmann with David Newman. Rethinking Criminal Corporate Liability, 82 IND. L.J. 411, 426 (2007) (describing "devastating consequences" of criminal indictment of corporation);
162. Richard A. Epstein. Op-Ed. The Deferred Prosecution Racket, WALL. ST. J., NOV. 28, 2006, at A14 (stating that even companies that believe they have reasonable defenses at trial are "helpless to protect [themselves]," since indictment can be very damaging).
163. Greenblum, supra note 9, at 1887 & n.167. This concern is more pressing for corporations than for individuals.
164. Id. at 1887, 1895 ("The adverse publicity and collateral consequences of a conviction are tantamount to a death penalty for corporations, but not for individuals.").
165. See id. at 1886 ("The adverse publicity that accompanies a prosecution can devastate a corporation, particularly one that relies heavily on its reputation in the marketplace, because of the effect on relationships with customers, creditors, and the public at large." (citation omitted));
166. Interview with David Pitofsky. supra note 14, at 11 ("[U]pon the announcement of a criminal investigation, companies regularly lose half of their market value. If the price remains depressed, long enough, the capital markets dry up, the ability to hire quality people dries up. The company's oxygen supply is cut off.").
167. Greenblum, supra note 9, at 1887.
168. The Supreme Court overturned the Arthur Andersen conviction on May 31, 2005. Arthur Andersen LLP v. United States, 544 U.S. 696, 698 (2005) ("We hold that the jury instructions failed to convey properly the elements of a 'corrup[t] persuasion]' conviction under § 1512(b), and therefore reverse." (alteration in original) (quoting 18 U.S.C. § 1512(b) (2000 & Supp. IV 2004))). The decision proved to be too little, too late, as the indictment itself had effectively driven Arthur Andersen out of business.
169. Finder & McConnell, supra note 19, at 14-15 & n.66.
170. It is commonly assumed that the fate of Arthur Andersen - collapse following indictment - would be shared by many other companies were they to face similar indictment. See Greenblum, supra note 9, at 1888-89 ("[Arthur Andersen] suggests the potentially catastrophic result that may await at trial."):
171. Weissmann, supra note 104, at 426 (noting that indictment "risks the market imposing what is in effect a corporate death penalty");
172. Wray & Hur, supra note 23, at 1097 (noting that "indictment often amounts to a virtual death sentence for business entities"). This is believed to be true even though Andersen was a partnership and not a publicly traded corporation.
173. Id. at 1097 (noting that Andersen case "sent a clear and unmistakable message to Corporate America in general"). As the number of non-deferred prosecutions of publicly traded companies following the collapse of Andersen has been minimal, there is very little empirical support for this claim. Regardless, an evaluation of this widespread assumption is beyond the scope of this Note.
174. Weissmann, supra note 104, at 426 ("[C]orporations as a practical matter can rarely afford to take criminal cases to trial . . . .").
175. See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985) ("In our criminal justice system, the Government retains 'broad discretion' as to whom to prosecute.");
176. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) ("[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.");
177. United States v. Dotterweich, 320 U.S. 277, 285 (1943) ("[T]he good sense of prosecutors . . . must be trusted."): Stolt-Nielsen, S.A. v. United States. 442 F.3d 177, 183 (3d Cir. 2006) (noting that executive branch, through its prosecutors, "has exclusive authority and absolute discretion to decide whether to prosecute a case" (citing United States v. Nixon, 418 U.S. 683, 693 (1974))).
178. See generally James Vorenberg, Decent Restraint of Prosecutorial Power. 94 HARV. L. REV, 1521 (1981) (examining pervasive power of prosecutors in U.S. criminal justice system). The Supreme Court has identified two separate bases for why courts give prosecutors broad deference in matters of prosecution. First, because prosecution is an executive act aimed at fulfilling the President's constitutional obligation to "take Care that the Laws be faithfully executed," U.S. CONST, art. II, § 3, cl. 4, judicial deference helps fulfill separation of powers principles. United States v. Armstrong, 517 U.S. 456, 464 (1996) ("[Prosecutors help the President] discharge his constitutional responsibility to take Care that the Laws be faithfully executed. As a result. [t]he presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." (alteration in original) (internal quotation marks and citations omitted)). Second, courts' lack of competence in matters of prosecutorial discretion militate against intervention.
179. Id. at 465 ("Judicial deference to the decisions of [prosecutors] rests in part on an assessment of the relative competence of prosecutors and courts.").
180. The Supreme Court has noted the role that a jury trial plays in checking aggressive prosecutorial behavior: "The purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge." Taylor v. Louisiana. 419 U.S. 522, 530 (1975) (citing Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968)). Professor Lisa Kern Griffin notes that juries have provided a check against prosecutorial overreaching in a number of recent, high-profile white collar cases.
181. Griffin, supra note 23. at 380 & n.357. Each of her examples, however, concerns a charge against an individual, not a corporate entity. As detailed in this Note, corporations cannot typically risk indictment or trial, and thus cannot test the merits of the prosecution's case by bringing their cases before a jury.
182. See Greenblum, supra note 9, at 1885, 1895 ("The corporate offender's unique vulnerability to adverse publicity and collateral consequences. . . calls into question whether the choice to enter into deferral is really a choice at all.").
183. See supra Part I.B.
184. Andrew Weissmann & Joshua A. Block, White-Collar Defendants and White-Collar Crimes, 116 YALE L.J. POCKET PART 286, 290 n.18 (2007), http://thepocketpart.org/2007/02/21/weissmann_block.html ("White-collar prosecutions are notoriously difficult to pursue successfully because they depend on complex financial records and often arcane regulatory schemes.").
185. Professor Stuart Green notes that understanding the processes behind white collar crime often requires sophisticated knowledge of a variety of complex subjects, including, inter alia, finance, management, and accounting. Stuart P. Green, Moral Ambiguity in White Collar Criminal Law. 18 NOTRE DAME J.L. ETHICS & PUB. POL'Y 501, 508 (2004).
186. Id. at 510.
187. See Elizabeth Szockyj, Imprisoning White-Collar Criminals?, 23 S. ILI. U. L.J. 485, 487-88 (1999) ("Criminologists have long lamented the resources white-collar criminals have at their disposal: adroit legal counsel, political connections, social legitimacy, alternative enforcement paths (civil and regulatory routes), and finances that allow them to outspend prosecutors." (citations omitted));
188. Weissman & Block, supra note 114, at 290 n.18 ("[W]hite collar defendants are often represented by skilled and well-financed attorneys.").
189. See Richard S. Gruner, Three Painful Lessons: Corporate Experience with Deferred Prosecution Agreements, in CORPORATE COMPLIANCE INSTITUTE 2006, at 61, 65-67 (PLI Corp. Law & Practice. Course Handbook Series No. 891761, 2006) (noting that prosecution agreements make "the threat of corporate criminal liability more palatable than if a full fledged prosecution were the federal authorities' only choice").
190. Interview with David Pitofsky, supra note 14, at 11 ("[U]pon the announcement of a criminal investigation, companies regularly lose half of their market value. If the price remains depressed long enough, the capital markets dry up, the ability to hire quality people dries up, The company's oxygen supply is cut off.").
191. Comparing the facts surrounding criminal investigations is something like comparing apples and oranges. However, there is still observable inconsistency. F. Joseph Warin and Peter E. Jaffe offer the following comparison of two 2005 prosecutorial actions, the Monsanto Deferred Prosecution Agreement and the declination to prosecute Shell Oil: So in Shell and Monsanto we have two blue-chip, highly regarded public companies: each discovered a violation of federal law; each immediately initiated an internal investigation and promptly self-reported to federal authorities who. in each instance, had theretofore been unaware of the conduct: each cooperated fully with the investigations of both the DOJ and the SEC; and each substantially remedied its respective compliance program. Yet one corporation walked away with the disconcerting prospect of conducting 36 months of business under the shadow of a deferred criminal information and a corporate monitor, while the other was let off with a good talking to. Oh, and did we mention that Shell, the one admonished to "go forth and sin no more," admitted to a misreporting scheme that allegedly cost investors billions of dollars, while Monsanto, the one with the hammer-shaped cloud hanging over its head, admitted to a failed five-figure bribery attempt that, in the end, cost no one but itself? F. Joseph Warin & Peter E. Jaffe, The Deferred-Prosecution Jigsaw Puzzle: A Modest Proposal for Reform, ANDREWS LITIG. REP.: WHITE, COLLAR CRIME, Sept. 2005, at 1, 1 (footnote omitted).
192. See supra note 18 and accompanying text.
193. See supra notes 82-85 and accompanying text.
194. Miriam H. Baer, Insuring Corporate Crime, 83 IND. L.J. (forthcoming 2008) (manuscript at 22), available at http://lsr.nellco. org/cgi/viewcontent.cgi?article=1050&context=nyu/plltwp.
195. Id. at 1.
196. See id. (arguing that corporations will overpay to avoid collateral consequences of criminal indictment).
197. See Adam Lamparello, Implementing the "Heartland Departure" in a Post-Booker World, 32 AM. J. CRIM. L. 133,152-54 (2005) (noting that concerns with sentencing disparities motivated creation of guidelines).
198. See supra note 44 and accompanying text.
199. See supra note 45 and accompanying text.
200. The WorldCom Agreement, which featured the job-creation provision, was negotiated by the Attorney General of Oklahoma, not the DOJ. Finder & McConnell. supra note 19. at 36. The Bristol-Meyers Squibb Agreement was negotiated by the U.S. Attorney's Office in New Jersey.
201. See supra note 45.
202. Professor Coffee argues that acts of regulation are beyond the "competence or entitlement" of prosecutors. See supra note 38.
203. White, supra note 23, at 818.
204. A company's objective, as described in the KPMG case, was "to be able to say at the right time with the right audience, we're in full compliance with the Thompson Guidelines." United States v. Stein, 435 F. Supp. 2d 330, 348 (S.D.N.Y. 2006) (internal quotation marks omitted).
205. Coffee, supra note 38, at 13 ("[T]he deeper problem lies in the danger that power corrupts and that prosecutors are starting to possess something close to absolute power.").
206. See, e.g., White, supra note 23, at 817 (stating "the sweep of corporate criminal liability could hardly be broader").
207. See Buell, supra note 67, at 474, 478 (noting that enterprise liability had "a weak start nearly a century ago when common law courts . . . imported respondeat superior liability from tort law into the criminal law" and that this decision was "a wrong turn for the criminal law").
208. Weissman, supra note 104, at 412-13.
209. Id. at 414-15.
210. See supra notes 4-6 and accompanying text.
211. Browning, supra note 5 ("[T]he departing chairman of the Senate Judiciary Committee proposed legislation yesterday calling for a rollback of the tactics adopted by federal prosecutors to combat corporate wrongdoing after the Enron collapse.").
212. See, e.g., OMI DPA, supra note 25, para. 15. Since prosecution agreements are private contractual agreements, it is not clear thai judicial review could start any earlier than the occurrence of breach.
213. See Greenblum. supra note 9, at 1898-99 (noting difficulties of judicial involvement in negotiation phase).
214. See Greenblum, supra note 9, at 1864 ("Deferral is a powerful prosecutorial tool because it is negotiated and implemented exclusively by the prosecutor.").
215. See Warin & Jaffe. supra note 120, at 4 & n.25 ("[I]n those cases where the District Court does not agree with the DOJ's breach assessment, a policy of pre-indictment judicial intervention would save everyone's time and resources.").
216. Benjamin Greenblum, for example, argues that judges should be permitted to intervene during the implementation of the deferral terms, which would bring judicial involvement into the definition of breach. This intervention, argues Greenblum, would place an outer boundary on the "sole discretion" exercised by prosecutors and thus ensure that the deferral mechanism is not abused. Greenblum, supra note 9, at 1899-1903.
217. See United States v. Stein, 435 F. Supp. 2d 330, 350 (S.D.N.Y. 2006) (noting that if KPMG did not comply with demands for cooperation, "it will be open to the risk that the government will declare that KPMG breached [the deferred prosecution agreement] and prosecute the criminal information to verdict"). In the KPMG prosecution agreement, the government retained the "sole discretion" to determine whether the company had violated any of the provisions, including the requirement of cooperation.
218. KPMG DPA, supra note 18, para. 12.
219. This sort of solution was appropriate. The determination of prosecutorial priorities and the allocation of prosecutorial resources are best determined by individuals accountable to the public because issues of prosecution are typically questions of politics. Ross E. Wiener. Inter-branch Appointments After the Independent Counsel: Court Appointment of United States Attorneys, 86 MINN. L. REV. 363, 427 (2001) (noting that prosecutor's appointment is "intrinsically a political decision" and that "[s]electing a U.S. Attorney requires making political judgments about what a district's prosecutorial priorities should be and who is best suited to realize those goals"). Courts lack the tools to guide prosecutors' discretion when they are operating within the boundaries of the law. Prosecutorial discretion is virtually unfettered.
220. See supra note 110 and accompanying text.
221. McNulty Memo, supra note 6, § VII, at 2;
222. McNulty Speech, supra note 1.
223. See Martha Neil, Thompson Memo Changes Not Enough, ABA Says, A.B.A. J. EREPORT. Dec. 15, 2006, http://www.abanet.org/journal/ereport/d15specter.html (quoting ABA President Karen J. Mathis calling McNulty Memo "modest improvement" and stating that changes do not go far enough).
224. Originally enacted as the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1863).
225. Matthew R. Hall, Constitutional Regulation of National Security Investigation: Minimizing the Use of Unrelated Evidence. 41 WAKE FOREST L. REV. 61, 84 (2006) (citing 50 U.S.C § 1801(g) (2000) (amended 2006)):
226. see also 50 U.S.C.A. § 1801(g) (West Supp. 2007) (adding Assistant Attorney General for National Security to list of those who may approve FISA applications).
227. Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L. & CRIMINOLOGY 1059, 1097 (2006) ("[A] legitimate question could be raised as to whether the court merely serves as a rubber stamp function.");
228. Stephen J. Schulhofer, The New World of Foreign Intelligence Surveillance, 17 STAN. L. & POL'Y REV. 531, 535 (2006) ("[C]ivil liberties groups understandably viewed the FISA Court as little more than a rubber stamp.").
229. Schulhofer, supra note 150, at 535.
230. See generally James M. Fischer, Note, An Analysis of the Economic Espionage Act of 1996, 25 SETON HALL LEGIS. J. 239 (2001).
231. See Peter E. Calamari, Protection of Confidential Business Information, in CORPORATE RAIDING 2001, at 35, 76 (PLI Corp. Law & Practice, Course Handbook Series No. B0-00VS, 2001 ) ("[P]rosecutions are likely to be few and far between in the short term. The Attorney General has stated that, until October 2001, any prosecution under the Espionage Act will require the personal approval of the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for the Criminal Division.");
232. Peter Harvey, IP Maintenance: Protecting Intellectual Property Assets Through Registration. Proper Use and Contractual Provisions, in PROTECTING YOUR INTELLECTUAL PROPERTY ASSETS 2002, at 33, 77 (PLI Patents, Copyrights, Trademarks, & Literary Property, Course Handbook Series No. G0-0120, 2002) ("Because the Justice Department has required the personal approval of the Attorney General, the Deputy Attorney General or the Assistant Attorney General for the Criminal Division before filing a charge under the [Economic Espionage Act of 1996], only a relatively modest number of prosecutions under the Act have taken place.").
233. Office of the Deputy Attorney General, United States Department of Justice, http://www.usdoj.gov/dag/index.html (last visited June 16, 2007).
234. See supra notes 18, 120.
235. See supra notes 127-31 and accompanying text.
236. See supra notes 127-33 and accompanying text.
237. The former U.S. Attorney for the Southern District of New York, David Kelley, would have prosecuted KPMG criminally if not for the intervention of Deputy Attorney General James Comey, who insisted on a deferred prosecution agreement. Corporate Crime Reporter, Crime Without Conviction: The Rise of Deferred and Non-Prosecution Agreements, http://www.corporatecrimereporter.com/ deferredreport.htm (last visited August 16, 2007).