The DOJ Principles of Prosecution seek to promote “critical public interests,” including: “(1) protecting the integrity of our economic and capital markets by enforcing the rule of law; (2) protecting consumers, investors, and business entities against competitors who gain unfair advantage by violating the law; (3) preventing violations of environmental laws; and (4) discouraging business practices that would permit or promote unlawful conduct at the expense of the public interest.”1 The DOJ instructs prosecutors to focus on wrongdoing by individuals “from the very beginning of any investigation of corporate misconduct.”2
Prosecutors are instructed to consider the following factors when deciding how to conduct an investigation, whether to bring charges, and negotiating plea or other agreements with a corporate target:
- 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;
- the pervasiveness of wrongdoing within the corporation, including the complicity in, or the condoning of, the wrongdoing by corporate management;
- the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory enforcement actions against it;
- the corporation’s willingness to cooperate in the investigation of its agents;
- the existence and effectiveness of the corporation’s pre-existing compliance program;
- the corporation’s timely and voluntary disclosure of wrongdoing;
- 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;
- collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others not proven personally culpable, as well as impact on the public arising from the prosecution;
- the adequacy of remedies such as civil or regulatory enforcement actions; and
- the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance.3
1 DOJ, Justice Manual 9-28.010.
3 Id. 9-28.300.