Law Outlines White Collar Crime Outlines
This is the outline I used for my White Collar Crime class. The outline covers things like wire and mail fraud, RICO, bank fraud, tax crimes, and the like.
Visit http://shonhopwood.com/ to learn about the author's incredible journey to law school....
The following is a more accessible plain text extract of the PDF sample above, taken from our White Collar Crime Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
USSG § 2B1.1
Determine Relevant Conduct: by a preponderance
Determine Offense Level (Chapter 2)
Make any Chapter 3 adjustments: Role; obstruction; acceptance
Determine criminal history: Chapter 4
Determine Sentence: Chapter 5
28% tax rate: individual
34% tax rate: corporation
Why Impose Criminal Sanctions?
Deterrence, incapacity, rehabilitation, protect rights of innocent, retributivist
Defining Criminal Conduct:
1) intentional or purposeful conduct; 2) that is morally wrong; 3) that causes harm; 4) for which the person deserves punishment
Why should government prosecute corps?
Pros: Collateral estoppel; stigma; coordinated effort to go after corp and responsible individuals; deep pockets
Cons: 1) challenge deterrent effect of sanctions cause corps don’t commit crimes, people do; 2) retributive function because corporate criminal sanctions punish innocent shareholders; 3) contest efficiency of organizational liability arguing that economic analysis shows that civil liability deters better than criminal
DOJ Guidance on Prosecution of Corps (Pg 12-16)
Corporations “should not be treated leniently because of their artificial nature nor should they be subject to harsher treatment.”
The nature and seriousness of the offense
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
The corporation's timely and voluntary disclosure of wrongdoing and its willingness to cooperate in the investigation of its agents
The existence and effectiveness of the corporation's pre-existing compliance program
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
collateral consequences, including whether there is disproportionate harm to shareholders, pension holders, employees, and others
the adequacy of the prosecution of individuals responsible for the corporation's malfeasance; and
the adequacy of remedies such as civil or regulatory enforcement actions
Antitrust Division almost always goes after corporations rather than individuals
Tax Division has a strong preference for prosecuting responsible individuals, rather than entities, for corp tax offenses
Corporate Criminal Liability
Corps have the capacity to commit criminal acts.
Intent: The Act is done for benefit of the principal while the agent is acting within scope of employment
New York Central & Hudson River RR – RR and two employees were each held liable for bribing sugar refiners, an anti-competitive practice in violation of the Elkins Act. RR held liable b/c the crime was committed for the sake of the RR’s economic gain, the bribes were paid for with the RR’s funds, and the RR benefited by gaining a temporary competitive edge. S. Ct. Justice Day asked rhetorically, how else are we supposed to correct these kinds of abuses if not through criminal sanctions?
Anything done by a corp subject to act, which done by any
Note that there are pros & cons of imposing criminal liability on corps: potential to change the corp’s culture and set new industry-wide standards (pros); potential unfairness to shareholders, innocent employees, and consumers (cons).
C.R. Bard, Inc.– A corp was held liable for its violations of FDA regulations, which led to serious injuries and deaths. Misconduct pervasive and motivated by greed; the executives approved it. Ct. held that the plea agreement at issue was reasonable b/c it had certain features: it allowed for criminal prosecution of individual employees; it imposed fines; and it imposed a compliance program involving more intense FDA oversight.
Usual way of meeting an actus reus requirement: the respondeat superior doctrine: A corp can be held liable under this theory if (1) a corp agent (even the most menial employee) acted (2) within the scope of his or her employment authority (i.e., the acts were directly related to the performance of the type of duties the employee had a general duty to perform, actually or apparently) and (3) on behalf of the corp (4) w/ the intent to benefit the corp. This is defn. of the federal rule, and it’s the rule most prevalent in state courts.
Beneficial Finance Co.– A group of small loan companies bribed public officials so that they could keep interest rates high (which benefited them). If an employee was a position such that he or she had enough power, duty, responsibility, and authority to act for and on behalf of the corp, then the employee’s acts which were committed within that scope may be imputed to the corp. Title/position does not conclusively determine authority.
Lessoff & Berger– A law partnership was held liable for fraud, even though only one of the partners was involved in the commission of the crime. “Harsh, but rational.” Harsh: Other partners who were clueless about the misconduct suffered. Rational: The other partners also stood to gain from the fraud, and they should have had incentives to do a better job of policing.
Hilton Hotels – Corp held liable for the acts of its rogue employee, even though corp had explicit policy that it wouldn’t engage in illegal boycotts and the employee acknowledged receiving specific instructions to the same effect. The employee just went off the deep end b/c of “anger and personal pique.” If a corp entrusts an employee with enough responsibility so that it’s possible for the employee to get into significant trouble with the law while acting within the scope of his employment, then the corp should take the precaution of policing the employee to the extent that that risk exists. Note that mgmt’s diligence is no defense: If the agent acts willfully, then we can impute the agent’s act to the principal.
Alternative way of meeting an actus reus requirement: proving that there was a corporate policy. If...
Buy the full version of these notes or essay plans and more in our White Collar Crime Outlines.
This is the outline I used for my White Collar Crime class. The outline covers things like wire and mail fraud, RICO, bank fraud, tax crimes, and the like.
Visit http://shonhopwood.com/ to learn about the author's incredible journey to law school....
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