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- Donahue Lecture Series
Corporate crime has plagued the American economy during the past two decades, causing staggering unemployment and destroying investor confidence in the stock market. Typically involving complex financial schemes and sophisticated cover-ups, corporate crime is incredibly difficult to detect and prevent. Corporate culture often embraces the criminal activity, so employees are less likely to report or refrain from wrongdoing. Within the corporate setting, minor accounting or tax violations can quickly snowball into complex fraudulent schemes. Most corporate crime entails methodical deceit and concealment by intelligent high-level executives who are familiar with and can anticipate and evade government regulation. In addition, corporations hire experienced lawyers who conduct internal investigations to defend the corporation and utilize principles such as the attorney-client privilege and work-product protection to make the government’s investigation more difficult.
On July 9, 2002, in response to the ever-growing problem of corporate crime, President Bush established the Corporate Fraud Task Force to strengthen prosecution of corporate crime by the Department of Justice (DOJ). Additionally, Congress enacted the Sarbanes-Oxley Act in 2002 to expand the Securities and Exchange Commission’s ability to regulate corporate activity and increase compliance requirements for corporate accounting practices. In 2003, Deputy Attorney General Larry D. Thompson issued a memorandum establishing new federal guidelines for the prosecution of business organizations. While the legal community generally accepted SarbanesOxley, many criticized the Thompson Memorandum for being unfairly prejudicial to corporations and individual defendants. . .
Part II.A of this Note will discuss the Fifth and Sixth Amendments, indemnification agreements, and the attorney-client privilege in the context of corporate crime. Part II.B of this Note will then consider the role of the federal prosecutor in corporate criminal investigations. Part II.C of this Note will discuss the purpose of deferred prosecution agreements and explore the effects deferred prosecution has on corporations and employees. Part II.D of this Note will examine how the federal prosecutorial guidelines of business organizations have transformed prosecutorial discretion. Finally, in Part III, this Note will analyze the limitations of the Filip Memorandum and promote the Attorney-Client Privilege Protection Act and the Accountability in Deferred Prosecution Act. . .
In response to increasing acts of piracy on commercial airlines, Congress enacted the Federal Aviation Act (FAA), which established regulations to improve and maintain safety standards in commercial aviation. Although the FAA includes an anti-discrimination provision, section 44902(b) of the Act grants air carriers broad discretion to refuse transportation to any passenger a “carrier decides is, or might be inimical to safety.” In Cerqueira v. American Airlines, Inc., the Court of Appeals for the First Circuit, in a case of first impression, considered the proper standard for a passenger’s discrimination claim against an air carrier that relies on the protection under section 44902(b) to refuse passengers transportation. The First Circuit held that the plaintiff passenger must show the air carrier’s decision to refuse transportation and rebooking is arbitrary or capricious based on the information known to the decision-maker at the time of the refusal. . . .