crime arena. Private parties may bring civil actions for tortious conduct or
126
Id. § 9-2.031(A). In addition to the above conditions, approval to move forward with a federal prosecution requires approval by the appropriate Assistant Attorney General. Id. The policy is commonly referred to as the “Petite Policy,” due to the Supreme Court’s reference to the policy in Petite v. United States, 361 U.S. 529 (1960). Id. Although there is generally no statutory bar to prosecuting an individual in both federal and state court for the same acts or transaction, Congress has expressly prohibited by statute dual prosecutions where there is a “state judgment of conviction or acquittal on the merits” for a narrow set of offenses. Id. (citing 18 U.S.C. §§ 659, 660, 1992, 2101, 2117 (2006); 15 U.S.C. §§ 80a-36, 1282 (2006)).
127
See U.S. DEP’T OF JUSTICE, 2007–2012 STRATEGIC PLAN 13–14, available at http://www.justice.gov/archive/mps/strategic2007-2012/goals_and_objectives.pdf (identifying three key goals and objectives: “Prevent Terrorism and Promote the Nation’s security . . . Prevent Crime, Enforce Federal Laws, and Represent the Rights and Interests of the American People . . . [and] Ensure the Fair and Efficient Administration of Justice”).
128
Id. at 14.
129
See supra Part I (stating that the financial crisis caused multiple bank failures, mortgage company bankruptcies, and real estate foreclosures); see also FCICREPORT,supra note 2, at389–401 (stating that the financial crisis led to a fall in gross domestic product (“GDP”), employment, household net worth, real estate values, and local government tax revenues). In Part V of the FCIC Report, The Aftershocks, the subtitles of the contents sum up the extensive impact of the financial crisis, especially the losers and winners: Household: “I’m not eating. I’m not sleeping”; Businesses: “Squirrels storing nuts”; Commercial real estate: “Nothing’s moving”; Government: “States struggled to close shortfalls”; The financial sector: “Almost triple [securities industry profits over] the level of three years earlier.” Id. at 389.
894 CONNECTICUT LAW REVIEW [Vol. 45:865
other civil violations of law, or they may bring qui tam actions on behalf of
the government under the False Claims Act when the defendants have
defrauded the government.
130Many white-collar criminal federal statutes
provide for or have civil counterparts.
131Consequently, government agents
may choose to file civil suits rather than criminal charges.
132Many
administrative agencies have authority to press administrative proceedings
to address individual or corporate misconduct and parallel criminal
prosecutions are often possible;
133however, a skilled defense attorney may
be able to avoid such risks through a global settlement that resolves the
risk of criminal charges by using tools such as deferred prosecution or non-
prosecution agreements.
134Civil asset forfeitures, state license revocation
130
False Claims Act, 31 U.S.C. §§ 3729–30 (2006).
131
See, e.g., Sherman Act, 15 U.S.C. § 1 (2006) (stating that any person who is found guilty for violating antitrust laws can be punished by fine or by imprisonment); Racketeer Influenced and Corrupt Organization Act (RICO), 18 U.S.C. §§ 1963, 1964 (2006) (providing that criminal and civil penalties can be imposed on any person found guilty of racketeering); Clean Water Act, 33 U.S.C. § 1319 (2006) (imposing civil and criminal penalties for violations of the Clean Water Act); Clean Air Act, 42 U.S.C. § 7413 (2006) (allowing the EPA to commence civil and criminal actions if a state is not acting in compliance with the Clean Air Act); see also United States v. Stringer, 535 F.3d 929, 936–37 (9th Cir. 2008) (discussing overlapping civil and criminal parallel investigations for violations of securities laws).
132
See J.KELLY STRADER,UNDERSTANDING WHITE COLLAR CRIME 5–7, 365–66 (2d ed. 2006) (“[V]iolations of white collar criminal statutes may lead to civil and/or administrative remedies in addition to or instead of criminal penalties.”).
133
JEROLD H.ISRAEL ET AL.,WHITE COLLAR CRIME:LAW AND PRACTICE 670 (3d ed. 2009); see, e.g., U.S.ATTORNEYS’MANUAL,supra note 13, § 9-27.250(B) (describing alternatives to criminal prosecution carried out by administrative agencies, such as “civil tax proceedings; civil actions under the securities, customs, antitrust, or other regulatory laws; and reference of complaints to licensing authorities or to professional organizations such as bar associations”).
134
See Gretchen Morgenson & Louise Story, Behind the Gentler Approach to Banks by U.S., N.Y.TIMES, July 8, 2011, at A1 (observing that the federal prosecutors are moving away from criminal prosecutions in white-collar cases to lesser alternatives, such as deferred prosecutions or civil litigation). The deferred prosecution agreement (“DPA”) permits a corporation to resolve a criminal investigation by agreeing to similar terms that might be included in a corporate criminal sentence, including terms such as restitution, fines, additional auditing measures, termination of responsible individuals, and probation. U.S.ATTORNEYS’MANUAL,supra note 13, § 9-22.010; see Ryan D. McConnell et al., Plan Now or Pay Later: The Role of Compliance in Criminal Cases, 33 HOUS.J. INT’L L.509, 557–62 (2011) (discussing the prevalence of deferred prosecution agreements and non- prosecution agreements (“NPA”) since 2002 and providing a table listing the numerous corporations that have obtained a DPA or NPA since 2005); Steven R. Peikin, Outside Counsel; Deferred Prosecution Agreements: Standard for Corporate Probes, N.Y. L.J., Jan. 31, 2005, at 28 (stating that deferred prosecution agreements “have become a standard means of resolving major corporate investigations”); F. Joseph Warin & Jason C. Schwartz, Deferred Prosecution: The Need for Specialized Guidelines for Corporate Defendants, 23 J.CORP. L. 121, 124 (1997) (“The cases involving Salomon Brothers, Sequa Corporation, Prudential Securities, and Coopers & Lybrand provide useful examples of alternative dispositions of cases involving corporate defendants.”). The DPAs offer corporations the opportunity to avoid the collateral consequences of a criminal conviction, while offering the prosecution the opportunity to set fines and collect restitution outside the limits of the judicial process, and the opportunity to gain the corporation’s cooperation. Mary Kreiner Ramirez, The Science Fiction of Corporate Criminal Liability: Containing the Machine Through the Corporate
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