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Deterring Corporate Crime Program on Corporate Compliance and Enforcement NYU School of Law 40 Washington Square South New York, NY 10012 Deterring Corporate Crime: Effective Principles for Corporate Enforcement April 4-5, 2014 New York University School of Law Lester Pollack Colloquium Room 245 Sullivan Street, 9th Floor Sponsored by the NYU Program on Corporate Compliance and Enforcement and the American Law Institute II III Program on Corporate Compliance and Enforcement The NYU Program on Corporate Compliance and Enforcement promotes research on the effective enforcement of legal rules governing corporate crime and on methods and strategies for enhancing compliance with applicable standards. The program hosts annual conferences and other programs designed to improve our understanding of existing practices and facilitate effective enforcement policy and compliance. The program’s directors are Professors Jennifer Arlen and Geoffrey Miller. IV 1 Deterring Corporate Crime: Conference Program Effective Principles for Corporate Enforcement Sponsored by the NYU Program on Corporate Compliance and Enforcement Deterring Corporate Crime: and the American Law Institute deterrence. Issues to be considered include the appro- Effective Principles for Conference Goal priate scope and content of corporate criminal liability To be effective, corporate criminal and civil enforcement (including oversight liability imposed on parent firms), must deter wrongdoing by corporations and the employees appropriate mandates to impose through pretrial diversion Corporate Enforcement operating within them. To do this, criminal and civil liability agreements, the appropriate scope of individual liability ideally should ensure that crime does not pay: individual (including the use of oversight liability and debarment to Sponsored by the NYU Program on Corporate Compliance and Enforcement and corporate sanctions should ensure that neither firms reach senior officers), liability for securities fraud, FCPA and the American Law Institute nor individual wrongdoers expect to benefit from corporate liability (focusing on the application to overseas defen- crime and securities fraud. In the case of publicly-held firms, dants and parent firms), and principles to govern govern- Lester Pollack Colloquium Room, 245 Sullivan Street, 9th Floor corporate liability also should encourage firms to help deter ment interaction with private investigations (either internal Chatham House Rules Participants are free to use the information received, wrongs and sanction wrongdoers. Accordingly, corporate investigations of firms or external by qui tam relators). but neither the identity nor the affiliation of the speaker(s) may be revealed. liability should be structured to encourage effective corporate compliance, reporting, cooperation, and whistleblowing. This requires a sophisticated blend of criminal and civil Conference Structure: Invitation only; Friday, April 4, 2014 liability aimed at corporations and individuals that punishes Chatham House Rules wrongdoing while rewarding good behavior. It also may This is a one-and-a-half-day, invitation-only conference require a complex blend of sanctions, including structural involving academics, enforcement officials, defense lawyers, 8:20-8:45 Breakfast and Registration reforms that operate as a form of firm-specific regulation. and in-house lawyers. Each session will involve a panel Lester Pollack Colloquium Room The Department of Justice, individual US Attorney Offices, of experts that will discuss specific proposals and issues and the Securities and Exchange Commission each have guided by a moderator who will encourage the panelists to 8:45-9:00 Opening Remarks developed policies designed in part to achieve these aims, determine central points of convergence and disagreement, as well as others. These policies have evolved across time with a view towards identifying the factors that should be and also differ across offices. most important in making particular enforcement decisions. 9:00-9:30 Corporate and Individual Criminal Liability: The goal of the conference is to bring together academ- The panelists will present their views, which will be followed Theory and Evidence ics, enforcement officials, and defense lawyers to discuss by a discussion with audience members, who are encour- Empirical Analysis of Corporate Criminal Enforcement criminal and SEC enforcement policy for individuals and aged to be active participants, both in asking questions and Brandon Garrett, Roy L. and Rosamond Woodruff Morgan firms. The goal is to consider how enforcement policy can suggesting solutions. Professor of Law, University of Virginia School of Law best be structured to achieve its goal, focusing on general Structuring Corporate and Individual Liability to Deter Corporate Crime Jennifer Arlen, Norma Z. Paige Professor of Law, NYU School of Law 2 3 9:30-10:50 Corporate Enforcement: Deciding Whether 11:05-12:30 Non-Monetary Corporate Sanctions: to Prosecute or Use Pretrial Diversion Appropriate Use and Content of Structural What factors should determine whether a firm is indicted/ Reforms and Monitorships convicted or gets a pretrial diversion agreement (DPA or This panel will discuss (1) what goals and specific factors NPA)? The US Attorneys’ Manual lists many relevant criteria. should determine the decision of whether to impose a Do these criteria promote general deterrence by encouraging structural reform, such as a compliance program or moni- self-reporting and cooperation? Should DPAs ever be granted tor, (2) what considerations should govern the nature of the to firms that detected wrongdoing and failed to report it? compliance program imposed (including whether it should Should full cooperation be a necessary condition for a DPA conform to the Sentencing Guidelines), (3) what types of or NPA? What should that entail? Should the SEC and DOJ structural reforms should not be used, (4) when external provide more oversight of or guidance on the decision to pur- oversight (such as a monitorship) is warranted, and (5) what sue a formal enforcement action? What role should collateral enforcement officials can do to ensure that the compliance consequences or the fear of the Arthur Andersen effect play? programs imposed are effective. 9:30-10:20 Panel Discussion 11:05-12:00 Panel Discussion Moderator: Reinier Kraakman, Ezra Ripley Thayer Moderator: Jennifer Arlen, Norma Z. Paige Professor of Law, Professor of Law, Harvard Law School NYU School of Law Jeffrey Knox, Chief, Fraud Section, Criminal Division, Denis McInerney, former Deputy Assistant Attorney Department of Justice General, Criminal Division, Department of Justice Judge John Gleeson, US District Judge, Bonnie Jonas, Deputy Chief of the Criminal Division Eastern District of New York and Assistant US Attorney, US Attorney’s Office John D. Buretta, Partner, Cravath, Swaine & Moore; for the Southern District of New York former Deputy Assistant Attorney General, Criminal Division, Department of Justice Judge Jed S. Rakoff, US District Judge, Mark Califano, Senior Vice President and Managing Counsel, Southern District of New York Litigation, American Express John F. Savarese, Partner, Litigation, Cindy Alexander, former Economist, Department of Justice Wachtell, Lipton, Rosen & Katz 12:00-12:30 Questions and Discussion Eric Grossman, Chief Legal Officer, Morgan Stanley 10:20-10:50 Questions and Discussion 12:30-2:15 Lunch Lipton Hall 10:50-11:05 Coffee Break Keynote Speaker: Preet Bharara US Attorney, Southern District of New York Lester Pollack Colloquium Room 4 5 collateral consequences and civil liability affect the enforce- 2:20-3:45 Individual Liability: Appropriate Form, ment decision? What approach should be used when senior Scope, and Reach officers are responsible for the wrong but cannot be charged? How do prosecutors and enforcement officials approach (2) Financial institutions: What is the appropriate reach of individual liability, and how should they approach it? When liability for oversight failures? should prosecutors proceed against individuals? Which ones? What sanctions are appropriate? To what extent and when 4:00-4:15 Security Fraud Enforcement should prosecutors and civil enforcement authorities sanc- Michael Klausner, Caryl Louise Boies Visiting Professor of tion senior executives for oversight failures? To what extent Law, NYU School of Law; Nancy and Charles Munger Profes- should enforcement authorities make greater (or lesser) use sor of Business and Professor of Law, Stanford Law School of debarment and clawbacks on the one hand, and consent decrees on the other? 4:15-5:10 Panel Discussion Moderator: Michael Klausner 2:20-3:15 Panel Discussion George Canellos, Global Head, Litigation Department, Moderator: Daniel Richman, Paul J. Kellner Professor of Law, Milbank, Tweed, Hadley & McCloy; former Director, Division Columbia Law School of Enforcement, Securities and Exchange Commission Mythili Raman, former Acting Assistant Attorney General, Daniel Alter, General Counsel, New York State Department Criminal Division, Department of Justice of Financial Services Andrew Ceresney, Director, Division of Enforcement, Judge Raymond Lohier, US Court of Appeals for the Securities and Exchange Commission Second Circuit Judge Gerard E. Lynch, US Court of Appeals for the Robert Khuzami, Partner, Kirkland & Ellis; former Second Circuit Director, Division of Enforcement, Securities and Scott Muller, Partner, Davis Polk & Wardwell Exchange Commission Samuel Buell, Professor of Law, Duke University School
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