http://www.fcpaprofessor.com/point-counterpoint-with-billy-jacobson A Forum Devoted to the Foreign Corrupt Practices Act Wed, 01 May 2013 10:47:49 +0000 hourly 1 http://wordpress.org/?v=3.4.2 http://www.fcpaprofessor.com/point-counterpoint-with-billy-jacobson#comment-89 Anonymous Tue, 18 May 2010 13:16:10 +0000 http://fcpaprofessor.com/point-counterpoint-with-billy-jacobson#comment-89 I love that last sentence by Mr. Jacobson, "Prosecutorial discretion is a wonderful feature of our judicial system which often leads to imperfect solutions, but, on balance, usually – though certainly not all the time -- works out just about right." It fits so nicely with both his and Mendelsohn's recent transformation to defense counsel where they will charge their clients enormous sums to influence that prosecutorial discretion. A wonderful feature indeed! I love that last sentence by Mr. Jacobson, "Prosecutorial discretion is a wonderful feature of our judicial system which often leads to imperfect solutions, but, on balance, usually – though certainly not all the time — works out just about right." It fits so nicely with both his and Mendelsohn's recent transformation to defense counsel where they will charge their clients enormous sums to influence that prosecutorial discretion. A wonderful feature indeed!

]]> http://www.fcpaprofessor.com/point-counterpoint-with-billy-jacobson#comment-55 Roland Behm Mon, 05 Apr 2010 23:21:59 +0000 http://fcpaprofessor.com/point-counterpoint-with-billy-jacobson#comment-55 The argument against imposing the death penalty on companies (e.g., debarment due to FCPA violations) seems to incorporate more than a bit of the "too big to fail" argument advanced with respect to certain financial institutions over the past two years. One might argue, however, that although there will be disruption and inconvenience, eliminating a company from participating in its chosen market (e.g., defense) due to numerous and material breaches of the FCPA or analogous legislation does not mean that the company assets will wither and die. Instead, as in the bankruptcy context, the assets can be redeployed by others who have not engaged in criminal behavior. For example, Verizon's acquisition of WorldCom assets (and the transfer of employees) after the discovery of far-reaching fraud and other criminal behavior shows that while companies may die, businesses can continue. In the defense context, one might consider imposing a criminal sentence on the company that prevents that company from engaging in any further business, while at the same time putting some or all of the business assets in a trust for the benefit of the shareholders - who can choose to re-incorporate or sell the business to a third party. Otherwise, one might wonder whether there are two brands of justice - one for those who are large and/or operate in critical areas and another for small or mid-size companies who - though perhaps less culpable - are not as "important." The argument against imposing the death penalty on companies (e.g., debarment due to FCPA violations) seems to incorporate more than a bit of the "too big to fail" argument advanced with respect to certain financial institutions over the past two years. One might argue, however, that although there will be disruption and inconvenience, eliminating a company from participating in its chosen market (e.g., defense) due to numerous and material breaches of the FCPA or analogous legislation does not mean that the company assets will wither and die. Instead, as in the bankruptcy context, the assets can be redeployed by others who have not engaged in criminal behavior. For example, Verizon's acquisition of WorldCom assets (and the transfer of employees) after the discovery of far-reaching fraud and other criminal behavior shows that while companies may die, businesses can continue. In the defense context, one might consider imposing a criminal sentence on the company that prevents that company from engaging in any further business, while at the same time putting some or all of the business assets in a trust for the benefit of the shareholders – who can choose to re-incorporate or sell the business to a third party. Otherwise, one might wonder whether there are two brands of justice – one for those who are large and/or operate in critical areas and another for small or mid-size companies who – though perhaps less culpable – are not as "important."

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