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The New Corporate Sentencing Guidelines (Ethikos) The New Corporate Sentencing Guidelines (Ethikos) July/August 2004 - By Jeffrey M. Kaplan. The New Corporate Sentencing GuidelinesSince they went into effect in 1991, ethikos has closely followed the story of the ‘Corporate’ Sentencing Guidelines, including the imposition of huge criminal fines (in Daiwa Bank, Hoffman-LaRoche and other cases); the adoption of carrot-and-stick compliance program initiatives by other government bodies (such as the Department of Justice, the Department of Health and Human Services, the Securities and Exchange Commission, and the Environmental Protection Agency); the expansion of corporate directors’ fiduciary duties (in the Caremark case) to, in effect, include a requirement of compliance oversight; and, above all, the dramatic and unprecedented growth of self policing throughout the business world. Yet, for the last thirteen years, the portion of the Guidelines that triggered this Big Bang in compliance program activity itself remained unaltered. Now, the Corporate Sentencing Guidelines are once again in the vanguard of compliance law and practice. As most ethikos readers are doubtless aware, on May 1 of this year the United States Sentencing Commission recommended sweeping changes to the Guidelines that—absent the highly unlikely event of rejection by Congress—will become effective on November 1. Because these changes largely track the recommendations of a report issued in October of last year by an Advisory Group to the Sentencing Commission that were reviewed in detail by Win Swenson in "Proposed Amendments to the Sentencing Guidelines: Changes in the Wind" in the November/December 2003 issue of ethikos, the present article will not examine every recommendation sent to Congress on May 1. Rather, it will attempt to place this latest development in a larger legal framework and also consider what for many companies may be some of the more challenging aspects of the new Guidelines. The compliance law landscapeIn 1991 the Guidelines appeared on what was virtually a clean legal slate, meaning that there were then almost no other compliance-related laws, which was partly why they proved so influential. Full Article: http://www.singerpubs.com/ethikos/html/guidelines2004.html |
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