Globalized Corporate Prosecutions

Brandon L. Garrett

University of Virginia School of Law

October 11, 2011

Virginia Law Review, Vol. 97, No. 8, December 2011

In the past, domestic prosecutions of foreign corporations were not noteworthy. Federal prosecutors now advertise a muscular approach targeting major foreign firms and even entire industries. High-profile prosecutions of foreign firms have shaken the international business community. Not only is the approach federal prosecutors have taken novel, but corporate criminal liability is itself a form of American Exceptionalism, and few other countries hold corporations broadly criminally accountable. To study U.S. prosecutions of foreign firms, I assembled a database of publicly reported corporate guilty plea agreements from the past decade. I analyzed U.S. Sentencing Commission data archives on federal corporate prosecutions and also data concerning federal deferred and non-prosecution agreements with corporations. Not only are large foreign firms prosecuted with some frequency, but they typically plead guilty, are convicted, and then receive far higher fines than otherwise comparable domestic firms. In this Article, I develop how foreign corporate convictions have become common in distinct substantive criminal areas, and how they share important features. The prosecutions are concentrated in crimes prosecuted by Main Justice, and international treaties and cooperation agreements have facilitated extraterritorial prosecutions. Larger and public foreign firms are prosecuted, and the typical resolution involves not only higher fines, but also a guilty plea and not pre-indictment leniency. I argue that due to their new prominence, we should consider foreign corporation prosecutions as a group so that we can better evaluate and define the emerging prosecution approach.

Number of Pages in PDF File: 102

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Date posted: June 23, 2011 ; Last revised: January 16, 2012

Suggested Citation

Garrett, Brandon L., Globalized Corporate Prosecutions (October 11, 2011). Virginia Law Review, Vol. 97, No. 8, December 2011. Available at SSRN: https://ssrn.com/abstract=1871033

Contact Information

Brandon L. Garrett (Contact Author)
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

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