Will the Obama administration shy away from indicting lawbreaking companies?
But that didn't address all the criticism of the use of deferrals. Business watchdogs like the Washington-based Corporate Crime Reporter have warned that treating companies as "too big to indict" makes them less respectful of the law. Corporate white-collar attorneys like Spivack argue, on the other hand, that it's sometimes the other way around—the threat of prosecution can result in fines and conditions beyond what a court would ever impose on a company if it were convicted. "Companies will go to great lengths to avoid the symbolic process of prosecution," says John Coffee, a securities-and-white-collar criminal-law professor at Columbia University.
With no judge to referee, prosecutorial whim can play a large role in the terms of a deferral. Companies have agreed to all kinds of novel conditions to get a deferral in recent years, such as creating 1,600 jobs in Oklahoma or installing slot machines at New York racetracks. Sometimes, the terms of deferred prosecutions seem to be heavily influenced by the personal inclinations of prosecutors themselves. Former U.S. Attorney Chris Christie, now running for governor of New Jersey, has been among the more creative: He required Bristol Myers Squibb to endow a $1 million chair of legal ethics at his own alma mater, Seaton Hall Law School. And in 2007, he awarded a no-bid, $27 million-plus monitoring contract to retired Attorney General John Ashcroft—his former boss.
The size of that contract, along with an accompanying whiff of cronyism, led to another DoJ memo reining in the use of monitors, a congressional inquiry, and an ongoing Government Accountability Office review. According to Kristy Brown, a GAO assistant director, one of the questions the agency hopes to answer is whether such arrangements have been the result of "two-sided negotiation" or simply rammed down companies' throats. The GAO should release its findings sometime this summer, which would provide an opportune time for the Obama Justice Department to put its own stamp on the process if it wished.
But no one is anticipating that the spirit of change will result in a repudiation of deferred prosecutions. For starters, the president's choice to lead the Justice Department is partly responsible for the agreements' entrenchment. In 1999, then-Deputy Attorney General Eric Holder issued a memo to U.S. attorneys suggesting that a company's cooperation and the well-being of its employees and shareholders were legitimate factors to consider when deciding whether to press charges. While it didn't make waves at the time, it provided a legal foundation for the Thompson memo and the subsequent boom in deferred prosecutions.
Even if the Obama Justice Department were inclined to end that boom, Coffee points out, the parlous state of the economy would prevent prosecutors from seeking convictions against companies snared by the financial crisis. No U.S. attorney wants to be remembered as the prosecutor who pushed an already ailing company off a cliff.
In other words, the weaker a misbehaving company is, the better its lawyers' bargaining position. It's never been possible to put a corporation in jail. For the time being, even branding one a felon may be practically off-limits.
Jeff Horwitz is an editor for American Banker.