2007 Issue 1 - New York City Bar Association

L A W Y E R ’ S R O L E I N C O R P O R A T E G O V E R N A N C E
APPENDIX H
Government and Exchange Guidelines on
Corporate Cooperation and Internal Investigation
A. DEPARTMENT OF JUSTICE AND U.S.
SENTENCING GUIDELINES FOR ORGANIZATIONS
1. Thompson Memo
In 2003, then Deputy Attorney General Larry Thompson issued a memorandum,
entitled “Principles of Federal Prosecution of Business Organizations,”
that revised 1 the guidelines prosecutors are to follow in considering
charges against corporations. 2 Now referred to as the Thompson Memo,
this document clarified that prosecutors should always consider the company
itself as a potential defendant, and it underscored that a company’s
cooperation is a key factor that the government will consider in its charging
decisions. The Memo also explained that “[t]he main focus of the
revisions is increased emphasis on and scrutiny of the authenticity of a
corporation’s cooperation.” 3 In addition to these two goals, the revisions
to the policy “address the efficacy of the corporate governance mechanisms
in place within a corporation, to ensure that these measures are
truly effective rather than mere paper programs.” 4
The Memo indicated that, in addition to the considerations applicable
to individuals, 5 federal prosecutors should weigh nine factors in
deciding whether to investigate, charge, or negotiate a plea with a com-
1. On June 16, 1999, Deputy Attorney General Eric E. Holder, Jr. authored the predecessor
memo, entitled “Federal Prosecution of Corporations.” Memorandum from Eric E. Holder,
Jr., Deputy Att’y Gen., to All Component Heads & U.S. Atty’s (June 16, 1999).
2. Memorandum from Larry Thompson, Deputy Att’y Gen., to Heads of Dep’t Components
& U.S. Atty’s (Jan. 20, 2003) (“Thompson Memo”), available at http://www.usdoj.gov/dag/
cftf/ business_organizations.pdf.
3. Id.
4. Id.
5. The Thompson Memo noted the following factors “normally considered in the sound
exercise of prosecutorial judgment”: “the sufficiency of the evidence; the likelihood of success
at trial; the probable deterrent, rehabilitative, and other consequences of conviction; and the
adequacy of noncriminal approaches.” Id. at II.A.
2 0 0 7 V O L. 6 2 , N O. 1
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