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
sion of such crimes in the face of a compliance program may
suggest that the corporate management is not adequately enforcing
its program. 10
Companies will receive credit only if the programs are “designed for maximum
effectiveness in preventing and detecting wrongdoing by employees”
and if management enforces them rather than “tacitly encouraging
or pressuring employees to engage in misconduct.” 11 A program that only
exists “on paper” is simply insufficient. 12
c. Remediation
The Thompson Memo’s final cooperation factor states that the government
rewards companies’ “willingness to make restitution and steps already
taken to do so.” 13 The remedial measures that a company takes, including
disciplining employees and making full restitution, “says much
about its willingness to ensure that such misconduct does not recur.” 14
Overall, it is the “integrity and credibility” of these measures that count. 15
2. U.S. Sentencing Guidelines for Organizations
The U.S. Sentencing Guidelines for Sentencing of Organizations (“USSG”
or “Sentencing Guidelines”) dovetail with the Thompson Memo’s emphasis
on cooperation and corporate compliance.16 The introductory commentary
explains that “[t]hese guidelines offer incentives to organizations to
reduce and ultimately eliminate criminal conduct by providing a structural
foundation from which an organization may self-police its own conduct
through an effective compliance and ethics program.” 17
Perhaps more so than the Thompson Memo, the Sentencing Guidelines
place great emphasis on corporate compliance programs. 18 Section 8B2.1
10. Id. at VII.
11. Id. at VII. B.
12. Id.
13. Id. at VIII.A.
14. Id. at VIII.B.
15. Id.
16. These Sentencing Guidelines are found in United States Sentencing Commission, 2006
Federal Sentencing Guidelines Manual, Chapter Eight (Sept. 19, 2006), available at www.ussc.gov/
2006guid/tabcon06_1.htm.
17. USSG ch. 8, introductory cmt.
18. See David Meister & Albert Berry III, Revised Guidelines Stress Self-Audits, Nat’l L.J., Mar.
21, 2005, at S1 (noting § 8B2.1 is the “centerpiece” of the revised Organizational Guidelines).
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