"I couldn't find a case of an executive at a major American-based, publicly traded company who was successfully prosecuted and sent to jail."
"This case could turn out to be a poster child for individual liability."
Prof. Andrew Spalding, quoted by Stewart, New York Times, supra, commenting on allegations published in the New York Times that Wal-Mart executives allegedly participated in foreign corrupt practices including bribery in Mexico. The Law Faculty Blog of the Chicago-Kent College of Law, where Prof. Spalding is an Assistant, Visiting Professor, provided a recent postwith links to other places where Prof. Spalding's various comments can be found.
Criminal Law apparently has not been doing a very good job of policing corporate governance issues. In particular, a common pattern reportedly emerges of companies admitting the facts of alleged corrupt foreign practices, followed by the corporation paying a fine, and ending with no individuals charged with a crime. Stewart, New York Times, supra.
This undoubtedly has something to do with the fact that officials at the Department of Justice and at the Securities and Exchange Commission who are charged with executing U.S. criminal laws, including the Foreign Corrupt Practices Act, have entirely avoided criminal prosecutions of corporate officers who, clearly, have the money at their disposal to contest criminal charges and force a criminal trial.
What is also clear is that the current system of criminal justice simply is not equipped to deal satisfactorily with -- including incapable of deterring -- potential breaches of Fiduciary obligations. In at least one field of corporate governance, Corporate Compensation, the field of Fiduciary Law lies open with solutions to the problems. "Fiduciary Issue on Corporate Compensation, And How to Solve It," posted on Insurance Claims and Bad Faith Law Blog on Thursday, April 26, 2012.
It is time to try the solutions offered by Fiduciary Law. If it is good enough, as they say, for the claim handling practices of Insurance Companies, then it is certainly good enough for the alleged corrupt practices of corporations.
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