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Elkan Abramowitz and Jonathan Sack

In recent years, prosecutors, defense counsel and courts have wrestled with how to enforce white-collar criminal law appropriately against corporations. On the federal level, we have settled on a process in which prosecutors consider, before charges are brought, multiple factors embodied in written “Principles of Federal Prosecution of Business Organizations.” These Principles, beginning with the Holder Memorandum in 1999 and continuing through the Filip Factors in 2008 (as modified by the Yates Memorandum in 2015), are intended to guide prosecutors’ discretion and help them make charging decisions that punish and deter wrongdoing by companies without causing undue harm to innocent employees, shareholders and other third parties.

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