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Chapter 8 Business Crime

Its Legal, Ethical, and Global Environment

Marianne M. Jennings

Business

11th Ed.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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What Is Business Crime?

Corporate Crime, Also Called “White Collar Crime”

Includes Medicare Fraud

Public Corruption Crimes

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The Crimes Within a Corporation

Financial fraud: manipulating earnings

Occurs when managers feel pressures to meet earnings goals

Enron and Andrew Fastow

Forensic accounting (“the most secure job in America”)

What Is Business Crime?

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The Crimes Corporations Commit

Marketing missteps

Pharmaceutical industry and the failure to comply with FDA regulations on sales

The Crimes Employees Commit

Embezzlement

Internal controls issues

What Is Business Crime?

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The Intercorporation Crimes

Kickbacks

Antitrust violations

Securities fraud

Obstruction

What Is Business Crime?

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Liability for Crimes

Officers and Directors are Liable

If they authorized the conduct, or

If they knew about the conduct and did nothing

Case 8.1 United States v. Park (1975)

What standard of liability did the instruction given by the judge impose?

Is Mr. Park guilty of a criminal violation?

What does this case say about a manager’s responsibility?

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Federal Laws

Boesky and Milken: The Insider Trading and Securities Fraud Enforcement Act of 1988 (ITSFEA)

Savings and Loan Crisis: The “white-collar kingpin” law

Enron et al.: Sarbanes-Oxley

Sarbanes-Oxley Act (2002)

Criminal penalties increased

Personal accountability enhanced

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Federal Laws

White-Collar Kingpin Act

Federal Law imposes minimum federal mandatory sentences on corporate officers

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Federal Laws

Honest Services Fraud

Action by an officer that deprives the shareholders of that officer’s honest services

Following Skilling v. U.S., require proof of bribery, conflicts, or corruption to be a charge for a corporate officer

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Federal Laws

Dodd-Frank – Wall Street Reform and Consumer Protection Act

Creates a Consumer Financial Services Bureau

Mortgage lenders, brokers, investment bankers, insurers, and investment firms are covered by provisions in this law

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Other Business Crimes

OSHA Rules

Failure to comply with safety laws

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Penalties for Business Crime

ACT

Internal Revenue Code

26 U.S.C. § 7201

Sherman Act (antitrust)

15 U.S.C. § 1

Sarbanes-Oxley

15 U.S.C. §1512

(document destruction, concealment, alteration, mutilation during pending civil or criminal investigation)

PENALTIES

$100,000 ($500,000 for corporations) and/or 5 years

For evasion (plus costs of prosecution as well as penalties and assessments: 5-50%)

$350,000 and/or 3 years

$10,000,000 for corporations

Injunctions

Divestiture

20 years plus fines

(25 years for perjury)

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Penalties for Business Crime

Sarbanes-Oxley

(certification of financial statements)

1933 Securities Act

15 U.S.C. § 77x (as amended by Sarbanes-Oxley)

Securities and Exchange Act of 1934

15 U.S.C. § 78ff

Clean Air Act

42 U.S.C. § 7413

$1,000,000 and/or 10 years

If willful: $5,000,000 and 20 years

Officers who earn bonuses based on falsified financial statements must forfeit them

$100,000 and/or 10 years

$5,000,000 and/or 20 years

$25,000,000 for corporations

Civil penalties in addition of up to three times profit made or $1,000,000, whichever is greater

$1,000,000 and/or 5 years

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Penalties for Business Crime

Clean Water Act

33 U.S.C. § 1319

Occupational Health Safety Act

29 U.S.C. § 666

Consumer Product Safety Act

15 U.S.C. § 2070

For negligent violations: $25,000/day and/or 1 year

For knowing violations: $50,000/day and/or 3 years

For second violations: $100,000/day and/or 6 years

For false statements in reports, plans, or records: $10,000/day and/or 2 years

Willful violation causing death: $70,000 and/or 1 year; minimum of $5,000 per willful violation

Giving advance notice of inspection: $1,000 and/or 6 months

False statements or representations: $10,000 and/or 6 months

$50,000 and/or 1 year

Tampering: up to $500,000 and/or 10 years

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Penalties

Corporate Integrity Agreements (CIA)

Presence of monitors

Criminal indictments of corporations for common law crimes

Shame Punishment

Community Service

Designated Felon

Officer and Executive Banishment

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Penalties

Deferred Prosecution Agreements

Responsible Corporate Officer (health care field)

New and higher penalties: Percentage of profits fine

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Penalties

Federal Sentencing Guidelines

A type of mandatory sentence regulation

When certain elements are present, there must be prison time

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Penalties

Corporate Sentencing Guidelines

Developed by U.S. Sentencing Commission

Sentences for officers increase if crime prevention methods are not in place at the corporation

Avoiding penalties

Written crime prevention program

Officers assigned responsibility for enforcement

Screen employees

Training programs and written materials

Prevention and detection of crime processes

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Much More Than Compliance

Businesses that do the following have reduced sentences under the guidelines:

Have a code of ethics in place

Conduct training on the code of ethics

Have a company hot line and ombudsperson for employees to utilize anonymously in reporting violations

Protect employees who report violations

Investigate all allegations regardless of their sources

Report all violations immediately and voluntarily

Offer restitution to affected parties

Cooperate and negotiate with regulators

Admit your mistakes and shortcomings

Be forthright and public with your code of ethics

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Corporate Board Responsibility

Directors can be held personally liable for fraud

Must show responsibility for management of the compliance program

Also possible personal liability to shareholders for fraud

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Business Crime Elements

Mens Rea, Scienter, or Criminal Intent

State of mind required to commit a crime

For corporations − prove intention on behalf of directors

To prosecute, must show individual intent

Can establish by showing their knowledge of actions and failure to object

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Business Crime Elements

Case 8.2 People v. M & H Used Auto Parts & Cars, Inc. (2005)

What is the difference between knowledge of the law and knowledge of the conduct?

What knowledge did the state prove the defendants had?

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Business Crime Elements

Mens rea, Conscious Avoidance, and Corporate Officers

Liability cannot be avoided by distancing themselves from the preparation of financial statements

Communication and contact with those who prepare the statements is sufficient to establish knowledge

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Business Crime Elements

Actus Reus − The Act of the Crime

Intent alone is not a crime; the act must be committed

The required conduct described for each crime

Sometimes a failure to act may constitute a crime − for example, failure to pay taxes

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Theft

Intent to take property

Actual taking of property for permanent use

No authorization to take the property

Embezzlement

Intent to take property

Actual taking of property for use, temporary use is still crime

By person entrusted with property

Examples of Crimes

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Examples of Crimes

Obstruction of Justice

Intent to impede, obstruct, or influence investigation

Auditors must retain work papers for five years

Felony − 10 years

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Internet Crime

Unauthorized Access to Computer Crimes

Electronic Communications Privacy Act

Stored Communications Act

Case 8.3 New Jersey v. Riley (2009)

– What was the type of misuse?

– Why does the court have concerns about applying criminal statutes to workplace excesses on computer use?

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Internet Crime

Unauthorized Use of Computer Resources

Economic Espionage Act: Use, downloading, copying, duplicating, uploading, transmitting trade secrets

Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM)

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Criminal Fraud

Obtaining money, goods, services, or property through false on misleading statements

Requires intent to defraud

Counterfeit Access Device and Computer Fraud and Abuse Act

Examples of Crimes

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Internet Crime

Cyberbullying, Cyberstalking, and Privacy

State and federal regulation

Statutory definitions of conduct for criminal prosecution

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Internet Crime

Copyright Crimes Online (Chapter 15)

Drug dealing and pornography are still crimes online

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Other Crimes

Criminal fraud

Commercial Bribery

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RICO

Pattern of racketeering activity

Must have at least two consecutive violations

Offenses that qualify as predicate offenses include pornography, murder, kidnapping, bribery, extortion, fraud, etc.

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USA Patriot Act

Business Crimes and USA Patriot Act

Prior to 2001: Money Laundering Control Act

Post 2001: USA Patriot Act amended Money Laundering Control Act and Bank Secrecy Act

Cannot contract with terrorist groups or funnel cash to them for services (Chiquita Consider)

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Additional Crimes

OSHA violations

Antitrust violations

Consumer Product Safety violations

State crimes

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Procedural Rights

Fourth Amendment Rights

Privacy amendment

Search warrant procedures

Must be based on probable cause

Must be issued by a disinterested magistrate

If searches are done improperly, evidence is inadmissible at trial

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Fourth Amendment Rights

Exceptions to warrant requirement

Records are being destroyed

“Plain view” exception

Warrants and Technology: Texts, E-Mails, and ISPs

Case 8.4 U.S. v. King (2007)

Is there a reasonable expectation of privacy in a shared drive?

Procedural Rights

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Procedural Rights

Records in possession of a third party

Can recover them

Third party cannot assert Fourth Amendment rights − must be record owners

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Procedural Rights

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Privileged Documents and the Fourth Amendment

Notes on trial strategy, audit procedures, and communications between lawyers and clients are protected

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Fifth Amendment Rights

Protection against self-incrimination

Given to natural persons − not to corporations

Corporate officers can assert it to protect themselves but not corporate records

Procedural Rights

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Fifth Amendment Rights

Miranda warnings

Given when individual is in “custody”

“Custody” means inability to leave − not necessarily jail

Right to attorney; right to silence − notice of evidentiary use of statements

No coaxing of confessions prior to warnings

Procedural Rights

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Criminal Proceedings

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Due Process Protections of Fifth Amendment

Warrant or warrantless arrest begins process

Warrant − you have committed crime and they look for you

Warrantless − you are arrested at the scene

Initial appearance

Required within short period (24 hours)

Charges explained

Bail terms set; amount; or released on own recognizance

Procedural Rights

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Due Process Protections of Fifth Amendment

Preliminary hearing or grand jury

Hearing − information issued; defendant is present and can cross-examine witnesses

Grand jury − indictment; secret proceedings

Arraignment

Plea is entered

Trial date is set

Procedural Rights

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Due Process Protections of Fifth Amendment

Discovery: Mandatory disclosure of witnesses and evidence

Pretrial conference: Try to settle some issues if possible

Omnibus hearing: Challenge evidence admissibility

Trial

Appeal

Procedural Rights

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