Monday, November 20, 2023
Andrew Jennings (Emory University School of Law) has posted Criminal Subsidiaries (Fordham Law Review, Vol. 92, 2024) on SSRN. Here is the abstract:
Corporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself (that is, subsidiary-only conviction (SOC)). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s expressive purposes while avoiding socially unacceptable collateral consequences from parent-level conviction.
This kind of settlement presents an under-considered application of entity partitioning in which adjudicated criminal liability is isolated to a subsidiary, leaving the rest of a firm’s assets unencumbered by conviction’s collateral consequences. This criminal partitioning differs, however, from better-known private asset partitioning. That is because within a firm, entity borders tend to be more porous to criminal than to private liability. Thus, in the criminal context, partitioning occurs through ex post settlement between parents and prosecutors, rather than the ex ante and unilateral use of asset partitioning seen in the private context. After considering this extension in light of prosecutorial practice and a ten-year dataset of federal SOC settlements, the Article calls for expanded use of SOC settlements as a means for balancing competing public interests in corporate enforcement and the avoidance of social cost.