Monday, 19 June 2017

REVIEW: "Too Big to Jail: How Prosecutors Compromise with Corporations" by Brandon L. Garrett

Book Review by Sapphire Ng

Too Big to Jail: How Prosecutors Compromise with Corporations
by Brandon L. Garrett
Belknap Press: An Imprint of Harvard University Press
Copyright November 2014
Hardcover, 384 Pages

An absolute legal delight. Greatly comprehensive and extraordinarily fascinating, this book nimbly surveys corporate prosecutions and white-collar crimes. With trained focus on dissecting deferred prosecution and non-prosecution agreements, the book engagingly addresses an eclectic range of legal issues pertaining to the world of corporate prosecutions. Apart from furnishing a plenitude of statistics and legal case citations, the author unobtrusively inserted his personal commentary and recommendations into the book. 

This book seems functionally versatile. It promisingly offers enjoyment and education for law students, legal academics and the general reader alike. The book’s skillful examination of the fascinating intersection between the legal and commercial spheres makes it a godsend for those captivated by the ins and outs of both law and business. Whilst the abundance of data and statistics provided in the book is certainly dazzling, it is the wealth of citations and references to relevant legal cases that truly serve as inspirational fodder for further independent legal research. 

The general reader would be kept engaged by the eclectic variety of legal cases and precedents introduced with lucid explanation and sans excessive technicality and depth. The data and trends on deferred prosecution and non-prosecution agreements are also considerably accessible to the average reader without any legal background. Most of all, the author’s overarching arguments as pertaining to corporate prosecutions tread the realm of universality—the issue of effectiveness. 

The author’s stance toward the subject matter of the book is unmistakable; he systematically built the case that “corporate convictions should be the norm.” Forefronting the theme of leniency, the author highlights potential shortcomings of deferred prosecution and non-prosecution agreements—inconsistencies in the imposition of corporate monitors and effectual structural reforms; oversights that in turn seemed to license “cosmetic” compliance, superficial adjustments to corporate culture, and insubstantial reforms; the distancing of judicial oversight, and more.

The international and extraterritorial legal cases are arguably the most fascinating in the book. The notable foreign bribery case of the German multinational firm Siemens Aktiengesellschaft is one such example, where the firm was prosecuted for violating the Foreign Corrupt Practices Act (FCPA) through its multinational bribery operations. 

Whilst the legal case involving UBS—the largest bank in Switzerland—is especially fascinating due to the notion of incompatibility of certain aspects of US law with Swiss law in relation to the banking sector, the case where the recidivist Big Five accounting firm Arthur Andersen was prosecuted for obstruction of justice is particularly enthralling due to the vigorously intellectual series of legal issues and precedent raised. 

No less astounding are discussions of the HSBC money laundering case, the intriguing tax shelter case implicating the accounting firm KPMG—Arthur Andersen’s prior competitor—and the notorious Deepwater Horizon case involving the persistent recidivist, BP. One will be brought on an engrossing journey where one discovers potential incongruities between crimes committed and the corresponding legal consequences. HSBC for example was miraculously served with a mere deferred prosecution agreement after violating multiple federal laws pertaining to anti-money-laundering compliance and economic sanctions. The author similarly highlighted interesting tidbits with regards to the prosecution of BP for the Texas City refinery explosion, noting for example the mutual significance of BP to the “Bhopal Provisions” and vice versa. 

Whilst educational, this book is also amazingly delightful. It was an unexpectedly hilarious moment to learn that a subsidiary company could sometimes be perceived as having the sole function “to plead guilty,” as in the case of Pfizer and its subsidiary Pharmacia & Upjohn Co. Inc.. Fascinatingly, the reader could also supplement the book’s discussion of Bristol-Myers Squibb’s deferred prosecution agreement with the US attorney by locating the agreement online and thereby contemplate certain terms mentioned in the book within the context of the entire and actual agreement. With further exploration of cases involving companies the likes of JPMorgan, BAE Systems, Ford Motor Company and more, this book is indeed intellectually-stimulating at virtually every juncture.

A sampling of legal issues the author fittingly employed to beef up and enrich the discussion includes the strategic prosecutorial strategy of offering immunity and amnesty deals in tackling antitrust; the seemingly problematic lack of adherence to, and excessively lenient interpretation of, the U.S. Sentencing Guidelines; the seeming insignificance of a company’s recidivist status in determining its sentencing; the puzzlingly disparate justice standards that apply to street criminals versus corporate criminals, as brazenly manifested through for example, the war on drugs; and the likes of the constitutional rights of corporations, the idea of judicial supervision, the applicability of whistle-blower statutes, relevant legislations such as the Sarbanes-Oxley Act, and of course, the notion of whether certain corporations are indeed “too big to jail.”

This book is a paradise for data geeks. Various configurations of data pertaining to deferred prosecution and non-prosecution agreements are exhibited in the book in numerous charts. The statistical comparison of the presence or lack thereof of certain clauses and terms that the author deemed essential in prosecution agreements is most pronouncedly fascinating, more so because comparisons of such data points seemed rather uncommon. With the book’s solidly stimulating legal inquiry further bolstered by the enclosure of additional charts in the appendix of the book, it would seem almost preposterous should any reader come away without learning at least a thing or two. 

Disclaimer: I am not affiliated to the publisher nor the author of the book. This book review is the result of my personal reading and honest opinion.

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