"Miller & Chevalier Partner Barry Pollack: Time to Stop Living Vicariously"Corporate Crime Reporter
In this article, Barry Pollack is interviewed about corporate criminal liability. In 2009, Pollack published an article in the American Criminal Law Review
entitled "Time to Stop Living Vicariously: A Better Approach to Corporate Criminal Liability." He has another article coming out soon in the same publication that addresses the topic in the context of the recently released Department of Justice FCPA Guidance. "The system of corporate criminal liability has significant problems and that is the focus of the first article and to some extent the second article," Pollack explained.
"The vicarious liability standard is so low that it effectively shifts all of the power to the prosecution. The prosecutor can almost always say there is a violation," Pollack said, adding, "Then it becomes a matter of prosecutorial discretion as to whether they are going to go after that kind of conduct."
According to Pollack, "Just as a matter of common sense, one should never be vicariously liable and be viewed as a criminal for somebody else's conduct. Either you have committed an offense or you haven't." He continued, "That's why I would like to see a system that judges whether the corporation itself has engaged in criminal conduct as opposed to whether any one of its individual employees has."