In a memo by Assistant Attorney General Brian Benczkowski (the “Memo”) dated October 8, 2019, the US Department of Justice issued guidance on how it will evaluate a corporate defendant’s claim that it cannot afford to pay a criminal fine (or other monetary penalty) that is otherwise “appropriate.” Certain aspects of the Memo tread old ground, referencing familiar legal concepts traditionally considered when addressing such claims. For example, the Memo authorizes DOJ prosecutors to recommend, under certain circumstances, a reduction in otherwise appropriate fine levels to the extent necessary to avoid corporate extinction, and/or to avoid impairing an organization’s ability to pay restitution to victims, principles already codified in federal statute and the US Sentencing Guidelines.
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