Since 1999, the Department of Justice has periodically issued memoranda instructing United States Attorneys on how to indict business organizations. These memoranda became constitutionally questionable after the Enron, WorldCom, and Adelphia scandals. Finally, a federal district court declared part of one memorandum—known as the Thompson Memorandum—in conjunction with the way the assistant U.S. attorney presented the case against certain high-ranking employees of a business organization, KPMG, LLP, to be in violation of the Fifth and Sixth Amendments. This case is United States v. Stein. This Note examines the district court case, the Second Circuit case that affirmed the district court’s decision, and the subsequent memoranda produced by the Department of Justice. This Note examines the subsequent memoranda to determine whether the constitutional deficiencies were remedied. This Note concludes that although the Stein problems were resolved in the later memoranda, other potentially constitutional problems exist. These problems are identified and discussed.
Keefe, Brendan J., "Revisions of the Thompson Memorandum and Avoiding the Stein Problems: A Review of the Federal Policy on the Prosecution of Business Organizations Note" (2009). Connecticut Law Review. 48.