“Mary Jo White, the nominee to be chairwoman of the Securities and Exchange Commission, has stated that she is not a fan of pursuing cases of criminal liability against corporations. Such views are likely to draw scrutiny during her confirmation process, but it does not necessarily mean companies facing sanctions can expect an easy ride in Washington.

“Corporate criminal liability has been a fixture of American law for more than a century, ever since the Supreme Court said a corporation could be charged with a crime in the 1909 decision in New York Central v. United States. Corporations have long complained about their potential liability, especially because the Justice Department has ramped up prosecutions of business crime over the last 20 years.

“Ms. White explained in a speech in 2005 as part of a securities law program just how broad the principle of corporate criminal liability is under the New York Central case: “If a single employee, however low down in the corporate hierarchy, commits a crime in the course of his or her employment, even in part to benefit the corporation, the corporate employer is criminally liable for that employee’s crime. It is essentially absolute liability.””

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