Judge Rakoff wrote:
The injunctive relief, as noted, is pointless. The fine, if looked at from the standpoint of the violation, is also inadequate, in that $33 million is a trivial penalty for a false statement that materially infected a multi-billion-dollar merger. But since the fine is imposed, not on the individuals putatively responsible, but on the shareholders, it is worse than pointless: it further victimizes the victims..
A few months later, the prosecution and the corporation accused in the same matter reached a new arrangement in which the corporation undertook to take steps to prevent similar acts in the future. The agreement was approved even though the court still ruled that it was an agreement that was "better than nothing" but still "half-baked justice at best.". In another case: United States v. Guidant LLC, Crim. No. 10-mj-67 (DWF), 2010 WL 1729179, at 1 (D. Minn. Apr. 27, 2010). – The defendant was referring to a corporation that committed the offenses (misleading reporting to the US Drug Administration about pacemakers) and was purchased by another pharmaceutical conglomerate. When the criminal trial ended, the fine was imposed on the conglomerate ($253 million), in which no offenses were committed, and therefore, as part of the plea bargain, compliance mechanisms were not introduced for the purchasing conglomerate. The court did not accept the plea bargain and ruled that rehabilitation measures should also be introduced in the new corporate situation in order to ensure the prevention of the commission of offenses:
“Necessary to ensure that changes are made within the organization to reduce the likelihood of future criminal conduct."
The court noted that a fine relates only to the past, and has no implications for the future, and ruled that imposing only a fine without measures aimed at implementing a change in the corporation does not serve the purposes of the criminal proceeding.
Therefore, when determining a penalty area for corporations, it is necessary to take into account that it is not really possible to consider the compensation that is due, the principle of adequacy. On the other hand, it should not be shocked that due to the fear of a company's insolvency, it will not be properly punished. The size of the "too big to jail" society cannot be a city of refuge for criminals (see Brandon L. Garrett, Too Big to Jail: How Prosecutors Compromise with the Corporations (2014)). In light of the above, it may be time to consider establishing a variety of penalties for corporations in legislation, while adjusting the mechanisms to the nature and nature of corporations.