I think McKenzie would be found innocent in a court of law. This is a settlement because they don’t want to be dragged through the mud in PR. They provided advice, the company chose to act on it. Unless their Advice Misslead regarding the legal risk, they are in the clear. If it was misleading, the damages would be to Purdue.
I’m no lawyer, but providing advice to a client who then goes ahead and breaks the law with said advice sure sounds like it meets the federal charge of conspiracy.
That really depends on the the advice is.
I don't see a big problem with "This would make you a bunch of money, but you should have your lawyers look at it" or "this will make you a bunch of money, but has a high legal risk".
If the advice is: "this is illegal, and here is how to avoid getting caught" then I could see that being a crime.
You are adding requirements and escape clauses to the federal charge of conspiracy that are not actually in the law. Here is the relevant text of 18 U.S. Code § 371:
> If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
The question, fundamentally, is whether or not what McKinsey did counts as to "effect the object of the conspiracy". If yes, there is no magic "go talk to your lawyer" phrase to escape criminal liability, for the same reason why you can't bring a lawyer with you and depend on attorney client confidentiality to protect you from search warrants and prosecution.
If the law intended for there to be an intent requirement, then the statute itself would say “knowingly” or “willfully”, which it clearly does not. This means that one can accidentally commit conspiracy, so long as the law you’re conspiring to break does not have an intent requirement.
I think we might have to agree to disagree. My understanding is that the conspiracy must intend to break the law. If one party doesn’t know the other is breaking the law, it isn’t conspiracy. If McKenzie didn’t have any illegal recommendations, or knowledge of illegal actions, they are in the clear.
If they advised Perdue to do something illegal, that is a different story
> My understanding is that the conspiracy must intend to break the law.
As a general rule, this is not how laws work. There are some laws that require that you know what you're doing is illegal (tax evasion is one of them), but most laws do not work this way.
I agree in general, but conspiracy is one of the few that do. They are called crimes of "specific intent".
>Conspiracy is a specific intent crime. Specific intent crimes require that the defendant act with a specific goal in mind. In the case of conspiracy, the defendant must intend to agree on a plan to commit an act and must intend to achieve the illegal goal of the conspiracy.[15] If either of these intents is missing, then the defendants cannot be charged with conspiracy.
