"In the most basic ways, though, corporate misconduct isn’t all that different from everything else [the Department of Justice] investigates and prosecutes. Crime is crime."
So stated Deputy U.S. Attorney General Sally Quillian Yates at a recent presentation at New York University School of Law.
Yates used the opportunity to announce a New Policy on Individual Liability in Matters of Corporate Wrongdoing.
She emphasized that it is the Justice Department’s responsibility to pursue crime whether it occurs on the street corner or in the board room.
Additionally, prosecution of these crimes should include the individuals responsible, not just the corporate entities.
The intent to discourage criminal behavior on the part of corporate executives was first discussed by former Attorney General Eric Holder. Current Attorney General Loretta Lynch has committed to this goal and instructed DOJ officials on to act on it.
Yates noted that the DOJ would not be deterred by the inherent difficulty in bringing sustainable charges against individuals in corporate cases. She said that the following six actions will become standard DOJ practice:
- Flip Factors. Effective immediately, [DOJ] has revised its policy guidance to require that if a company wants any credit for cooperation, it must identify all individuals involved in the wrongdoing, regardless of their position, status, or seniority in the company and provide all relevant facts about their misconduct. It’s all or nothing.
- The department has instructed its attorneys that, going forward, they are to focus on individuals from the start of an investigation, regardless of whether the investigation begins civilly or criminally.
- The best way to ensure that criminal prosecutors don’t need to go back and build a new case after the civil attorneys finish their inquiry—or vice versa—is to make sure that everyone’s talking to each other from the very beginning. And so we are directing our civil and criminal attorneys to collaborate to the full extent permitted by law at all stages of the investigation.
- Resolve cases with individuals before or at the same time that we resolve the matter against the corporation.
- If DOJ attorneys decide it is necessary to resolve the corporate case first, they will only be permitted to do so once they have demonstrated a clear plan to their supervisors for resolving the related individual cases—promptly and before the statute of limitations expires. [Written approval by the supervisors of the prosecuting attorneys will be required, and such permission will be granted only after a stringent review process.]
- We’re broadening the focus of our civil enforcement strategy to not just focus on the potential monetary recovery.