DOJ Steps up Rhetoric on Prosecuting Individuals as well as Corporations
On 10 September, Sally Yates, the U.S. Deputy Attorney General gave a speech and issued a memorandum to U.S. Federal Prosecutors on individual accountability for corporate wrongdoing in response to public criticism that the US DOJ tends to focus on prosecuting companies rather than individuals.
The “Yates Memo”, as it is being referred to, highlights six steps to “strengthen [the] pursuit of individual corporate wrongdoing:
- Corporations must provide all relevant facts relating to the individuals responsible for the misconduct to qualify for any cooperation credit.
- Criminal and civil corporate investigations should focus on individuals from the start of the investigation.
- Criminal and civil attorneys handling corporate investigations should be in regular contact.
- The DOJ will not generally release culpable individuals from civil or criminal liability when resolving a matter with a corporation.
- A plan should be in place as to how individuals will be dealt with before resolving matters with a corporation.
- Civil attorneys should focus on individuals as well as corporations and, when considering whether to bring an action, consider more than the individual’s ability to pay.
While Yates describes that is reflecting, in part, a policy shift on the part of the DOJ, most will recognise that this is not markedly different from speeches given by Principal Deputy Attorney General Marshall Miller in September 2014 and Attorney General Eric Holder.
Ultimately, only 25% of the DOJ’s enforcement actions against corporations also include charges against individuals. When the majority of DOJ corporate investigations result in a DPA for the company and no prosecution of individuals it will be very hard to shift the perception that a deal has been done by the company to protect the individuals.
The Yates Memo is the latest in a long line of memoranda which set out DOJ policy:
Holder Memo (1999)
Thompson Memo (2003)
McNulty Memo (2006)
Filip Memo (2008)