Friday Enforcement Wrap: DOJ Announces Revised Policy on Individual Accountability for Corporate Wrongdoing

At an FCPA conference on November 29, Deputy Attorney General Rod Rosenstein announced revisions to DOJ’s policy regarding pursuit of individuals involved in corporate wrongdoing. The current policy, memorialized in the 2015 “Yates Memo,” instructed that, “[t]o be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct.

The revised policy continues to make it a “top priority” for the government to pursue individuals responsible for corporate wrongdoing, but in some cases would not require the company to investigate and disclose the identity of every individual involved in order to earn cooperation credit.

Rosenstein explained that, in cases where the government alleges “violations that involved activities throughout the company over a long period of time, it is not practical to require the company to identify every employee who played any role in the conduct.” Thus, in criminal cases, the focus should be on “individuals who play significant roles in setting a company on a course of criminal conduct,” including “who authorized the misconduct, and what they knew about it.” In civil cases, where the goal is to recover funds, the focus should be on identifying “all wrongdoing by senior officials, including members of senior management or the board of directors.”

Rosenstein added: “If a corporation wants to earn maximum credit, it must identify every individual person who was substantially involved in or responsible for the misconduct.”

See here for a copy of DAG Rosenstein’s speech.