Wednesday, September 9, 2015
The new DOJ Policy (see here for the NYTimes story that includes DOJ Policy) makes the current practice of corporations "throwing employees under the bus," official. It states, "[t]o be eligible of any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct." Corporations have received deferred and non-prosecution agreements (DPAs and NPAs) that often provide for the corporation cooperating with the government in the investigation of alleged criminally culpable individuals. Now it is clear that to obtain "any" cooperation credit it will be necessary to provide the evidence against these individuals.
Three concerns here:
1) what is meant by providing "all relevant facts"? Does this mean only information that is relevant to the government's case against the individuals? Will the government also be asking for Brady material that might be exculpatory for the individuals? Does this mean that the corporation now is officially a member of the government team?
2) what does this mean for the corporate culture? The concept of the individuals in the company working together, asking for legal advice from corporate counsel, and working to resolve problems in an open environment may now be officially over. This policy pits the corporation against the individual. Is this a wise approach to correcting business misconduct?
3) does this make it more important that there be fairness in internal investigations? See here for a discussion of the importance of fairness in internal investigations.
Interestingly, the new policy calls for starting with the individual and also calls for sharing information between civil and criminal attorneys. It also requires "a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized." This is a clear message that individual prosecutions are now a priority.
The message to white collar criminal defense attorneys - corporate prosecutions may no longer be the focus. Get ready for more prosecutions against individuals.