Deputy US Attorney General Sally Quillian Yates provided further insight into the Department of Justice’s new emphasis on personal liability in connection with corporate criminal and civil law violations, at the same time that the Office of the United States Attorneys rolled out revisions to its written guidelines to its staff regarding the prosecution of corporate criminal and civil cases.
In a speech before the American Banking Association and American Bar Association Money Laundering Enforcement Conference on November 16, Ms. Quillian Yates noted that the US Attorneys’ revised guidelines “now emphasize the primacy in any corporate case of holding individual wrongdoers accountable and list a variety of steps that prosecutors are expected to take to maximize the opportunity to achieve that goal.”
Among other things, if a corporation desires credit for cooperation, “it must provide all non-privileged information about individual wrongdoing” (emphasis added). Whereas, previously, corporations may have received at least some credit for cooperation even where they did not disclose all information regarding individuals, “providing complete information about individuals’ involvement in wrongdoing is a threshold hurdle that must be crossed before we’ll consider any cooperation credit,” said Ms. Quillian Yates.
In connection with notes and memos covered by attorney-client privilege, Ms. Quillian Yates indicated that prosecutors will continue not to request such documents. However, Ms. Quillian Yates indicated that “to earn cooperation credit, the corporation [needs] to produce all relevant facts – including the facts learned through those interviews – unless identical information has already been provided.”
The revised written guidelines are included in the US Attorneys’ Manual. According to the Manual,
[p]rosecution of a corporation is not a substitute for the prosecution of criminally culpable individuals within or without the corporation… Provable individual culpability should be pursued, particularly if it relates to high-level corporate officers, even in the face of an offer of a corporate guilty plea or some other disposition of the charges against the corporation…
Separately, Andrew Ceresney, Director of the Division of Enforcement of the Securities and Exchange Commission, said that holding individuals liable is a priority of the SEC in cases against corporations where there are violations of the Foreign Corrupt Practices Act. In a speech before the American Conference Institutes FCPA Conference on November 17, 2015, Mr. Ceresney said that, although FCPA cases “often present formidable challenges to establish individual liability … [h]olding individuals liable for their wrongdoing is critical to effective deterrence.”