On September 9, 2015, the United States Department of Justice (DOJ) released a memorandum detailing policies to prioritize its goal of seeking accountability from individuals who perpetrate wrongdoing, in every DOJ investigation of corporate fraud and other misconduct. According to the memorandum, focusing on holding individuals accountable is an effective way of deterring future wrongdoing, incentivizing changes in corporate behavior, ensuring that the proper parties are held responsible, and promoting the public’s confidence in our justice system.
The memorandum, issued by Deputy Attorney General Sally Quillian Yates, stresses that these policies apply equally to civil and criminal investigations. Deputy Attorney General Yates described six key steps the DOJ should take in every investigation of corporate misconduct, both civil and criminal, which are intended to strengthen the DOJ’s pursuit of individuals in investigating corporate wrongdoing:
- In order to qualify for any cooperation credit, corporations must provide all relevant facts and disclose all individuals responsible for the misconduct;
- Criminal and civil investigations should focus on individualsfrom the inception of the investigation;
- Criminal and civil attorneys investigating wrongdoing should be in routine communication with each other;
- The DOJ will not release culpable individuals from either civil or criminal liability when resolving a matter with a corporation absent extraordinary circumstances;
- DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases; and
- DOJ civil attorneys should base decisions on whether to bring suit against individuals on considerations beyond the individuals’ perceived ability to pay.
While not all of these measures are new, together they demonstrate the DOJ’s increasing focus on individuals in investigating corporate wrongdoing. Healthcare entities facing an investigation, and those representing such entities, should bear in mind the potential liability of individuals in addition to that of the corporation. At the very least, it is clear that the government will be focused on the individuals behind the conduct, and not just the entity.