As businesses expand their operations into new markets across continents and hemispheres, they are encountering a host of issues in addition to the complexities that go along with entering any new jurisdiction. Established and emerging markets are passing new laws with tougher penalties, claiming jurisdiction over acts that occur beyond their borders, and engaging in unprecedented cooperation in investigations of multinational issues.
By way of example, this year alone, the US Department of Justice has entered into antitrust cooperation agreements with 14 other countries.
The stakes are higher than ever, both abroad and at home. Until recently, the resolutions to which US authorities agreed often focused on punishing corporations, not individuals, involved in corporate misconduct. However, the so-called “Yates Memo” – DOJ’s recent memorandum on “Individual Accountability for Corporate Wrongdoing” – is changing everything. Corporate settlements will no longer include “stay out of jail free” passes for company officers, directors, or employees, except in exceptional circumstances. DOJ has renewed its focus on personal responsibility, and management and directors now face the potential of prison bars rather than easy deals.
This very real possibility of individual liability further complicates counsel’s job in responding to a coordinated cross-border investigation or multinational enforcement action.
In this dramatic landscape, preparation is essential – well before you experience your first contact with government investigators, and even if you think you are doing nothing wrong.