Why it matters
In a speech on May 9, 2018, Deputy Attorney General Rod Rosenstein announced another policy shift at the Department of Justice (DOJ), signaling that corporate accountability will be tempered by a coordinated multiagency approach to resolving cases, with the goal of avoiding “piling on” by numerous DOJ components and other federal, state and foreign agencies. It is one of several pronouncements by DAG Rosenstein representing a shift away from past practices and providing corporations battling enforcement actions on multiple fronts with reinvigorated arguments for a coordinated resolution to multi-jurisdictional investigations against them.
DAG Rosenstein announced the four components of his new plan:
- Affirming that criminal enforcement authority should not be used against a company for purposes unrelated to the investigation and prosecution of a possible crime
- Directing DOJ components to coordinate with one another in assessing credit and apportioning financial penalties, fines and forfeitures in order to achieve an overall equitable result
- Encouraging DOJ attorneys to coordinate with other federal, state, local and foreign enforcement authorities examining the same misconduct
- Defining factors to be used in evaluating whether multiple penalties serve the interests of justice, including egregiousness of the wrongdoing; statutory mandates regarding penalties; the risk of delay in finalizing a resolution; and the adequacy and timeliness of a company’s disclosures and cooperation with the Department
DAG Rosenstein highlighted other recent changes, including ending the practice of directing third-party settlement payments to nongovernmental entities that were not harmed by a defendant’s conduct (see Memo from Attorney General Sessions, Prohibition on Settlement Payments to Third Parties, June 5, 2017), and prohibiting the improper use of and reliance on agency guidance documents to establish violations of law in affirmative civil enforcement actions (see Memo from Associate Attorney General Rachel Brand, Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases, Jan. 25, 2018). The DAG also described the establishment of a new Working Group on Corporate Enforcement and Accountability within DOJ. The Working Group will be tasked with making internal recommendations about white collar crime and corporate compliance.
Companies should continue to understand that individual accountability for corporate wrongdoing—as set forth in the September 2015 Yates Memorandum—remains a priority for the Justice Department, with DAG Rosenstein emphasizing that DOJ “is serious about wanting people to follow the law” and making clear his intent to enforce it “with sufficient vigor that people fear the consequences of violating it.”