On Sept. 9, 2015, then-Deputy Attorney General Sally Yates issued a memo requiring federal prosecutors to investigate any individuals responsible for illegal corporate conduct before settling a case. This applied to both criminal pleas and civil settlements. Today at the American Conference Institute's International Conference on the Foreign Corrupt Practices Act, current Deputy Attorney General Rod Rosenstein announced a number of revisions to the U.S. Department of Justice's (DOJ) policies concerning individual accountability in corporate cases.

It appears that the DOJ will continue to strictly apply the Yates Memo's guidance on examining individual accountability in criminal prosecutions. The revised policies clarify that a corporate resolution should not protect individuals from criminal liability and that any company seeking cooperation credit must identify every individual who was substantially involved in, or responsible for, the criminal conduct. However, in civil cases, the DOJ decided to restore civil prosecutors' discretion to accept settlement agreements without investigating every individual employee who may be liable for the misconduct. Civil prosecutors will now have discretion to offer some cooperation credit to companies that identify wrongdoing by senior officials. This will be true even when the company does not identify every employee who was substantially involved in the misconduct. These changes could portend greater efficiency in settling False Claims Act disputes in the healthcare sector and in other areas.