The U.S. Department of Justice has published new guidelines outlining the new standards that companies must follow before they are eligible to reach a settlement. Companies that want to receive credit for cooperating with the authorities need to hand over all relevant facts on individuals involved in the misconduct, regardless of their position at the company. This information should be provided before a settlement is reached. In addition, corporate settlements may no longer include individuals, unless extraordinary circumstances justify it. According to Deputy Attorney General Yates, the guidelines merely align with the way other kinds of criminal investigations are already being conducted: “A corporation should get no special treatment as co-operator simply because the crimes took place behind a desk”. Based on this memo, companies need to be aware that they will only be perceived as having provided full cooperation if sufficient information is supplied to identify all individuals possibly responsible for criminal conduct.
The Yates Memo sets out six key steps to strengthen the pursuit of corporate wrongdoing:
- In order to qualify for any credit for cooperation, corporations must provide to the DOJ all relevant facts relating to the individuals involved in the misconduct
- Criminal and civil corporate investigations should focus on individuals from the start of the investigation
- Criminal and civil attorneys handling corporate investigations should be in regular contact with one another
- Absent extraordinary circumstances or approved departmental policy, the DOJ will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation
- DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should document the reasons for not prosecuting individuals in such cases
- Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay
In a speech at NYU, Deputy Attorney General Yates outlined the reasoning behind these points. Click below to see the speech.
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