On November 28, 2018, speaking at the American Conference Institute’s 35th International Conference on the Foreign Corrupt Practices Act (“FCPA”), Deputy U.S. Attorney General Rod Rosenstein announced changes to the Department of Justice’s (“DOJ” or “Department”) policy on individual accountability in corporate cases.1 While emphasizing that the Department remains committed to pursuing individuals, Rosenstein explained that further review of DOJ’s existing policy and consideration for concerns about inefficiencies in requiring corporations to identify all employees involved in wrong-doing in return for cooperation resulted in the recently announced policy change. Under the new DOJ policy, corporations will now be eligible for cooperation credit in criminal cases where they identify the individuals who were “substantially involved in or responsible for the criminal conduct.”2
This newly announced policy represents a shift away from the “all or nothing” approach contained in the 2015 policy issued by then-Deputy U.S. Attorney General Sally Yates, pursuant to which DOJ required that in order “[t]o be eligible for any cooperation credit, corporations [were required to] provide to the Department all relevant facts about the individuals involved in corporate misconduct” (the “Yates Memo”).3 The policy contained in the Yates Memo did not consider an individual’s position, level of authority, or level of involvement in the alleged misconduct.4 As a result, companies seeking cooperation credit were required to provide information on even the most peripherally involved individuals. Rosenstein explained in his remarks that the Department’s policy had the unintended result of slowing corporate investigations and potential resolutions while corporations attempted to locate and identify all involved employees — former and current — and also resulted in a failure by Department personnel to strictly adhere to the policy because of these very same concerns about inefficiency and wasted resources.
The Department’s new policy appears, on its face, to represent a more practical approach to weighing cooperation credit in the face of potentially culpable corporate employees involved in criminal matters. In practice, the significance of Rosenstein’s announcement is not yet clear. Rosenstein acknowledged that the prior policy under the Yates Memo was not strictly enforced where it “impeded resolutions and wasted resources”; accordingly, the newly announced policy may simply more accurately reflect DOJ’s current practice than offer any new or sweeping policy change.
The Department has not issued a formal memorandum on the revised policy, and while sections of the DOJ’s Justice Manual have been updated to incorporate the substantial involvement language5, some sections still contain language consistent with the policy contained in the Yates’ Memo — including the section regarding the FCPA, where cooperation credit can be of particular importance due to the potential for high penalties.6