A revised Department of Justice (DOJ) policy serves to clarify the relationship between establishing individual accountability and qualifying for cooperation credit, particularly in the context of civil litigation.
The revised policy was announced by Deputy US Attorney General Rod J. Rosenstein in a November 29, 2018 speech. It is manifested by revisions to the United States Attorneys Manual.
The revised policy confirms DOJ’s long-standing position that “pursuing individuals responsible for wrongdoing will be a top priority in every corporate investigation.” At the same time, it adopts (what appears to be) a more reasonable position with respect to a corporation’s obligation to identify the individuals responsible for the wrongdoing as a condition for receiving cooperation credit.
The revised policy places greater emphasis on a good faith effort to identify individuals “substantially involved” in the wrongdoing. Particularly notable revisions allow for cooperation credit to be acknowledged in civil cases (e.g., False Claims Act) when the company identifies all wrongdoing by senior officials, including members of senior management or the board of directors. This is in contrast to the prior requirement that required identification of every person who was substantially involved in or responsible for the misconduct.
This revised policy essentially represents the modification of the 2015 Yates Memorandum to which Mr. Rosenstein first referred in several 2017 public comments. As such, the General Counsel may wish to brief the Board’s Audit and Compliance Committee on how the revised policy may affect compliance program education, as well as the focus of internal investigations and other legal review activity, and the board/executive/corporation dynamic in the context of such investigations.