No more hiding behind protective corporate walls. The Justice Department recently rolled out new rules, which take effect immediately, that not only focus on prosecuting individuals, but also pressuring companies into turning over evidence against these same “flesh-and-blood people.”
According to The New York Times, this is the first major policy announcement since Attorney General Loretta E. Lynch took office in April.
The memo, authored by Deputy Attorney General Sally Q. Yates, includes six key steps:
1. In order to qualify for cooperation credit, corporations must turn over all relevant facts relating to the individual.
2. From the start, criminal and civil corporate investigations should focus on individuals.
3. Criminal and civil attorneys handling these investigations should engage in regular communication.
4. Unless there is an extraordinary circumstance or approved departmental policy, culpable individuals will not be released from liability when the matter is being resolved with the corporation.
5. Department attorneys shouldn’t resolve matters with a corporation without a clear plan to resolve related individual cases.
6. Civil attorneys should consistently focus on individuals and the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.
Overall, the “new rules are an exercise in public messaging, substantive in some respects but symbolic in others.” According to a Times source, Prof. Brandon L. Garrett University of Virginia School of Law, “It’s a good memo, but it states what should have been the policy for years. … And without more resources, how are prosecutors going to know whether companies are still burying information about their employees?”
Per Yates, “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail.”
The Times ends with a thought-provoking stat: Successful efforts do not automatically mean that more executives will be going to jail. According to Professor Garrett, in the cases he examined where corporate employees were charged, more than half never did time.