The Department of Justice is making it abundantly clear that companies must provide complete information about an individual's involvement in wrongdoing, whether civil or criminal, before DOJ will consider any cooperation credit for the corporation. In recent remarks at the American Bar Association and American Bankers Association Money Laundering Enforcement Conference, Deputy Attorney General Sally Q. Yates outlined how DOJ's revised policy for corporate prosecutions and individual responsibility will be implemented in DOJ's U.S. Attorney's Manual ("USAM"), a field guide for federal prosecutors. Yates spoke broadly about important revisions to the USAM which "emphasize the primacy in any corporate case of holding individual wrongdoers accountable." Yates focused on how corporate cooperation was an important component of individual accountability and she explained that "if a company wants credit for cooperating – any credit at all – it must provide all non-privileged information about individual wrongdoing."
Yates' comments come two months after DOJ issued six new policies designed to emphasize individual accountability in DOJ's corporate investigations. While provisions in the USAM regarding the attorney-client privilege remain in effect, Yates warned that corporations should not wrongly exploit the privilege and use it to shield non-privileged information from prosecutors. "[T]o earn cooperation credit, the corporation does need to produce all relevant facts ˗ including the facts learned through those interviews ˗ unless identical information has already been provided. We will respect the privilege, but we will also expect companies to respect its boundaries and not to wrongly exploit its legitimate purpose by using it to shield non-privileged information from investigators."
The USAM revisions make clear that early disclosure, timely and tailored investigations, and complete disclosure of non-privileged information regarding individual wrongdoing are key features of DOJ's new commitment to individual accountability. To that end, robust compliance programs, responsive and thorough investigations, and prompt disclosures will enable a corporation's appropriate response to an investigation, whether civil or criminal. Further, the expertise of counsel experienced in government investigations will be essential to helping a corporation navigate the effects of the new policy and revisions to the USAM.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
