During remarks at the American Conference Institute’s 35th International Conference on the Foreign Corrupt Practices Act, Deputy Attorney General Rod Rosenstein announced changes to the department’s policy on personal accountability in corporate corruption cases. “Under our revised policy, pursuing individuals responsible for wrongdoing will be a top priority in every corporate investigation,” Rosenstein said. While corporate enforcement will remain a priority, Rosenstein noted that “the deterrent impact on the individual people responsible for wrongdoing is sometimes attenuated in corporate prosecutions.”
“Corporate cases often penalize innocent employees and shareholders without effectively punishing the human beings responsible for making corrupt decisions,” Rosenstein continued. “The most effective deterrent to corporate criminal misconduct is identifying and punishing the people who committed the crimes.”
The revised policy clarifies that absent extraordinary circumstances, a corporate resolution should not protect individuals from criminal liability, and provides that any company seeking cooperation credit in criminal cases must identify every individual who was substantially involved in or responsible for the criminal conduct. However, Rosenstein noted that investigations should not be delayed merely to collect information about individuals whose involvement was not substantial, and who are not likely to be prosecuted. Instead, prosecutors should focus on who authorized misconduct and what they knew about it. “Our civil litigators simply cannot take the time to pursue civil cases against every individual employee who may be liable for misconduct, and we cannot afford to delay corporate resolutions because a bureaucratic rule suggests that companies need to continue investigating until they identify all involved employees and reach an agreement with the government about their roles,” he explained.
Rosenstein also noted that the “all or nothing” approach to corporate cooperation in civil cases had proven counterproductive. “When criminal liability is not at issue, our attorneys need flexibility to accept settlements that remedy the harm and deter future violations, so they can move on to other important cases,” Rosenstein remarked. “The most important aspect of our policy is that a company must identify all wrongdoing by senior officials, including members of senior management or the board of directors, if it wants to earn any credit for cooperating in a civil case.”
Other policy changes return discretion to civil lawyers to resolve each case consistent with relevant facts and circumstances. Department attorneys are permitted to negotiate civil releases for individuals who do not warrant additional investigation in corporate civil settlement agreements, again with appropriate supervisory approval. DOJ attorneys are also permitted to consider an individual’s ability to pay when deciding whether to pursue a civil judgment.