DOJ seeks to snare more individuals responsible for corporate misdeeds

The US Justice Dept. laid out steps for its attorneys to take in holding to account individuals responsible for illegal corporate conduct, in an apparent bid to boost such enforcement.

In a Sept. 9 memo obtained by The New York Times, the DOJ noted the “many substantial challenges unique to pursuing individuals for corporate misdeeds,” including the difficulty of determining whether they had the knowledge and criminal intent necessary to establish their guilt beyond a reasonable doubt. The guidance also applies to civil corporate matters, it said.

“Civil attorneys investigating corporate wrongdoing should maintain a focus on the responsible individuals,” the DOJ said.

A working group of senior attorneys in and outside of the department “identified areas in which it can amend its policies and practices in order to most effectively pursue” individuals, the department said. It distilled six steps, some of which reflect policy shifts:

In order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct
Criminal and civil corporate investigations should focus on individuals from the inception of the investigation
Criminal and civil attorneys handling corporate investigations should be in routine communication with one another
Absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from criminal or civil liability when resolving a matter with a corporation
Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases
Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay