While reiterating that pursuing individuals who are responsible for corporate wrongdoing will remain a top priority for DOJ, the revised policy scales back the level of disclosure required by companies who are the targets of criminal investigations. Specifically, under the revised policy, companies are no longer required to expend time and resources identifying and collecting information about every individual involved in misconduct. Instead, companies seeking cooperation credit must identify only those individuals who were “substantially involved in or responsible for the criminal conduct.” The phrase “substantially involved in or responsible for” is the key distinction from the previous, broader “involved in” formulation from the Yates Memo.
The new policy recognizes that, when the government investigates violations that involved pervasive activities that occurred over a long period of time, “it is not practical to require the company to identify every employee who played any role in the conduct.” Moreover, DOJ has no interest in delaying investigations and dispositions “merely to collect information about individuals whose involvement was not substantial, and who are not likely to be prosecuted.” Instead, DOJ will focus its investigative resources on those individuals “who play significant roles in setting a company on a course of criminal conduct” and “who authorized the misconduct.”
‘Enforcement 40’ for 2020
Join Us On LinkedIn
Join the Securities Litigation and Enforcement Group on LinkedIn