The DOJ revised its corporate enforcement policies to help companies achieve cooperation credit in civil and criminal cases without unnecessarily wasting resources or impeding court proceedings.
In remarks before the American Conference Institute's 35th International Conference on the Foreign Corrupt Practices Act, Deputy Attorney General Rod J. Rosenstein stated that the DOJ updated its corporate enforcement policies following feedback from DOJ criminal and civil attorneys, law enforcement agents and private sector stakeholders. According to Mr. Rosenstein, the DOJ's prior policy required companies seeking cooperation credit to identify every individual - "regardless of relative culpability" - who was involved in the criminal conduct before the corporate resolution could be finalized. The inefficiency of this process impeded cases and, in some instances, was not even strictly enforced by DOJ attorneys. To remedy this, the DOJ clarified in its revised policy that (i) companies should identify every individual that was substantially involved or responsible for the fraudulent activity and (ii) an investigation should not be delayed due to the requirements of applying for cooperation credit.
Mr. Rosenstein said that the DOJ will return some discretion to its civil enforcement attorneys in resolving cases, subject to supervisory review. The revised policy enables civil enforcement attorneys to (i) award cooperating companies some credit, even if they do not qualify for the maximum credit, (ii) negotiate civil releases for individuals that do not require additional investigation, and (iii) take into account an individual's ability to pay before pursuing a civil judgment. This action restores some of the discretion that civil attorneys previously exercised.
Commentary / Jodi Avergun
The changes announced today are nuanced and do not materially alter the requirement that, in order for a company to achieve cooperation credit, it must identify and provide information about the conduct of culpable employees. However, the changes reflect a continued pragmatic approach by DOJ leadership to seek comprehensive and efficient outcomes in white collar cases. Today's announcement was the white collar equivalent of the maxim that a bird in the hand is worth two in the bush. A corporate plea plus information about culpable senior leadership, plus the collection of a hefty judgment, is better than never-ending investigations against scores of lower level employees before a matter can conclude.
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