By Kelline R. Linton,
Last week, the U.S. Department of Justice (“DOL”) issued a memorandum explaining several important policy changes for corporate investigations. In the memorandum, the DOL reinforced its intention to pursue individuals for corporate wrongdoing and provided corporations with the following key guidance during civil and criminal government investigations:
1. Corporations seeking cooperation credit must provide the DOL “all relevant facts relating to the individuals responsible for the misconduct” in both civil and criminal government investigations. This is a new expansive requirement that seeks substantial information about all individuals who may have acted in the alleged corporate wrongdoing, which may prevent corporations from steering investigations towards certain wrongdoers or away from others.
2. Civil and criminal corporate investigations “should focus on individuals from the inception of the investigation.”
3. DOL attorneys are not allowed to “release culpable individuals from civil or criminal liability” absent “extraordinary circumstances or approved departmental policy.” They are not allowed to enter into a corporate resolution with a corporation that “includes an agreement to dismiss charges against, or provide immunity for, individual officers or employees.”
4. DOL attorneys are not allowed to resolve corporate investigations “without a clear plan to resolve related individual cases.”
To read the full memorandum and issued guidance, please visit: http://www.justice.gov/dag/file/769036/download. The DOL will update departmental guidelines, including the United States Attorney’s Manual, to reflect this new guidance.
Advice for companies: The DOL’s memorandum warrants caution for companies during corporate investigations. The DOL expects companies to be completely candid with the government during these investigations, while the DOL targets individual executives and employees. We advise companies to encourage targeted individuals to obtain separate counsel, since this can facilitate cooperation and prevent conflicts for the company and employee. We also encourage companies to review their policies and procedures for internal and government investigations to ensure they align with this new guidance.