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Clifford Chance

Clifford Chance


DOJ Revises Corporate Cooperation Policy But Leaves Individual Employees in the Crosshairs

3 December 2018

On November 29, 2018, Deputy Attorney General Rod
J. Rosenstein announced updates to the Department of Justice's
policy for criminal and civil enforcement, making
important adjustments to the policy announced in September
2015 by then-DAG Sally Yates, as well as prior DOJ guidance.
The revised guidance continues to place pressure on
corporations to cooperate fully with investigations while at the
same time creating incentives to identify culpable executives and
other employees. Under the revised policy, the DOJ will now
award cooperation credit where a corporation identifies every
individual "substantially involved" in, or responsible for, the
misconduct. Identification of all involved employees, regardless
of level of seniority or culpability is no longer a precondition for
cooperation credit.

What qualifies as "substantially involved," however, remains
unclear. Moreover, the revised policy is meant to expedite
resolution of investigations and does not create a right to refuse
to identify employees whose involvement the company deems
insignificant. In his remarks, DAG Rosenstein emphasized that
an increased focus on prosecuting individuals may be more
effective than imposing record-setting financial penalties on
corporations. The emphasis on individual prosecutions was not
matched, however, by any suggestion of reduced penalties for
the corporations that employ these individuals.

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