United States: DOJ Outlines New Policy Regarding White Collar Cases Against Individuals

The Department of Justice has released a new policy intended to further the Department's effort to hold individuals accountable for corporate wrongdoing. The policy was laid out in a September 9, 2015 memorandum authored by Deputy Attorney General Sally Quillian Yates. The new policy is more than a clarification of existing practices; it constitutes the most significant new measures taken since the Department intensified its focus on pursuing white collar cases against individuals last year. The policy, and in particular the requirement that corporations provide the Department with "all relevant facts relating to the individuals responsible for the misconduct" in order to receive any cooperation credit, could have significant implications for how corporations investigate potential misconduct and share factual findings with the Department.

The Policy

The new policy has six components:

  1. To be eligible for any cooperation credit, corporations must provide to the Department all relevant facts about the individuals involved in corporate misconduct. This is the most significant aspect of the new policy for corporations and their attorneys. The new policy requires a corporation to investigate all facts relevant to individual misconduct, and then provide all such facts about individuals who engaged in misconduct to the Department, as a "threshold requirement" in order to obtain cooperation credit. This "condition of cooperation" thus appears designed to impact the scope of both the corporation's investigation and its ensuing disclosures to the Department.
  2. Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation. Prosecutors are instructed to prioritize cases against individuals early on in an investigation. Given that all corporate conduct is carried out through the corporation's individual agents, the practical impact of this mandate is somewhat unclear, but it may cause prosecutors to look for evidence of intent—an essential element of a case against an individual that is often the last piece of the puzzle in a corporate case—early on.
  3. Criminal and civil attorneys handling corporate investigations should be in routine communication with one another. Civil and criminal attorneys are to communicate early on in an investigation. Civil attorneys and prosecutors are also supposed to discuss civil referrals when a prosecutor decides not to pursue a criminal case due to challenges in showing intent or meeting burdens of proof, and civil attorneys should involve prosecutors when they believe that an individual identified in a corporate investigation should be criminally prosecuted.
  4. Absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals. Under the new policy Department attorneys may not agree to a corporate resolution that includes an agreement to dismiss charges against, or immunity for, individual officers or employees. The policy, which also applies to the release of civil claims against individuals, allows for exceptions based on "extraordinary circumstances or approved departmental policy such as the Antitrust Division's Corporate Leniency Policy."
  5. Corporate cases should not be resolved without a clear plan to resolve related individual cases before the statute of limitations expires and declinations as to individuals in such cases must be memorialized. In cases where the investigation of individuals will continue after a resolution, government attorneys' internal memoranda are to include a discussion of the potentially liable individuals and a plan to bring the matter to resolution before the statute of limitations expires. Notably, if government attorneys ultimately decide not to prosecute such individuals or charge them civilly, they must memorialize that determination and have it approved by the United States Attorney or Assistant Attorney General or their designees.
  6. 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. The new policy states that pursuit of civil actions against individuals "should not be governed solely by those individuals' ability to pay," but instead Department attorneys should consider the seriousness of the offense, whether it is actionable, whether the admissible evidence will probably be sufficient to sustain a judgment, and whether pursuing the action represents an important federal interest.

Issues Going Forward

Importance of Thorough, Independent Investigations. As a result of prior Department policies, corporations have long had incentives to provide the government with information about individuals who engaged in misconduct. The new policy makes those incentives even stronger and reinforces that corporations and their boards must carry out thorough investigations when they become aware of misconduct and, particularly where the misconduct rises into the ranks of management, take measures to ensure those investigations are robust and complete. The Department will likely examine the nature and scope of the corporation's investigation—as well as the persons responsible for conducting and supervising it—in considering whether the corporation has met this new threshold requirement for cooperation credit.

Policy Compliance and Conditional Agreements. When a corporate resolution takes place before the Department's investigation of individuals is complete—as it often does—the Department will in many cases have to rely on a company's assurance that all relevant information has been provided. The policy leaves open the question of what remedies the Department might seek if it later doubts a company's assertion that all relevant information was handed over. In practice, the Department could attempt to implement protections in the resolutions themselves—for example, stipulated penalties or revocation if a company's promise of completeness is later proved wrong, similar to provisions currently contained in non-prosecution and deferred-prosecution agreements.

The Attorney-Client Privilege. The new policy does not explicitly address the attorney-client privilege. However, Section 9-28.710 of the U.S. Attorneys' Manual has for years provided that prosecutors "should not ask" for waivers of "core" attorney-client communications or work product. The new policy appears to suggest that this provision is undisturbed, and indicates that the requirement of full cooperation exists "within the bounds of the law and legal privileges, see USAM 9-28.700 to 9-28.760." Notwithstanding this general principle, one can easily imagine situations in which legal advice provided to an executive may be highly relevant to establishing either good faith or bad faith. Clarification of whether such core attorney-client communications are carved out of the requirement of providing all relevant facts will likely be necessary. If such clarification does not come from the Department's leadership in a global way, it will effectively be given out by individual prosecutors on a case-by-case basis.

Resolving Cases With Limited Evidence of Intent. Demonstrating mens rea is one of the most difficult aspects of a white collar case In practice, corporations have been willing to resolve cases with the Department despite limited evidence of bad intent by their own personnel because the reputational and financial costs of litigating such cases are often simply too high. The new policy may complicate that analysis. Where the individuals who appear to have engaged in misconduct have failed to record their fraudulent intent in writing (as is often the case) and have refused to speak to company counsel, the company may have little relevant evidence concerning the Department's putative targets. The new policy appears to limit a corporation's obligations to information reasonably within its control, but whether a company in such a position can still obtain the full benefits of cooperation will need to be explored.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Daniel F. Schubert
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.