How Far Will the DOJ Go? Individual Accountability in Corporate Criminal Cases
On January 17, 2023, the Justice Department announced a change in its corporate policy, incentivizing companies to self-report by promising that it would consider declining prosecution, even if there are some aggravating factors. The Department is clear about what’s driving this change: “Our number one goal in this area – as we have repeatedly emphasized – is individual accountability. And we can hold accountable those who are criminally culpable—no matter their seniority—when companies come forward and cooperate with our investigation.”
In an article published by Corporate Counsel—Law.com, BCLP partners Laura Perlov and Andrey Spektor examined other recent announcements by the DOJ to predict another likely change that, too, will promote the Department’s goal of individual accountability: restrictions on the employees’ use of ephemeral and encrypted messaging. If companies can’t turn over incriminating communications to law enforcement, then prosecutions against individuals will suffer – an unacceptable outcome to prosecutors bent on making cases against individuals for white collar offenses. And while that’s true of felony prosecutions, a seldom used doctrine allows prosecutors to charge executives with misdemeanor offenses just for being in the position of power when others commit the misconduct. As Laura and Andrey explain, rather than take a wait-and-see approach, companies and their leaders would do well to prepare for prosecutors to reach deep into their toolbox.