(This is a quarterly analysis of trends in anti-bribery enforcement by The Foreign Corrupt Practices Act Clearinghouse, a database operated by Stanford Law School. The views presented here are those of the author alone, not those of Dow Jones or the Wall Street Journal.)
It has been just over a year since Deputy Attorney General Sally Yates issued new guidance to Department of Justice attorneys emphasizing individual accountability in all investigations of corporate misconduct. Many people may be wondering whether the guidance has resulted in more criminal charges being filed against individuals who commit Foreign Corrupt Practices Act violations on behalf of companies. The short answer is not yet, but that doesn’t mean that changes are not forthcoming.
Released on Sept. 9, 2015, the “Yates memo” identifies six “key steps” prosecutors should take in investigations of corporate wrongdoing. The most significant step requires companies to provide to the Department all relevant facts relating to the individuals responsible for corporate misconduct in order to qualify for any cooperation credit. The DOJ has since clarified that a company can be eligible for cooperation credit even if it is “unable to identify the culpable individuals following an appropriately tailored and thorough investigation,” so long as it “provides the government with the facts and otherwise assists [the government] in obtaining evidence.”Read More