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Corporate Cooperation: What it Now Means for Companies and Employees
The U.S. Department of Justice (DOJ) has achieved record-setting penalties. In August 2014, the DOJ announced a nearly $17 billion settlement with Bank of America relating to the financial problems of 2008 ' the largest civil settlement with a single company in American history. Unprecedented penalties were imposed also on: 1) BNP Paribas ' $8.9 billion for money laundering; 2) Alcoa World Alumina ' $384 million for Foreign Corrupt Practices Act (FCPA) violations; and 3) Lloyds Banking Group ' $86 million for antitrust violations. Despite these results, the DOJ has been criticized for a lack of individual prosecutions, particularly in the financial sector and for FCPA violations. A recent series of speeches from senior DOJ officials responded with a renewed emphasis on the prosecution of individuals responsible for corporate misconduct. These speeches are a signal to corporate counsel to stress the importance of, and actions needed for, corporate cooperation and self-disclosure.
Policy Announcements from the DOJ
In the past months, when senior DOJ officials discussed self-disclosures and cooperation with investigations, the common theme has been increasing prosecutions of individuals. In a Sept. 17, 2014, speech, Principal Deputy Assistant Attorney General for the Criminal Division Marshall Miller said that “[v]oluntary disclosure of corporate misconduct does not constitute true cooperation, if the company avoids identifying the individuals who are criminally responsible. Even the identification of culpable individuals is not true cooperation, if the company fails to locate and provide facts and evidence at their disposal that implicate those individuals.” AAG Miller speech, Sept. 17, 2014, New York.
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