Prosecuting Individuals – The Coming Wave
When the Justice Department adopts new strategies and policies, it takes time for results. Rest assured, however, that the Justice Department’s focus on individual accountability is going to have real and significant consequences.
The political blowback to DOJ’s prosecution strategies started with the failure to indict or seriously investigate senior executives connected to financial institutions involved in the financial crisis of 2008 to 2009. The American public wanted someone held accountable and prosecutors failed to deliver.
It is always easy for prosecutors to explain why a person was not indicted, focusing on potential evidentiary problems, legal obstacles and other so-called problems. The American public did not really care about these explanations, and knows full will where there is a will there is a way. Instead, the American public knew that something went wrong and that individuals were responsible for the problem.
Prosecutors have a long history and tradition of holding individuals accountable. The list of scandals goes far back in our history and senior executives have been held accountable.
To suggest that the financial crisis of 2008 to 2009 is different from prior scandals is not persuasive. What was different was the failure of DOJ leadership to push and prioritize such prosecutions. The specific officials responsible for this record will be fully explored in historical reviews of DOJ actions or failures to act.
Just to be a little more cynical, the issuance of the Yates memorandum appears to be political in motivation but will have real consequences in practice. The impact will cut across all criminal prosecutions, not just FCPA prosecutions.
We should expect to see a significant increase in the prosecution of individuals for healthcare and financial fraud, environmental, false claims, antitrust, export control and sanctions, food safety and other criminal cases. A strong argument can be made that individual accountability will have a dramatic impact on deterrence and overall compliance.
Many have suggested that deferred prosecution and non-prosecution agreements have allowed companies to escape punishment and been used to “regulate” corporate compliance efforts. Adding individual prosecutions to these cases will be a new and significant development.
If the Yates memorandum fails to result in any significant uptick in criminal prosecutions of individuals, cynicism will only increase and undermine the overall integrity of the justice system. The Justice Department has to be held accountable on this issue. So far, all we have seen is when an individual is charged, DOJ press officials cite such a result as evidence of the new Yates policy. Such claims are premature because these cases were already in the system and would have been charged under prior policies.
DOJ performance has to be measured over a lengthier time period, such as over the next year. Case statistics will be important and an increase in the numbers of individuals charged has to be measurable and apparent.
It is easy to see what kind of impact this policy will have in the FCPA area. If you look through corporate settlements in the last two or three years, it is easy to identify potential individuals who could or should have been prosecuted.
As an example, the Avon prosecution last year identified three senior executives who were aware of the ongoing bribery and took active efforts to obstruct the investigation and destroyed documents. Yet none of the three individual were charged. Under the Yates memorandum policies, it is hard to see how DOJ prosecutors would have been able to avoid prosecuting the three Avon executives.