Mon, Sep 14, 2015
Last week Kroll and the Ethisphere Institute released their 2016 Anti-Bribery and Corruption Benchmarking Report: The Year of Global Expansion and Enforcement.
One somewhat startling finding was that only 29% of the respondents indicated that they were more concerned with personal liability than in prior years.
In September 2015, the DOJ issued a policy memorandum indicating an increased focus on investigating individuals potentially involved in corporate crimes. These crimes could include efforts to bribe government officials for favorable consideration in the award of contracts or to hire third parties who are not properly vetted that engage in corrupt activity.
The Yates Memo, as the policy memorandum is known, sends a clear message to individuals and to the C-suite that prosecutors will be targeting individual corporate executives for criminal prosecution and civil fines.
Assistant Attorney General Leslie Caldwell emphasized this policy in a recent speech when she said, “[i]f you choose to cooperate with us, we expect that you will provide us with those facts, be they good or bad. Importantly, that includes facts about individuals responsible for the misconduct, no matter how high their risk may be.”
The Yates Memo specifies six “key steps” to enable DOJ prosecutors “to most effectively pursue the individuals responsible for corporate wrongs.”
Those steps are:
A possible consequence of the Yates Memo could be the DOJ seeking more cooperation deals with lower level employees in order to strengthen their case against executives guilty of wrongdoing.
This in turn could result in less cooperation during internal investigations from executives who fear they may implicate themselves in suspected misconduct. Likewise, corporations may decline to offer their senior leaders and other personnel, electing instead to compel the government to prove its case.
In light of the Yates Memo, a proactive response for corporations and their executives may include:
The Yates Memo should send a sobering message: government investigations will likely become very personal for all the individuals involved.
This article was originally published on The FCPA Blog.
The Kroll Investigations, Diligence and Compliance team partners with clients to anticipate, detect and manage regulatory and reputational risks associated with global ethics and compliance obligations.
The Kroll Investigations, Diligence and Compliance team consists of experts in forensic investigations and intelligence, delivering actionable data and insights that help clients worldwide make critical decisions and mitigate risk.