In a recently published memo, Deputy Attorney General Sally Quillian Yates made it clear that identifying and prosecuting individual culpability is a top priority for the Department of Justice.

According to Yates, individual accountability is important for several reasons. “It deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system,” the memo states.

To strengthen the agency’s civil and criminal prosecution of individuals tied to corporate misconduct, the Department of Justice memo outlines six steps that federal prosecutors and investigators should follow:

  • In order to qualify for any cooperation credit, corporations must provide the Department of Justice with all relevant facts relating to the individuals responsible for the misconduct;
  • Criminal and civil corporate investigations should focus on individuals from the inception of the investigation;
  • Criminal and civil attorneys handling corporate investigations should be in routine communication with one another;
  • Absent extraordinary circumstances or approved departmental policy, the Department of Justice will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation;
  • Department of Justice attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and
  • Civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay.

In a speech announcing the changes at New York University School of Law, Yates highlighted the significance of the changes, particularly the requirement that companies turn over all information about individual wrongdoers in order to receive cooperation credit. "Now, to the average guy on the street, this might not sound like a big deal. But those of you active in the white-collar area will recognize it as a substantial shift from our prior practice."