The Department of Justice released a memo outlining new policies for prosecuting individuals in corporate cases and The Wall Street Journal reported that the new rules will change the emphasis in civil and criminal corporate cases, such as companies having to provide "all relevant facts" on responsible individuals to receive cooperation credit. There will be no more "picking and choosing what gets disclosed" or partial credit for cooperation that doesn’t include information about individuals.
According to White & Case partner Kate Hamann, there is the question of what constitutes "all relevant facts" under the memo. A company conducting an internal probe may not have the same access to documents as law enforcement does when it investigates a case. "There are limitations on deputizing companies themselves to become police officers," she said.
It may "chill" cooperation, Hamann said, because if a company thinks the cooperation threshold is so high it can’t meet it, then it won’t bother trying.
"There's a huge spectrum between a multi million-dollar investigation that covers a company’s global operation, and not doing any inquiry at all," she said, noting that companies don’t like to test the limits of the law.