Certification of Full Disclosure of Individual Wrongdoing
In early 2016, issues were reported that suggested that corporations may be asked by the DOJ to certify that they have disclosed all relevant information regarding potential individual liability. According to the article, a DOJ spokesman noted that such a confirmation is necessary to ensure that companies understand that “investigations cannot end with a conclusion of corporate liability, while stopping short of identifying those who committed the underlying conduct.” It has since been clarified by the DOJ that there is no such certification requirement though the DOJ has noted that in some cases they might request a company to clarify that all relevant facts have been disclosed as a condition of settlement. The same statement indicates that the DOJ is not seeking perfection but rather a general attitude of cooperation when considering whether to credit the company with cooperation.
So what does this all mean? Will a company that is under investigation be asked by Federal prosecutors to certify that they have disclosed all relevant information relating to individual liability before being able to settle with the DOJ or other enforcement agency? The answer to that question is a definite…maybe. DOJ is very artful in its public proclamations. Its statement that there is no “requirement” for requesting a certification is correct. Viewed from that angle, there is no “requirement” for the whole Federal policy reflected in the Yates Memorandum. It is rather clearly going to be up to the specific prosecutor. If a prosecutor feels that he or she needs a certification to assure that the company has established the basis for cooperation credit, you can expect to be asked for a certification.
My guess is that certifications will become standard operating procedure. Just put yourself in the position of a prosecutor whose boss just came out with a new, very strict policy regarding individual responsibility. This policy requires a company to investigate and disclose individual wrongdoing in order to receive some element of forgiveness in the process. I think you are going to back that up with a certification from the company, don’t you. You are going to want the company to put it clearly in writing; signed, sealed, delivered; maybe even notarized. If it turns out to be wrong and you are catching a hard time from your boss, you are going to want to be able to seek recourse from the party that lied to you. Don’t you think?