So here’s a thing. Last week Marshall Miller, the No. 2 official in the Justice Department’s Criminal Division, made a speech urging corporations to focus its investigations into misconduct on individual malefactors and assist the government in bringing them to justice, as it were. The New York Times covered Miller’s speech last Wednesday and characterized it as being focused on banks. He did use a number of recent cases involving banks as examples, but his speech applies to all U.S. companies.
Miller discussed the Principles of Federal Prosecution of Business Organizations, or the Filip factors after former Deputy Attorney General Mark Filip, on which DOJ bases its corporate charging decisions. He specifically mentioned the fourth factor, addressing corporate cooperation. Miller said that in analyzing that factor, companies are always quick to tout voluntary disclosure of corporate misconduct and the breadth of an internal investigation. “What is sometimes given short shrift, however, is in many ways the heart of effective corporate cooperation: whether that cooperation exposed, and provided evidence against, the culpable individuals who engaged in criminal activity.”
Miller closed with this bit:
"When you come in to discuss the results of an internal investigation to the Criminal Division and make a Filip factor presentation – expect that a primary focus will be on what evidence you uncovered as to culpable individuals, what steps you took to see if individual culpability crept up the corporate ladder, how tireless your efforts were to find the people responsible. At the risk of being a little too Brooklyn, I’m going to be blunt. If you want full cooperation credit, make your extensive efforts to secure evidence of individual culpability the first thing you talk about when you walk in the door to make your presentation. Make those efforts the last thing you talk about before you walk out.
At the risk of sounding like Chicken Little or an apologist for corporate legal departments, this is all fine assuming individuals within a corporation actually committed crimes. But sometimes the government gets ahead of itself. We’ve seen the government trying to deputize private counsel to conduct investigations on the government’s behalf for some time now. But its efforts to limit the attorney-client privilege for corporations had to be rolled back. I wonder if Miller’s fervor for corporations’ “tireless efforts” in pursuing their employees as criminal targets will also have to be adjusted for a world in which everyone hates crime, but not everyone is necessarily committing it.
