Last fall, Deputy Attorney General Sally Yates announced (Yates memo) that the DOJ would require businesses to share all relevant facts about individuals when disclosing misconduct to be entitled to cooperation credit. The SEC quickly followed with an announcement that it had made similar changes to its own cooperation policy. The DOJ is now considering how to put teeth into this requirement. As reported by the Wall Street Journal earlier this month, a DOJ spokesperson stated “To ensure that companies understand the importance of this, the Fraud Section now requires that cooperating companies confirm to us that they have, in fact, turned over all non-privileged information about individuals.” The WSJ also reported that the “certification process is still in it’s [sic] development, according to the department, but it could be a written statement of cooperation.”
What form this certification will take is still unknown. While the DOJ has regularly required that businesses confirm that all material facts have been disclosed when entering into settlement agreements and deferred prosecution agreements, the spokesperson’s statement suggests the DOJ may soon require a more formal written certification. The DOJ has not released any information regarding the specific language of the certification, including who must certify and the consequences if the DOJ later determines the certification to be inaccurate.
This step is a continuation of the DOJ’s strategy of leveraging businesses to fight corporate crime by self-disclosing misconduct and whistleblowing against officers and employees. With only 10 months left in this administration’s tenure, look for the DOJ to further define this requirement soon.