Individual and Coordinated Prosecutors Accelerate - Along With The Challenges

For years, federal and state prosecutors have touted their willingness to charge individuals as an essential deterrent to white-collar criminal action, often responding to criticism of prosecutions of corporate entities without any accompanying prosecution of related executives. And for years, those statements in large part remained just statements, without significant numbers of individual prosecutions backing them up. Despite ongoing criticism of the Department of Justice (DOJ) for its failure to prosecute major bank executives for their alleged role in the financial crisis, individual prosecutions have recently begun an inexorable rise, finally matching the rhetoric, particularly in the insider trading and foreign bribery spaces. While not all high-profile individual prosecutions have been successful, the increased risk of individual prosecution is undeniable.

At the same time, as the interconnected global economy magnifies the effects of corporate actions around the world, US prosecutors are not the only ones facing pressure to bring enforcement actions against perceived multinational wrongdoers. Increasingly, US prosecutors are working in coordination with their foreign counterparts, sharing information and even, in certain cases, deferring to the enforcement actions of foreign prosecutors without an accompanying US action.

Below we examine both of these trends, each of which amplifies the risks for a company or individual facing investigation and complicates the task of defending against those enforcement actions.

Originally published in the American Bar Association's Criminal Justice Journal (Vol. 30, (2), Summer 2015). Reprinted with permission.