U.S. Justice Department policies typically change as legal and political landscapes evolve. A little over a decade ago, cooperation for corporate targets meant waiving privilege and identifying wrongdoers. Paying attorney fees of individual wrongdoers meant the company may not get credit for cooperation. Individual prosecutions were more common. Companies were mostly either charged or not charged—there were fewer deferred or non-prosecution agreements.
Over the last 10 years, developments in policy and prosecution priorities have taken a toll on individual prosecutions. Sure, you have the recent insider trading cases in Manhattan and Brooklyn, but only a limited number of the significant corporate Foreign Corrupt Practices Act (FCPA) and economic sanctions cases generating significant fines result in individual prosecutions. Deferred and non-prosecution agreements have become the norm with the judge playing a limited role in penalty determination for the entity, largely removing corporate cases from judicial scrutiny.
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