1-12.000 - Coordination of Parallel Criminal, Civil, Regulatory, and Administrative Proceedings

1-12.000 – Coordination of Parallel Criminal, Civil, Regulatory, and Administrative Proceedings

Every United States Attorney’s Office and Department litigating component should have policies and procedures for appropriate coordination of the government’s criminal, civil, regulatory, and administrative remedies.  Such policies and procedures should stress early, effective, and regular communication between criminal, civil, and agency attorneys to the fullest extent appropriate to the case and permissible by law, and should specifically address the following issues, at a minimum:

• Intake: From the moment of case intake, attorneys should consider potential civil, administrative, regulatory, and criminal remedies, and discuss those remedies with the investigative agents and other government personnel;
• Investigation: During the investigation, attorneys should consider investigative strategies that maximize the government’s ability to share information among criminal, civil, and agency administrative teams, including the use of investigative means other than grand jury subpoenas for documents or witness testimony; and
• Resolution: At every point between case intake and final resolution (e.g., declination, indictment, settlement, plea, and sentencing), attorneys should assess the potential impact of such actions on criminal, civil, regulatory, and administrative proceedings.

Parallel actions are important to the Department’s efforts to hold accountable individuals who commit corporate malfeasance.  Early and regular communication between civil attorneys and criminal prosecutors handling corporate investigations can be crucial to our ability to effectively pursue individuals in these matters.  Consultation between the Department’s civil and criminal attorneys, together with agency attorneys, permits consideration of the fullest range of the government’s potential remedies and promotes the most thorough and appropriate resolution in each case.  Criminal attorneys handling corporate investigations should notify civil attorneys as early as permissible of conduct that might give rise to potential individual civil liability, even if criminal liability continues to be sought.  Further, if there is a decision not to pursue a criminal action against an individual—due to questions of intent or burden of proof, for example—criminal attorneys should confer with their civil counterparts so that the civil attorneys may make an assessment under applicable civil statutes.  Likewise, if civil attorneys believe that an individual identified in the course of their corporate investigation should be subject to a criminal inquiry, that matter should promptly be referred to criminal prosecutors, regardless of the current status of the civil corporate investigation.

Department attorneys should be alert for circumstances where concurrent criminal and civil investigations of individual misconduct should be pursued.  While parallel proceedings must be handled carefully in order to avoid allegations of improper release of grand jury material or abuse of civil process, when conducted properly, they can complement one another and serve the best interests of law enforcement and the public.  These recommendations should be followed to the fullest extent appropriate and permissible by law.  There may be circumstances in which parallel proceedings are impractical, such as where the secrecy of an investigation is paramount to its success.  Attorneys should handle such cases in the manner most appropriate to the applicable facts and circumstances. 

[updated November 2018]

1-12.100 - Coordination of Corporate Resolution Penalties in Parallel and/or Joint Investigations and Proceedings Arising from the Same Misconduct

In parallel and/or joint corporate investigations and proceedings involving multiple Department components and/or other federal, state, or local enforcement authorities, Department attorneys should remain mindful of their ethical obligation not to use criminal enforcement authority unfairly to extract, or to attempt to extract, additional civil or administrative monetary payments. 

In addition, in resolving a case with a company that multiple Department components are investigating for the same misconduct, Department attorneys should coordinate with one another to avoid the unnecessary imposition of duplicative fines, penalties, and/or forfeiture against the company. Specifically, Department attorneys from each component should consider the amount and apportionment of fines, penalties, and/or forfeiture paid to the other components that are or will be resolving with the company for the same misconduct, with the goal of achieving an equitable result.

The Department should also endeavor, as appropriate, to coordinate with and consider the amount of fines, penalties, and/or forfeiture paid to other federal, state, local, or foreign enforcement authorities that are seeking to resolve a case with a company for the same misconduct.

The Department should consider all relevant factors in determining whether coordination and apportionment between Department components and with other enforcement authorities allows the interests of justice to be fully vindicated.  Relevant factors may include, for instance, the egregiousness of a company’s misconduct; statutory mandates regarding penalties, fines, and/or forfeitures; the risk of unwarranted delay in achieving a final resolution; and the adequacy and timeliness of a company’s disclosures and its cooperation with the Department, separate from any such disclosures and cooperation with other relevant enforcement authorities.

This provision does not prevent Department attorneys from considering additional remedies in appropriate circumstances, such as where those remedies are designed to recover the government’s money lost due to the misconduct or to provide restitution to victims.

[new May 2018]