The Department of Justice (DOJ) recently announced plans to emphasize targeting individual employees, as well as companies, in current and future white collar prosecutions. On September 9, 2015, the DOJ announced that it had revised its Principles of Federal Prosecution of Business Organizations—the guidelines that govern how federal prosecutors charge corporate crimes—to prioritize the investigation and prosecution of executives and individual employees in white collar cases.

What does this mean for companies? Three things:

• First, corporate executives and individual employees should take notice that the DOJ will be focusing on them as future targets of investigation.

• Second, companies must remain vigilant when they suspect corporate wrongdoing. Conducting a credible internal investigation—run by independent outsiders and identifying (as early as possible) any suspected wrongdoers within the company—will provide the company with more avenues in handling a federal investigation.

• Third, companies must pay close attention to privilege issues, including ensuring that suspected employees interviewed during internal investigations are properly given Upjohn warnings and advised of their right to counsel.

The Yates Memo, authored by Deputy Attorney General Sally Yates, outlines various principles that will govern current and future DOJ investigations. Specifically, the memo describes the following six principles:

1. In order to qualify for cooperation credit, corporations must provide the DOJ with all relevant facts relating to the individuals responsible for the misconduct;

2. Criminal and civil corporate investigations should focus on individuals from the inception of the investigation;

3. Criminal and civil prosecutors handling corporate investigations should be in routine communication with one another;

4. Absent extraordinary circumstances or approved departmental policy, the DOJ will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation;

5. DOJ attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and

6. Civil attorneys should consistently focus on individuals as well as the company, and evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.

Many of these principles are not new and are already being followed by federal prosecutors, but the guidelines are designed to ensure that all DOJ lawyers consistently seek to hold individuals accountable for illegal corporate conduct.

In a speech delivered after the release of the memo, DAG Yates discussed the difficulty involved in bringing such prosecutions, noting that “[i]n modern corporations, where responsibility is often diffuse, it can be extremely difficult to identify the single person or group of people who possessed the knowledge or criminal intent necessary to establish proof beyond a reasonable doubt. This is particularly true of high-level executives, who are often insulated from the day-to-day activity in which the misconduct occurs.”

Although federal prosecutors have long targeted individuals in their white collar investigations, the Yates Memo is the first guidance that seeks to focus all federal prosecutors towards investigating, charging, and prosecuting individual employees.