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Corporate Criminal Liability in the COVID-19 Era
The Department of Justice (DOJ) "Yates Memo" in 2015 renewed the federal government's commitment to hold individuals accountable for corporate wrongdoing and offered related incentives. Companies, looking to minimize their enforcement risks and avoid indictment, are incentivized to provide the government information about employees and executives, sometimes to support a claim that a rogue employee acted against company policy. These incentives apparently have been successful; individual prosecutions for corporate malfeasance have increased in recent years. See, "The Yates Memo is Here to Stay: Signs of Increasing Efforts to Hold Individuals Criminally Liable for Corporate Wrongdoing," Business Crimes Bulletin (June 2019).
However, criminal liability remains a concern for all companies and organizations, and prosecuting corporate wrongdoers continues to be a "high priority" for the DOJ. See, Justice Manual §9-28.010. Consistent with its Principles of Federal Prosecution of Business Organizations, DOJ focuses criminal prosecutions on those corporate actions that endanger consumers, public health and safety, the environment and free markets. Id. Many of these violations can also give rise to civil regulatory enforcement, and companies must be mindful of the risk that a compliance failure could cross the line from civil to criminal (and possibly result in parallel civil and criminal enforcement). This happened to two companies in the food industry — Chipotle Mexican Grill and Blue Bell Creameries LP — who recently resolved criminal probes (through a deferred prosecution agreement and guilty plea, respectively) related to food safety failures that sickened customers.
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