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Increasing Justice Department scrutiny for C level execs

DELANEY, RORYQuestion: What do pharma executives Carl Reichel, Bill Facteau and Martin Shkreli have in common?

Answer: All three were indicted in federal court in 2015. Facteau, former CEO of Acclarent, was arrested in April; Reichel, former president of Warner Chilcott, in October; and Shkreli, former CEO of Turing Pharmaceuticals, in December.

Given the lack of “C” level criminal prosecutions in the seemingly endless million-dollar pharma settlements, one could be forgiven for thinking something has changed. It has: DOJ policy. The recent memo by Sally Yates, “Individual Accountability for Corporate Wrongdoing,” lays out some new principles for the prosecution of individuals, alongside longstanding policies.

The Yates memo by its terms applies to pending cases as well as those that begin this year. This has far-reaching implications in long-running investigations, particularly big pharma and health care investigations, because no matter what stage the federal investigation has reached, the Yates memo will bite.

For example, the first principle warns that “to be eligible for any cooperation credit, corporations must provide the Department all relevant facts about the individuals.” (That emphasis is not mine, by the way.)

So, if you’re a major corporation cooperating throughout a multi-year investigation, your credit can now be wiped out unless you also serve up what you know about key corporate executives. This complicates internal investigations, especially when executives may be part of the problem.

A good day for the integrity of the markets; for the boardroom, not so much.

Furthermore, “absent extraordinary circumstances, no corporate resolution will provide protection from criminal or civil liability for any individuals.” In other words, just because the company has put the case to bed (and the share price is heading back up), doesn’t mean the boss can stop looking over his shoulder.

In my view it also likely means there will be a tougher line with the specific charges brought as well as the frequency of indictments. For example, in the Purdue Oxycontin prosecution, the company pleaded guilty to felony misbranding and paid $600 million in penalties. On the other hand, the three executives were charged with the misdemeanor offense, a crime of strict liability. Because mens rea was not part of the charge, the defendants were able to accept guilt while also asserting that they themselves did not intend the misbranding.

Today, others might face the felony charge, which though harder to prove, would surely result in a prison sentence.

The final principle of the Yates memo is what is really going to hurt: “civil attorneys should … evaluate whether to bring suit against an individual based on considerations beyond that individual’s ability to pay.”

The memo explains that, while the attempt to protect and recover taxpayer money may conflict with a decision not to sue an impecunious individual, the two considerations are of equal importance.

Thus, the decision to abandon a prosecution that will likely result in an uncollectable judgment may, subject to some longer term deterrence analysis, mean that the suit is brought anyway. The wrongdoer in the cross hairs may find himself bankrupted in the pursuit of long-term policy objectives. Now the civil prosecutor must consider the seriousness of the individual’s conduct, whether it is provable, and whether there is an important federal interest at stake — not just “can we collect”?

It may sound vindictive for the mighty Department of Justice to go after personal assets, but the policy reflects dispassionate high-level thinking. If criminal prosecutions keep our financial markets largely watertight, then disgorgement of the ill-gotten gains will only increase the integrity and therefore prosperity of the markets.

Taking the CEO’s Maserati may not make the taxpayer whole, but it does send a message to others driving in the fast lane in 2016.

Rory H. Delaney is a partner at DelaneyKester in Boston, which concentrates in the representation of whistleblowers.

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