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Markkula Center for Applied Ethics

Prosecuting Corporate Wrongdoing

Sally Quillian Yates (AP Photo/Pablo Martinez Monsivais, File)

Sally Quillian Yates (AP Photo/Pablo Martinez Monsivais, File)

A Sea Change at the DOJ

Ann Skeet

There’s a new deputy sheriff in town and her name is Sally Quillian Yates, deputy attorney general of the United States.

In September, she announced significant Department of Justice policy shifts in the prosecution of corporate wrongdoing.   Monday her memo was clarified, making it even clearer that the DOJ wants companies to cooperate and do so in a timely way.

The changes, six of them listed below, are a sea change in leadership direction at the DOJ. The thrust of the changes moves from seeking the most amount of money from corporate coffers to insuring that individuals are held accountable for crimes they commit on the corporate watch.  Is this a big deal?  You bet.

These new guidelines will likely change how executives and boards and ethics and compliance functions divvy up internal investigations to protect interests that have been separated with these changes.  No longer are the employee accused and the company where that employee works going to find mutual benefit in a shared defense.

Remember “Prisoner’s Dilemma,” the economic game theory you learned in college that introduced the concept of win-win in negotiating.   The game proves that people do not always act rationally and sometimes can achieve a better outcome by cooperating than pursuing just their self-interest.   It uses captured criminals in separate interrogation rooms to demonstrate these effects.   Each would get the best outcome for himself if he turned in his fellow criminal but if they both act in their own self-interest, their punishment is even greater.

In other words, it was a win-win for them to collaborate and seek a solution that worked for both of them even though an initial analysis might have led them to believe that not collaborating, or cooperating, with one another would serve their personal interests more.

In a beautiful, ironic twist, Yates is deploying the prisoner’s dilemma to turn up the heat on white-collar criminals.  Yes, the notion of two people choosing not to be truthful is a paradoxical choice to use in discussing how these policy shifts will change the dynamics in corporate corruption investigations. 

Yates has introduced six key changes, outlined here, that effectively drive a wedge between employee and employer when it comes to doing wrong in the name of a corporation.  Now, internal corporate compliance officers must share internal information implicating employees who acted badly—or their supervisors—or risk steeper fines or other penalties.   

Prior to these changes, the company and the bad actor were in fact motivated to cooperate with one another to protect criminal claims against the employee who broke the law and reduce fines the company would have to pay under the DOJ sentencing guidelines.  Yates has reset the playing field so that the company and the employee who has erred are each motivated to protect their own interests by disclosing as much as possible about the other party.

Predictions are that early examples will be made of corporate executives to achieve deterrence, a shift from the goal of netting the most money possible in lucrative settlements to pursuing justice and personal accountability.  

How will this change corporate and corporate compliance dynamics?  Compliance has been ruling the day in response to increasing regulation enacted to prevent more Enrons, AIGS, Big Pharma pricing issues and Volkwagen-like unethical product design. Let’s hope these changes help the pendulum swing back to ethics with its emphasis on doing what is right in the first place rather compliance’s concern with mitigating punishment when caught.

Perhaps these changes will drive for a separation of ethics from compliance in corporate life, a move I could support if ethics became the domain of leadership and human resource professionals, rather than attorneys, as it should be now in order to cultivate a culture that helps employees to do the right thing, even when no one is looking.  

Decisions are made more quickly with these conditions, in my view, and strategic and employee alignment is easier to achieve, all of which bodes well for the business playing for long-term returns.

Ann Skeet is the director of Leadership Ethics at the Markkula Center for Applied Ethics.

Photo: (AP Photo/Pablo Martinez Monsivais, File)

Dec 7, 2015