Jun 3, 2016
Policy changes at the U.S. Department of Justice regarding civil and criminal corporate wrongdoing are likely to affect Canadian companies that have a listing in the U.S. or are operating south of the border, according to a recent article in The Lawyers Weekly. In the column, Luis Millan explores these policy changes with expert input from anti-corruption and white-collar criminal defence lawyers from across Canada. The new provisions emphasize individual prosecutions and a requirement for companies to undertake internal investigations with the goal of uncovering and disclosing misconduct by employees. Millan quotes Riyaz Dattu, partner in Osler’s International Trade and Investment Law Group who explains that the new regime will require “corporations to go down a very difficult road which includes finger-pointing at potentially some of the most senior officers.”
The result could be a chilling effect – both on corporations and on employees, who will be reluctant to come forward with evidence of wrongdoing for fear of prosecution. Riyaz says corporations should advise incriminated employees, as well as the board of directors and audit committee, to retain independent counsel for representation during an internal investigation. “It would make more sense for the board of directors to appoint an external counsel for the sake of independence but also the separation from the emotional consequences of doing an internal investigation.”
Read Luis Millan’s full article New anti-corruption policy could backfire: experts at The Lawyers Weekly, June 3, 2016.