On September 17, Miller made remarks addressing criminal conduct at corporations and other institutions. Miller began by emphasizing that the Division does “not rely upon internal investigations to make our cases” and is “vigorously employing proactive investigative tools” like wiretaps, body wires, physical surveillance and border searches in white-collar cases. He then explained that the Division “would like corporations to cooperate” and “will ensure that there are appropriate incentives for corporations to do so,” but said that if there is no cooperation the Division “will continue to investigate and prosecute the old-fashioned way . . . [a]nd companies will face the consequences.” Miller spoke at length about the importance of individual prosecutions to the decision on how to approach a corporation under the Filip factors. He contrasted the Division’s declination in a Morgan Stanley FCPA case from 2012, where the company assisted the government with prosecuting the executive responsible for the conduct, with the cases of BNP Paribas and Credit Suisse. In the latter, he said, “lack of timely and complete cooperation effectively frustrated the pursuit of individual prosecutions” and was one of the “tipping points” that led to the charges and landmark penalties in those cases. Miller added that “[e]ven the identification of culpable individuals is not true cooperation, if the company fails to locate and provide facts and evidence at their disposal that implicate those individuals.” Miller also stressed that collaboration with foreign governments, prosecutors, and regulatory agencies has dramatically increased, and that the Division will scrutinize a corporation’s claimed inability to provide foreign documents or evidence due to foreign data privacy laws. Finally, Miller ended his remarks with the following advice: “when you come in to discuss the results of an internal investigation to the Criminal Division and make a Filip factor presentation—expect that a primary focus will be on what evidence you uncovered as to culpable individuals, what steps you took to see if individual culpability crept up the corporate ladder, [and] how tireless your efforts were to find the people responsible.”
