U.S. Attorney General Eric Holder recently issued a DOJ-wide memorandum urging federal government attorneys to coordinate when conducting parallel civil, criminal, regulatory and administrative proceedings.

Holder wrote that parallel criminal and civil investigations would deter future offenses and maintain program integrity, while also acting to “secure the full range of the government’s remedies (including incarceration, fines, penalties, damages, restitution to victims, asset seizure, civil and criminal forfeiture, and exclusion and debarment).” Absent such cooperation and coordination among prosecutors, “[the government] may not be able to realize all of the remedies available to the United States,” he warned.  The memorandum focused on three phases of the process:

  • Intake. Justice Department attorneys are encouraged to immediately consider a broad array of civil, criminal, administrative or regulatory remedies that could be applied to any new matter that comes across their desks, whether originating from agency referrals, self-disclosures or qui tam actions.
  • Investigation. Holder urges the various U.S. Attorney’s Offices and Department litigating components to share information.  Specifically, he said prosecutors should think twice before issuing grand jury subpoenas, which restricts the ability to share information with others, and to instead seek to obtain the information through administrative subpoenas, search warrants, consensual monitoring, interviews and other means. In matters where grand jury subpoenas are ultimately used, prosecutors are urged to seek order under Federal Rule of Criminal Procedure 6(e) to permit access by other federal agencies and departments to investigatory materials.
  • Resolution. Prosecutors should consider the consequences of various case resolutions on potential parallel matters, the memo said.  For instance, the charges and facts in a plea agreement could have collateral estoppel and res judicata effects on civil and/or administrative cases.

The memo suggests that DOJ will increasingly — and aggressively — seek to investigate companies for both civil and criminal violations. This may necessitate a similarly coordinated response by defense counsel, who must bring together attorney teams that combine criminal and civil experience in order to effectively oppose such complex parallel prosecutions.