In the Biden Administration, senior Justice Department officials have said that the prosecution of individuals, not just companies, will be a priority of its white-collar criminal enforcement program. The prosecution of individuals has always been central to white-collar enforcement. But the issue has been a sensitive one following the 2007-08 financial crisis when critics complained that the Justice Department had not done enough to prosecute executives.

The prosecution of individuals in complex fraud cases is no simple matter, however. In a number of high-profile cases, individuals have prevailed at trial or on appeal, even when companies have acknowledged unlawful conduct. A recent example was the reversal of LIBOR-fixing convictions in United States v. Connolly, 24 F.4th 821 (2d Cir. 2022), based on the government’s failure to prove an essential element of the charged fraud: the making of a false statement. See Elkan Abramowitz & Jonathan S. Sack, Bad Intentions Are Not Enough: Second Circuit Reverses Libor Convictions in ‘United States v. Connolly’, N.Y.L.J. (March 3, 2022).